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Citation
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Judgment date
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| December 1999 |
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Reported
A person charged with breaching a domestic-violence interdict is an accused; s3(5) does not impose a reverse onus.
Domestic violence — enforcement of interdicts — character of s 3(5) Prevention of Family Violence Act — does not import substantive reverse onus from s 170 CPA; accused in interdict enquiry entitled to presumption of innocence (s 35(3)(h) Constitution). Interpretation of procedural imports vs substantive burden of proof; balancing victims’ protection and fair-trial rights; potential impact on right to silence
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3 December 1999 |
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Reported
Excluding permanent same-sex life partners from spousal immigration benefits violates equality and dignity; courts may read words into statutes.
Constitutional law – Equality and dignity – Immigration law – Section 25(5) of Aliens Control Act – exclusion of permanent same-sex life partners from spousal immigration benefit – unfair discrimination on grounds of sexual orientation and marital status – not justified under section 36; Remedy – courts may read words into statutes to cure unconstitutional under-inclusiveness where precision possible and interference with legislature minimal; procedural – refusal to postpone and late affidavits dismissed.
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2 December 1999 |
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Reported
The statutory leave-to-appeal requirement is constitutional; section 35(3)(o) requires fair reassessment, not an absolute rehearing.
* Constitutional law – criminal procedure – leave-to-appeal provisions (s 315(4) & s 316 CPA) – compatibility with s 35(3)(o) right to appeal or review by a higher court. Appeal/review – not a technical, absolute right to full rehearing; requires fair, context-dependent reassessment. Precedent – S v Rens remains applicable; omission of "recourse" phrase does not alter scope. Fairness – procedural safeguards and right to state-funded representation where substantial injustice would result
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2 December 1999 |
| November 1999 |
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Reported
A bank's statutory power to seize and sell debtor property without court order breaches applicant's right of access to courts.
Constitutional law – access to courts – section 34 – statutory power permitting a bank to seize and sell a debtor's secured property without a court order violates the right of access to courts. Rule of law – prohibition of self-help – State organ may not assume judicial functions by deciding and enforcing disputes without court adjudication. Limitations analysis – section 36 – saving time and costs does not justify the substantial infringement; less restrictive means available
Severance – impugned provision not severable because it operates integrally with related statutory provisions governing proceeds and procedure
Remedy – declaration of invalidity confirmed; invalidity affects attachments not yet sold; no suspension of invalidity ordered
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16 November 1999 |
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Reported
Presidential referral confined to stated reservations; national registration for manufacture/distribution valid, retail licensing intrusion unconstitutional.
Constitutional procedure — Presidential referral under section 79 limited to President’s stated reservations; not a ‘mini‑certification’.; Division of powers — Schedule 5 exclusive provincial competence over ‘liquor licences’ versus Schedule 4 concurrent national competence (trade, industrial promotion).; Section 44(2) — national intervention justified to maintain economic unity and national standards for manufacture and wholesale distribution, but not justified for retail licensing.; Legislative procedure — use of section 76 not in itself fatal where Bill falls within Schedule 4/5 interplay.
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11 November 1999 |
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Reported
Court invalidated statutory drug-presumptions as inconsistent with the presumption of innocence and framed temporal remedies.
Constitutional law — Criminal law — Statutory presumptions in drug offences (s 21(1)(c) and s 20, Drugs and Drug Trafficking Act 140 of 1992) — Conflict with presumption of innocence — Declaration of invalidity and temporal scope — Effect of provincial consent judgments and nationwide application — Registry obligations for lodging referrals.
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4 November 1999 |
| October 1999 |
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Reported
Applicant’s urgent direct‑appeal and request to delay related judgments refused; direct‑appeal application postponed with a short timetable.
Constitutional procedure – Rule 18 direct appeals – urgency and postponement of judgment – applicant’s failure to seek earlier participation (amicus) – appropriate forum for constitutional challenge to Structures Act; application for direct leave postponed with timetable for supplementation.
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15 October 1999 |
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Reported
Whether national or the independent Demarcation Board must apply criteria for establishing municipal categories.
Local government — Establishment of municipalities — Section 155 of Constitution — National legislation must set criteria for categories and for boundary-drawing procedures — Municipal boundaries to be determined by independent Demarcation Board which must apply national criteria — National Minister may not apply criteria or declare metropolitan areas (Sections 4 & 5 invalid) — Section 6(2) invalid insofar as Minister may reject Demarcation Board recommendations (suspension of invalidity) — Parliament may not delegate determination of municipal councils’ term to Minister (Section 24(1) invalid) — National guidelines for provincial choice of municipal types (Section 13) invalid — Other typology, committee and administrative provisions upheld.
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15 October 1999 |
| September 1999 |
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Reported
President lawfully appointed commission; no irrevocable abdication and no pre-appointment hearing required.
Constitutional law — Presidential powers — appointment of commissions under s 84(2)(f) — not administrative action under s 33 but constrained by legality and good faith; Commissions Act — statutory jurisdictional fact that subject matter be a >matter of public concern= — objectively required before vesting coercive powers; Audi alteram partem — no duty to afford pre-appointment hearing absent legitimate expectation or clear necessity; Terms of reference — must be sufficiently certain to define inquiry; Separation of powers — exceptional restraint required before compelling head of state to give oral evidence.
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10 September 1999 |
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Reported
A valid provincial constitution prescribing legislature size under section 143 prevails over national formula-based determinations.
Constitutional law – provincial constitutions – section 143(1)(a) permits provinces to prescribe differing legislative structures and procedures – effect on chapter 6 default provisions and national legislation enacted under section 105(2) – Electoral Act determination invalid where provincial constitution prescribes number of members.
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2 September 1999 |
| August 1999 |
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Reported
Where impugned military provisions are repealed and replaced, the Constitutional Court may decline confirmation if no practical effect exists.
Constitutional law; military justice – repeal and replacement of impugned military justice provisions; section 172(2) confirmation – discretion to decline where judgment would have no practical effect; transitional provisions (s44) terminating pending court martials; mootness; allegation of judicial bias overtaken by events; availability of relief to persons already finally convicted.
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24 August 1999 |
| June 1999 |
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Reported
Applicant's recusal claim dismissed: objective reasonable apprehension of bias not established; prior political ties insufficient.
Constitutional law – Recusal – Application to recuse multiple members of Constitutional Court – Held to be a constitutional matter under s167. Judicial impartiality – Test – Objective reasonable apprehension of bias (reasonable, informed person); strong presumption of impartiality; cogent evidence required to displace it. Prior political activity – Past affiliation or advisory roles before appointment do not, without direct connection to the dispute, justify recusal
Procedure – Unorthodox interrogatory approach to all judges inappropriate; collective consideration appropriate where quorum/institutional implications arise. Duty to sit – Judges must sit unless disqualified; if a judge is disqualified others should not sit with that judge
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4 June 1999 |
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Reported
Statutory bail criteria, docket‑access limits and admissibility of bail‑stage statements upheld as constitutionally permissible with safeguards.
Bail — Criminal Procedure Act s 60(4)–(9) — legislative checklist guiding bail adjudication not an unconstitutional usurpation of judicial power; s 60(4)(a)/(5) (danger to public) and s 60(4)(e)/(8A) (public order) may be considered in exceptional cases; s 60(11)(a) (Schedule 6: "exceptional circumstances") limits s 35(1)(f) but proportionate under s 36; s 60(14) restricts automatic police‑docket access at bail stage but permits court‑ordered disclosure when necessary; s 60(11B)(c) (bail record admissibility) not per se unconstitutional — admissibility subject to fair‑trial exclusion principles; bail‑stage statements are not automatically excluded at trial.
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3 June 1999 |
| May 1999 |
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Reported
Blanket bans on Defence Force members' public protest and trade-union membership unjustifiably infringe constitutional rights.
Constitutional law — Freedom of expression — Defence Force members — Broad statutory ban on "acts of public protest" unjustifiably limits freedom of expression — definition vague and overbroad — severance of references to public protest from statute upheld. Labour law — Right to form and join trade unions (s23) — Permanent Force members constitute "workers" for s23 purposes — blanket ban on union membership unconstitutional but suspension granted to permit regulation. Limitation analysis under s36 and remedial severance and suspended declaration
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26 May 1999 |
| April 1999 |
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Reported
Challenge to bar‑coded ID requirement for voter registration dismissed for lack of proof of limitation or unfair discrimination.
Electoral law – documentary requirements for registration and voting – bar‑coded identity documents – whether provisions limit right to vote; indirect discrimination under section 9(3) – causation and evidentiary burden; refusal to refer for oral evidence; urgency and electoral timetable.
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13 April 1999 |
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Reported
Whether statutory ID-document requirements for registration and voting unreasonably infringe the constitutional right to vote.
Electoral law – right to vote and free, fair elections – documentary requirements for registration and voting – constitutionality of limiting acceptable identity documents – test for assessing electoral legislation (rational connection to legitimate purpose; statute invalid if, as enacted, it would probably prevent those who want to vote and act reasonably from doing so) – implementation failures (administrative capacity, publicity) vs statutory defect – Electoral Commission independence – funding, administrative control and inappropriateness of Treasury Instruction K5 when applied to an independent Chapter 9 body.
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13 April 1999 |
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Reported
Prisoners retain the constitutional right to register and vote; the Electoral Commission must facilitate their registration and voting.
Electoral law – Constitutional right to vote – Prisoners entitled to register and vote absent lawful disqualification; Electoral Commission’s positive duty to take reasonable steps to facilitate prisoners’ registration and voting; "ordinarily resident" construed contextually to promote enfranchisement; limitation of rights under s36 inapplicable without law of general application.
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1 April 1999 |
| March 1999 |
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Reported
National power to structure the public service upheld; Minister may not transfer provincial functions without Premier consent.
Public service – s197(1) – national legislation may determine structure and functioning of the public service; provincial authority preserved for appointments, promotions, transfers and dismissals within national norms and standards; cooperative government – s41 – national framework valid but Minister may not transfer provincial functions to/from national bodies without Premier’s consent.
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29 March 1999 |
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Reported
Whether the Supreme Court of Appeal must give reasons when refusing leave to appeal to it.
Constitutional law — Judiciary — Whether judges must furnish reasons when refusing leave to appeal to a court of final instance; rule of law and judicial accountability versus practical need for summary disposal of unmeritorious leave applications; applicability of rights of access to courts (s34), access to information (s32) and equality (s9).
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1 March 1999 |
