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Citation
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Judgment date
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| December 1996 |
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Reported
Court certified the amended constitutional text as complying with Constitutional Principles; provincial powers reduced but not substantially.
Constitutional law — certification of final constitutional text — scope of Court’s certification function — entrenchment and amendment procedures — Bill of Rights — states of emergency and non-derogable rights — state of national defence — provincial powers and national override (AT 146) — local government framework — transitional provisions — recognition/protection of traditional monarchs in provincial constitutions — national intervention in provincial executive obligations (AT 100) — independence of Public Protector, Auditor‑General and Public Service Commission — conclusion: AT complies with Constitutional Principles.
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4 December 1996 |
| November 1996 |
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Reported
A provincial division may refer a sole constitutional issue to the Constitutional Court; declaratory relief refused as academic due to repeal.
Constitutional procedure – Referral under s102(1) of the Constitution – A provincial or local division may refer an exclusively constitutional issue even if it is the sole issue in the matter – referral to be made if in the interests of justice; Declaratory relief – discretionary remedy – courts should not decide abstract or academic constitutional issues; Legislative change – repeal and replacement of impugned statutes may render constitutional questions academic; Costs – successful applicants entitled to costs where referral wrongly refused and respondents opposed it, including two counsel fees.
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21 November 1996 |
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Reported
A court must refer constitutional issues only when decisive, necessary, and supported by written reasons.
Constitutional procedure – referral under section 102(1) – prerequisites: issue may be decisive, exclusive jurisdiction, interests of justice, and written reasons explaining prospect of invalidity and timing of referral. Criminal law – statutory reverse onus (s 37 General Law Amendment Act) – constitutional challenge: consider severability, possibility of competent verdict, and deciding non-constitutional grounds first. Judicial practice – court raising constitutional issue mero motu must itself furnish reasons and may not delegate that function to counsel.
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18 November 1996 |
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Reported
Direct access refused; statutory challenges to land‑restitution procedures must first be litigated in ordinary courts.
Constitutional procedure – direct access under rule 17; administrative justice – audi alteram partem and statutory exclusion; restitution legislation – section 11 status‑quo measures and inventories; property/economic rights – possible limitation under section 33; delegation and mediation – parliamentary power to authorize mediators and delegate functions; costs of abortive direct access applications.
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18 November 1996 |
| September 1996 |
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Reported
A rigid notice-and-time bar preventing access to courts violates section 22 and is not justified under section 33.
Constitutional law — access to courts (s22) — statutory notice and time bars for actions against the State — section 113(1) Defence Act invalid; limitation justified inquiry (s33) — comparison with Prescription Act and Police Act s57; remedy and temporal effect; remittal to trial court.
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26 September 1996 |
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Reported
Evidentiary and legal presumptions in the Gambling Act violated the constitutional right to a fair trial and presumption of innocence.
Constitutional law — fair trial rights — section 25(3) presumption of innocence and right to remain silent — evidentiary and legal presumptions in criminal statutes; Gambling Act s6(3) (prima facie evidence) and s6(4) (presumption until contrary proved) unconstitutional; s6(5) valid; s6(6) a definitional deeming provision; referral under ss103(3)-(4); retrospective application to non-finalised cases.
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12 September 1996 |
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Reported
Constitution generally cannot expand rights vested pre‑1994; referral and direct access were refused; matter remitted.
Constitutional law – non‑retroactivity – limits on applying the Constitution to rights and liabilities vested before 27 April 1994; Motor Vehicle Accidents Fund Act – schedule caps on passenger/workers’ damages – challenge to constitutionality; Constitutional Court jurisdiction – section 102(1) referral must be decisive and in interests of justice; direct access – exceptional circumstances required; public finance and welfare implications relevant to remedial relief.
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12 September 1996 |
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Reported
Court refused to certify the draft constitution because several provisions (notably provincial powers, entrenchment and certain institutional safeguards) breach the Constitutional Principles.
Constitution‑making — certification role of the Constitutional Court; interpretive approach to Constitutional Principles; Bill of Rights (horizontal application, socio‑economic rights, bodily integrity); labour law (collective bargaining, lockout, employers’ bargaining rights); property and expropriation; freedom of information transitional arrangements; judicial independence and appointment (JSC, acting judges, magistracy); independence of Public Protector, Auditor‑General, Public Service Commission and Reserve Bank; immunisation of statutes from constitutional review; amendment/entrenchment procedures; provincial powers and CP XVIII.2 (NCOP v Senate, schedules 4–5 v sch 6); local government framework and municipal fiscal powers.
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6 September 1996 |
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Reported
A provincial constitution that usurps national powers or uses immunising/suspensive devices cannot be certified.
Constitutional law – provincial constitution making – section 160 interim Constitution – certification required under s160(4). Division of powers – provincial versus national competence – sections 125–126 and Schedule 6. Provincial bill of rights – valid only within provincial competence and not inconsistent with Chapter 3 or Constitutional Principles. Invalid immunisation devices – consistency clauses that seek to avoid judicial certification. Suspensive conditions – postponed provisions form part of the text and cannot save inconsistent clauses. Provincial courts – provinces cannot create superior constitutional courts or confer judicial powers contrary to national constitutional scheme.
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6 September 1996 |
| July 1996 |
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Reported
Whether the constitutional epilogue permits amnesty extinguishing criminal, civil and state vicarious liability — upheld.
Constitutional law — interim Constitution epilogue authorising legislation for amnesty to promote national unity and reconciliation; validity of statutory amnesty extinguishing criminal and civil liability, including State and vicarious liability, where full disclosure and political-objective criteria are met; interplay with international law; reparations scheme as constitutional response.
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25 July 1996 |
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Reported
Provincial legislature may validly regulate and prescribe remuneration conditions for provincially appointed traditional leaders.
Constitutional law – Provincial legislative competence – Schedule 6 – traditional authorities and indigenous/customary law. Remuneration of traditional leaders – salaries and allowances incidental to office – provincial power to regulate. Substance v. purpose – courts may look to true substance where pretended purpose masks an unconstitutional object. Conflict with national legislation – provincial clauses construed narrowly to avoid conflict with section 126. Conditions of office – prohibitions on accepting payments from other organs of state not a tax or unlawful deprivation if validly imposed. Extra‑territorial effects – incidental effects do not invalidate province's power.
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5 July 1996 |
| June 1996 |
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Reported
Where a search and seizure was effectively completed before the interim Constitution came into force, constitutional search-and-seizure protections do not apply and the Appellate Division retains jurisdiction.
Search and seizure – meaning of ‘seizure’ as effective deprivation of possession or control; non-retroactivity of the interim Constitution; timing critical to applicability of Chapter 3 rights; jurisdiction – Appellate Division competent to decide common-law grounds of invalidity where Constitution does not apply; review challenges to authorizations, delegation and vagueness of warrants.
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11 June 1996 |
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Reported
A statutory presumption that mere possession of any listed drug quantity establishes dealing violates the presumption of innocence.
Constitutional law — Criminal law — Presumption that possession of any quantity of listed drug establishes dealing — Reverse onus and burden-shifting — Violation of presumption of innocence and right to silence — Not justifiable under limitation clause — Remedial scope and temporal application.
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11 June 1996 |
| May 1996 |
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Reported
The applicant’s challenge to a pre‑constitutional ministerial delegation of legislative power fails under section 37.
Constitutional law – delegation of legislative power – section 37 prospective in operation – section 229 preserves pre‑constitutional statutes and subordinate measures – section 4 supremacy does not retrospectively invalidate preserved delegations – tacit parliamentary acquiescence insufficient to validate or adopt pre‑constitutional delegations.
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21 May 1996 |
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Reported
The Insurance Act’s deeming provisions discriminate against married women and are unconstitutional; invalidity effective from 27 April 1994.
Constitutional procedure – referrals under s102(1)/s103 – referring court must decide non-constitutional points and place necessary evidence on record; Direct access exceptional. Equality – s8 – discrimination by sex and marital status; substantive unjustified discrimination. Limitations – s33 proportionality and justification failed. Remedy – s98(5)/(6) declaration of invalidity with prospective effect from commencement and limited savings for prior payments.
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15 May 1996 |
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Reported
The Constitution does not legalise pre-commencement defamatory publications; Chapter 3 generally binds the state and influences common law development.
Constitutional law – retrospectivity – the interim Constitution does not render unlawful pre-commencement conduct lawful; Fundamental rights (Chapter 3) – scope – Chapter 3 binds legislative and executive organs and applies to all law (including common law) but does not in general have direct horizontal application between private parties; Common law – courts must develop and apply common and customary law with due regard to the spirit, purport and objects of Chapter 3 (section 35(3)); Civil procedure – amendment of plea to invoke post-commencement constitutional defence excipiable where defence seeks to retroactively legalise prior unlawful conduct; Jurisdiction – referral under section 102(8) competent.
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15 May 1996 |
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Reported
Leave to appeal dismissed; development of defamation law and mixed constitutional/common-law appeals belong to the Appellate Division.
Constitutional law — applicability of Bill of Rights to pending proceedings; horizontal application of fundamental rights between private parties; development of common law in light of constitutional values (s35(3)); burden of proof in defamation; appellate jurisdiction where constitutional and non-constitutional issues coexist — appeals ordinarily first to Appellate Division.
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15 May 1996 |
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Reported
The Constitution does not retroactively render lawful pre-commencement searches unlawful; admissibility is decided case-by-case by the trial judge.
Constitutional law — retrospective effect — Constitution does not render lawful pre-commencement searches, seizures or disclosures unlawful; Evidence — admissibility of pre-constitutional evidence — not automatically excluded; Fair trial (s25(3)) — flexible, case-by-case assessment by trial court; Investigation of Serious Economic Offences Act — sections 6 (search/seizure) and 7 (disclosure) challenged but no declaratory relief granted for pre-constitution acts.
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15 May 1996 |
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Reported
The leave-to-appeal requirement in section 20(4)(b) does not violate the constitutional rights of access to courts or equality.
Constitutional law – right of access to courts – whether right includes a freestanding right of appeal – adequacy of leave-to-appeal and petition procedures. Constitutional law – equality clause – whether differential appellate procedures amount to unconstitutional discrimination. Civil procedure – leave to appeal from superior courts – screening of unmeritorious appeals. Constitutional Court practice – direct access – exceptional circumstances and exhaustion of other remedies.
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14 May 1996 |
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Reported
Section 2(1) of the 1967 Act invalidated as an overbroad, unconstitutional restriction of privacy and expression.
Constitutional law — freedom of expression (s15) — protection includes right to receive, hold and possess expressive material; obscenity legislation — overbreadth and vagueness — statutory definition of “indecent or obscene photographic matter” unconstitutional; limitations clause (s33) — proportionality and reasonableness; remedies — severance and reading‑down rejected; declaration of invalidity with immediate effect.
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9 May 1996 |
| April 1996 |
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Reported
Section 32(c) protects the freedom to establish communal schools but does not oblige the State to found them.
Education law – s32(c) construed as a defensive right to establish private communal schools where practicable, not a State obligation to create them; language and religion rights balanced with anti-discrimination and practicability; s247 does not invalidate section 19(1) where no vested governing-body admission power existed pre-constitution; impugned School Education Bill provisions constitutional.
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4 April 1996 |
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Reported
A referral was premature and improperly granted; unresolved limitation issues must be decided in the trial court first.
Constitutional procedure – Referral under section 102(1) – Referring court must independently be satisfied of exclusive jurisdiction, potential decisiveness, and that referral is in the interests of justice – judge must assess prospects of success and hear necessary evidence under proviso; consent of parties does not bind the court – premature referrals struck off – direct access exceptional.
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4 April 1996 |
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Reported
The Bill does not empower the national Minister to compel provinces to implement national education policy.
National education policy; distribution of powers; section 126 (concurrent legislative competence) — clauses 3(3), 8(6)–(7), 9–10 of National Education Policy Bill do not empower Minister to compel provincial implementation; consultative/advisory structures lawful.
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3 April 1996 |
| March 1996 |
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Reported
Whether compelled company‑liquidation examinations under ss 417–418 are consistent with constitutional rights.
Companies Act ss 417–418 – Compelled examination and production of documents in liquidation – Constitutional challenges: privilege against self‑incrimination/use immunity (Ferreira v Levin), right to freedom and security s11(1), right to privacy and against seizure s13, administrative justice s24, equality/fair civil process s8 – Reading‑down (s35(2)) and development of common law (s35(3)) – Judicial supervisory power to prevent oppression.
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27 March 1996 |
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Reported
After a partial constitutional victory, the court exercised its discretion and ordered each party to pay its own costs.
Costs — constitutional litigation — discretionary approach to costs — partial success does not automatically entitle to costs — conduct of parties in referring matters to Constitutional Court relevant — compliance with Rule 30 required for valid withdrawal.
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19 March 1996 |
| February 1996 |
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Reported
Section 40(1) reverse-onus presumption unjustifiably infringes the constitutional presumption of innocence and is invalid.
Constitutional law – criminal procedure – reverse onus presumption in Arms and Ammunition Act s40(1) – infringement of presumption of innocence (s25(3)(c)) – not justified under s33(1) – overbroad scope risks conviction of innocent bystanders; direct access to Constitutional Court in exceptional public-interest cases.
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9 February 1996 |
