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Citation
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Judgment date
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| December 2002 |
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Reported
High Courts may use contempt to enforce maintenance orders when statutory remedies fail and children's best interests demand it.
Maintenance law – enforcement – process‑in‑aid and contempt – High Court inherent jurisdiction to enforce magistrate’s/maintenance court orders; discretionary exercise where statutory remedies fail – best interests of the child (s28(2)) and gender‑equality implications of systemic maintenance enforcement failures.
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20 December 2002 |
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Reported
An unrepresentative union may bargain and lawfully strike to obtain organisational rights outside Part A.
Labour law – Organisational rights – Interpretation of Part A Chapter III of the LRA – Minority (unrepresentative) unions may seek organisational rights by collective agreement and may lawfully strike to pursue them; section 21 is not exclusive; statutory interpretation must give effect to s 23 of the Constitution and ILO freedom of association principles.
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13 December 2002 |
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Reported
Whether mayoral committees must include proportionate minority party representation under section 160(8).
Local government – structures – executive mayoral system – mayoral committee not a "committee of the municipal council" under s160(8) – fair representation requirement applies to council-elected committees and executive committee system but not to mayoral committee; constitutional interpretation – balancing inclusivity, democracy and effective service delivery; statutory construction – reading Structures Act in light of Constitution.
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12 December 2002 |
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Reported
President may consent to extradition under s3(2); section 10(2) certificate requirement is constitutional.
* Extradition — statutory scheme under Extradition Act — s3(2) empowers President to consent to surrender to non‑treaty States.
* Executive prerogative/policy — President's consent is a foreign‑affairs policy decision; citizenship status not per se fatal to consent.
* Extradition procedure — s10(2) certificate by foreign prosecuting authority conclusive only on sufficiency of foreign‑state evidence (question of foreign law/fact).
* Constitutional rights — s10(2) does not breach rights to a fair public hearing (s34), fair trial (s35(3)), protection from arbitrary deprivation (s12(1)) or judicial independence/separation of powers (s165).
* Justiciability — challenge to s10(2) was ripe where certificate was threatened and furnished.
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12 December 2002 |
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Reported
Section 197 transfers employees automatically on a going‑concern transfer; prior employer agreement not required.
Labour law; section 197 LRA – transfer of business as a going concern – employees transfer automatically preserving continuity of employment – ‘going concern’ is an objective, fact‑based inquiry; Constitutional Court jurisdiction; procedure for appeals from the Labour Appeal Court (rule 18 not rule 20).
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6 December 2002 |
| November 2002 |
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Reported
Respondent not vicariously liable for police officers who acted dishonestly outside the course of employment.
Vicarious liability – police officers’ deliberate theft – whether conduct in course of employment; Constitutional property rights (s25) not engaged; Carmichele distinguished (wrongfulness v. liability); Constitutional Court lacks jurisdiction to re-open SCA factual findings absent separate constitutional issue; No development of common law to impose absolute state liability for employees’ deliberate dishonest acts.
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28 November 2002 |
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Reported
Whether municipal councillors may be ordered to pay costs de bonis propriis, and the procedural joinder and constitutional issues arising.
Constitutional jurisdiction – Municipal councillors – Costs orders de bonis propriis – Joinder of municipal council with material interest – Separation of powers – Privileges and immunities under s28, Local Government: Municipal Structures Act 117 of 1998 – Interested organs and associations may be invited to file argument.
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21 November 2002 |
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Reported
Court refused to vary its order to reinstate legislators who crossed the floor and dismissed the Minister’s relief.
Constitutional law — floor-crossing legislation — variation of court orders — principle of finality — limited grounds for varying judgments — retrospective effect of declaration of invalidity — separation of powers: matters of constitutional amendment for Parliament, not court variation.
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19 November 2002 |
| October 2002 |
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Reported
Direct access refused as premature; applicants must await High Court appeal on constitutional challenge to problem-animal ordinance.
Constitutional procedure – direct access to Constitutional Court – prematurity and need to await High Court determination; constitutional challenge to provincial ordinances – equality (s9) and environmental rights (s24).
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28 October 2002 |
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Reported
Whether criminalising prostitution by penalising sellers but not buyers constitutes unfair gender discrimination.
Constitutional law – applicable constitution (interim Constitution) – Sexual offences – Prohibition of sex for reward (s20(1)(aA)) – indirect discrimination on grounds of sex – privacy and economic-activity challenges – brothel provisions (ss2,3(b),3(c)) – remedial options (declaration, suspension).
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9 October 2002 |
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Reported
High Courts may grant narrowly tailored interim relief to prevent imminent irreparable harm from impugned legislation; broad suspensions were unwarranted.
Constitutional law; jurisdiction to entertain interim relief suspending legislation; abstract review limited to ss 79/121 and s 80(3); High Courts may, in exceptional cases, grant narrowly tailored interim relief to maintain status quo or prevent imminent irreparable harm; strict necessity and balancing required; suspension of constitutional amendments only in extreme cases.
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4 October 2002 |
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Reported
A Parliamentally enacted floor‑crossing scheme was mostly constitutional, but the Membership Act was invalid for being enacted after item 23A’s ‘‘reasonable period’’ expired.
Constitutional law — amendments — s74 procedure — proportional representation and anti‑defection not immune from amendment; floor‑crossing legislation within Parliament’s discretion when rationally related to legitimate purposes; item 23A’s temporal limitation on amendment by ordinary Act is enforceable — Membership Act invalid for breach of the ‘reasonable period’ constraint.
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4 October 2002 |
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Reported
Court granted interim status-quo relief and leave to appeal, postponing determination of floor-crossing legislation’s constitutionality.
Constitutional law — separation of powers — whether High Courts may suspend commencement of constitutional amendments or Acts — urgent interim relief to preserve status quo in legislatures and municipalities pending constitutional challenge to floor-crossing legislation.
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4 October 2002 |
| September 2002 |
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Reported
Applicant’s challenge to judges for summary refusal of leave to appeal dismissed; courts of final instance need not give reasons.
Constitutional Court — direct access — requirements and exceptional nature; leave to appeal — no constitutional obligation for courts of final instance to furnish reasons when refusing leave; judicial docket control; Rule 18(10) — leave decided by Court as a whole; procedural non-compliance; Mphahlele precedent reaffirmed.
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10 September 2002 |
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Reported
Excluding permanent same-sex life partners from joint adoption and guardianship violates children’s best interests, equality and dignity.
* Family law – Adoption and guardianship – Whether statutory provisions permitting joint adoption and guardianship only for married persons exclude permanent same-sex life partners and are constitutionally invalid. * Constitutional law – Children's rights – Best interests of the child (section 28(2)) – statutory exclusion frustrating children’s access to stable family care. * Equality (section 9) – unfair discrimination on grounds of sexual orientation and marital status. * Human dignity (section 10) – non-recognition of co-parent as parent. * Remedy – reading-in words to cure constitutional defect; High Courts as upper guardian pending legislative reform.
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10 September 2002 |
| July 2002 |
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Reported
Omission of same-sex life partners from judicial survivor benefits constitutes unfair discrimination; remedy: reading-in with support-duty requirement.
Constitutional law – Equality – Discrimination on the ground of sexual orientation – Statutory exclusion of same-sex life partners from spouse benefits unconstitutional – Reading-in as appropriate remedy – Requirement of reciprocal duties of support.
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25 July 2002 |
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Reported
Direct access refused where applicant bypassed ordinary appeals, factual disputes and parallel proceedings made first‑instance hearing inappropriate.
* Constitutional law – direct access – extraordinary remedy; interests of justice; proper forum. * Legal profession – referral rule/common-law referral – constitutional challenge (s 22, s 34, s 35(2)(b)). * Civil procedure – necessity of a trial record and prior appellate process; factual disputes. * Competition law and legislative reform intersecting with judicial review of professional regulation.
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18 July 2002 |
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Reported
Late amicus applications seeking to introduce fresh, disputed evidence will be refused; Rule 30 permits only incontrovertible extra-record facts.
Constitutional Court practice — amicus curiae admission (Rule 9) — timeliness and duty to assist; amicus may not introduce substantial fresh evidence or new issues at late stage. Rule 30 — extra‑record factual material admissible only if common cause, incontrovertible, or official/scientific/technical/statistical and easily verifiable; disputed facts inadmissible. Court may refuse late applications that would prejudice parties or delay urgent proceedings.
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5 July 2002 |
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Reported
Direct access refused: provincial political dispute non-justiciable and parties failed cooperative-government obligations.
Constitutional law — Direct access/interests of justice — Organs of state — Cooperative government s41(1)(h) — Political disputes and justiciability — Substitution of provincial parties in litigation — Adduction of further evidence.
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5 July 2002 |
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Reported
The respondent's blanket restriction on nevirapine access violated the applicant's constitutional health and children's rights.
Constitutional law – socio‑economic rights – sections 27 and 28 – reasonableness and progressive realisation – no freestanding minimum‑core right; public health – mother‑to‑child transmission (PMTCT) – nevirapine – efficacy, safety and resistance – state policy to confine drug to pilot sites unreasonable where testing/counselling and clinical indication exist; remedies – courts may grant mandatory and supervisory relief against organs of state to secure effective enforcement of constitutional rights.
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5 July 2002 |
| June 2002 |
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Reported
The common law of defamation need not make falsity an element where the reasonable-publication defence balances expression and dignity.
Constitutional law; freedom of expression (s16) – horizontal application to private persons and the media (s8(2)); defamation – actio injuriarum, elements; falsity not an element of delict; burden of proof and defences; Bogoshi – defence of reasonable publication; balance between freedom of expression and human dignity; direct access to Constitutional Court – "decision on a constitutional matter" and interests of justice.
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14 June 2002 |
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Reported
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12 June 2002 |
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Reported
Section 72(4)’s reverse onus is unconstitutional; remedy: read in words to impose an evidentiary, not legal, burden.
Criminal procedure – s 72(4) CPA – summary enquiry for failure to appear – reverse onus versus evidentiary burden – limitation of rights to presumption of innocence and silence – reading-in remedy to conform statute to Constitution.
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12 June 2002 |
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Reported
Court declined to confirm High Court declaration on local revenue shares, stressing cooperative dispute-resolution and practical effect.
Local government finance – equitable division of revenue – entitlement of district (Category C) municipalities; Constitutional review – confirmation of High Court declaration where impugned provision repealed – discretionary refusal where no practical effect; Cooperative government – organs of state must use intergovernmental dispute mechanisms and exhaust remedies; Intergovernmental Fiscal Relations Act – Local Government Budget Forum as statutory dispute mechanism; Repeal and savings clauses – potential preservation of implementation obligations.
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12 June 2002 |
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Reported
Failure to raise constitutional challenge in the Supreme Court of Appeal and lack of prospects led to refusal of special leave to appeal.
* Criminal law – admissibility of confessions to clergy – privacy (s 14) and fair trial (s 35) challenges. * Appellate procedure – requirement to raise constitutional/common-law development points first in Supreme Court of Appeal. * Prospects of success as basis for refusing special leave. * Smit v Van Niekerk NO question left open for future determination.
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11 June 2002 |
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Reported
Limits on statutory/regulatory powers over magistrates to protect institutional judicial independence.
Constitutional law — judicial independence — institutional independence of magistrates' courts — test: objective reasonable and informed observer — Magistrates Commission composition — permissible delegation and remedies — judicial discipline, promotions, transfers, remuneration and acting appointments — severance and prospective orders.
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11 June 2002 |
| May 2002 |
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Reported
Whether a statutory licence to kill fleeing suspects unjustifiably infringes constitutional rights.
Constitutional law – Use of force in arrest – Whether statutory authorisation to use potentially deadly force to prevent flight is compatible with rights to life, dignity and bodily integrity; limitation analysis under s36; statutory interpretation under s39 to save provisions; binding effect of SCA precedent on High Courts; propriety of deciding constitutional issues before resolving factual matters; remedy and prospectivity of invalidation.
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21 May 2002 |
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Reported
Statutory detention and sale of third-party goods without sufficient nexus is an arbitrary deprivation of property under section 25.
Constitutional law — Property — Section 25 — Deprivation of property by statute — 'Arbitrary' deprivation involves evaluating relationship between means (deprivation) and ends (purpose) — Statute authorising detention and sale of third‑party goods without nexus to debt unconstitutional — Juristic persons entitled to property rights.
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16 May 2002 |
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Reported
Direct appeal refused; statutory-interpretation dispute should proceed first to the Supreme Court of Appeal; costs to be in SCA appeal.
Constitutional procedure — direct access — leave to appeal directly to Constitutional Court — interests of justice — statutory interpretation v. constitutional issue — costs: costs to be costs in SCA appeal.
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9 May 2002 |
| April 2002 |
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Reported
A broadcasting prohibition against material "likely to prejudice relations" is overbroad and violates freedom of expression.
Constitutional law — Freedom of expression — Broadcasting regulation — Clause prohibiting material "likely to prejudice relations between sections of the population" — overbroad and vague limitation of s16(1) — cannot be read down to s16(2) categories — unjustified limitation under s36 — notional severance to preserve unprotected categories (propaganda for war; incitement of imminent violence; advocacy of hatred constituting incitement to cause harm).
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11 April 2002 |
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Reported
Whether conflicting SCA panel decisions on identical leave-to-appeal petitions breach equality, access to courts and the rule of law.
Constitutional law — Equality and rule of law — Whether conflicting leave-to-appeal orders by different SCA panels in materially identical matters violate section 9(1) and the rule of law; access to courts — petition procedure for leave to appeal; remedies where appellate allocation causes arbitrary unequal outcomes.
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11 April 2002 |
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Reported
Human rights and fundamental freedoms - Bill of Rights- access to healthcare - the availability and affordability of medical services, medication, and treatment for HIV positive mothers and their unborn children. |
4 April 2002 |
| February 2002 |
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Reported
Whether the respondent's school staffing rationalisation unlawfully discriminated against and denied the applicants administrative justice.
Education — Personnel provisioning and rationalisation — Provincial scheme to redress apartheid-era disparities — rationality and budgetary considerations; Equality (s9) — distinction between historical administrative arrangements and unfair discrimination; Administrative justice (s33) — duty to consult and to provide justifiable administrative action when retrenchment/redeployment affects identifiable employees; Remedies — tailoring relief to cure unfair implementation without necessarily setting aside whole policy.
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21 February 2002 |
| January 2002 |
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Reported
Blanket criminalisation of cannabis is overbroad where it proscribes bona fide Rastafari sacramental use without justification.
Constitutional law – Freedom of religion (ss 15, 31) – Overbreadth – Whether blanket criminal prohibition on use or possession of cannabis invalidly limits religious practice of Rastafari – Proportionality and less restrictive means (s 36) – International drug conventions and constitutional limitations – Remedy: limited declaration of invalidity; legislative cure; suspension of order.
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25 January 2002 |
