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Citation
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Judgment date
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| December 2007 |
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Reported
High Courts retain jurisdiction for custody to facilitate foreign adoptions, but Children’s Courts and subsidiarity govern in practice.
Family law — Inter-country adoption — High Court jurisdiction to grant sole custody/guardianship where purpose is foreign adoption; Child law — Best interests of the child paramount (s 28(2)) — subsidiarity principle important but not absolute; Procedure — Children’s Court as primary forum for adoption and application of statutory and Hague Convention safeguards; International law — Hague Convention and Central Authority role; Remedies — role of curator ad litem and State participation in safeguarding public law interests.
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7 December 2007 |
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Reported
Conferral of investigative and adjudicative functions on a broadcasting complaints committee did not automatically violate sections 33 or 34.
Broadcasting regulation – complaints, investigation and adjudication – whether a broadcasting complaints committee may both investigate and adjudicate complaints without offending sections 33 (administrative justice) and 34 (access to courts/fair hearing). Administrative law – institutional bias – when conferral of investigatory and adjudicative powers on one body gives rise to reasonable apprehension of bias. Procedural fairness – inquisitorial procedure – control of questioning and cross-examination by chairperson – reviewability under PAJA. Separation of functions – distinction between prosecutorial role and inquisitorial fact-finding in regulatory tribunals.
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7 December 2007 |
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Reported
Whether a section 31A directive must be preceded by the section 32 30‑day notice‑and‑comment procedure.
Environmental law – ECA s31A directives to specific persons to prevent or remedy environmental harm – not subject to ECA s32 30‑day Gazette notice‑and‑comment requirement; exercise of s31A subject to PAJA and s36 ECA review; interpretation guided by s24 Constitution and NEMA principles; procedural fairness flexible where urgency requires truncation.
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6 December 2007 |
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Reported
Applicant’s late appeal refused: inordinate delay, inadequate explanation and mootness precluded condonation despite access-to-information issue.
Constitutional law – Right of access to information (section 32 and PAIA section 50(1)(a)) – whether applicant entitled to report – importance of access-to-information issues. Civil procedure – Applications under Rule 11(4)/Rule 19(6)(b) – discretion to decide matters on papers/written argument or to hear oral argument. Civil procedure – Condonation – interests of justice test (nature of relief, extent/cause of delay, explanation, prospects, prejudice). Justiciability – Mootness and finality – when a constitutional issue may be refused hearing due to mootness and inordinate delay.
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6 December 2007 |
| November 2007 |
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Reported
The applicant’s dismissal was not administrative action; LRA procedures and Labour Court remedies are the proper route.
Labour law – jurisdiction – s157(1) and (2) LRA – scope of Labour Court exclusivity; Administrative law – PAJA – when a dismissal by a state organ/business unit is administrative action; CCMA/arbitration – employee must ordinarily pursue LRA dispute-resolution mechanisms; Constitutional interplay – read LRA and PAJA in light of s210 LRA and s33 and s23 of the Constitution.
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28 November 2007 |
| October 2007 |
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Reported
A neutral school uniform rule plus refusal to grant exemption unfairly discriminated against a learner’s cultural and religious expression.
Equality Act; religion and culture in public schools; indirect discrimination from neutral uniform rules; comparator for discrimination (exempted v non‑exempted learners); protection of voluntary cultural/religious practices; reasonable accommodation and proportionality; obligation on schools to provide exemption procedures; limited judicial deference to school authorities; declaratory and structural relief.
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5 October 2007 |
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Reported
A commissioner must assess dismissal fairness impartially; PAJA does not supplant the LRA’s review regime and reasonableness governs review.
Labour law — unfair dismissal arbitration — commissioner’s role: impartial determination of fairness, not deference to employer; Review — section 145 LRA suffused by constitutional reasonableness standard; PAJA — does not automatically displace LRA review regime for CCMA awards; Standard of review — whether decision is one a reasonable decision‑maker could not reach; Procedural — condonation and standing for labour federation granted.
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5 October 2007 |
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Reported
Whether the President may lawfully amend or terminate an intelligence head’s fixed term and the appropriate remedy.
Constitutional law; executive power — Presidential power to appoint intelligence heads implies power to dismiss or amend fixed term; such acts are executive not PAJA administrative action but constrained by the doctrine of legality and require rationality (and, depending on context, procedural fairness); remedy: compensation in lieu of reinstatement; suspension challenge rendered moot.
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3 October 2007 |
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Reported
Non-joinder and alleged prosecutorial misconduct did not render the trial unfair; POCA confiscation appeal granted leave.
Criminal procedure – fair trial – non-joinder of suspected co-perpetrators does not, without prejudice, render trial unfair; Prosecutorial conduct – NPA Act contemplates investigative-prosecutorial overlap; Late evidence – Rules 30/31 and s22 Supreme Court Act require exceptional, incontrovertible evidence; Sentencing – minimum sentence legislation applies to ongoing offences committed before and after commencement; POCA – confiscation orders raise constitutional property and proportionality issues, leave to appeal granted. |
2 October 2007 |
| September 2007 |
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Reported
Sentencing courts must independently consider children’s best interests under section 28(2) when primary caregivers face imprisonment.
Constitutional law — Children’s rights — Section 28(2) paramountcy principle — Sentencing — Duties of court where offender is primary caregiver — Need to ascertain caregiver status, consider child’s best interests independently, weigh and secure alternative care — Correctional supervision as community-based alternative — Section 28 limited by section 36 balancing.
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26 September 2007 |
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Reported
Forfeiture under Regulation 3(5) occurs only after a Treasury decision and is administrative, reviewable and not inherently unconstitutional.
Exchange control – seizure and forfeiture of foreign currency – Regulation 3(3) seizure distinct from Regulation 3(5) forfeiture – forfeiture occurs only after Treasury decision not to return seized currency; Administrative law – discretion under Regulation 3(5) is administrative, subject to PAJA, requires opportunity to be heard and is reviewable for fairness and reasonableness; Constitutional law – forfeiture civil (punitive element only), does not constitute criminal punishment; no breach of sections 25(1), 34 or 165 where procedural safeguards observed; guidance for consistent exercise of discretion desirable.
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25 September 2007 |
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Reported
The applicant proved ownership of part of seized currency; the State lawfully retained the remainder pending prosecution.
Property law – rei vindicatio – proving ownership of seized movables (foreign currency); Criminal Procedure Act s20/s31(1)(a) – seizure and return of articles; Exchange control – Regulation 3(3)/3(5) – alleged automatic forfeiture (constitutionality not decided); Income Tax Act s99 – improper basis for retention; Constitutional law – deprivation of property (s25) and duties of public administration (ss1,195).
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14 September 2007 |
| June 2007 |
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Reported
Constitutional Court refuses leave to appeal, holding arrest-lawfulness is fact-specific and best governed by standing orders and regulation.
Constitutional and criminal procedure — Arrest powers (s40 Criminal Procedure Act) — Whether written notice must precede summary arrest — Balance between individual dignity/liberty and police duty to maintain order — Fact-specific nature of arrest-lawfulness — Role of standing orders and internal regulation.
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8 June 2007 |
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Reported
Hearing postponed due to respondent’s inadequate representation and the wider interests of justice.
Constitutional procedure – application for postponement – factors: timeliness, explanation, prejudice, public interest and prospects on merits; customary law – dispute over traditional leadership and gender equality; legal representation – State Attorney authority to represent non‑governmental applicants not decided for lack of procedural notice; equality of arms – relevance but not dispositive; costs reserved.
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8 June 2007 |
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Reported
Environmental authorities must independently assess socio‑economic and cumulative environmental impacts before granting authorisation.
Environmental law – NEMA principles – obligation of environmental authorities to consider socio‑economic impacts and cumulative effects when authorising listed activities under ECA. Administrative law – PAJA s6(2)(b)/(e)(iii) – failure to comply with mandatory and material procedures and failure to consider relevant considerations renders administrative action reviewable. Sustainable development – integration of environmental protection and socio‑economic development; cumulative impact assessment and the precautionary approach. Delegation – environmental authorities cannot avoid NEMA duties by relying solely on municipal rezoning/need and desirability assessments.
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7 June 2007 |
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Reported
An amicus cannot prosecute or bejoined for a direct Constitutional Court appeal while a party’s leave application is pending.
Constitutional procedure – Direct appeals to Constitutional Court – Whether direct leave should be granted while leave to appeal is pending in another court – interests of justice assessment. Civil procedure – Role of amicus curiae – an amicus may not displace the dominus litis; parties must launch their own appeals. Court rules – Rule 19(3)(d) – duty to disclose pending applications for leave to appeal to other courts to avoid duplication.
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7 June 2007 |
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Reported
Applicants dispossessed as labour tenants after 1913 are entitled to restitution where racist state laws enabled their dispossession.
Restitution of land rights; interpretation of "as a result of" in Restitution Act; causal standard for dispossession — purposive, context-sensitive ‘as a consequence of’ test; communal versus individual labour-tenancy rights; apartheid-era statutory and policy framework as enabler of private dispossession; remedy limited to declaratory relief with implementation by Department/Land Claims Court.
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6 June 2007 |
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Reported
Direct access to challenge parole-eligibility provision refused; applicant directed to pursue properly formulated High Court proceedings.
Constitutional procedure – Direct access – section 167(6)(a) – exceptional circumstances and interests of justice required before granting direct access.* Prisoners and parole – Parole eligibility – retrospective effect of legislative change (section 136(3)(a)) and application to prisoners sentenced before commencement.* Sentences – Application of amnesty/credits to life sentences and effect on parole consideration.* Civil procedure – Appropriate forum – Constitutional Court should not ordinarily sit as court of first instance; complex, fact-dependent claims belong in the High Court.* Professional assistance – Registrar to notify Law Society to consider legal assistance for incarcerated litigant.
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1 June 2007 |
| May 2007 |
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Reported
Employer may not unilaterally suspend MBC bargaining or implement disputed policies; certain Defence Regulations struck down or read in.
Labour law; collective bargaining in the military; validity and interpretation of Defence Regulations (chapter XX); enforceability of bargaining rights; prohibition on unilateral withdrawal from bargaining forums; prohibition on unilateral implementation of disputed policies; right of union representatives to represent members in grievance and disciplinary proceedings; limits on protest; independence of arbitration tribunal (appointment of MAB).
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30 May 2007 |
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Reported
Common‑law rape extended to include non‑consensual penile‑anal penetration of females; extension applies prospectively only.
Constitutional law; criminal law – rape definition – development of common law to include non‑consensual anal penetration of a female; principle of legality and retrospective effect – prospective development to avoid s 35(3)(l) breach; gender‑specific statutory provisions – non‑confirmation on these facts; limits on Magistrates’ Courts’ power to develop common law crimes.
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10 May 2007 |
| April 2007 |
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Reported
A contractual 90‑day time‑bar is tested against public policy informed by the Constitution; on these facts it was enforceable.
Constitutional law – contracts – time‑limitation (vexata) clauses in standard form insurance policies – whether clause barring suit unless summons served within 90 days of repudiation offends public policy and right of access to courts (s 34). Constitutional horizontality – proper approach is to test contractual terms against public policy informed by constitutional values (indirect application) and develop common law accordingly. Test: Mohlomi standard – clause must afford an adequate and fair opportunity to seek judicial redress; assess objective unreasonableness and, if not manifest, whether enforcement would be unfair in light of reasons for non‑compliance. Consumer/standard‑form concerns – small print, unilateral clauses, and relative bargaining power relevant to fairness/enforceability.
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4 April 2007 |
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Reported
Publication of private HIV status without informed consent unlawfully infringed applicants’ privacy and dignity; respondents ordered to pay R35,000 each.
Privacy – private medical information – disclosure of HIV status; requirement of express informed consent absent compelling public interest. Dignity – unlawful disclosure of private medical facts may violate dignity and psychological integrity. Actio iniuriarum – wrongful publication of private facts; interplay of wrongfulness, fault (animus iniuriandi) and possible development of negligence standard for media/publishers. Media standard – heightened obligations on journalists/publishers to verify consent and minimize harm. Remedies – damages, deletion of names from unsold copies, and costs consequences of Rule 34 offers.
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4 April 2007 |
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Reported
Remitted for a Rule 57 inquiry into claimant’s capacity before confirming constitutional invalidity of RAF Act prescription provision.
Prescription law – Road Accident Fund Act s23(1) – three-year absolute prescription where identity of driver/owner established – constitutionality challenged under right of access to courts. Prescription Act – ss12(3) and 13(1)(a) – knowledge-based commencement and protection for persons incapable of managing affairs (insane/under curatorship). Procedural fairness – requirement to join Minister responsible for administration when statute’s validity is challenged; condonation for late intervention. Capacity to litigate – necessity of inquiry under Uniform Rule 57 and possible appointment of curator ad litem/curator bonis before deciding prescription or constitutional questions. Remittal – appellate court may set aside premature constitutional declaration and remit for fact-finding and proper procedure before constitutional review.
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4 April 2007 |
| March 2007 |
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Reported
Court upheld civil forfeiture under POCA: property was instrumental and forfeiture not disproportionate.
POCA — Chapter 6 civil forfeiture — meaning of "instrumentality of an offence" — property adapted and used over time to facilitate crime — sufficient causal/functional link required; Scope of POCA — Schedule 1 offences may fall within Chapter 6 as amended; Proportionality — forfeiture must not amount to arbitrary deprivation (s 25) or grossly punitive measure — weigh nature/gravity of offence, role of property, penalties already imposed, and public interest; Interaction with provincial statute — parallel criminal or confiscatory regimes are relevant to proportionality; Practicality — partial forfeiture of immovable property is problematic without evidence of feasible subdivision.
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26 March 2007 |
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Reported
Whether chamber-only written-argument appeals, record exemptions and single-judge petitions violate fair-trial/open-justice rights.
Constitutional law — Criminal procedure — Appeals from Magistrates’ Courts — Whether appeals may be disposed of in chambers on written argument (s 309(3A)) — Whether petition judges must be furnished with trial record (s 309C(4)(c)) — Whether petitions may be considered by a single judge (s 309C(5)(a)) — Severance and reading-in as remedies.
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8 March 2007 |
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Reported
Leave to appeal denied; Court refuses to develop contract law (exceptio doli generalis) as first-instance court.
Contract law – lease – non-variation clause – written amendment requirement – verbal indulgence and waiver. Contract law – indulgence clause – reservation of rights despite indulgence. Constitutional law – attempted reintroduction of exceptio doli generalis as equitable defence – not appropriate first raised in Constitutional Court. Constitutional Court practice – reluctance to act as court of first and last instance; matters of common-law development to be addressed in lower courts first.
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6 March 2007 |
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Reported
A 14‑day affidavit requirement unlawfully limits access to courts in Road Accident Fund hit‑and‑run claims.
Constitutional law – access to courts (section 34) – validity of delegated regulation requiring a police affidavit within 14 days in hit‑and‑run Road Accident Fund claims. Civil procedure – conditions precedent to institution of action – limitation and justiciability of a claim arising from hit‑and‑run incidents. Constitutional limitation analysis – section 36 proportionality: short 14‑day period unjustified and disproportionate; regulation invalid. Remedy – declaration of invalidity applying to Fund claims not prescribed or finally determined; matter remitted to High Court.
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6 March 2007 |
