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Citation
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Judgment date
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| December 2011 |
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Reported
The Minister held vicariously liable for rape by a policeman on standby duty due to a sufficiently close connection to his employment.
Vicarious liability – police – deviation/standby duty – application of K two‑stage test – subjective intention and objective 'sufficiently close connection'. Constitutional obligations – state duty to prevent crime and protect vulnerable persons; normative evaluation of wrongfulness in light of the Bill of Rights. Trust – victim's reliance on police status and the role of police resources (unmarked vehicle, radio, dockets) in facilitating the wrong. Commission and omission – simultaneous rape and failure to protect relevant to establishing close connection. Direct versus vicarious liability – debate acknowledged; close‑connection test prevents absolute state liability.
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15 December 2011 |
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Reported
Court set aside eviction: municipality must be required to report on alternative housing before evicting many occupiers.
Constitutional law – PIE Act s 4(6) – "just and equitable" eviction enquiry where occupation < six months – court must consider all relevant circumstances, including municipal capacity to provide alternative land or emergency accommodation. Local government – duty and power to provide emergency housing from own resources – municipal obligation not displaced by entitlement to provincial assistance. Civil procedure – mediation role of municipality under PIE s 7 – should be explored before eviction. Property law – owner’s rights can be limited in PIE justice-and-equity enquiry where land is unused and eviction would cause severe homelessness. Litigation practice – avoid dehumanising descriptions of occupiers in pleadings
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7 December 2011 |
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Reported
Eviction under PIE must be linked to a municipality-provided alternative to prevent occupiers being left homeless.
Property law – Eviction under PIE – Owner’s property rights are not absolute; justice and equity may limit them. Constitutional law – Interpretation of PIE in light of s 26(3) of the Constitution. Housing law – Court may order municipality to audit occupiers and provide alternative accommodation before eviction. Civil procedure – Eviction date must be linked to a specified date for municipal provision of alternative accommodation to prevent homelessness.
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7 December 2011 |
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Reported
Evacuation under the Disaster Management Act does not authorise demolition or indefinite eviction without a court order.
Constitutional law – housing rights – section 26(3) – prohibition on eviction or demolition without a court order. Disaster Management Act – section 55(2)(d) – scope limited to temporary evacuation to preserve life; does not authorise demolition or indefinite eviction. Evacuation vs eviction – distinction between temporary lifesaving removal and permanent eviction/demolition requiring judicial oversight. Remedies – supervisory orders to secure identification of land, meaningful engagement and adequate amenities; costs awarded against municipality.
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6 December 2011 |
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Reported
The applicant municipality must provide temporary emergency accommodation to occupiers evicted by a private owner before eviction.
Constitutional law – Housing – PIE eviction – eviction requires a just and equitable enquiry including consideration of alternative accommodation and likely homelessness. Municipal obligations – National Housing Code (Chapter 12) – municipalities empowered and in certain circumstances obliged to plan for, fund and provide temporary/emergency accommodation; not dependent solely on provincial funding. Administrative law / equality – municipal housing policy that discriminates by rigidly excluding occupiers evicted by private owners from emergency housing unconstitutional and irrational. Resources – a municipality must plan and budget for foreseeable emergency housing needs; failure to show lack of resources fatal to defence. Joinder – absence of province not fatal where City has direct and substantial interest.
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1 December 2011 |
| November 2011 |
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Reported
State must prove on probabilities that a PAIA exemption applies; courts may inspect records in camera when justice requires.
Access to information – PAIA s11, s25, s28, s41(1)(b)(i), s44(1)(a), s80, s81(3), s82 – burden on holder to prove exemption on balance of probabilities; affidavits must show basis of personal knowledge; in camera judicial inspection under s80 permissible in the interests of justice where parties are constrained or severability/disputed probabilities require it; non‑protected material must be severed and disclosed.
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29 November 2011 |
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Reported
Section 197 applies purposively to transfers of a business as a going concern, including certain subsequent outsourcing cancellations.
Labour law – s197 LRA – interpretation and scope – section to be construed purposively in light of LRA objectives and Constitution – "transfer" requires business, transfer and going concern – substance over form – factors: assets, employees, customers, continuity – section applies to subsequent/second‑generation outsourcing where transaction effects transfer of business as going concern – termination clause obliging repurchase/assignment and surrender of assets/information can trigger s197 – entitlement to declaratory relief and costs.
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24 November 2011 |
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Reported
Whether the common law should be developed under section 39(2) to impose an enforceable duty to negotiate reasonably and in good faith.
Contract law – renewal clauses – whether "rentals shall be agreed upon" imports an enforceable duty to negotiate. Common law development – section 39(2) Constitution – whether courts must develop contract law to require reasonable/good-faith negotiation. Enforceability of agreements to agree – vagueness versus enforceable obligation to negotiate. Procedural fairness – interests of justice in granting leave; late invocation of constitutional challenge and costs consequences.
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17 November 2011 |
| September 2011 |
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Reported
Proceedings postponed because multiple recusals and a vacancy meant the Constitutional Court lacked the constitutionally required quorum.
Constitutional Court — Recusal by members who are complainants and witnesses — Quorum requirement under section 167(2) — Acting judicial appointments to fill vacancy — Postponement of hearing where Court not quorate.
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29 September 2011 |
| August 2011 |
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Reported
Section 25(2)(b) does not always require compensation be determined before expropriation; post‑expropriation compensation must be fixed promptly.
Constitutional property law – Expropriation – Timing of compensation under section 25(2)(b) – Determination before or after expropriation – Requirement that post‑expropriation compensation be fixed promptly and evictions occur only by agreement or under court supervision – Interaction with section 25(3) and section 26(3).
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25 August 2011 |
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Reported
Court dismissed challenge to amendment relocating Moutse areas, finding rationality and reasonable public participation.
Constitutional law — Amendment of Constitution — Twelfth Amendment and Repeal Act — abolition of cross-boundary municipalities and redrawing provincial boundaries; Administrative law/Constitutional procedure — public participation — section 118 obligation of provincial legislatures — reasonableness standard for facilitation; Constitutional review — rationality test — connection between measure and legitimate government purpose; Remedies — leave to file supplemental affidavit; costs limited for postponements.
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23 August 2011 |
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Reported
Registration under ICCMA governs foreign restraint orders; ancillary POCA interdicts may follow and are not easily rescinded.
International co-operation – registration and enforcement of foreign restraint orders – ICCMA s24-26; Relationship between ICCMA and POCA – registration gives foreign order the effect of a POCA restraint order but remains foreign; Ancillary relief under POCA s26(8) – valid to render registered foreign orders effective and may follow registration; Setting aside registration – only under ICCMA s26(1), including 'interests of justice' enquiry; Rescission – POCA s26(10)(b) applies to domestic restraint orders, not ancillary orders; Constitutional issue – interpretation must avoid arbitrary deprivation of property (s25) and promote Bill of Rights values (s39(2)).
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16 August 2011 |
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Reported
The Court held provincial legislatures lack an express constitutional power to legislate their own financial management.
Constitutional law — Division of legislative powers — s104(1)(b)(iii)-(iv) — "expressly assigned" requires clear, unambiguous legislative assignment by Parliament; "envisages" under s104(1)(b)(iv) does not permit mere implication that provinces may legislate — constitutional provisions on financial management (ss195,215,216) do not, in clear terms, envisage provincial legislation to regulate provincial legislatures' financial management; FMPA s2(e), s3 and Schedule 1 do not expressly assign the power — Bill unconstitutional; Court may reach substantially similar provincial statutes and join affected parties.
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11 August 2011 |
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Reported
Section 26(6) permits legal expense payments only from property held by the person against whom that restraint order was made.
POCA – restraint orders – section 26(6) – limited provision for reasonable legal and living expenses only in respect of person against whom restraint order is made – affected gifts and realisable property – section 26(1) cannot override section 26(6) safeguards – balancing asset preservation and fair-trial rights.
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10 August 2011 |
| July 2011 |
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Reported
Section 8(a) unlawfully delegated Parliament's power to extend Constitutional Court judges' terms and improperly singled out the Chief Justice.
Constitutional law; interpretation of s176(1) of the Constitution; delegation of Parliament's power to extend Constitutional Court judges' terms; impermissible delegation to the President (s8(a) of Judges' Remuneration Act); unlawful differentiation singling out the Chief Justice; separation of powers; judicial independence; remedy—declaration of invalidity; suspension refused; costs awarded.
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29 July 2011 |
| June 2011 |
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Reported
Section 69 does not retrospectively repeal common law rape or bar prosecutions for pre-commencement offences reported after commencement.
Criminal law – repeal and transition – interpretation of transitional provisions (s68, s69) of Sexual Offences Amendment Act; presumption against retrospectivity in criminal statutes; constitutionality of transitional wording; protection against retrospective extinguishment of liability for sexual offences; statutory interpretation: plain meaning and legislative purpose.
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14 June 2011 |
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Reported
Only SAPS members (and those designated as such) are engaged in an essential service; PSA non-members are excluded.
Labour law – Essential service – Meaning of "engaged in" in s 213 read with ss 65(1)(d)(i) and 71(10) of the LRA – SAPS to be defined by SAPS Act; only "members" (including those designated under s29) are prohibited from striking – restrictive interpretation to protect right to strike.
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9 June 2011 |
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Reported
Judge’s intemperate remarks did not establish reasonable apprehension of bias, but the punitive costs order was corrected.
Constitutional law – Recusal – reasonable apprehension of bias – objective test whether an informed reasonable person would apprehend lack of impartiality.* Civil procedure – Costs – punitive costs and costs de bonis propriis – exceptional relief; requirements and judicial discretion.* Urgent court procedure – compliance with practice directions – attorney’s conduct and consequences.* Constitutional Court jurisdiction – constitutional matter or issue connected with a constitutional matter (recusal and costs orders).
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9 June 2011 |
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Reported
A section 21 CPA search warrant must specify the offence to be reasonably intelligible and valid.
Search and seizure warrants — Criminal Procedure Act s 20–21 — Common-law intelligibility principle — Warrant must be reasonably intelligible to searcher and searched — Offence under investigation must be specified — Valid warrant should identify statute, searcher, premises, articles and offence.
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7 June 2011 |
| May 2011 |
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Reported
A petition must be reconsidered where the appellate court reviewed it without the challenged rulings and reasons, breaching the right to an adequate reappraisal.
Criminal procedure – petitions for leave to appeal – constitutional right to appeal or review (s 35(3)(o)) – requirement of adequate reappraisal and informed decision by appellate judges – necessity of having challenged rulings and trial reasons before court considering petition. Evidence – admissibility – trials-within-the-trial – where rulings and reasons are only in the record, appellate court must call for relevant parts to assess petition. Remedy – section 172(1)(b) remedial power – setting aside SCA order and remitting petition for reconsideration.
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25 May 2011 |
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Reported
Direct access dismissed: alleged factual errors did not show reasonable apprehension of judicial bias; costs awarded.
Judicial bias — reasonable apprehension of bias; direct access to Constitutional Court — interests of justice; appellate factual findings — when factual error can found perceived bias; tender litigation — delictual claims require causally relevant dishonest conduct; costs — attorney-and-own-client; professional-conduct referral.
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24 May 2011 |
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Reported
The Commission validly refused the respondent’s filing outside the designated local electoral office; local submission is mandatory.
Electoral law – Local Government: Municipal Electoral Act – sections 14 and 17 – requirement to submit election documentation to the office of the Commission’s local representative; Statutory interpretation – legislative purpose – administrative efficiency, local verification and the local nature of municipal democracy; Distinguishing African Christian Democratic Party v Electoral Commission (deposit payment centralisation) – deposit fungibility vs documentary local processing; Procedural fairness – right to be heard and Electoral Court rules – failure to notify/participation vitiates order; Urgent constitutional appeal – leave granted; Condonation for late record.
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10 May 2011 |
| April 2011 |
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Reported
Haakdoornbult judgment did not affect the community’s separate Pylkop claim; rescission and expungement were refused.
• Restitution of Land Rights Act – relationship between separate land claims – whether an earlier court order on one property (Haakdoornbult) affects a distinct pending claim to other land (Pylkop).
• Civil procedure – rescission under Uniform Rule 42; limits on rescinding or expunging prior reasons where non‑parties claim an interest.
• Access to courts (s 34) – whether non‑party’s rights were impaired by prior judgment when no operative order was made affecting that land.
• Res judicata/issue estoppel – application only where same parties, cause of action and relief; not applicable to distinct restitution claims.
• Costs – ordinary costs awarded; de bonis propriis order against applicant’s counsel for additional counsel fees due to baseless misconduct allegations.
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21 April 2011 |
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Reported
Whether a private owner and the MEC must protect learners' right to basic education before evicting a public school.
• Education law – right to basic education (s 29(1)) – immediately realizable right – state duty to respect, protect, promote and fulfil.• Section 8(2) – Bill of Rights binds juristic persons to the extent applicable; private owners who host public schools bear a negative duty not to impair learners' rights.• Children – best interests (s 28(2)) – courts must give paramount importance to children's interests in decisions affecting them.• Property law – rei vindicatio – exercise of ownership rights must be balanced against constitutional rights; eviction requires consideration of learners' rights and arrangements for alternative education.• Remedies and costs – constitutional court may grant just and equitable orders; where state default causes litigation, state may bear costs; here MEC ordered to pay party-and-party costs including two counsel.
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11 April 2011 |
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Reported
A registrar may not declare a person’s home specially executable in default judgment; court oversight is required.
Constitutional law — Housing rights (s 26) — Execution and sale in execution — Whether registrar may declare a primary residence specially executable when granting default judgment under rule 31(5)(b) — Registrar lacks judicial competence; execution against a home requires court oversight (Lesapo, Jaftha). Procedural law — Direct access — Exceptional circumstances and public importance justify direct access. Remedies — Prospective rule amendment does not cure retrospective invalidity; rescission and fact-specific judicial enquiry required to set aside past executions.
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11 April 2011 |
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Reported
Whether section 89(5)(c) mandates forfeiture to the State or permits judicial discretion, implicating constitutional property rights.
National Credit Act s89(5)(c) – forfeiture of credit provider's purported rights to State – scope and meaning of forfeiture; Constitutional law – property rights s25(1) – potential arbitrary deprivation and interpretive duty under s39(2); Joinder – State’s direct and substantial interest where forfeiture vests rights in the State; Constitutional Court – leave to appeal and interests of justice where matter is novel and unresolved by appellate courts.
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8 April 2011 |
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Reported
Amnesty expunges legal records and consequences but does not bar truthful public discussion of past politically motivated crimes.
• Constitutional law – Amnesty under Promotion of National Unity and Reconciliation Act – scope of section 20(10) – expungement of convictions limited to official records and legal consequences, not to historical facts or public discourse. • Defamation – defence of fair comment/protected comment – requirements: comment on matter of public interest, honest belief, absence of malice, and truly stated underlying facts (or notorious facts). • Freedom of expression – interplay with dignity and reconciliation – robust public debate protected but not licence for false factual assertions. • Remedies – damages awarded where false defamatory factual assertions are published despite surrounding protected comment.
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8 April 2011 |
| March 2011 |
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Reported
Direct-access application to compel municipal demarcation tribunal and Soweto municipality dismissed for lack of jurisdiction and prospects.
Constitutional Court — direct access — Rule 18 compliance and interests of justice; municipal demarcation — authority to establish municipalities vests in provinces; removal of demarcation board members — requires misconduct, incapacity or incompetence and tribunal process under Municipal Demarcation Act; merits — lack of prospects of success.
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31 March 2011 |
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Reported
The court refused to require NCCS recommendations before the Minister considers parole for certain life‑sentenced offenders.
Constitutional Court — parole and life sentences — interpretation of prior order — whether National Council for Correctional Services recommendation required before Minister may consider parole — rule 42(1) variation — functus officio — administrative action.
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31 March 2011 |
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Reported
Court discharged the supervised eviction order against the applicants due to changed circumstances; the costs order remains.
Constitutional and property law – PIE and section 26(3) – scope to discharge or vary supervised eviction orders when circumstances change. Judicial finality versus changing facts – exceptional circumstances test for rescission of orders. Housing redevelopment – in situ upgrading vs relocation; implementation failures may render eviction orders unjust and inequitable. Costs orders – final costs directions are not easily susceptible to discharge alongside substantive orders.
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31 March 2011 |
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Reported
Whether sentencing courts considered the children's best interests when sentencing a primary caregiver.
Criminal law — Sentencing — Primary caregiver — Constitutional duty under s 28 to consider children's best interests — S v M guidelines on when and how courts must inquire into primary-caregiver status and adequacy of alternative care — Application to custodial sentences and consideration of correctional supervision under s 276.
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29 March 2011 |
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Reported
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17 March 2011 |
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Reported
City not ordered to pay applicant’s costs, but must pay first respondent’s costs in this Court due to its failure to investigate.
Costs — provisional costs order — public authority’s non‑participation where it implemented High Court findings — legitimate reason not to burden public purse — failure to investigate gives rise to costs liability to successful litigant.
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10 March 2011 |
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Reported
Whether a sexually manipulated image by pupils defamed a teacher, how children’s rights affect meaning, wrongfulness and damages.
Defamation — pictorial publication by schoolchildren — meaning and context of image — balancing freedom of expression, dignity and children’s rights — animus iniuriandi and knowledge of wrongfulness — duplication of actions (defamation and iniuria) — quantum and role of apology/restorative measures.
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8 March 2011 |
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Reported
Section 35(1) COIDA does not extinguish common-law claims of mineworkers excluded from COIDA by ODIMWA.
Compensation law — Interpretation of s35(1) COIDA — Relationship between COIDA and ODIMWA — Whether COIDA’s substitutionary bar extinguishes common-law claims of mineworkers excluded from COIDA by s100(2) ODIMWA — Constitutional implications (s12 right to security of person; s38 effective remedies).
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3 March 2011 |
| February 2011 |
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Reported
Provisional sentence limits the right to a fair hearing in narrow cases; courts must have limited discretion to refuse it.
Constitutional law — Access to courts (s 34) — Provisional sentence — Whether denying a judicial discretion to refuse provisional sentence where defendant cannot pay and defence requires oral evidence limits fair hearing right — Common-law development to provide limited discretion. Procedure — Provisional sentence — Purpose, limits and required judicial discretion. Limitation analysis — Proportionality under s 36.
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22 February 2011 |
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Reported
R25,000 cap on certain Road Accident Fund passenger claims is unfairly discriminatory and invalid, suspension granted for parliamentary cure.
Constitutional law — Equality — Indirect discrimination — R25,000 cap on certain Road Accident Fund passenger claims — Unfair discrimination on race and socio-economic grounds — Not justified under s36 — Declaration of invalidity suspended to enable parliamentary remedy; retrospective operation if Parliament fails to act.
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17 February 2011 |
