Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others (611/2020) [2021] ZASCA 9 (28 January 2021)

Reported
Esau and Others v Minister of Co-Operative Governance and Traditional Affairs and Others (611/2020) [2021] ZASCA 9 (28 January 2021)

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Cited documents 50

Judgment
45
Reported
Reported

(1) Criminal procedure – setting aside of indictment – s 179 of the Constitution – consultation by National Director of Public Prosecutions when reviewing a prosecutorial decision with accused.

(2) Civil procedure – principles of deciding factual issues in motion proceedings restated.

(3) Judiciary – the limits of judicial decision-making restated

 

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Act
5
Citizenship and Immigration · Education · Environment, Climate and Wildlife · Health and Food Safety · Human Rights · International Law · Labour and Employment · Public administration
Dispute Resolution and Mediation · Human Rights
Environment, Climate and Wildlife · Infrastructure and Transportation
Finance and Money · Labour and Employment

Documents citing this one 14

Judgment
12
Reported

Customs and Excise Act 91 of 1964 — Value Added tax Act 89 of 1991 — Constitutionality of section 75(15)(a)(i)(bb) of the Customs Act — Constitutionality of section 74(3)(a) of the VAT Act

Sections delegate plenary legislative power to the Minister — Breach of doctrine of separation of powers — Rationality — Section 77 of the Constitution

Posts and Telecommunications-Related Matters Act 44 of 1958 – rules
of Post Office Retirement Fund (the Fund) – rule 3 requires the South African Post
Office (SAPO) to pay to the Fund pension contributions, including employees’
contributions, on a monthly basis – SAPO stopped paying contributions – rule 3 places
an obligation on SAPO to pay contributions – the obligation to pay has not been extinguished or deferred by intervening impossibility of performance – the obligation
to pay may not be avoided by SAPO deciding not to pay the Fund, but to pay other
creditors instead.

Constitutional law – section 27 of the Disaster Management Act 57 of 2002 – constitutional challenge – whether delegation of plenary legislative power impermissible – whether declaration of state of disaster in effect a de facto state of emergency – whether parliamentary oversight of the executive during state of disaster constitutionally compliant

 

Constitutional law – COVID-19 pandemic – regulation made under Disaster Management Act 57 of 2002 (the Act) – prohibiting sale of tobacco and related products – challenged as infringement of fundamental rights – dignity, bodily and psychological integrity, freedom of trade and deprivation of property – limitation under s 36 of Constitution – to reduce strain on health system – not established – interpretation of ss 27(2)(n) and 27(3) of the Act – tobacco ban unnecessary – appeal dismissed.

Attorneys Act 53 of 1979 – striking from the roll of attorneys, notaries and conveyancers – whether the appellant should have been granted a postponement for the hearing – whether the appellant’s fundamental right to a fair hearing was infringed – whether the sanction imposed, namely striking-off, was a justified sanction.

Disaster Management Act 57 of 2002 (DMA) – validity of direction
made by Minister of Tourism under the DMA for the provision of funds from the
Tourism Relief Fund to defined types of businesses in the tourism industry – purpose
of Funds to mitigate the impact of Covid-19 – Minister of Tourism not obliged by s
10(1)(e) of the Broad-Based Black Economic Empowerment Act 53 of 2003 to make
eligibility criteria subject to Tourism Sector Code in terms of the Act – Minister
committed error of law.

Administrative Law – powers of Independent Regulatory Board for Auditors under Auditing Profession Act 26 of 2005 – whether their exercise constitutes executive or administrative action – whether review of impugned decisions time barred – whether prescribing assurance and tax practitioner fees beyond the Board’s powers – procedural unfairness – whether the Board should allow representations before prescribing fees and removing fee concession granted to senior auditors – whether gazetting of fees mandatory

 

Social development – Early Childhood Development facilities – payment of subsidies by national and provincial Departments of Social Development – whether breaches of constitutional obligations established – principles applicable to determination of disputes of fact in application proceedings re-stated.

Application for leave to appeal – referral to oral argument in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013Mandatory Audit Firm Rotation RuleAuditing Professions Act 26 of 2005 – review – dismissal based on delay – prospects of success – whether promulgation of Rule ultra vires