Constitutional Court of South Africa - 2006 September

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5 judgments

Citation	Judgment date
September 2006
Prophet v National Director of Public Prosecutions [2006] ZACC 17 (29 September 2006) Reported Forfeiture upheld: property was an instrumentality of drug manufacture and forfeiture was not an arbitrary deprivation. • Asset forfeiture – POCA Chapter 6 – civil forfeiture of property used for drug manufacture – instrumentality test – property must play a reasonably direct, functional role in the commission of the offence. • Property rights – section 25(1) – arbitrariness and proportionality – application of FNB factors; forfeiture must not be disproportionate to public purpose. • Evidence – late adduction on appeal – rule 31 and section 22 standards – condonation may be granted but admissibility requires stringent criteria. • Procedural – constitutional challenges must be properly pleaded and pursued in earlier courts and necessary parties joined before direct access sought.	29 September 2006
Steenkamp NO v Provincial Tender Board of Eastern Cape [2006] ZACC 16 (28 September 2006) Reported Whether a tender board owes delictual liability for an initially successful tenderer’s out‑of‑pocket expenses when an award is later set aside. Procurement and administrative law – tender boards’ duty to act fairly, impartially and within statutory mandate – private law (delict) claims for pure economic loss arising from negligent but bona fide administrative decisions – whether initially successful tenderers can recover out‑of‑pocket expenses when award is set aside – interplay between constitutional administrative‑law remedies (PAJA) and development of common‑law delictual duties.	28 September 2006
Concerned Land Claimants Organisation of Port Elizabeth v Port Elizabeth Land and Community Restoration Association and Others [2006] ZACC 14 (21 September 2006) Reported A community section 42D agreement providing collective equitable redress does not entitle the applicant to insist on restoration of original land. Constitutional property rights — section 25(7) — entitlement to restitution or equitable redress as provided by statute; Restitution of Land Rights Act s42D — validity of community agreements and the scope of Ministerial and claimant discretion; administrative review — justiciability of agreements under the Act; standing; delay and prejudice in review of settled land-restoration schemes.	21 September 2006
South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others [2006] ZACC 15 (21 September 2006) Reported Court grants leave but upholds SCA’s refusal to permit live audio-visual broadcasting of the appeal, emphasising fair-trial priority and need for safeguards. • Constitutional law – freedom of expression (s 16) v fair trial/open justice (ss 34, 35(3)) – broadcasting court proceedings; • Constitutional law – inherent power of courts (s 173) to regulate process – scope, limits and review standard; • Procedural law – standards for appellate review of discretionary decisions of superior courts; • Media law – need for safeguards and guidelines for audio-visual coverage of judicial proceedings.	21 September 2006
Giddey NO v JC Barnard and Partners [2006] ZACC 13 (1 September 2006) Reported Security-for-costs orders under s13 engage the constitutional right of access to courts and require a balancing, limited-appellate-review approach. Companies Act s13 — security for costs; Constitutional right of access to courts (s34) — interplay with procedural rules; section 39(2) interpretive obligation; balancing test factors (likelihood of termination, funding attempts, causation of insolvency, nature of litigation); appellate review limited to non-judicial exercise, factual misapprehension or wrong legal principles.	1 September 2006