‘When legality and certainty collide’: Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others
Author D M Pretorius
Affiliations: Bowmans, Johannesburg
Source: South African Law Journal, Volume 137 Issue 4, p. 608-624
Magnificent Mile Trading 30 (Pty) Ltd v Celliers NO & others 2020 (4) SA 375 (CC) is the latest in a line of cases in which the Constitutional Court has had to consider the effect of the decision in Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA). The Oudekraal case has been construed, and is frequently invoked, as authority for a broad proposition that defective and apparently unlawful administrative acts remain effective unless and until set aside on judicial review. In several matters, the Constitutional Court bench has been split on the impact of Oudekraal, and has expressed itself in abstruse terms. The resultant confusion has created uncertainty. The Magnificent Mile decision provides a degree of clarification. However, aspects of Oudekraal and its implications remain shrouded in uncertainty. Cases decided in the Oudekraal context would benefit from closer scrutiny of the enabling legislation of the administrative actors concerned.