Capacity: Deputy President of the SCA
Appointed to the Supreme Court of Appeal: 2012
Further appointments: Appointed as Deputy President of SCA 2019
First appointed as a judge: 10-07-2005 to the Mthatha High Court
Key judgments: (1) MALEDU AND OTHERS V ITERELENG BAKGATLA MINERAL RESOURCES (PTY) LIMITED AND ANOTHER (CCT265/17)  ZACC 41; 2019 (1) BCLR 53 (CC) (25 OCTOBER 2018) ; (2) MAMLAMBO CONSTRUCTION CC V PORT ST JOHNS MUNICIPALITY & OTHERS  JOL 26063 (ECM) Case heard 29 January 2010, Judgment delivered 24 June 2010 ; (3) MLUNGWANA AND OTHERS V S AND ANOTHER (CCT32/18)  ZACC 45; 2019 (1) BCLR 88 (CC) (19 NOVEMBER 2018)
An Anglican Church chancellor, Judge Xola Petse was appointed to the Supreme Court of Appeal (SCA) in 2012 and spent last year acting at the Constitutional Court.
At the Constitutional Court Petse won media plaudits for setting “a massive precedent” regarding the role communities play in deciding whether mining is allowed on their land in the unanimous Maledu and Others v Itereleng Bakgatla Mineral Resources (Pty) Limited and Another judgment.
The Constitutional Court appeal was against a high court judgment granting an eviction order against the applicants and all persons occupying, “through or under them”, a farm, which the respondents sought to mine.
The applicants were informal land right holders under the Interim Protection of Informal Land Rights Act (IPILRA). The issue before the court was whether Section 54 of the Mineral and Petroleum Resources Development Act (MPRDA) was available to the respondents, and if it was, whether they were precluded from obtaining an interdict against the applicants before exhausting the section’s various mechanisms.
Section 54 allows for various steps if a mining license-holder is denied access to land intended for mining and to arbitration-brokered compensation if the stand-off continued. The court was also asked to grapple with whether the applicants had consented to be deprived of their informal land rights to, or interests in, the farm.
Petse noted the “constitutional imperative” which “imposes an obligation on Parliament to ensure that persons or communities whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices are entitled either to tenure which is legally secure or to comparable redress”.
On the first issue, Petse held that Section 54 only applied to lawful occupation.
Petse rejected the respondents’ argument that the applicants’ informal land rights were terminated, in terms of section 2 of the IPILRA, by the granting of the mining right or the entering into the surface lease agreement: “The fact that the respondents’ mining rights are valid … does not mean that the applicants are, in consequence, occupying the land in question unlawfully. The existence of a mineral right does not itself extinguish the rights of a landowner or any other occupier of the land in question.”
Petse found that the IPILRA and MPRDA had to be read together and that the respondents had to comply with the former’s prescripts. This meant that the award of a mining right did not nullify occupational rights under IPILRA.
In overturning the high court decision, Petse further found there was no evidence to support the argument that applicants were deprived of their informal land rights in terms of section 2(4) of the IPILRA (i.e. at a community meeting), and held that it was not open to the respondents to bypass the provisions of section 54 of the MPRDA. That section provided a remedy, “which must mean that resort cannot be had to an alternative remedy available under the common law.”
In another Constitutional Court case, Mlungwana and Others v S and Another, the apex court had to decide whether failure to give written notice or adequate notice to a local municipality when convening a gather of more than 15 people, as per section 12(1)(a) of the Regulation of Gatherings Act, was a criminal offence. The high court had made a finding of constitutional invalidity.
In another unanimous decision, Petse found that the right to assemble and demonstrate freely in terms of section 17 of the Constitution was infringed, and that section 12(1)(a) limited the right in section 17 in a manner that went beyond mere regulation:
“The possibility of a criminal sanction prevents, discourages, and inhibits freedom of assembly, even if only temporarily. In this case, an assembly of 16 like-minded people cannot just be convened in a public space… The convener is obliged to give prior notice to avoid criminal liability. This constitutes a limitation of the right to assemble freely, peacefully, and unarmed. And this limitation not only applies to conveners, but also to all those wanting to participate in an assembly”.
This finding was supported by reference to decisions from the United Nations Human Rights Committee and the European Court of Human Rights.
On whether the limitation could be justified under the limitations clause (Section 36) of the Constitution), Petse held that the right of freedom of assembly was central to constitutional democracy, and enabled people to exercise or realise other rights.
“To limit the right to freedom assembly therefore poses a real risk of this proliferating into indirect limitations of other rights.”
Petse concluded that Section 12(1)(a) was unconstitutional. The high court’s order was confirmed, aside from a few variations: no suspension of the declaration of invalidity was granted, and the order was not to apply with retrospective effect, but was limited to cases that had not yet been finalised, or where review of appeal avenues still remained.
In a 2017 SCA matter, Director of Public Prosecutions, Gauteng v MG, the court dealt with a rape conviction and sentencing involving a minor. In the regional court the respondent was prosecuted on various charges infolding rape, the use of child pornography and the sexual grooming of children. He was convicted on five of the six counts.
On appeal, the High Court reduced two of the rape convictions to sexual assault and the sentence for rape was reduced. The court holding that a “strong suspicion that the victim was not an unwilling participant in the events” was an “important factor” to be considered in sentencing.
Prosecutors appealed to the SCA, arguing that in terms of the Sexual Offences Act, a child under the age of 12 is incapable of consenting to a sexual act, and therefore her ‘consent’ could not, as a matter of substantive law, be taken into account in sentencing.
Petse, for a unanimous court, found that the high court had imputed consent to the complainant, “despite the clear and unequivocal provisions of Section 57(1) of the Sexual Offences Act”. In doing so, the high court had committed an error of law, Petse found in setting aside the sentence.
Petse held that the dictum in the SCA’s Mphaphama judgment, that “the exercise of a judicial discretion in favour of a convicted person in regard to sentence . . . cannot be a question of law”, was “cast too wide”.
“In particular, it does not deal with the position where that discretion has been exercised on an incorrect legal basis. An exercise of a judicial discretion based on a wrong principle or erroneous view of the law is clearly a question of law decided in favour of a convicted person.” The appeal was upheld and the case sent back to the High Court for the appeal on sentence to be reconsidered.
During his 2012 interview for a position at the SCA Petse was pushed by former commissioner and deputy home affairs minister, Fatima Chohan about his statement to the commission that the “judiciary was the weakest of the three arms of government” because [at the time] “it doesn’t have a purse and it doesn’t command a force”, which she considered “not correct”.
In a rigorous exchange, with Chohan pushing Petse to reconsider his statement, that compared the judiciary’s role during apartheid with that in South Africa’s current constitutional democracy, the judge eventually conceded that the judiciary is “probably [the] most powerful” of the three arms “to the extent that the [apartheid] legislature could do as it pleased — [and] could pass any law that it could”.
Petse obtained his B.Proc from the University of Fort Hare in 1978 and an LLB from the University of KwaZulu-Natal (Pietermaritzburg) in 1989. He worked as a professional assistant and then attorney for several years before being appointed to the Mthatha seat of the High Court in the Eastern Cape in 2005.
April 2019 Interview: