Constitutional Court of South Africa - 2003 October

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5 judgments

Citation	Judgment date
October 2003
De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others [2003] ZACC 19 (15 October 2003) 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.	15 October 2003
Alexkor Ltd and Another v Richtersveld Community and Others [2003] ZACC 18 (14 October 2003) 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).	14 October 2003
Gcali v Member of the Executive Council for Housing and Local Government, Eastern Cape and Others [2003] ZACC 17 (6 October 2003) 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.	6 October 2003
Phenithi v Minister of Education and Others [2003] ZACC 16 (6 October 2003) 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.	6 October 2003
Head of Department, Department of Education Limpopo Province v Settlers Agricultural High School and Others [2003] ZACC 15 (2 October 2003) 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).	2 October 2003