Cape Town Mayor Geordin Hill-Lewis eventually won his battle against an earlier judgment in which the City was ordered to establish a trust for the benefit of a child whose mother was murdered by her husband.
Western Cape High Court Judge Daniel Thulare last year ordered that the City had to secure the child’s inheritance and assist him with obtaining ownership of the RDP house he lived in with his mother.
The court had also made certain orders in respect of the curator, the premier of the Eastern Cape and the director-general for the National Department of Social Development.
The orders of the sentencing court included that the mayor “shall, without undue delay, ensure the establishment of a trust for the benefit of the minor child.”
The director-general of Social Development was ordered to provide all the necessary resources in assisting the child with his emotional, psycho-social and other needs within their mandate as may be necessarily required.
Judge Thulare made these orders in August last year when he sentenced accused Babsy Ntamehlo of the planned murder of his wife.
An attempt by Hill-Lewis to appeal the order which compelled the City to establish the trust, was turned down by Thulare and the mayor had to obtain leave to appeal from the Supreme Court of Appeal.
A full bench (three judges), in a judgment written by Judge Rosheni Allie, now found that the trial court had no jurisdiction to make the orders which it did. She said the mayor can only act within the confines of the powers granted to him in terms of provincial legislation and by-laws.
“There is no provision in the municipal budget for the establishment of trusts for minor children and if the mayor were to comply with the order, he would have to utilise municipal funds in contravention of the Municipal Finance Management Act,” she said.
It was argued on behalf of the mayor that the court, as a criminal trial court lacked jurisdiction to grant the order compelling him to establish a trust for the child of the deceased and the accused and to assist in having the immovable property transferred to the trustees, as the mayor was not a party to the criminal proceedings.
The sentencing court, as part of its order, also found that the accused must forfeit his wife’s share of the RDP home, as he “lacks the capacity to benefit from the person whom he has unlawfully killed.” The judge went on to say on this principle, the accused should also forfeit his share of the house.
Judge Allie commented that it is a recognised common law principle that someone who intentionally and unlawfully murders another, can’t benefit under the will of the deceased. Thus, she said, there was no need for the sentencing court to develop the common law in this regard.
Judge Allie pointed out that the sentencing court’s task was to sentence the accused and not to make orders pertaining to the child.
She said it is necessary to make a few remarks concerning the need for judicial officers not to stray into the arena of making comments or statements that have the effect of attracting populist rhetoric.
“Judges must not only be independent and impartial and adjudicate without fear and favour and prejudice but they must also be seen and be perceived to be thus, in order to maintain the legitimacy of the judiciary and respect for the rule of law.”
She added that Judge Thulare’s judgment on sentencing “is peppered with references to popular protest songs and slogans like: “Senzeni na? (What have we done?), Wathint’ Abafazi (You strike a woman) and others.
“While the history and import of the above-named protest slogans and songs are fully understood and appreciated by this court, it is necessary in the exercise of judicial power, to remind ourselves that courts are meant to uphold the law and apply it without playing to a public gallery or the court of public opinion,” she said.
According to her, the protest songs and slogans, unless they form part of the evidence and facts of the case, have no place in a judgment.
In overturning the orders made by the sentencing court which did not relate to the sentence of the accused, the judge said the mayor, the proposed curator, the premier of the Eastern Cape and the director-general of Social Development were not joined as parties to the criminal proceedings, nor were they given notice of the court’s intention to make orders compelling them to perform certain obligations that the court imposed on them.
“The court a quo exceeded the bounds of its powers and failed to apply the rule of law and the principle of legality, therefore the orders fall to be set aside on the basis that they are wrong in law and constitute a nullity,” the judge said.
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