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Citation
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Judgment date
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| December 2012 |
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Reported
The applicant’s section 19 right to participate includes protection against unlawfully conducted internal elections; provincial conference invalidated.
Political rights – section 19 – right to participate in activities of a political party includes entitlement to lawful internal elections and compliance with party constitution and audit guidelines; internal party rules form contractual terms between party and members; procedural technicalities (publication, service, joinder, prematurity, internal remedies) do not justify refusing to determine substantive constitutional complaints where justiciable dispute exists; remedy – declaration invalidating provincial conference; direct appeal to Constitutional Court in interests of justice.
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18 December 2012 |
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Reported
Negligent prison omissions in TB control can establish delictual causation through a flexible but‑for analysis.
Delict — prison authorities’ duty to provide conditions consistent with human dignity — systemic failure to prevent TB — causation in omission cases — application and flexible use of but‑for (conditio sine qua non) test — limits on Rule 31 evidence — amendment to plead constitutional damages on appeal disallowed.
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11 December 2012 |
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Reported
Section 89(5)(c) of the National Credit Act arbitrarily extinguishes restitution rights and violates section 25(1).
• Statutory interpretation – National Credit Act s89(5)(c) – meaning of “purported rights under that credit agreement” and whether restitutionary claims are affected.
• Property clause – section 25(1) – restitutionary claims based on unjustified enrichment constitute property.
• Arbitrary deprivation – extinguishment of restitution rights without judicial discretion amounts to arbitrary deprivation.
• Limitation – section 36(1) – deprivation not a reasonable and justifiable limitation; less restrictive means available.
• Remedy – declaration of invalidity of s89(5)(c); legislative reform preferable to judicial reading-in.
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10 December 2012 |
| November 2012 |
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Reported
A non-ratepayer who cannot show a direct, tangible interest lacks constitutional standing to challenge a municipal land sale.
Constitutional standing – section 38 and PAJA – own-interest standing requires a direct, tangible interest; mere objection/participation in notice process insufficient; section 217 does not expand standing absent demonstrable capacity to make a competitive alternative proposal; where applicant lacks standing merits need not be decided absent fraud or gross irregularity.
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29 November 2012 |
| October 2012 |
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Reported
Rule 16A allows an amicus curiae to adduce evidence in High Court proceedings if the interests of justice require it.
• Constitutional procedure – Uniform Rule 16A – scope of amicus curiae participation – whether amicus may adduce evidence in High Court proceedings.• Constitutional power – section 173 – inherent power of High Courts to regulate their process – admission of evidence by amici where interests of justice require.• Public interest litigation – role of amici in informing courts on issues affecting vulnerable groups and access to justice.
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9 October 2012 |
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Reported
A National Assembly may not impose a permission requirement that prevents members introducing Bills under section 73(2).
Parliamentary procedure — section 55(1)(b) — initiation and preparation of legislation may be exercised by individual members as well as collectively; section 73(2) — power to introduce a Bill is distinct from initiation/preparation; section 57 — Assembly may make procedural rules but may not adopt rules that effectively deny members’ constitutional legislative powers; Rules imposing a prior 'permission' that paralyses members’ ability to initiate, prepare or introduce legislation are unconstitutional and severable.
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9 October 2012 |
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Reported
Urgent refusals of re-occupation must be temporary; eviction requires a proper section 26(3) court order and supervised engagement.
Constitutional law – Housing and evictions – Section 26(3) – Eviction requires court order after considering all circumstances; Spoliation (mandament van spolie) distinguished from constitutional relief under section 38; Urgent refusal of immediate restoration may be temporary but must not be treated as lawful eviction; Courts should order meaningful engagement and supervision where restoration is delayed.
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9 October 2012 |
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Reported
An executive appointment must be objectively justified and rational; ignoring relevant adverse findings rendered this appointment invalid.
Constitutional and administrative law — Appointment of National Director of Public Prosecutions — statutory requirement that appointee be "fit and proper" is objective jurisdictional fact — executive action reviewable for rationality — both process and decision must be rationally related to purpose of appointment — ignoring relevant adverse findings (Ginwala Commission, Public Service Commission) without adequate reasons renders appointment irrational and invalid — invalidity of appointment does not automatically void acts performed by appointee.
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5 October 2012 |
| September 2012 |
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Reported
Appellate courts must notify the applicant before increasing sentence; court orders, not warrants, determine "prisoner" status.
• Criminal law – Correctional Services Act s 115(e) – definition of "prisoner" and "prison" includes court holding cells and persons in transit; lawful detention derives from court order, not merely administrative warrant.
• Constitutional law – Right to fair trial s 35(3) – appellate procedure: appellate courts must notify appellant when contemplating an increase in sentence; failure to notify may amount to an irregularity and failure of justice.
• Common law development – long-standing notice practice elevated to mandatory requirement; procedures for giving notice and corollary limits on withdrawal of appeal explained.
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28 September 2012 |
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Reported
Compulsory administrative prior classification of publications unjustifiably limits freedom of expression; magazines must be equally exempted and s24A(2) corrected.
Freedom of expression — Administrative prior classification as prior restraint; prior restraint vs less restrictive alternatives (court interdicts, voluntary submission); vagueness and overbreadth of submission criteria; equality — irrational exemption of magazines from newspaper safeguard; statutory drafting error in s24A(2)(a) corrected by severance and reading-in.
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28 September 2012 |
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Reported
Court extended suspension of invalidity of parts of the Road Accident Fund Act for six months as just and equitable.
Constitutional remedial powers – s 172(1) – suspension of declaration of invalidity – extension of suspension before expiry – factors for just and equitable extension (sufficiency of explanation; prejudice; prospects of cure; public administration; finality) – Road Accident Fund Act s 18 invalidity.
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27 September 2012 |
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Reported
PAIA is excluded where Rule 38(1) provides for production of records for pending litigation, so Rule 38 governs access.
Access to information – Constitutional right – Promotion of Access to Information Act (PAIA) – s 7(1) exclusion where record requested for proceedings after commencement and production/access provided for in any other law. Civil procedure – Uniform Rules of Court – Rule 38(1) (subpoena duces tecum) – construed purposively to permit production of documents for pending litigation and to constitute "other law" under PAIA s 7(1)(c). Statutory interpretation – restrictive construction of PAIA's exclusion, purposive interpretation of court rules in light of constitutional obligations. Courts – superior courts are masters of their process and may apply rules flexibly to avoid injustice.
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27 September 2012 |
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Reported
A recognised union’s single strike notice can protect non‑member employees who join the strike.
Labour law; s64(1)(b) LRA – notice requirement for strikes – interpretation; constitutional right to strike (s23) – minimal intrusion; recognised union’s notice may protect non‑members; protected strike; dismissal automatically unfair (s187(1)(a)).
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21 September 2012 |
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Reported
Constitutional Court reduced taxed counsel fees as excessive, emphasizing prior litigation history and reasonable moderation.
Costs — Taxation of counsel’s fees in Constitutional Court — Reasonableness and moderation required — Prior litigation history important where issues were previously traversed. Costs — Constitutional Court will interfere with Taxing Master only where award is materially vitiated by disproportion. Costs — SCA Guideline (2006) on counsel’s fees not decided to be binding; unnecessary to resolve where fees plainly excessive.
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20 September 2012 |
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Reported
Interim interdict blocking tolling set aside as unjustified intrusion into executive budgetary and separation‑of‑powers functions.
Constitutional law; interim interdicts restraining statutory executive action; Setlogelo test applied with separation of powers considerations; urgency and direct access to Constitutional Court; administrative review (PAJA); balance of convenience and irreparable harm in public finance context.
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20 September 2012 |
| July 2012 |
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Reported
The State may not extradite or deport a person to a retentionist State without assurance against the death penalty.
• Constitutional law — extradition/deportation to retentionist States — State obligation under section 7(2) to respect, protect, promote and fulfil rights — prohibition on removal where real risk of imposition/execution of death penalty without assurance.
• Application of Mohamed — principle applies equally to deportation and to illegal foreigners.
• Extradition law — Extradition Act s11(b)(iii) and SADC Extradition Protocol permit refusal and domestic prosecution; obligations must be read consistently with the Constitution.
• Immigration Act — duty to deport must yield to constitutional protections against capital punishment.
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27 July 2012 |
| June 2012 |
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Reported
Leave to appeal refused because the Commission bypassed the Competition Appeal Court and failed to show interests of justice for direct access.
Constitutional and administrative law – competition law appeals – section 63(2) Competition Act vis-à-vis section 167(6) Constitution – whether CAC’s leave is prerequisite to approaching Constitutional Court – direct access only in interests of justice; jurisdictional requirement for complaint initiation before referral (Feltex issue).
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26 June 2012 |
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Reported
Whether a competition referral may be amended to add new complaints or respondents not in the initiating complaint.
Competition law — complaint initiation and referral — scope of Commission’s investigative/referral powers — whether referral must conform to initiating complaint; procedural law — whether amendment may introduce new complaints or join new respondents; appellate procedure — interpretation of s63(2) of Competition Act and compatibility with s167(6) of Constitution; condonation for late application and interests of justice for direct access to Constitutional Court.
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26 June 2012 |
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Reported
A statutory defence to organisers for riot damage is viable; any limitation on assembly is justified and appeal dismissed.
Constitutional law – Freedom of assembly (s17) – Regulation of Gatherings Act s11(1)–(2) – statutory strict/joint liability for riot damage – meaning and rationality of defence in s11(2)(b)-(c) – foreseeability and reasonable steps – limitation under s36 justified; statutory interpretation to preserve constitutionality.
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13 June 2012 |
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Reported
Forfeiture under POCA upheld for long‑running illegal shebeen; children’s welfare must be investigated under the Children’s Act.
POCA — forfeiture of instrumentalities — applicability to non‑POCA statutory offences; Schedule 1, Item 33—interpretation; proportionality and arbitrary deprivation (s 25 Constitution); children’s best interests (s 28(2)) and the Children’s Act investigation (s 47 read with s 155); interplay with PIE and housing rights.
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12 June 2012 |
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Reported
Section 129 requires consumers be made aware of default; posted notices need registered despatch and proof of delivery to post office.
National Credit Act — sections 129(1) and 130(1)(a) — meaning of "draw the default to the notice of the consumer" and "delivered" — interplay between sections 129 and 130 — statutory purpose to promote non‑litigious dispute resolution — proof required where notice posted: registered mail plus proof item reached intended post office (track‑and‑trace) ordinarily suffices; mere proof of posting insufficient — contested non‑receipt: court to adjudicate and may adjourn under s 130(4).
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7 June 2012 |
| May 2012 |
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Reported
Rule 42 permits limited correction of patent errors in costs orders; partial success does not automatically entitle a party to costs.
Rule 42 — correction of patent error or omission in judgments — limits on varying final orders; costs orders — when inclusion or exclusion of a party is an amendable patent error; partial success on discrete issues and entitlement to costs.
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29 May 2012 |
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Reported
Appellate orders become orders of the court of first instance; enforcement/variation belongs in that court, and no non-compliance was shown.
Enforcement of appellate orders — appellate order becomes order of court of first instance — enforcement or variation proceedings ordinarily in High Court; anticipatory non-compliance — requirement of clear evidence; eviction and alternative accommodation — scope of meaningful engagement; tripartite eviction cases require participation of essential parties (e.g. property owner).
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24 May 2012 |
| April 2012 |
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Reported
Tribunal may decide conduct reasonably encompassed by a referral; mislabelling a section 8(c) finding does not vitiate the substantive ruling.
Competition law — Abuse of dominance — Section 8(c) exclusionary acts; Competition Tribunal powers — scope of hearing, inquisitorial procedure (ss 27, 52, 55); Referral to Tribunal — interpretation and ambit; Procedural fairness — failure to rule on objections; Remedy — amendment of Tribunal ruling, no remittal where substantive finding stands.
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12 April 2012 |
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Reported
A mining right under the MPRDA does not override provincial land‑use zoning; LUPO must permit mining before mining may commence.
Mineral law and municipal land-use law – MPRDA mining rights subject to "any relevant law" – provincial land‑use scheme (LUPO) applies to land with mining rights – overlap of competencies permitted; NEMA listing repealed so environmental-authorisation declarator lacked prospects.
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12 April 2012 |
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Reported
A mining right under the MPRDA does not exempt the holder from complying with municipal zoning under LUPO.
Administrative law – land use planning – applicability of municipal Land Use Planning Ordinance (LUPO) to mining activities. Mineral law – Mineral and Petroleum Resources Development Act (MPRDA) – scope of mining rights vis-à-vis municipal zoning. Constitutional law – division of powers – interaction between national mining competence and local land-use regulation; no displacement of LUPO by MPRDA.
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12 April 2012 |
| March 2012 |
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Reported
Acting judges may not be appointed under section 175(1) to replace recused Constitutional Court judges; leave to appeal refused.
Constitutional law – interpretation of s175(1) – "absent" means physically absent or vacancy; recusal does not permit acting appointments. Separation of powers and judicial independence – ad hoc acting appointments to replace recused Constitutional Court judges not authorised. Procedural fairness – where majority of Court may be disqualified, Court should be cautious about adjudicating merits; leave to appeal refused to preserve legitimacy. Judicial Service Commission – procedural requirements and reconsideration implications addressed in background.
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30 March 2012 |
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Reported
Parliamentary amendment rendered pension equality challenge moot; Minister ordered to pay the applicant’s costs.
Pension law — equality — deferred realisation of non-member spouse’s pension interest — clean-break principle; Mootness — legislative amendment curing complaint; Constitutional remedies — reading-in; Costs — connected to constitutional litigation; Minister ordered to pay applicant’s appeal costs.
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30 March 2012 |
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Reported
Provincial statutes regulating legislatures’ financial management were unconstitutional; severance refused and invalidity suspended for 18 months.
Constitutional law — Provincial legislative competence (s 104) — Financial management of provincial legislatures — Limits on provinces’ power absent express assignment by national law — Severance — Judicial law‑making — Suspension of declaration of invalidity to avoid lacuna and allow remedial legislation.
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22 March 2012 |
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Reported
Lease termination to impose higher rent may be an "unfair practice" under the Rental Housing Act; Tribunal must be given a chance to decide.
Rental Housing Act – unfair practices – whether landlord’s termination of leases to obtain higher rents may constitute an unfair practice – Tribunal jurisdiction to determine terminations (including single acts) – interaction with eviction proceedings and s 26 constitutional protection against eviction.
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13 March 2012 |
| January 2012 |
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Reported
Removal of children without prompt automatic judicial review unjustifiably limits rights; law amended to require review by next court day.
Children — Removal from parental/family care — Sections 151 & 152 Children’s Act — Whether removals without provision for prompt automatic judicial review limit rights to family/parental care, the paramountcy of the child’s best interests and access to courts — Limitation not justified — Remedy by reading‑in/severance to require placement before children’s court for review by next court day; duties imposed on social workers/police.
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11 January 2012 |
