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Citation
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Judgment date
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| December 2004 |
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Reported
Leave to appeal refused because the dispute was moot and not in the interests of justice despite important constitutional issues.
* Administrative law – judicial review of broadcasting-licensing decisions – PAJA and constitutional dimensions (s 33). * Broadcasting law – licensing powers of ICASA and interpretation of s 32(3) of the Broadcasting Act; relation to s 192 and s 16 of the Constitution. * Constitutional law – freedom of expression and public broadcasting. * Justiciability – mootness and practical effect; application of s 21A(1) Supreme Court Act. * Leave to appeal – interests of justice as prerequisite for direct access to Constitutional Court.
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8 December 2004 |
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Reported
An extradition magistrate under section 10(1) may not decide constitutional fair-trial objections; that remains for the Minister under section 11.
* Extradition — scope of magistrate’s section 10(1) enquiry — whether magistrate may consider constitutionally protected fair-trial risk; * Constitutional procedure — direct appeals to Constitutional Court under s167(6) and rule 19(2) — organs of state as litigants; * Treaty law — applicability of extradition treaty in force at time of enquiry; * Evidence — authentication of supporting documents under Article 8 of extradition agreement; * Separation of powers — Minister’s discretion under s11 and judicial review.
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2 December 2004 |
| November 2004 |
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Reported
A municipality may lawfully use a provisional valuation roll to levy property rates; transitional and constitutional provisions preserve that power.
* Local government – constitutional and statutory powers to value property and levy rates – Constitution s 229(1)(a); Transition Act s 10G and Structures Act ss 93(4)-(5).
* Property valuation – Property Valuation Ordinance valid and "in force" for transition purposes; PVO regulates procedures but does not preclude levying on provisional rolls.
* Transitional law – successors in law/superseding municipalities inherit predecessor powers; sections 12 and 14 of Structures Act effect legal succession.
* Constitutional procedure – manner-and-form challenge to amendment (s 21) unnecessary to decide where appeal outcome has no practical effect.
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29 November 2004 |
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Reported
Rail operator and commuter corporation must ensure reasonable security measures for commuter safety.
Public law duty of rail providers – SATS Act ss 15(1), 23(1) construed with Bill of Rights – organs of state’s positive obligation to ensure reasonable security measures for commuter safety; limits of motion proceedings for adjudicating delictual liability; admission of late evidence on appeal only in exceptional circumstances.
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26 November 2004 |
| October 2004 |
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Reported
The applicants challenged section 23 and primogeniture; court found them unconstitutional for violating equality and dignity.
Constitutional law — customary law — intestate succession — Black Administration Act s 23 and regulations — racist choice‑of‑law regime invalid — equality and dignity violated. Customary law — male primogeniture — invalid insofar as it excludes women and extra‑marital children. Remedy — interim application of Intestate Succession Act with modifications for polygynous unions; retrospective effect from 27 April 1994 but protecting bona‑fide completed transfers; estates in progress to be wound up under old regime. Courts may develop customary law but choice‑of‑law policy is legislative.
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15 October 2004 |
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Reported
Pound Ordinance’s impoundment and sale scheme violated access to courts and equality rights.
Constitutional law — access to courts — self‑help prohibited — Pound Ordinance impoundment and sale scheme bypassed judicial supervision — violated s 34; Equality — assessor qualification (voter/landowner) racially discriminatory — breached s 9(3); Administrative law — notice and reasonable‑diligence tracing requirement necessary for procedural fairness; Remedy — strike down with 12‑month suspension and interim magistrate supervision.
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15 October 2004 |
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Reported
Section 66(1)(a) is unconstitutional to the extent it permits sale of indigent debtors’ homes without judicial oversight.
• Constitutional law – socio-economic rights – section 26(1) right of access to adequate housing – negative obligation protecting existing security of tenure;• Civil procedure – execution – Magistrates’ Courts Act 32 of 1944 s66(1)(a) – sale in execution without judicial oversight;• Limitation of rights – section 36 analysis – overbroad legislative provision not justified;• Remedy – reading-in requirement: court, after consideration of all relevant circumstances, may order execution;• Property law – section 67 exemptions – blanket protection for homes inappropriate;• Costs and professional conduct – costs awarded and referral to Law Society for investigation.
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8 October 2004 |
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Reported
Whether municipal transfer-certificate rules imposing owners’ responsibility for occupiers’ unpaid service charges are arbitrary under section 25.
Constitutional law – property – section 25(1) – whether municipal certificates conditioning transfer on payment of rates and service charges constitute arbitrary deprivation – deprivation of an incident of ownership (right to alienate) may be justified where means are sufficiently connected to legitimate public ends; municipalities must provide account statements on request.
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6 October 2004 |
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Reported
Section 20 unfairly discriminated against attorneys admitted under former ‘homeland’ law; Court read‑in words to cure invalidity.
Constitutional law — equality — unfair discrimination — section 20(1) of the Attorneys Act excludes persons admitted under former ‘homeland’ legislation — differentiation reinforces historical disadvantage and impairs dignity — not justified under s36; Civil procedure — appeals to Constitutional Court after SCA refusal of condonation — rule 19 requires ordinarily appealing against High Court decision; Administrative/enrolment procedure — once law society objects section 20 route is closed and section 15 substantive application required; Remedy — limited declaration of invalidity and reading-in.
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5 October 2004 |
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Reported
Application for leave to appeal against decision of the Supreme Court of Appeal. In response to a petition signed by 1600 people in the suburb of Lorraine, the Port Elizabeth Municipality sought an eviction order against 68 persons living in shacks on privately owned land. The occupiers had appealed successfully to the Supreme Court of Appeal against the eviction. The Municipality applied for leave to appeal to this Court, arguing that it was not constitutionally obliged to find alternative accommodation or land when seeking an eviction order. Sachs J for a unanimous Court. Section 26(3) of the Constitution provides that no one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances. Section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act provides for circumstances in which a municipality may apply to evict unlawful occupiers. A court may order eviction if it is just and equitable to do so. Although it was not under a constitutional duty in all cases to provide alternative accommodation or land, its failure to take all reasonable steps to do so would be an important consideration in deciding what was just and equitable. Here, it was not just and equitable for the eviction order to be granted. Application for leave to appeal refused with costs. |
1 October 2004 |
| September 2004 |
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Reported
A presidential assignment of the Social Assistance Act to provinces was invalid because social assistance requires national uniform norms under section 126(3).
Constitutional law – Interim Constitution s 235 (transitional assignment of administration) – meaning of "in force" and "administered"; s 126(3) – national versus provincial competence – social assistance requires uniform national norms and minimum standards; presidential proclamation assigning Social Assistance Act invalid; suspension of declaration under s 172(1)(b).
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6 September 2004 |
| August 2004 |
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Reported
Citizens may request diplomatic protection; courts defer to executive foreign‑affairs discretion and dismissed the applicants' mandatory relief.
* Constitutional law – extraterritoriality – limits on applying domestic Bill of Rights to conduct of foreign states; * Diplomatic protection – international law prerogative of state not an individual right enforceable at international law; * Constitutional duty – citizens may request diplomatic protection; state obliged to consider requests and act rationally; * Separation of powers – wide executive discretion in foreign affairs, subject to rationality review; * Extradition – government not obliged to seek extradition absent prima facie evidence; * Death penalty – government policy to make representations if death penalty imposed abroad.
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4 August 2004 |
| July 2004 |
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Reported
Transitional differentiated pension contributions were lawful remedial measures, not unfair discrimination under section 9.
Equality — remedial measures (section 9(2)) — not presumptively unfair; test for section 9(2): target disadvantaged group; designed to protect/advance; promotes achievement of equality — transitional differentiated pension contributions constitutionally permissible — section 190A inapplicable (repealed) — late section 219 challenge not decided.
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29 July 2004 |
| June 2004 |
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Reported
Court refused leave, held fax filing insufficient without required hard copies and declined to award costs.
Constitutional Court procedure — electronic filing by facsimile — Rule 1(4) requires lodging of hard copy and certificate; Rule 1(3) requires 25 copies and compatible electronic version — facsimile alone insufficient to lodge documents — non‑compliance with filing rules; costs — refusal to order costs against individual litigant raising important statutory/constitutional issue (Employment Equity Act).
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15 June 2004 |
| May 2004 |
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Reported
Direct appeal refused; LAC should first determine whether the EEA creates enforceable individual affirmative action rights.
EEA – affirmative action – whether affirmative action provisions create an individual cause of action enforceable by an employee; Constitutional Court direct access – refusal where Labour Appeal Court should first decide; role of specialised labour courts; condonation of late application.
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20 May 2004 |
| April 2004 |
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Reported
Applicant excluded from ballot for missing statutory candidate-list deadline; direct access and leave to appeal dismissed.
Electoral law – candidate-list deadline mandatory under s27; s28 allows only rectification of submitted lists, not condonation of late submission; Commission may amend timetable under s20 only if necessary for a free and fair election; direct access declined where appeal lacks reasonable prospects of success.
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5 April 2004 |
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Reported
An application for conditional leave is unnecessary where rules allow a direct leave application within 15 days of the SCA's order.
Constitutional Court procedure – leave to appeal – Rules 19(1) and (2) – timing and competence of applications for leave to appeal against decisions of any court, including the SCA – conditional leave unnecessary; 15‑day rule applies.
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5 April 2004 |
| March 2004 |
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Reported
Allocation upheld: decision‑maker reasonably and demonstrably considered statutory transformation obligations under PAJA and the Act.
Administrative law/PAJA – review grounds and reasonableness; Marine Living Resources Act – interpretation of section 2(j) and section 18(5) (transformation/new entrants); standard of review – ‘‘reasonable decision‑maker’’ (s 6(2)(h)); judicial deference to expert administrative policy choices; procedural fairness and alleged undisclosed policy change in quota allocation.
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12 March 2004 |
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Reported
A surviving partner to a monogamous Muslim marriage is a "spouse"/"survivor" under the two Acts.
Constitutional law — statutory interpretation under s 39(2) — undefined term "spouse"/"survivor" — whether includes partners to monogamous Muslim marriages — purposive, contextual reading favoured to give effect to equality and dignity; remedy: read-down rather than declaration and read-in where reasonably possible. Pre-constitutional precedent re Muslim marriages distinguished from cases concerning non-married same-sex partnerships. Scope limited to monogamous Muslim unions for statutory purposes.
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11 March 2004 |
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Reported
Recusal, admissibility and quashing of charges raised constitutional issues; direct appeal dismissed and further directions ordered.
- Constitutional law – judicial recusal – reasonable apprehension of bias; recusal raises constitutional issues under s 34 and s 165(2). - Criminal procedure – reservation of questions of law under s 319; distinction between questions of fact, mixed questions and questions of law. - Fair trial (s 35) – admissibility of evidence (bail record) involves legal assessment of fairness and may be reserved as a question of law. - Prosecutorial duty and constitutional obligations – quashing charges (Riotous Assemblies Act s 18(2)) may impede State’s constitutional duty to prosecute; international humanitarian law and war crimes relevance. - Appeals jurisdiction – interpretation of s 319 and SCA’s appellate competence raises constitutional issues. - Interests of justice – factors: double jeopardy (s 35(3)(m)), unreasonable delay (s 35(3)(d)), public interest, gravity of offences.
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10 March 2004 |
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Reported
Port-of-entry detainees have constitutional protection; s34(8) requires reasonable suspicion and 30-day judicial oversight.
Constitutional law — standing — public-interest standing for NGOs; Immigration law — ports of entry and detention — s34(8) requires reasonable suspicion before detention; Rights — sections 12 and 35(2) apply to all persons physically inside the Republic; Limitation and remedy — read-in 30-day judicial oversight for ship detentions (extension up to 90 days).
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9 March 2004 |
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Reported
Excluding permanent residents from social grants as non‑citizens unjustifiably infringes social‑security, equality and dignity rights.
Constitutional law — socio‑economic rights — right of access to social security (s27) vested in “everyone” — exclusion of permanent residents from social grants on basis of citizenship — unfair discrimination (s9), dignity (s10) and children’s rights (s28) — limitation and justification (s36) — remedy of reading‑in words to cure constitutional defect — jurisdiction to adjudicate Acts not yet brought into force (s172).
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4 March 2004 |
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Reported
Blanket disenfranchisement of sentenced prisoners was unjustified; court declared provisions invalid and ordered registration and voting remedies.
Constitutional law — Right to vote (s 19(3)) — Limitation of rights (s 36) — Disenfranchisement of prisoners serving sentences without option of fine — Adequacy of State’s justification (logistics, cost, policy) — Power to grant just and equitable remedial relief and limited exceptions to statutory provisions (s 172).
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3 March 2004 |
