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Citation
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Judgment date
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| December 2000 |
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Reported
Whether denying a religious exemption for Rastafari cannabis use unjustifiably limits the applicant’s freedom of religion.
Constitutional law — freedom of religion — alleged conflict between criminal prohibition on cannabis and bona fide sacramental use by Rastafari — party asserting or defending a constitutional challenge must place relevant factual material before the court of first instance — appellate courts may receive further evidence in exceptional circumstances. Evidence — admissibility and necessity — need for South-Africa-specific, detailed evidence on religious practice, scale and context of cannabis use, internal regulation, and means of acquisition. Statutory validity and quorums — section 12(1)(b) of the Supreme Court Act (eleven-judge quorum for validity of Acts) declared inconsistent with interim Constitution and invalid from 27 April 1994; SCA not required to sit with eleven judges on this question.
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12 December 2000 |
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Reported
Section 23(7)(a) and Regulation 3(1) of the Black Administration Act unlawfully discriminated on the basis of race; remedial suspension and choice ordered.
Constitutional law – administrative law – succession – whether Black Administration Act s 23(7)(a) and Regulation 3(1) discriminate on grounds of race and violate dignity under the Constitution – held unconstitutional. Direct access – exceptional circumstances where urgent public interest and manifest unconstitutionality justify direct access. Remedy – declaration of invalidity with suspended effect and reading-in ("shall" read as "may") to avoid administrative chaos and provide choice between Master and magistrate administration.
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6 December 2000 |
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Reported
Convention applies; Act constitutional; Article 13 grave‑risk exception not shown, child ordered returned with protective conditions.
International child abduction – Hague Convention – applicability where interim consent order includes non‑removal clause – wrongful retention established. Constitutional law – compatibility of Convention Act with section 28(2) best‑interests guarantee – limitation justified under section 36. Article 13 exemption – grave risk of physical or psychological harm/intolerable situation – high threshold not met by parental conflict or emotional distress. Remedies – return ordered subject to protective conditions and facilitation by Central Authorities; state Central Authority bears own costs under Article 26.
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4 December 2000 |
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Reported
Special leave refused: SCA’s factual evaluations and reliance on accused’s silence did not breach constitutional rights.
Constitutional law – jurisdiction of Constitutional Court – appeals from Supreme Court of Appeal – only constitutional matters or issues connected with constitutional matters attract leave. Criminal law – presumption of innocence and right to silence – appellate court may take into account absence of rebuttal where evidence calls for explanation; mere factual disagreement with SCA is not constitutional. Evidence – authenticity of documents – absence of challenge and lack of contrary evidence relevant to weight of evidence. Constitutional right to freedom – substantive just cause for imprisonment exists where serious theft proved.
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1 December 2000 |
| November 2000 |
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Reported
An appropriation is legislative and non-justiciable, but the MEC’s subsidy formula is administrative action subject to review.
Constitutional law – public finance – appropriations and estimates (White Book) form part of legislative process and are legislative acts, not administrative action; Administrative law – exercise of executive discretion under statutory subsidy power (s 48(2) Schools Act) can constitute administrative action subject to s 33 review; Procedural fairness – requirement depends on facts and legitimate expectation; Remedies – lack of specific budget appropriation does not bar court-ordered payment.
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29 November 2000 |
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Reported
Magistrates' courts' leave-and-petition appeal procedure (ss 309B, 309C) unjustifiably limits the constitutional right to appeal.
Criminal procedure — Right of appeal (s 35(3)(o)) — Leave-to-appeal and petition procedure in magistrates' courts (ss 309B, 309C Criminal Procedure Act) — Whether procedure permits adequate reappraisal and informed decision by higher court — Inadequate record and reasons typically supplied to high court — Restrictive procedure limits constitutional right — Limitation not justified under s 36 for lack of objective evidence — Declarations of invalidity suspended with interim relief.
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29 November 2000 |
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Reported
Appointing a sitting judge as head of an investigative, litigating unit violated separation of powers; broad RAF referral to the SIU was invalid.
Constitutional law — separation of powers — appointment of sitting judge to perform ongoing investigatory and litigating executive functions incompatible with judicial office; statutory referral to SIU invalid where it exceeds section 2(2) grounds — payments by State to attorneys as agents not public money of State for SIU purposes; suspension of declaration of invalidity to allow transition.
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28 November 2000 |
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Reported
Pay-now-argue-later VAT provisions do not oust court access and are constitutionally permissible.
Tax law – VAT ‘pay now, argue later’ regime – whether provisions oust judicial jurisdiction – interpretation of ss 36(1), 40(2)(a), 40(5) and s42.* Constitutional law – access to courts (s34) – limitation analysis under s36 – administrative reviewability of Commissioner’s discretion.* Civil procedure – effect of certified statement as equivalent to judgment and availability of ordinary execution and rescission remedies.
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24 November 2000 |
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A final refusal of leave to appeal will not be reopened except in exceptional, compelling circumstances.
Constitutional procedure — finality of orders — application to set aside Court’s own refusal of leave to appeal; summary dismissal under rule 18(1)(b) and rule 18(10); reopening orders only in exceptional and compelling circumstances.
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21 November 2000 |
| October 2000 |
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Reported
Section 26 obliges the state to implement a reasonable, resourced housing programme including relief for those in desperate need; section 28 does not create an immediate shelter entitlement.
Constitutional law – socio‑economic rights – housing – section 26 requires state to implement a comprehensive, coordinated programme within available resources to progressively realise access to adequate housing; programme must include reasonable measures to relieve those with no land or roof living in crisis; children’s section 28(1)(c) does not create an immediate independent entitlement to state shelter outside section 26 framework; reasonableness and implementation are judicially reviewable.
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4 October 2000 |
| September 2000 |
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Reported
Ministerial power to freeze business practices and assets without fair procedure violated the right to administrative justice.
Administrative law – procedural fairness – section 8(5)(a) of Consumer Affairs Act invalid for conferring sweeping, unguided ministerial powers to stay business practices and attach assets without safeguards; section 7(3) challenge moot after amendment; remedial suspension with interim conditions ordered.
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29 September 2000 |
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Reported
Human rights and fundamental freedoms - Bill of Rights - violation of the right to equality, human dignity and fair labour practices |
28 September 2000 |
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Reported
An applicant seeking postponement must show good cause; agreement between parties alone is insufficient.
Constitutional Court – postponement of hearing – inherent jurisdiction to regulate process; postponement is discretionary and granted only for good cause; factors include timeliness, sufficiency of explanation, prejudice, opposition and public interest; party agreement alone insufficient; striking from roll without prejudice to reinstatement subject to good cause and prospects of success.
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27 September 2000 |
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Reported
Section 52’s split committal procedure does not, in itself, violate the constitutional fair-trial right.
Criminal procedure — Committal for sentence — Section 52 Criminal Law Amendment Act — Split procedure (conviction in regional court, sentencing in High Court) — Right to a fair trial (s 35(3)) — Fragmentation, adducing further evidence (s 52(3)(d)), double jeopardy, institutional delay — Compatibility with Bill of Rights — Case-by-case assessment of unreasonable delay.
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27 September 2000 |
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Court ordered provincial funding and municipal provision of urgent water, sanitation, and waterproofing relief for 263 sportsgrounds households.
Socio-economic rights — basic sanitation and water — court-ordered targeted, time-bound relief; provincial funding for municipal implementation; distribution of building material to homeless households; reporting and costs orders.
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21 September 2000 |
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Reported
Direct access refused where a pending High Court appeal is the appropriate forum and delay was due to record preparation.
Constitutional Court — direct access — appropriateness of direct leave where High Court appeal pending; right to speedy trial — delay due to corrected trial record; forum conveniens for mixed factual and legal issues.
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7 September 2000 |
| August 2000 |
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Reported
Warrants for preparatory investigations require judicial satisfaction of reasonable suspicion that an offence which might be specified occurred.
National Prosecuting Authority Act (Ch 5) – preparatory investigations – search and seizure warrants – interpretation of s 29(5) – judicial authorisation on information on oath – requirement of reasonable suspicion that an offence which might be a specified offence has been committed – right to privacy (s 14) engaged – interpretive duty under s 39(2) – limitation justified under s 36; Park‑Ross precedent applied.
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25 August 2000 |
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Reported
Blanket ban on school corporal punishment, though limiting religious practice, is a justified protection of children’s dignity and security.
Corporal punishment; freedom of religion and communal practice (ss 15 and 31); limitation and proportionality under s 36; children’s rights to dignity, bodily and psychological integrity and protection from violence; state duty to establish uniform educational norms; refusal of exemption for independent religious schools.
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18 August 2000 |
| June 2000 |
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Reported
Provisions allowing the Land Bank to attach and sell property without court oversight violate the constitutional right of access to courts; invalidity partly suspended.
Constitutional law – right of access to courts – statutory provisions permitting attachment and sale by a statutory bank without judicial supervision – unconstitutional self-help; remedy – severance inappropriate; two-year suspension of invalidity to allow legislative correction; completed sales preserved, pending attachments set aside.
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9 June 2000 |
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Reported
Prior appellate dicta do not automatically require recusal; applicants must present cogent evidence of reasonable apprehension of bias.
Constitutional law — Judicial recusal — Sarfu test: whether a reasonable, objective and informed person would apprehend lack of impartiality; onus on applicant to adduce cogent evidence — Distinction between appellate and trial contexts (written record, collegiality) reduces recusal likelihood — Entitlement to prosecute interlocutory recusal appeal; procedural sequencing and Rule 18 leave to Constitutional Court.
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9 June 2000 |
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Reported
Section 25(9)(b) read with ss26(3) and (6) unjustifiably permits refusals that infringe spouses’ constitutional dignity and right to cohabit; declaration suspended with interim relief.
Immigration law — Interpretation of s25(9)(b) — Temporary residence permits must be valid at time of grant — Administrative discretion under ss26(3),(6) — Legislative omission as to factors for refusal — arbitrary limitation of constitutional right to dignity/cohabitation — declaration of invalidity suspended with interim mandamus directing officials not to refuse/extend permits absent good cause.
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7 June 2000 |
| May 2000 |
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Reported
A statutory ban on non-citizen adoption of SA-born children violates children’s constitutionally protected best-interests right.
Child law – Adoption – Section 18(4)(f) Child Care Act – absolute ban on adoption of child born to a South African citizen by non-citizens – inconsistent with section 28(2) (best interests of the child). Remedies – declaration of constitutional invalidity confirmed; suspension of invalidity refused where statutory safeguards and children’s courts can protect against trafficking and other abuses. Intercountry adoption – Hague Convention and subsidiarity considered but absence of international agreements not a ground to delay relief.
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31 May 2000 |
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Reported
Direct access refused where alleged privacy breach from admission of a private tape did not affect the dismissal outcome.
Labour law – unfair dismissal – CCMA admissibility of evidence – privately-made tape recordings and alleged infringement of constitutional right to privacy Constitutional procedure – direct access to Constitutional Court – not granted where alleged breach would not affect outcome or justify remedy Remedies – reinstatement or rehearing not warranted where outcome would remain unchanged absent contested evidence
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31 May 2000 |
| April 2000 |
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Reported
Leave for direct access to the Constitutional Court is required and the applicant’s procedural and constitutional challenges were dismissed.
Constitutional procedure – Direct access to Constitutional Court – Rule 17 leave requirement authorised by Constitution and required in the interests of justice. Civil procedure – Representation – corporate representation and right to appear addressed only in concrete litigation, not abstract challenge. Civil procedure – Security for costs – constitutionality to be determined in context of specific litigation. Appeals – Leave to appeal requirement (Rule 18) consistent with Constitution. Remedies – Mandamus against a judge requires leave of the court and adequate justification.
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14 April 2000 |
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Reported
Reverse onus in s37(1) unjustifiably displaces presumption of innocence; converted to an evidential presumption instead.
Criminal law – possession of stolen goods – section 37(1) General Law Amendment Act – reverse onus requiring accused to prove reasonable cause – compatibility with right to silence and presumption of innocence. Constitutional law – limitation analysis under section 36 – restriction of right to silence may be justified but displacing presumption of innocence by a legal onus is disproportionate. Remedy – reading-in to convert legal burden into evidential presumption that raises a reasonable doubt; conditional non-retrospectivity.
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14 April 2000 |
| March 2000 |
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Reported
Condonation refused: sale predated the Constitution, applicant’s delays barred retrospective constitutional or common-law relief.
Condonation — interests of justice test — delay, prejudice, administration of justice and applicant’s conduct; Constitutional protection of access to courts (s 34) — limits on retrospective application where sale in execution predated interim Constitution; Development of common law under s 173 — possible retrospective development in appropriate cases but not warranted here; Sale in execution of litigant’s claim — challenges limited by timing and constitutional temporal reach.
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30 March 2000 |
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Reported
Presidential consent under the Extradition Act is a domestic act, not an international agreement, and is constitutionally valid.
Extradition law — presidential consent under s3(2) of Extradition Act is a domestic act triggering domestic procedures, not an international agreement; s231 Constitution (Parliamentary approval of treaties) inapplicable; Vienna Convention/estoppel claim rejected.
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30 March 2000 |
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Reported
Whether a province may repeal apartheid-era township tenure and deeds‑registration provisions.
Constitutional law — assignment under interim Constitution s235(8); provincial legislative competence — Schedule 6 functional areas; section 126(3) national exclusivity — matters requiring uniform national regulation (deeds registration and land‑tenure reform); interaction with Upgrading of Land Tenure Rights Act and Deeds Registries Act; confirmation under s172(2)(a).
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2 March 2000 |
| February 2000 |
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Reported
The applicant’s proclamation bringing an Act into force was reviewable and unlawful as objectively irrational without required regulatory schedules.
• Constitutional law – doctrine of legality – all public power must be exercised lawfully and rationally; common-law review principles subsumed under Constitution. • Constitutional jurisdiction – orders as to constitutional validity of any conduct of the President fall within s 172(2)(a) and require confirmation by the Constitutional Court. • Administrative/Executive action – presidential power to bring an Act into force is reviewable; political judgment is required but must meet objective rationality. • Statutory implementation – proclamation invalid where essential subordinate instruments (schedules/regulations) required for Act to operate were absent.
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25 February 2000 |
