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Citation
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Judgment date
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| December 2010 |
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Reported
Small judicial shareholding and robust appellate questioning do not, by themselves, establish reasonable apprehension of bias.
Judicial bias — recusal — test: whether a reasonable, objective and informed person would reasonably apprehend bias; presumption of impartiality and double-requirement of reasonableness; shareholding by a judge in a litigant-company assessed by realistic-possibility test (de minimis holdings ordinarily not disqualifying); prior association with a litigant does not require recusal absent relevance to subject-matter; conduct/remarks during argument give rise to bias only if sufficiently egregious; appellate factual differences are not proof of bias.
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9 December 2010 |
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Whether Parliament must rationalise old-order dangerous-weapons laws and appropriate court relief pending legislative action.
Constitutional law – Schedule 6 (item 2) – old-order legislation – obligation to rationalise laws originating in former TBVC territories – uniform national legislation for dangerous weapons; Dangerous Weapons Acts (Transkei, Bophuthatswana, Venda, Ciskei) – differential sentencing and transitional retention; Remedy – postponement and judicial restraint where legislature undertakes corrective action; Court powers – correction of lower court orders via section 173 where necessary to prevent perpetuation of injustice.
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2 December 2010 |
| November 2010 |
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Reported
Grant of prospecting rights without statutory consultation, environmental compliance and internal appeal violated administrative fairness.
Administrative law — Mineral and Petroleum Resources Development Act — delegation and internal remedies — section 96 internal appeal exists despite delegation under section 103; PAJA applies. Procedural fairness — consultation and hearing — statutory consultation under s16(4) and opportunity to pursue s104 community preferent right required. Environmental compliance — environmental management plan and financial provision must be considered before grant; grant ineffective without compliance. Review timing — PAJA 180‑day period begins when internal remedies are concluded. Remedies — unlawful administrative action to be set aside unless justifiable to limit relief.
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30 November 2010 |
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Reported
Abolition of common-law claims and caps are constitutionally rational; UPFS medical tariff (Reg 5(1)) is unlawful and invalid.
Constitutional law — legislative rationality as threshold of rule of law; social-security reform — abolition of common-law residual claims rational and justifiable; section 12(1)(c) (security of the person) engaged but limitation justified; section 25(1) not breached; Regulation 5(1) prescribing UPFS invalid — UPFS inadequate to secure access to necessary medical care for seriously injured road-accident victims.
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25 November 2010 |
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Reported
State ordered to pay costs of constitutional challenge where private employers ceased participation and secured applicant’s release.
Constitutional litigation — costs — whether private litigants who initiated arrest but secured release and ceased participation should be ordered to pay costs — application of Biowatch principle that State ordinarily bears costs in public-interest constitutional challenges — condonation for late filing of representations.
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25 November 2010 |
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Reported
Applicant’s direct access dismissed; writ of execution issued during pending application for leave to appeal was unlawful and set aside.
Civil procedure – direct access – Constitutional Court reluctant to be court of first and last instance; direct access refused where abandonment renders issue moot. Appeals – leave to appeal – factual disputes and eviction matters should ordinarily proceed to Full Court or Supreme Court of Appeal before Constitutional Court intervention. Execution – Uniform Rules of Court, rule 49(11) – application for leave to appeal suspends execution unless the court that granted the order directs otherwise; writ issued while leave pending unlawful. Housing – eviction implicates right to housing but reinstatement may be impossible where premises occupied by bona fide third party. Costs – successful litigant entitled to disbursements of pro bono attorneys where respondent delayed concession and caused expenditure.
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24 November 2010 |
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Reported
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23 November 2010 |
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Reported
Leave to appeal dismissed; Labour Appeal Court correctly held rule 6(7) requires notice before default judgment.
Labour Court procedure – Rule 6(7) – Default judgment – Requirement of notice to defaulting party before default judgment may be granted – Rescission of default judgment – Condonation for late application – Case management and delay in unfair dismissal proceedings.
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23 November 2010 |
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Reported
Threats and isolated conduct did not amount to a constitutional deprivation of property under section 25.
Property law – section 25(1) – deprivation requires substantial interference with use, enjoyment or exploitation of property; threats or negotiations alone may not suffice. Constitutional application – juristic entity with government ownership exercising public functions can be an "organ of state" subject to property clause. Administrative law – failure or delay to decide on future expropriation does not automatically constitute reviewable administrative action or a constitutional deprivation. Expropriation – future exercise of expropriation powers must comply with statutory and constitutional safeguards; possibility of future expropriation does not entitle compelled decision.
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18 November 2010 |
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Reported
Whether new review grounds and Building Act s7(1) issues may be introduced on appeal and time‑barred under PAJA.
Administrative law; Building Act s7(1) — adequacy of building control officer’s recommendation; derogation from neighbouring property value (s7(1)(b)(ii)) — when that issue arises on the papers; PAJA s7(1) — 180‑day time limit for judicial review and application to new grounds raised in reply; title‑deed restrictive covenants — distinction between boundary walls and retaining/structural walls for clause D(d); procedural fairness — when decision‑maker’s reliance on a summary recommendation suffices.
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4 November 2010 |
| September 2010 |
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Reported
A fixed three‑year RAF prescription from the cause of action is constitutional; the Prescription Act’s knowledge requirement does not apply.
Prescription — Road Accident Fund Act s23(1) — inconsistency with Prescription Act s12(3) — knowledge requirement not imported; Right of access to courts (s34) — time‑bar limits right; Limitation justified under s36 given administrability and fiscal sustainability of RAF; Dissent: lack of knowledge requirement and condonation disproportionally affects disadvantaged claimants.
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30 September 2010 |
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Reported
Antedated life-sentence offender entitled to parole consideration under the 1992 parole policy; s136(3)(a) upheld but not applicable to him.
Correctional Services Act s136 — transitional parole provisions — interpretation of subsections (1) and (3)(a); effect of antedated sentences; non-retrospectivity and rule of law; parole eligibility — preservation of pre-2004 policy/guidelines for some offenders; direct access to Constitutional Court; remedial order directing CMC, Parole Board and Minister to consider release under 1959 Act policy (13 Nov 1992).
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30 September 2010 |
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Reported
A factual challenge to the trial court's rejection of a battered‑woman defence does not raise a constitutional issue; leave refused.
Criminal procedure – leave to appeal – factual challenge to trial court's rejection of 'battered woman' defence does not raise a constitutional issue. Constitutional jurisdiction – Court lacks power to admit fresh evidence or remit matter once appeal route exhausted; re‑opening governed by s316(5) Criminal Procedure Act. Evidence – requirements for re‑opening: explanation for delay, reliability/probability of evidence, and likelihood of different outcome. Amicus curiae – ancillary application fails when main application for leave to appeal is dismissed.
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21 September 2010 |
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Reported
Direct access refused where SCA’s unexplained refusal of leave to appeal did not raise a constitutional issue.
Appellate procedure – Refusal of leave to appeal – Supreme Court of Appeal not required generally to furnish reasons for refusing leave to appeal; exception possibly where a constitutional issue is involved and SCA is not final – Direct access to Constitutional Court not warranted absent such constitutional issue (Mphahlele applied).
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7 September 2010 |
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Reported
Leave to appeal refused as the recusal dispute was academic after the trial judge’s retirement.
Recusal — Perception of bias — Extensive adoption of counsel’s heads as judgment — Independent judicial reasons — Interests of justice — Mootness due to judge’s retirement.
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2 September 2010 |
| August 2010 |
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Reported
Statutory power to arrest a suspected fleeing debtor pre-judgment unjustifiably limits the constitutional right to freedom and is unconstitutional.
Constitutional law — Arrest tanquam suspectus de fuga — Pre‑judgment detention to prevent flight — Infringement of s 12(1) right to freedom and security — Limitation not justified under s 36 — Severance of offending words from section 30(1) and striking out section 30(3) of Magistrates' Courts Act — Retrospective effect limited to pending cases.
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24 August 2010 |
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Reported
Court set aside 1975 notice applying Transkei Dangerous Weapons Act and ordered remedial measures.
Constitutional law – confirmation of High Court orders – difference between invalidity of a provision and invalidity of its application; Dangerous Weapons Act (Transkei) – ministerial notice making section applicable – 1975 Notice set aside; Equality – territorial discrimination by continued operation of harsher sentencing regime; Remedies – limited retrospective relief, withdrawal of pending charges, reporting and Legal Aid assistance; Jurisdiction/procedure – exceptional exercise of Court's remedial powers (section 173/section 172(1)(b)) and call for Parliamental rationalisation of old-order TBVC legislation.
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5 August 2010 |
| June 2010 |
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Reported
Municipal planning includes rezoning and township approvals; DFA Chapters V–VI empowering provincial tribunals are unconstitutional.
Development Facilitation Act (Chapters V & VI) — municipal planning — whether "municipal planning" (Schedule 4 Part B) includes rezoning and township approvals — allocation of powers among national, provincial and local spheres — tribunals' authority to suspend application of laws — remedial suspension of declaration of invalidity — requirement to consider integrated development plans; prohibition on excluding Acts/by-laws; transitional protection for pending applications.
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18 June 2010 |
| May 2010 |
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Reported
A national Act substantially affecting indigenous law and traditional leadership must be tagged under section 76; CLARA invalid for incorrect procedure.
Constitutional law — Tagging of Bills — Proper test is whether the provisions of a Bill in substantial measure fall within Schedule 4 functional areas; Communal Land Rights Act — substantially affects indigenous/customary law and traditional leadership — should have followed s76 procedure; Failure to follow s76 renders Act invalid; Procedure and public participation issues unnecessary once tagging defect upheld; Costs awarded to applicants (three counsel).
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11 May 2010 |
| March 2010 |
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Reported
Delay in executing sentence does not excuse a bail-suspended convicted person's failure to ascertain appeal outcome; application dismissed.
Criminal procedure — convict on bail pending appeal — duty to ascertain appeal outcome and present for imprisonment if appeal fails — delay in execution of sentence — administrative shortcomings by NPA/court/SAPS — section 12 (freedom and security) complaint.
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25 March 2010 |
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Reported
Precipitate litigation over pardons did not justify further costs where prior proceedings already censured governmental delay.
Constitutional law – presidential powers – pardons under section 84(2)(j) – delay in decision-making; victim-participation interlocutory issues in related litigation (Albutt). Constitutional procedure – direct access under section 167(4)(e) – appropriateness where relief rendered academic. Costs – discretionary exercise in constitutional litigation – conduct of parties, prior costs order and public censure relevant to award of costs.
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16 March 2010 |
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Reported
An interim court order may not extend time-limited anti-dumping duties; such extension trenches on separation of powers.
International trade law – Anti-dumping – Duties are remedial and time-limited; sunset reviews must be conducted expeditiously in line with WTO obligations. Administrative and constitutional law – Interim interdicts – Appealability where an interlocutory order has immediate, final effect and causes irreparable harm. Separation of powers – Courts must be cautious not to extend or impose executive trade measures; judicial review protects legality and fairness but does not permit courts to prolong statutory duties. Procedural fairness – Right to review administrative action preserved but does not confer a right to extend anti-dumping duties beyond statutory limits.
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9 March 2010 |
| February 2010 |
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Reported
Parliament’s public-participation duty met and Thirteenth Amendment Act found rational; challenge dismissed.
Constitutional law — Amendment of Constitution — Sections 59(1)(a), 72(1)(a), 118(1)(a) — Duty to facilitate public involvement — Reasonableness standard; Constitutional law — Section 74 — Amendment affecting provincial boundaries — Rationality review; Administrative/constitutional review — Courts respect separation of powers and will not second-guess legitimate legislative choices absent irrationality.
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24 February 2010 |
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Reported
Victims must be given an opportunity to make representations before presidential pardons under the political-offences special dispensation are granted.
Constitutional law – Presidential pardon (s 84(2)(j)) – Special dispensation for political offences – victims’ right to be heard before pardon decisions – exclusion held irrational and unlawful. Administrative law – PAJA – whether pardon power is "administrative action" left undecided; High Court erred in deciding PAJA issue. Remedies – interim interdict upheld; condonation and direct leave granted; appeal dismissed. Standing – NGOs permitted to litigate in public interest and on behalf of victims.
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23 February 2010 |
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Reported
Condonation granted; leave refused—no constitutional duty for appellate courts to seek post-award facts absent proper adducing of evidence.
Labour law – remedies for unfair dismissal – reinstatement as primary remedy; appeals/reviews – role and limits of appellate courts in admitting post-award evidence; section 172(1)(b) – no freestanding constitutional duty on appellate courts to initiate inquiries into post-judgment facts; systemic delay – deplored but not a legal basis to bypass statutory evidentiary rules.
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18 February 2010 |
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Reported
Court reduced an excessive counsel-fee claim for opposing affidavit, allowing 20 hours at R1 200 per hour.
Civil procedure – taxation of costs – time-based charging – time charged not decisive; objective assessment of necessity and reasonableness required. Costs – counsel’s fees – opposing affidavit resisting leave to appeal – prior related proceedings diminish reasonable hours. Constitutional Court practice – intervention where Taxing Master’s allowance materially departs from equitable balance – Court may substitute its own taxation.
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4 February 2010 |
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Reported
Charge sheets invoking constitutionally invalid presumptions can prejudice fair trial rights, but direct access to set aside convictions was refused.
Criminal law — Defective charge sheets — Statutory presumptions (s 21) declared unconstitutional — Fair trial rights (s 35(3)) — Effect of unamended defective charge and s 86(4) Criminal Procedure Act — Direct access to Constitutional Court and interests of justice.
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4 February 2010 |
