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Citation
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Judgment date
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| December 2005 |
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Reported
Direct access was refused because the applicant failed to show exceptional circumstances or that it was in the interests of justice.
Constitutional Court – Direct access under section 167(6)(a) – requirement of exceptional circumstances and interests of justice; Procedural compliance – adherence to Court rules required; Availability of alternative remedies – appeal or other proceedings to be considered before granting direct access.
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14 December 2005 |
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Reported
Application for direct access to raise s317 special-entry/fair-trial issue dismissed for lack of exceptional circumstances.
Constitutional law – right to a fair trial (s 35(3)) – alleged ineffective trial representation – application for special entry under s 317 Criminal Procedure Act. Criminal procedure – section 317 special entry – effect of functus officio once appeal process exhausted. Constitutional Court procedure – direct access (Rule 18) / leave to appeal (Rule 19) – exceptional circumstances and interests of justice required for direct access.
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14 December 2005 |
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Reported
Retrospective mid‑trial extension of a court’s sentencing jurisdiction can violate the accused’s right to a fair trial.
Constitutional law – fair trial (section 35(3)) – retrospective application of increased court penal jurisdiction – section 92(1)(a) Magistrates’ Courts Act – distinction from prescribed punishments under section 35(3)(n); rule of law and legal certainty; remedy by substitution of sentence.
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5 December 2005 |
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Reported
Applicant's collateral attack on a grounding order failed; lease obligation justified injunction; leave to appeal dismissed.
Administrative law – Collateral attack on administrative act; Contract law – lease obligation to comply with regulatory orders; Interdict – enforcement based on factual existence of a regulatory grounding order; Leave to appeal – interests of justice.
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1 December 2005 |
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Reported
Excluding same-sex couples from marriage violates equality and dignity; Court orders remedy and suspends invalidity to allow Parliament to act.
Constitutional law – Equality and dignity – Sexual orientation – Common-law definition of marriage and Marriage Act formula exclude same-sex couples – unfair discrimination under s 9 and impairment of dignity under s 10 – reading-in and suspended declaration of invalidity as remedy – direct access granted; separation of powers and parliamentary role considered.
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1 December 2005 |
| November 2005 |
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Reported
Court may, under section 172(1)(b), extend a suspension of invalidity where just and equitable to do so.
Constitutional law – section 172(1)(b) – courts’ power to make orders that are just and equitable – power is continuing and may include varying or extending a suspension of declaration of invalidity; procedural requirements for applications to extend suspension; balancing public interest, prejudice and finality.
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29 November 2005 |
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Reported
Section 8 of the Domestic Violence Act is constitutionally valid as a proportionate urgent protective mechanism.
Domestic Violence Act s 8 – protection orders – suspended warrants of arrest – service and execution; constitutional rights – access to courts (s 34), freedom and security (s 12), fair trial (s 35); police discretion and reasonable grounds for imminent harm; relation to Criminal Procedure Act s 40; misuse of protective procedures.
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7 November 2005 |
| October 2005 |
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Reported
Whether a High Court may rescind a statutory restraint order on inherent/common-law grounds beyond the Act’s specified grounds.
Constitutional and statutory interpretation — Restraint orders under Prevention of Organised Crime Act — Whether section 26(10) limits rescission/variation to listed grounds — Role and limits of High Court inherent powers (s 173) — Pleading and raising constitutional challenges in lower courts — Interaction of curator bonis powers (s 28) with restraint orders.
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7 October 2005 |
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Reported
Court grants short extension to respondents to report on substitution of pre‑Makwanyane death sentences, retaining supervisory oversight.
Constitutional Court – extension of time – interests of justice test for extensions; compliance and supervision of orders concerning substitution of pre‑Makwanyane death sentences; adequacy and accuracy of reports and affidavits; balancing explanation for delay against prejudice and public interest.
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7 October 2005 |
| September 2005 |
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Reported
Single exit price and dispensing-fee regulations are broadly permitted, but dispensing fees (and some provisions) invalid; matter remitted for reconsideration.
Medicines Act – s 22G power to introduce transparent pricing system – recommendation of Pricing Committee and Minister’s regulations – applicability of PAJA – review for lawfulness, reasonableness and procedural fairness – Severance and reading-in to cure certain defects. Administrative law – delegated legislation – relation to section 33 of the Constitution and PAJA – administrative action – implementation of legislation – pricing regulations reviewable. Regulatory law – single exit price regime – scheduling, calculation and publication – international benchmarking – logistics fee – transparency – severability and corrective reading-in. Health law – right of access to health care – affordability and availability of medicines – duties of the Minister and Pricing Committee when fixing dispensing fees – impact on rural and courier pharmacies.
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30 September 2005 |
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Reported
Whether ministerial regulations fixing single-exit prices and dispensing fees comply with the Medicines Act and administrative law.
Administrative law – applicability of PAJA to ministerial regulation-making on pricing medicines – nature of administrative action – relation between section 33 and PAJA; Pharmaceutical regulation – single exit price regime – scope and calculation – delegation limits and vagueness; Procedural fairness – oral representations and Pricing Committee process; Appropriateness of dispensing fees – review for reasonableness and viability of pharmacies; Remedy – severance, reading-in, remittal and republishing of regulations.
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30 September 2005 |
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Reported
Direct access refused for non-compliance with Rule 18(2); Registrar instructed to ask Law Society to consider assisting the unrepresented applicant.
Constitutional procedure – Direct access to Constitutional Court – exceptional remedy; compliance with Rule 18(2) mandatory. Constitutional law – environmental rights (s 24) – public interest in effective adjudication but complexity ordinarily requires lower-court consideration first. Access to justice – organiser profession’s public responsibility – referral to Law Society for potential assistance to unrepresented litigant.
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26 September 2005 |
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Reported
Direct access refused; applicant’s request for reconsideration of medical parole under s79 must follow ordinary processes.
Constitutional Court — direct access — exceptional circumstances required to hear matter as first instance; Correctional Services Act s79 — medical parole for terminal/seriously ill prisoners; Prisoners with HIV/AIDS — procedural fairness and route for reconsideration; referral for legal assistance to Law Society.
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26 September 2005 |
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Reported
Court refused amicus application: consent not automatic; amicus must add useful, distinct submissions and respect fairness in criminal appeals.
Constitutional Court – amicus curiae – rule 10 – discretion to admit amici – criteria: relevance, usefulness and distinctness of submissions. Consent of parties is a factor but not determinative – application to Chief Justice still required. Procedural requirement – summary of proposed submissions (rule 10(6)(c)). Criminal appeals – caution where amicus submissions might strengthen prosecution and affect fairness.
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9 September 2005 |
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Reported
The Court rejected bias and bail‑record challenges but held the High Court wrongly quashed conspiracy counts; charges reinstated.
Constitutional law; right to a fair trial and impartial adjudication — reasonable apprehension of judicial bias; evidence — admissibility of bail‑hearing record and exclusion in interest of fairness; criminal procedure — reservation of questions of law under s 319; Adams rule and its constitutional construction; statutory conspiracy (s 18(2) Riotous Assemblies Act) and extraterritorial conduct where conspiracies planned/organised in South Africa have a real and substantial link with South Africa; military law and jurisdiction; double jeopardy (s 35(3)(m) left for trial court).
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9 September 2005 |
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Reported
Whether compensation for a temporary right (including removed materials) is measured by market value or actual loss and must meet section 25(3) just-and-equitable standards.
Expropriation law – classification of taking under National Roads Act s8(1)(b) v s8(1)(c); Measure of compensation – Expropriation Act s12(1)(a) (market value) v s12(1)(b) (actual loss); Interaction with Constitution s25(3) – compensation must be just and equitable; Market value may form part of "actual financial loss" where proved; Practical approach: determine under Act then assess conformity with s25(3).
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8 September 2005 |
| June 2005 |
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Reported
Respondent vicariously liable where on‑duty uniformed policemen abused trust and committed rape closely connected to their employment.
Constitutional law; vicarious liability — Rabie test (subjective and objective limbs); development of common law under s39(2); mixed questions of law and fact; police duties, trust and close connection — employer liability for on‑duty officers' sexual assaults.
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13 June 2005 |
| May 2005 |
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Reported
Anti‑dilution claims under section 34(1)(c) require proof of likely substantial economic harm before restraining parodic expression.
Constitutional law – Freedom of expression (section 16) v intellectual property – trade marks (section 34(1)(c)). Trade marks – Anti‑dilution protection – tarnishment and blurring – purpose to protect commercial value/selling power. Section 34(1)(c) construed compatibly with Constitution – claimant must prove likelihood of substantial economic detriment. Parody and commercial expression – commercial sale does not automatically defeat constitutional protection; context‑sensitive balancing required. Procedural – mootness and limited admission of amicus extra‑record brand materials.
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27 May 2005 |
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Reported
The substitution mechanism for pre‑Makwanyane death sentences is constitutionally valid; Court orders expedited replacement and supervision.
Criminal Law Amendment Act s1(1)-(5) — substitution of sentence of death; Constitutional validity — applicability of s35 fair-trial rights to pre‑Makwanyane sentences; Section 12 protection against arbitrary deprivation of liberty; Separation of powers — judges' advisory role and President's imposition of sentence; Judicial review and supervisory jurisdiction to ensure timely substitution of death sentences.
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25 May 2005 |
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Reported
State’s failure to enable enforcement of an eviction order breached rule-of-law duties; compensation ordered to the landowner.
Constitutional law — Rule of law and section 34 — State obligation to provide mechanisms to render court eviction orders effective — Failure may warrant constitutional relief; Evictions — PIE Act context — Owner’s duty and state’s responsibilities; Remedy — Constitutional damages/compensation and relation to Expropriation Act; Horizontal application of section 25 and section 26 claims left undecided.
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13 May 2005 |
| April 2005 |
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Reported
The Constitutional Court lacks jurisdiction to hear complaints that only allege factual error absent a constitutional issue.
Constitutional law – Jurisdiction of Constitutional Court – Court limited to constitutional matters and issues connected with constitutional decisions – Complaint alleging only factual error in criminal/maintenance conviction does not constitute a constitutional matter (S v Boesak). Procedure – non-compliance with Court rules – defects may be overlooked but do not cure lack of jurisdiction.
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6 April 2005 |
| March 2005 |
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Reported
Delegation to prescribe licence conditions lawful; linking dispensing licences to premises valid; parts of regulation 18(5) invalid.
Medicines regulation – delegation and prescription of licence conditions; legality and limits of delegated discretion; linking dispensing licences to premises authorised under Medicines Act; section 22 (right to choose and practise a profession) – regulation of practice tested for rationality unless it negatively affects choice (then s36 proportionality applies); vagueness/ultra vires – sub-reg 18(5)(a),(c),(d),(e) invalid as implementing unlawful policy; public participation provisions (18(6),(7)) and renewal regime valid.
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11 March 2005 |
| February 2005 |
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Reported
Whether the Maintenance of Surviving Spouses Act protects survivors of permanent life partnerships as it does married spouses.
Constitutional law — Equality (section 9) and dignity (section 10) — Maintenance of Surviving Spouses Act — Whether ‘survivor’ includes permanent life partners — Interpretation and remedial options (reading‑in, suspended declaration) — Legislative law‑reform context; vulnerability of cohabiting partners.
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21 February 2005 |
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Reported
Assessor–prosecutor proximity was irregular but did not, on these facts, violate the applicant’s constitutional right to a fair trial.
• Criminal procedure – assessors – improper proximity of assessors to prosecution, investigating officer and witness during adjournments – irregularity established but not necessarily fatal.• Constitutional law – right to a fair trial (s 35(3)) – perceived or apprehended bias assessed by objective reasonable observer test.• Evidence of actual bias required to set aside conviction unless appearance of bias objectively gives rise to failure of justice.• Criminal Procedure Act – ss 317, 322 and 324 – special entry and appeals for irregularities.• Court administration – obligation to provide facilities that safeguard judicial independence and impartiality.
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18 February 2005 |
