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Citation
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Judgment date
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| December 2003 |
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Reported
Leave to appeal dismissed where challenge targeted wrong subsection and accused cannot be summoned under s 28 while tried on same charges.
Constitutional law – Criminal procedure – Investigating Director’s power to summon and examine persons under NPA Act s 28 – Construction of "any person" excludes accused being tried on same charges – Compulsion, immunity and sanctions governed by ss 28(8) and 28(10) – Challenge targeted wrong provision – Mootness and interests of justice – Procedural concern where questioning is conducted in camera by Investigating Director or designate without independent presiding officer.
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2 December 2003 |
| November 2003 |
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Reported
Late constitutional appeal dismissed: permit refusals require review, and challenges to unrelated ordinances cannot be raised on criminal appeal.
Criminal procedure – appeal and condonation – indirect constitutional challenge to legislation not before the lower court impermissible; permit refusals are subject to review, not criminal appeal; statutory permit regimes for protected species constitute justifiable limitations.
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24 November 2003 |
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Reported
Deliberate failure to obtain a required High Court certificate bars leave to appeal; condonation denied and application dismissed with costs.
Constitutional Court procedure — Rule 18(2) — requirement of High Court certificate for direct appeals — deliberate non‑compliance and condonation; Civil procedure — estoppel/Turquand and authority of municipal employees — substantive issues not decided due to procedural default; Costs — ordinary costs awarded for application.
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24 November 2003 |
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Reported
Applicant failed to show exceptional circumstances or compliance with rule 17; direct access for bail refused.
Constitutional law – Direct access to Constitutional Court – Rule 17(2) requirements – exceptional circumstances required to grant direct access for bail. Criminal procedure – bail – whether appellate or post-sentencing facts justify reopening sentence or grant of bail via direct access. Procedural compliance – consequences of failure to comply with rule 17 when seeking direct access.
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24 November 2003 |
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Reported
Direct access refused where applicant sought to relitigate insolvency-related orders and constitutional challenges after appeal remedies were available.
Direct access — Rule 17 — interests of justice; abuse of process and delay; insolvency law — s127A rehabilitation, s18B caveat; constitutional challenge to statutory provisions; ejectment in absentia; conflicts of fact requiring viva voce evidence; finality of litigation.
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14 November 2003 |
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Reported
Reinstatement by a seller is impracticable after a going‑concern transfer; purchaser must be joined for binding relief.
Labour law – transfer of business as a going concern (s 197 LRA) – effect on employment contracts and liability for unfair dismissal. Reinstatement – practicability where seller no longer controls business – s 193(2)(c) LRA. Joinder – purchaser must be joined for orders binding the buyer. Constitutional jurisdiction – alleged infringement of right to fair labour practices insufficient where no prospects of success.
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14 November 2003 |
| October 2003 |
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Reported
Child pornography prohibition (images) limits privacy and expression but is a justified, proportionate restriction with contextual, objective test.
Child pornography — statutory interpretation of "includes", "person" and "sexual conduct" — images (real or simulated) judged by a reasonable viewer in context — offences limit freedom of expression and privacy but are justified under section 36 — section 22 exemption adequate safeguard for bona fide research/artistic uses — equality and overbreadth challenges dismissed.
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15 October 2003 |
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Reported
Community held indigenous ownership including minerals; post-1913 statutes and proclamations racially dispossessed it, entitling restitution.
Constitutional jurisdiction – issues connected with constitutional matters; Customary law – indigenous communal ownership and mineral rights; Annexation – sovereignty does not automatically extinguish indigenous property rights; Crown lands and statutes – Crown Lands Acts did not extinguish indigenous title; Precious Stones Act/Proclamations – post-1913 measures dispossessed community; Dispossession – resulted from racially discriminatory laws or practices within section 25(7).
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14 October 2003 |
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Reported
Direct access refused: applicant’s attempt to bypass ordinary appeals was a disguised appeal and not in the interests of justice.
Constitutional law – Direct access to Constitutional Court – Whether interests of justice and exceptional circumstances established – Direct access cannot be used as disguised appeal. Civil procedure – Barring orders and compliance with court orders – availability of appeal or review and effect on right to be heard. Remedies – Applicant must exhaust ordinary appellate remedies; factual disputes are inappropriate for first-instance Constitutional Court hearing. Legal representation – No constitutional right to appointed counsel in civil matters; appointment exceptional.
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6 October 2003 |
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Reported
Applicant's delay and factual disputes justified refusal of direct access to challenge sections 14(1) and 14(2).
Constitutional procedure – Direct access to Constitutional Court – available only in exceptional circumstances requiring urgency, public importance or prejudice to ends of justice; mere constitutional issue insufficient. Employment law – Employment of Educators Act s14(1)/(2) – challenge sought but not adjudicated on merits where direct access refused. Civil procedure – Undesirability of Constitutional Court as court of first instance where factual disputes may arise; preference for High Court trial first.
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6 October 2003 |
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Reported
Condonation for a delayed constitutional appeal was refused to avoid prejudicing respondents and unsettling a implemented school appointment.
Constitutional procedure – condonation for late application for special leave – interests of justice test; Education law – appointment of school principals – conflict between governing-body recommendations and Head of Department under the Employment of Educators Act; Judicial compliance – organs of state bound to obey court orders (section 165 Constitution) and accountability for non‑payment of costs; Conflict of decisions – alternative mechanisms for resolving divergent interpretations (referral or legislative amendment).
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2 October 2003 |
| September 2003 |
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Reported
Direct access denied; applicant must re-enrol in the High Court and comply with procedural and citation requirements.
Constitutional law – Direct access to Constitutional Court – Exceptional circumstances required; Constitutional challenges to legislation – importance of placing the executive’s views before the court; Civil procedure – compliance with court rules when lodging direct access applications (lodgment of copies/condonation).
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11 September 2003 |
| August 2003 |
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Reported
Common‑purpose doctrine upheld; pre‑trial silence cannot alone found an adverse inference, but late alibi disclosure may affect credibility.
Criminal law — common purpose — requirement of active association and subjective foresight; causation not required for liability in consequence crimes; section 39(2) development — doctrine constitutional. Constitutional law — right to remain silent (s35(1)(a), s35(3)(h)) — no adverse inference of guilt may be drawn from pre‑trial silence once warned; late disclosure of alibi may affect credibility and weight; cross‑examination on reasons for silence permissible if fair.
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28 August 2003 |
| July 2003 |
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Reported
Direct access refused because applicants did not challenge statutory framework and SCA should first consider common-law development.
Constitutional procedure – direct access – Rule 18 – whether dismissal was a decision on a constitutional matter; development of common law – recognition of same-sex marriages – complex statutory consequences – Supreme Court of Appeal’s primary role in common-law development; interests of justice.
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31 July 2003 |
| June 2003 |
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Reported
Whether section 7’s notice-and-comment requirements apply to transitional regulations under section 52.
Immigration law – statutory interpretation – section 52 transitional regulations distinct from section 7 procedural requirements; PAJA and constitutional values do not automatically import notice-and-comment into transitional regulation-making; standing to challenge regulatory procedure; limits on courts suspending Acts of Parliament.
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27 June 2003 |
| May 2003 |
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Reported
Rule 17 cannot be used to appeal criminal convictions; applicant must seek leave under Rule 18 and, if late, seek condonation.
Constitutional procedure – Direct access – Rule 17 is not a vehicle for appeals to the Constitutional Court and may not be used for disguised appeals. Constitutional procedure – Leave to appeal – Challenges to decisions of lower courts must proceed under Rule 18; out-of-time appeals require condonation and notice to the state. Criminal procedure – Alleged breach of undertaking to counsel – Court declined to adjudicate merits where application was procedurally defective.
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30 May 2003 |
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Reported
A litigant cannot bypass court rules during litigation to invoke section 32 without challenging conflicting provisions.
Access to information – Relationship between section 32(1)(a) constitutional right and discovery rules – Rule 35(14) provides a limited, pleading-stage discovery entitlement narrower than section 32 – A litigant who does not challenge a rule or law of general application cannot simply invoke section 32 during ongoing litigation to obtain discovery – Leave to appeal refused where no prejudice and application dilatory – Costs awarded against applicant.
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13 May 2003 |
| April 2003 |
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Reported
Direct access refused; applicant should have pursued appeal and joined interested parties; Insolvency Act issues belong to SCA first.
Direct access (Rule 17) — procedural prerequisites for direct access; Appeal procedure vs declaring judgments null — remedy to challenge a judgment is appeal; Rule 18 — certificate and joinder requirements for direct appeals; Insolvency Act (ss127A,18B) — interpretation appropriately for Supreme Court of Appeal; Joinder — need to cite parties with direct and substantial interest.
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4 April 2003 |
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Reported
Applicants dismissed for strike lacked prospects; dismissals were procedurally fair and leave to appeal was refused.
Labour law — Strike action — Procedural fairness in dismissals — Adequacy of warnings, ultimatums and opportunities to make representations; Remedy — Whether reinstatement is available for purely procedural unfairness under s193(1) — Procedural requirements for leave to appeal (rule 18 certificate, condonation).
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4 April 2003 |
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Reported
Section 38 allows ex parte preservation applications but does not exclude rule nisi or interim orders; audi rights preserved.
* Prevention of Organised Crime Act, Chapter 6 — preservation of property orders (s38) — ex parte applications — rule nisi and interim preservation/seizure orders — audi alteram partem — section 34 fair hearing right — constitutional construction and reading-down — inherent judicial powers (s173) — justification under s36. |
3 April 2003 |
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Reported
Whether municipal councillors may be personally liable for costs and the proper rule for seeking Constitutional Court leave after SCA refusal.
Constitutional procedure — rule 18 v rule 20; refusal of leave by SCA not appealable; appeals from lower courts to Constitutional Court; municipal law — councillors’ personal liability for costs; section 161 Constitution and section 28 Municipal Structures Act; freedom of speech of elected representatives; separation of powers.
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3 April 2003 |
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Reported
Section 28 protects councillors from personal civil liability for conduct in full-council deliberations, so de bonis propriis costs orders cannot stand.
Local government — Privileges and immunities — s161 Constitution and s28 Municipal Structures Act — councillors’ immunity from civil liability for anything said, produced or submitted to council — scope includes participation in full-council deliberations during legitimate council business — personal costs orders (de bonis propriis) incompatible with s28 where they penalise participation in council deliberations; separation of powers limits judicial ‘‘punitive’’ orders against councillors; mayoral statements outside council not protected by s28.
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3 April 2003 |
| March 2003 |
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Reported
Section 5 of the Children’s Status Act unlawfully discriminated by excluding permanent same-sex life partners from parental recognition.
Constitutional law – Equality – Section 5 of Children’s Status Act – discrimination on ground of sexual orientation and marital status – section 9(3) – reading-in and severance as remedy – refusal to extend remedy to unmarried heterosexual partners – refusal to suspend declaration.
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28 March 2003 |
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Reported
Omission of permanent same‑sex life partners from judicial benefits is unconstitutional; reading‑in remedy granted.
Constitutional law – Equality – Unfair discrimination on grounds of sexual orientation and marital status – Statutory benefits limited to spouses of judges excluding permanent same‑sex life partners – Reading‑in remedy; direct access granted.
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17 March 2003 |
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Reported
Section 160(d) of the Liquor Act unjustifiably limits freedom of expression by unduly capturing theatrical performances.
Constitutional law – Freedom of expression (s16) – Artistic creativity – Limitation analysis (s36) – Overbroad statutory prohibition on performances at licensed premises, including theatres – Confirmation of High Court declaration of invalidity – Saving for final convictions.
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11 March 2003 |
