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Citation
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Judgment date
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| December 2013 |
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Reported
CAC lacked power to order Tribunal costs against the Competition Commission; appeal costs also set aside for improper exercise.
Competition law – Costs orders – Whether the Competition Appeal Court may award costs against the Competition Commission on appeal; statutory limitation on Tribunal’s costs powers under section 57; requirement that costs orders conform to "law and fairness" and respect Commission’s public‑interest role and institutional independence; appellate court must exercise costs discretion judicially with reasons.
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18 December 2013 |
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Reported
A public functionary must correct unlawful departmental acts but unreasonable, unexplained delay can non‑suit a legality review.
• Public‑sector employment – duty of executive to remedy unlawfulness – rule of law and s195 obligations; • Review and timing – unexplained delay may non‑suit legality review where delay prejudices factual inquiry; • Labour Relations Act – time limits for review of arbitration awards (s145(1)) cannot be circumvented by legality challenges; • Principle of legality and PAJA – characterisation of challenge affects applicable procedural time limits and remedies.
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18 December 2013 |
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Reported
Court dismissed appeal: counsel’s in‑court concession stood and the state’s stance waived exhaustion of internal remedies, so review was competent.
Administrative law – MPRDA s 96(1),(3): internal appeal mechanism – duty to exhaust internal remedies before court review; waiver by executive and effect of state requesting court to decide disputes. PAJA s 7(1): institution of review proceedings without unreasonable delay and 180‑day time bar. Procedural law – counsel concessions in litigation: when a party may not withdraw a concession. Civil procedure – condonation and reinstatement of lapsed appeals; reasonable apprehension of judicial bias.
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13 December 2013 |
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Reported
A court may not issue advisory opinions or reopen finalised matters absent a live, appealable dispute.
Appealability — Advisory judgments — Finality of litigation — Section 172(1)(b) remedial powers — Mootness and practical effect — Courts should not decide abstract or hypothetical questions.
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12 December 2013 |
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Reported
Applicant's rescission failed because breach of debt‑restructuring order allowed respondent to enforce loan without further notice.
Constitutional Court – National Credit Act – debt review and debt‑restructuring orders – enforcement after breach – interpretation of ss86(10), 88(3)(b)(ii) and 129(2) – rescission of default judgment (Rule 42(1)(a)) – condonation – substantial compliance – attorney negligence.
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12 December 2013 |
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Reported
Conversion under Item 7 applies only to the holder’s old order mining right; unconverted shares lapse and revert to the State.
Mineral law; MPRDA Schedule II Item 7 — definition and effect of 'old order mining right'; conversion applies to statutory composite right (mineral right + mining authorisation); unconverted old order rights lapse at expiry and revert to State; where a co‑holder has converted and holds a mining right for the same mineral/land the State may not grant the lapsed undivided share to a third party.
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12 December 2013 |
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Reported
Whether the applicant remained the respondent's employee while seconded to ISS and entitled to unpaid salary.
Employment law — Secondment and employer identity — Seconded employee may remain employed by original employer despite operational control by host — Control/supervision not determinative. Basic Conditions of Employment Act s32 — statutory right to timely payment of remuneration — gives effect to constitutional right to fair labour practices (s23) — constitutional jurisdiction. Contract interpretation — conditional takeover (clause 2.4) required appointment by ISS Board (clause 2.5) and could not operate automatically. Section 197 LRA — no proved transfer of business as going concern.
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5 December 2013 |
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Reported
Application to extend suspension of declaration of invalidity dismissed for lack of sufficient justification and prejudice to respondent.
Constitutional law — declaration of invalidity — suspension of order — extension of suspension — functus officio and standards for extension (just and equitable). Statutory interpretation — timing words in court orders — meaning of "by" and computation of suspension periods. Remedies — reading-in as remedial measure when legislature fails to cure invalidity. Procedural fairness — sufficiency of explanation for delay; assessment of prejudice to affected parties. Separation of powers — limits on judicial remedies where legislative cure is underway.
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5 December 2013 |
| November 2013 |
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Reported
A procurement award is invalid where material procedural defects—including failure to verify substantive BEE participation—render the process unfair.
Public procurement — section 217 constitutional requirements; PAJA governs review of procurement decisions; procedural fairness assessed independently of outcome; materiality linked to purpose of procurement rules; mandatory verification of substantive BEE (management/control/active involvement) credentials; vagueness and unilateral amendment of tender criteria (Bidders Notice 2) can render process procedurally unfair; remedy balancing public interest and beneficiaries' rights.
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29 November 2013 |
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Reported
Whether the President's power to confer honours includes awarding senior counsel status — court holds it does.
Constitutional law — section 84(2)(k) — 'conferring honours' — whether includes conferring senior counsel (silk) status; purposive and contextual interpretation; prerogative origins as background; President acting as Head of State.
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28 November 2013 |
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Reported
An accomplice’s lack of specific intent to aggravating circumstances affects sentencing, not automatic acquittal from armed robbery.
Criminal law – Robbery with aggravating circumstances – meaning of "or an accomplice" – accomplice liability – dolus as element of robbery – aggravating circumstances are objective facts relevant to sentencing – absence of specific intent relevant to mitigation/substantial and compelling circumstances – no breach of s12(1)(a) or s35(3)(h).
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28 November 2013 |
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Reported
Province lawfully refused rezoning under LUPO but unlawfully refused subdivision; subdivision remitted to municipality for reconsideration.
• Constitutional law – division of powers – municipal planning v provincial planning – interplay between LUPO and constitutional competences.• Administrative law – PAJA – review of rezoning decision based on ‘desirability’ standard and consideration of environmental, water-resource and socio‑economic factors.• Statutory interpretation – LUPO sections 16 and 25, scheme regulations and structure‑plan amendments – allocation of rezoning and subdivision competence.• Pleading and remedies – requirement to plead and litigate direct constitutional challenges to legislation; appellate courts reluctant to decide unpleaded constitutional invalidity.
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20 November 2013 |
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Reported
Warrantless statutory searches of private residences under the Customs Act are unconstitutional; warrants required, remedy suspended six months.
Constitutional law – right to privacy – searches and seizures – statutory authority for warrantless searches – overbreadth and lack of guidance – regulated business premises (attenuated privacy) v private residences (heightened protection) – justification under s36 – suspension and interim reading-in permitted to avoid lacuna.
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14 November 2013 |
| October 2013 |
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Reported
A suspended public servant who left on a known scholarship was not ‘absent without permission’ under section 17(5)(a)(i).
Public service law — Deemed discharge under section 17(5)(a)(i) — Suspension and absence — Whether a suspended employee who departs on study leave with employer knowledge ‘absents himself from official duties without permission’ — Constitutional implications for fair labour practices — Condonation of late filings.
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21 October 2013 |
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Reported
A trade union’s constitutional autonomy does not shield it from damages for negligently failing to prosecute members' claims.
Trade unions – organisational autonomy under section 23(4)(a) of the Constitution – does not exempt unions from contractual liability; contract of mandate – duty to refer unfair dismissal disputes timeously and to seek condonation; implied/tacit terms; section 200 LRA capacity to act for members; condonation and 90-day referral cut-off.
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9 October 2013 |
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Reported
Whether a provincial Head of Department may override a school’s admission capacity and must act fairly.
Education law – admissions and school capacity; Schools Act s 5(5), s 5A and ss 5(7)–(9); provincial regulations – HOD power to confirm or set aside principal refusals; interaction between governing-body admission policies and provincial authority; administrative law – requirement that departures from school policy be reasonable and procedurally fair; cooperative governance and best interests of the child.
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3 October 2013 |
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Reported
Criminalising consensual sexual conduct between 12–15 year olds infringes children’s dignity, privacy and best‑interests and is unconstitutional.
Criminal law — Sexual Offences Act — Sections 15 and 16 criminalising consensual sexual penetration/violation involving 12–15 year‑olds — Infringement of children’s rights to dignity (s 10), privacy (s 14) and best‑interests (s 28(2)) — Limitations not justified under s 36 — Judicial reading‑in/severance inappropriate — Declaration of invalidity suspended for 18 months — Immediate moratorium on investigations/prosecutions — Expungement and removal from sex‑offender register ordered.
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3 October 2013 |
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Reported
A provincial premier may appoint a commission under section 206(5) with subpoena powers over police for effective oversight.
Constitutional law – Policing – Section 206(3) and (5) – Provincial power to monitor, oversee and appoint commissions of inquiry into police inefficiency – Implied subpoena powers for effectiveness; does not amount to control under section 207. Co‑operative governance – Chapter 3 – consultation obligations before provincial action. Commissions of inquiry – terms of reference and subpoena powers.
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1 October 2013 |
| September 2013 |
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Reported
Blanket confidentiality of asylum applications is overbroad; Appeal Board must have discretion to allow media/public access.
Refugee law — confidentiality of asylum applications; Constitutional law — limitation of freedom of expression under section 36; Proportionality — overbreadth of blanket confidentiality; Remedy — declaration of invalidity suspended; interim reading‑in conferring discretion on Refugee Appeal Board.
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27 September 2013 |
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Reported
Reconsideration of the Court’s final order was dismissed; no exceptional circumstances justified reopening the matter.
Constitutional Court — leave to appeal procedure (Rule 19) — no applicant reply or supplementary affidavit contemplated; Functus officio — finality of court orders; Rescission/variation (Rule 29/Rule 42) — proper route to revisit orders; Inherent/common-law power to vary orders — only in very exceptional circumstances; Costs de bonis propriis; Recusal — no reasonable apprehension of bias where Justices had not participated in prior related decisions.
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12 September 2013 |
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Reported
Section 195 does not confer an independent right for the applicant to compel the respondent to account for alleged overpayments.
Local government – land use conditions – section 42 LUPO – conditions imposing capital contributions form part of approvals and require section 42(3) procedure to amend; Constitutional law – section 195 values do not create independent justiciable right to compel a municipality to account; Remedies – PAIA, public finance and civil actions provide adequate avenues for information and repayment claims.
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5 September 2013 |
| August 2013 |
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Reported
Condonation granted but leave refused: costs order in urgent bail matter did not raise a constitutional issue.
Constitutional jurisdiction – section 167(3)(b) – whether a costs order raises or is connected to a constitutional matter. Costs in criminal-related proceedings – competence of punitive de bonis propriis and attorney-and-own-client orders against public officials. Bail proceedings – distinction between urgent bail application and common-law interdictum de libero homine exhibendo (habeas corpus). Condonation for late application – brief delay, adequate explanation, no prejudice to respondents.
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29 August 2013 |
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Reported
Assembly Rules are unconstitutional to the extent they may prevent members having section 102(2) no‑confidence motions scheduled and voted upon.
Constitutional law – Parliament and internal procedures – section 102(2) motion of no confidence in President – whether Speaker has residual power under Rule 2(1) to schedule motion – scope and validity of National Assembly Rules (Chapter 12) – deadlock and decision‑making in Programme Committee – necessity for Rules to permit effective scheduling, debate and vote within reasonable time – direct access to Constitutional Court – section 167(4)(e) reserved.
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27 August 2013 |
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Reported
Applicants not entitled to general state-funded legal representation for participation in a commission; leave to appeal dismissed.
Commissions of inquiry – state-funded legal representation – no general constitutional right to state-funded counsel for participants in commissions; limited constitutional guarantees (children, detained persons, accused) – interim relief and allocation of public resources – courts’ deference to executive absent unlawfulness – Legal Aid Act framework.
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19 August 2013 |
| July 2013 |
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Reported
Statutory requirement that magistrates issue animal-performance licences violates separation of powers; invalidity suspended for Parliament to cure.
Constitutional law – Separation of powers – Assignment of non-judicial/administrative functions to judicial officers – Whether Magistrates may issue animal training/exhibition licences – Test: (a) is the function non-judicial; (b) is it constitutionally authorised; (c) is it closely connected to judicial core functions; (d) is there a compelling reason for judicial performance – Suspension of declaration to allow legislative cure.
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11 July 2013 |
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Reported
Whether a provincial HOD may lawfully instruct principals to ignore school governing‑body pregnancy policies.
Constitutional law; education law – Schools Act framework – governance v professional management – powers of school governing bodies to adopt codes of conduct and pregnancy policies – limits of departmental supervisory power – section 22 withdrawal of functions – section 16A(3) principal to follow HOD instructions but HOD must act lawfully; equality and socio‑economic rights – pregnancy policies excluding learners prima facie violate right to basic education, equality (pregnancy/sex), dignity, privacy, bodily and psychological integrity and s 28(2) best‑interests standard.
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10 July 2013 |
| June 2013 |
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Reported
Rescission refused: President’s refusal to appoint a commission is discretionary, not a constitutional obligation under exclusive jurisdiction.
Constitutional law – exclusive jurisdiction of Constitutional Court – meaning of ‘failed to fulfil a constitutional obligation’ in section 167(4)(e) – narrow construction. Constitutional law – Presidential powers – section 84(2)(f) confers discretionary power to appoint Commissions of Inquiry, not a mandatory duty. Civil procedure – rescission under Rule 42 – order erroneously granted in absence of affected party. Jurisdiction – High Courts competent to adjudicate challenges to refusal to appoint Commissions of Inquiry.
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27 June 2013 |
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Reported
Domestic courts may register and enforce SADC Tribunal orders; common law extended to include international tribunals.
SADC Tribunal – enforcement of Tribunal decisions in domestic courts; Treaty incorporation and binding effect; sovereign immunity – waiver by treaty obligations; Enforcement of Foreign Civil Judgments Act inapplicable; development of common law to treat international/regional tribunal orders as enforceable 'foreign judgments'; access to courts and constitutional obligations to give effect to international agreements.
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27 June 2013 |
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Reported
A superior court's certification of class actions must be governed by the interests‑of‑justice standard under section 173, not rigid prerequisites.
Constitutional law – section 173 – superior courts' inherent power to protect and regulate their own process and develop the common law in the interests of justice. Civil procedure – class actions – certification required; Children’s Resource Centre factors are flexible considerations, not rigid prerequisites. Appeals – limited interference with first-instance exercise of section 173 power; intervention only where decision was not judicially made, based on wrong principles or material misdirections. Competition Act – section 65 – civil damages claims following certification by a competition authority; premature disposal of such claims at certification stage to be avoided. Opt-in v opt-out and joinder – procedural suitability and potential for joinder considered in certification assessment.
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27 June 2013 |
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Reported
Applicant’s application to add expert fees to costs order refused because the expert gave no appreciable assistance to the Court.
Civil procedure – Rule 42 (variation/rescission) – jurisdictional requirements; Expert evidence – admissibility test: ‘appreciable help’; Costs – qualifying fees for experts; Constitutional adjudication – court competent to decide validity without expert assistance.
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14 June 2013 |
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Reported
Leave to appeal refused: interdict would unduly impede municipal development; s34(1) is permissive.
Restitution of land rights — interim relief under ss 6(3) and 11(7) — notice requirements — balance of convenience — s 34(1) permissive, not mandatory — municipal planning and constitutional obligations — leave to appeal refused.
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14 June 2013 |
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Reported
President’s notice under the new Act invalid where the Commission’s decision was made under the old Act.
Traditional leadership — Recognition and removal of kings — Applicability of statutes — Prospective operation of amending legislation — Commission’s decision made under old Act, President’s implementation under new Act invalid — Notice set aside.
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13 June 2013 |
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Reported
A foreign juristic person lacked standing to challenge South African mutual‑legal‑assistance decisions over document disclosure.
Constitutional standing – section 38(a) – own‑interest test (interest and direct effect); informational privacy and juristic persons; commercial confidentiality and proprietary rights; International Co‑operation in Criminal Matters Act (s7, s8) – requirements for forwarding and magistrate subpoenas; use of s205 Criminal Procedure Act versus s8 Co‑operation Act; delegation of Director‑General’s functions; procedural fairness and PAJA; over‑breadth and relevance of mutual legal assistance requests.
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13 June 2013 |
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Reported
Whether the State must formally apply under section 316B before seeking an increased sentence on appeal.
Criminal procedure – Appeal by State under section 316B – Whether State required to bring formal cross-appeal or seek leave before asking an appellate court to increase sentence – Adequacy of notice in State’s heads of argument – Role of Bogaards notice principle and fair-appeal requirements – Appellate court jurisdiction where State fails to comply with statutory leave procedure.
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12 June 2013 |
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Reported
Whether municipal rates were validly imposed: interpretive scope of transitional repeal and whether substantial compliance suffices.
Local government – municipal rates and levies – interplay of Finance Act s179 and Rates Act transitional provisions – survival and repeal of Transition Act s10G(7) – substantial compliance vs strict compliance with procedural requirements (notice, public participation, promulgation) – validity of rates for successive financial years.
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6 June 2013 |
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Reported
Majority refused leave: age disputed, missing record and delay meant no prospects of success; minority would have set aside life sentence for child offender.
Constitutional law – children’s rights – sentencing – section 28(1)(g) (child detained as last resort) – whether sentencing court misdirected by failing to treat minority as constitutionally significant; procedural law – leave to appeal and condonation – interests of justice, prospects of success, delay and missing record; evidentiary issues – proving age post-conviction.
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6 June 2013 |
| May 2013 |
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Reported
Xitsonga customary law must (prospectively) require a first wife’s consent to her husband’s subsequent customary marriage.
Customary law – Recognition of Customary Marriages Act 120 of 1998 – validity requirements under section 3(1)(b) – section 7(6) concerns matrimonial property approval not validity – Xitsonga customary law and consent of first wife – courts’ duty to develop customary law under section 39(2) to give effect to equality and dignity – prospective operation of developmental orders.
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30 May 2013 |
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Reported
A presidential remuneration determination is executive (not PAJA administrative) and was rationally made despite consultation complaints.
Constitutional law – section 172(2)(a) – conduct of the President – confirmatory proceedings; Administrative law – PAJA – whether presidential remuneration determinations are administrative action; Principle of legality – rationality review of executive decisions; Remuneration law – Remuneration Act s 8(6) and Magistrates Act s 12 – factors to be considered; Procedural fairness – when consultation/hearing required in executive determinations affecting judicial independence.
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23 May 2013 |
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Reported
Costs-only appeals require a genuine constitutional issue or exceptional circumstances; none established here.
Constitutional law — Costs in constitutional litigation — Biowatch principles — Legality and ultra vires challenges engage constitutional issues — Exceptional circumstances required for costs-only appeals — Financial interest of litigant relevant but not determinative.
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21 May 2013 |
| April 2013 |
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Reported
Municipality lawfully disconnected electricity after customer withheld rates; consolidated account rules and s21(5)(c) were satisfied.
Local government – municipal services and payment – consolidation of accounts under s102 Systems Act – by‑laws allocating payments and permitting disconnection for non‑payment; Electricity Regulation Act s21(5)(c) – licensee’s payment conditions; customer remedies for disputed charges; condonation and leave to appeal granted.
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26 April 2013 |
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Reported
A departmental subsidy notice can create an enforceable obligation for payments already due; retroactive cuts unlawful.
Education law – State subsidies to registered independent schools – 2008 departmental circular indicating 'approximate' funding levels – Whether circular created enforceable obligation – Distinction between contractual and public-law/regulatory obligations – Norms and Standards item 195 and provincial Regulation 4(3) requiring first-term payment by 1 April – Retroactive reduction of subsidies after due date ordinarily impermissible absent overriding public interest.
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25 April 2013 |
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Reported
MPRDA deprived holders of certain mineral entitlements but did not constitute expropriation; custodianship did not equal state acquisition.
Constitutional law – Property clause s 25 – Distinction between deprivation and expropriation; acquisition by the state as central to expropriation analysis in context of natural resources. Mineral law – MPRDA – State custodianship of mineral and petroleum resources; transitional provisions (Schedule II) and conversion of old order rights. Compensation – Whether statutory transitional arrangements can constitute ‘compensation in kind’ equivalent to just and equitable compensation under s 25(3). Administrative/constitutional interpretation – Balancing private property rights with public interest in transformation and equitable access; case-by-case approach to expropriation claims.
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18 April 2013 |
| March 2013 |
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Reported
Whether land administered by a statutory trust is state property exempt from municipal rates and whether late appeal merits condonation.
Municipal law – municipal rates – Rating of State Property Act s 3(3)(a) – exemption where state property is held in trust for inhabitants.* Constitutional law – definition of "organ of state" – statutory trust exercising public powers qualifies as an organ of state.* Procedure – condonation for late application and leave to appeal – explanation for delay and prospects of success considered.* Administrative law – valuation rolls and procedural prerequisites bar retrospective levying of rates.
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28 March 2013 |
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Reported
Applicant challenges parole policy as discriminatory between fixed-term and life sentences; leave to appeal refused.
Sentencing; parole eligibility; alleged unfair discrimination between fixed-term and life sentences; appropriate remedy is judicial review of parole policy in High Court; Constitutional Court not first-instance forum for parole policy review; condonation granted; leave to appeal refused.
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28 March 2013 |
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Reported
Blanket non-restoration order set aside; undeveloped commonage may be restorable, but developed leased erf protected.
Restitution of land rights – section 34 applications – non-restoration orders – thresholds of public interest and substantial prejudice under s34(6); requirement of particularity in describing land to be immunised; feasibility of restoration of undeveloped municipal commonage; protection of existing registered long leases and developed property; costs against State officials in restitution litigation.
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28 March 2013 |
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Reported
Whether an occupier's ESTA right to family life includes adult/extended family members and how to fairly balance owner's rights.
• Extension of Security of Tenure Act s 6(2)(d) — right to "family life in accordance with the culture of that family"; scope and meaning.
• "Family" not limited to nuclear family; may include adult children and extended family depending on just and equitable balancing.
• "Family life" right must be balanced with owner’s rights — inquiry infused with justice and equity.
• "Culture" under s 6(2)(d) may be associative, but associative issue unnecessary to decide on these facts.
• Admission of new evidence under Rule 31 requires relevance to the issues before the Court.
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14 March 2013 |
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Reported
Omission of the ‘clean break’ pension payment on divorce in the Post Office Act violates equality; suspension and reading‑in ordered.
Constitutional law – Equality (section 9(1)) – Pension law – ‘Clean break’ principle – Omission in Post Office Act creates irrational differentiation between similarly situated divorced spouses – Declaration of invalidity; suspension to allow legislative cure; reading‑in as remedial measure if Parliament fails to act – Direct access and condonation granted.
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7 March 2013 |
| February 2013 |
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Reported
Interdicts barring applicants' meetings and identity‑claims set aside for lack of clear right and overbreadth.
Customary law and traditional leadership – recognition under Framework Act and provincial Act – limits on meetings and use of communal names; interdictory relief – requisites for final interdicts (clear right, injury, no alternative remedy) – public law, rule of law and vagueness: overbroad interdicts struck down – fundamental rights: freedom of expression, assembly and association implicated and require careful balancing.
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28 February 2013 |
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Reported
Section 44(2) of POCA requires need and a sworn full disclosure before preserved assets may fund legal costs.
POCA s44 – interpretation – whether s44(2) prescribes cumulative jurisdictional preconditions (need and sworn full disclosure) before expenses may be paid from preserved property. Requirement of sworn, full statement of assets and liabilities and disclosure of interests in preserved property. Balancing right to legal representation against preservation objectives; appellate review of strict discretion.
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19 February 2013 |
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Reported
Section 26(3) protects occupiers from forcible disturbance; municipalities must obtain a court order before evicting or interfering with homes.
Housing law — Section 26(3) Constitution — Protection against eviction and unlawful disturbance of peaceful occupation absent a court order — Municipalities’ obligations and limits — Servitude/common-law rights must be exercised civiliter modo — Self-help by state organs impermissible.
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7 February 2013 |
