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Citation
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Judgment date
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| December 2006 |
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Reported
Concurrent creditors may sometimes intervene in POCA s26(6) proceedings; courts must balance fair-trial and creditors’ interests.
POCA (Chapter 5) – Restraint orders and section 26(6) allowances for reasonable legal and living expenses – Whether concurrent creditors may intervene in section 26(6) proceedings – Nature and scope of High Court discretion – Balancing accused’s fair-trial rights (s35) with state's interest in preservation for confiscation and creditors’ rights – SCA’s intervention allowed but automatic ‘ring-fencing’ of concurrent claims disapproved.
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15 December 2006 |
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Reported
Whether refugees may be excluded from private security registration and how s23(6) exemptions must be applied.
Constitutional law – Equality (s9) – Whether excluding non-citizen refugees from registration as private security service providers constitutes unfair discrimination; Administrative law – PAJA – refusal to register/withdrawal of registration as administrative action; Statutory interpretation – s23(6) discretion on ‘good cause shown’ and its role in tempering s23(1)(a); Refugee law – obligations under 1951 Convention and Refugees Act regarding right to seek employment; Remedies – duty to inform applicants and to consider exemptions.
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12 December 2006 |
| November 2006 |
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Reported
An off‑duty police officer who places himself on duty can render the state vicariously liable under the K test.
Vicarious liability – police – off‑duty officer placing himself on duty – applicability of the K two‑stage test. Constitutional law – development of common law under section 39(2) and section 173 – application of the 1996 Constitution to pending proceedings where interests of justice require. Delict – employer liability for employee’s unlawful acts – subjective intent (fact) and objective close‑connection (mixed fact-law) inquiries. Civil procedure – undue delay in enforcement of damages and availability of interim payments (Rule 34A).
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30 November 2006 |
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Reported
Court supervised and compelled substitution of outstanding pre‑Makwanyane death sentences, requiring detailed reporting and co‑operation.
Constitutional law – Death penalty – Supervisory mandamus to compel substitution of pre‑Makwanyane death sentences – Detailed reporting requirements for effective judicial supervision – Importance of co‑operation and judicial flexibility in enforcing constitutional orders.
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30 November 2006 |
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Reported
Section 1(1) of the Intestate Succession Act unjustifiably excluded permanent same‑sex life partners; reading‑in and limited retrospective relief granted.
Constitutional law — Equality — Sexual orientation — Intestate Succession Act s1(1) excludes permanent same‑sex life partners — unjustified discrimination — reading‑in as remedy; retrospective effect and protection of bona fide third‑party transfers; intervention and review of ancillary orders; State ordered to pay costs.
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23 November 2006 |
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Reported
Applicants’ procedural non‑compliance and lack of good cause justified refusal of condonation and striking their appeal from the roll.
Constitutional procedure – condonation and postponement – requirements for good cause, timeous application, prejudice and public interest. Civil procedure – Court’s discretion to grant postponement is an indulgence; abused by repeated delay and counsel changes. Rule compliance – non‑compliance with Rule 19(3) and failure to prosecute diligently may justify striking application from the roll. Witness Protection Act – challenge to regulation 22(1) (allowance to protected person) raised but not determined on merits due to procedural failure.
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23 November 2006 |
| October 2006 |
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Reported
Regulation 24(6) allows discretion to advertise or retain incumbents, but not if it risks retrenchment of satisfactory incumbents.
Police service regulations — interpretation of "may" in reg 24(6) — discretion to advertise upgraded posts versus duty to retain incumbents — protection against retrenchment and unfair dismissal — statutory and constitutional context (fair labour practices, employment equity, effective police management) — administrative reviewability.
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13 October 2006 |
| September 2006 |
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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 |
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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.
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28 September 2006 |
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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.
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21 September 2006 |
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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.
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21 September 2006 |
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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.
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1 September 2006 |
| August 2006 |
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Reported
A provincial legislature must facilitate public participation before approving boundary-altering constitutional amendments; failure invalidates the amendment (suspended).
Constitutional amendments altering provincial boundaries; section 74(8) provincial approval requirement; section 118(1)(a) duty to facilitate public involvement by provincial legislatures when approving boundary changes; failure to facilitate public participation renders that part of the amendment (and corresponding Repeal Act provisions) invalid; declaration of invalidity suspended to allow corrective legislative action; direct access to the Constitutional Court in relation to closely linked national legislation.
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18 August 2006 |
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Reported
Legislatures must reasonably facilitate public involvement; two health Acts invalidly adopted (invalidity suspended 18 months).
Parliamentary law-making — constitutional obligation to facilitate public involvement (ss 72(1)(a), 118(1)(a)) — scope: meaningful opportunity plus positive measures; discretion for legislatures; review by reasonableness — justiciability and jurisdiction (s 167(4)(e) narrow): only Constitutional Court may decide failure to fulfil obligation; timing of judicial intervention — limits before Presidential assent (s 79); competent after assent but before commencement — remedies: declaration of invalidity; suspension to avoid disruption.
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17 August 2006 |
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Reported
Whether municipal or provincial legislative privilege protects a councillor’s statements to a provincial committee — Court holds it does not.
Constitutional & local government law — statutory and constitutional privilege for municipal councillors — scope of s161 and s28 Municipal Structures Act — privilege applies to speech in council/its committees and does not extend to non-council/ non-member appearances before provincial legislature committees; Provincial-legislature privilege under s117 and provincial Privileges Act protects members (and officers) only, not non-members/witnesses; defamation — qualified privilege not raised; appellate interference with quantum — limited to cases of material misdirection or manifestly unreasonable awards.
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3 August 2006 |
| July 2006 |
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Reported
A ministerially mandated private regulator exercising public functions is an organ of state and bound by the Constitution.
• Public law – subordinate rule‑making by a private corporate regulator acting under ministerial exemption – organ of state and applicability of the Bill of Rights; • Delegation – interpretation of s15A Usury Act and ministerial Exemption Notice; implied rule‑making powers reasonably necessary to perform regulatory functions; • Constitutional principle – legality and rule of law constrain delegated regulatory rule‑making; • Privacy – challenge to National Loans Register left undecided as moot after new statutory regime.
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28 July 2006 |
| June 2006 |
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Reported
Warrantless, suspicion‑based searches of unlicensed gambling premises breached the constitutional right to privacy and are invalid.
Constitutional law; administrative inspections and searches — regulatory inspections can constitute searches under the right to privacy; warrantless searches of unlicensed commercial premises aimed at criminal evidence must satisfy section 36 proportionality and adequate safeguards; overbroad suspicion standards invalid; provincial competence question on deeming inspectors peace officers left undecided.
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8 June 2006 |
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Reported
A vague statutory definition of "shebeen" was declared invalid; court imposed a six‑month suspended remedy and awarded costs against the state.
Constitutional law — Rule of law — Vagueness doctrine — Statutory definition invalid for failing to specify temporal element for quantitative limit; severance inappropriate where it frustrates statutory purpose — Reading-in and suspension of declaration as remedial tools — Interim reading-in of quantitative limit (60 cases/week) and six-month suspension — Permit conditions limiting liquor type or capping sales at ten cases/week ultra vires — Costs: attorney-and-client against MEC; wasted costs de bonis propriis against State Attorney.
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2 June 2006 |
| May 2006 |
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Reported
Leave to appeal refused where unpleaded constitutional Muslim‑marriage issues were unsuitable for direct access and delayed.
Family law – Muslim personal law – Recognition of Muslim marriages and consequences of divorce – Whether common law should be developed to recognise universal partnerships in unpleaded constitutional claims; Constitutional procedure – Leave to appeal and direct access – appropriateness of Constitutional Court as court of first instance; Procedural law – Delay and condonation for late application; interests of justice.
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23 May 2006 |
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Reported
Whether bookmakers' use of totalisator dividends constitutes unlawful competition and arbitrary deprivation of the applicant's goodwill.
Delict – Unlawful competition – Whether use by bookmakers of totalisator dividends to calculate exotic-bet payouts constitutes wrongful competition. Constitutional law – Development of common law – Application of section 39(2) of the Constitution when interpreting legislation and developing common law norms (boni mores). Property rights – Section 25 – Whether permitting bookmakers to use totalisator results effects an arbitrary deprivation of totalisator goodwill or intellectual property. Constitutional procedure – Direct access – Whether it is in the interests of justice to grant direct access to challenge the National Gambling Act's definition of "open bet". Administrative/statutory context – Role of historical and statutory regulation in assessing legal convictions of the community in competition disputes.
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18 May 2006 |
| March 2006 |
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Reported
Applicant has standing, but leave to appeal and direct access were refused; execution-rule constitutional issues require full High Court adjudication.
Constitutional procedure – standing under s38 – public-interest applicant may have standing to challenge execution procedures; Judicial oversight and execution against immovable property – Jaftha implications; Rules of Court and registrar powers – constitutionality and procedural safeguards for default judgments and execution (s27A, Rule 31, Rule 45); Direct access – undesirability of Constitutional Court as court of first instance on major constitutional-rule challenges.
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31 March 2006 |
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Reported
Section 18(b) unlawfully denied spouses in community of property patrimonial delictual claims; severance and reading‑in cure the defect.
Constitutional law – Equality – Marital property regimes – Section 18(b) Matrimonial Property Act 88 of 1984 – exclusion of ‘damages for patrimonial loss’ between spouses married in community of property – unlawful differentiation lacking rational connection to legitimate purpose – severance and reading-in curative remedy; joinder of Minister required.
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30 March 2006 |
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Reported
A court may extend a suspension of invalidity while it subsists, but cannot revive an already lapsed suspension.
Constitutional law — suspension of declaration of invalidity — computation of time — civil (calendar) method applies to months; suspension expired midnight preceding corresponding date. Constitutional law — section 172(1)(b)(ii) — court may suspend or vary a declaration of invalidity while suspension subsists, but cannot revive or retrospectively extend a suspension after it has lapsed. Constitutional principle — finality of litigation and separation of powers — courts cannot resuscitate law already declared invalid. Procedure — urgency and ex parte relief — applicants must act timeously and explain delay; self-created urgency is disfavoured.
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9 March 2006 |
| February 2006 |
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Reported
Parliament may alter provincial boundaries affecting municipal areas, but procedural compliance with s74(8)/s118(1)(a) requires further inquiry.
Constitutional law — amendment of provincial boundaries — Parliament’s power to alter provincial boundaries may affect municipal boundaries — Municipal Demarcation Board’s authority under s155(3)(b) not usurped by Twelfth Amendment; Procedural law — whether s74(8) requires provincial legislatures to comply with s118(1)(a) public-participation duty — further submissions and evidence ordered; Elections — local government elections to proceed pending final determination; Co-operative government — no separate determination at this stage.
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27 February 2006 |
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Reported
Whether a centralised bulk payment and unallocated surplus satisfied statutory deposit requirements, preventing disqualification from municipal elections.
Constitutional and electoral law – Municipal elections – interpretation of sections 14 and 17 of the Local Government: Municipal Electoral Act – deposit requirements and place/mode of payment. Electoral administration – validity of centralised/national payment facility for election deposits and effect of unallocated surplus funds. Constitutional rights – section 19 political rights (vote, form and stand for parties) and section 39(2) interpretative obligation to promote enfranchisement. Jurisdiction – Constitutional Court’s jurisdiction to hear municipal electoral disputes arising under the Municipal Electoral Act.
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24 February 2006 |
