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Citation
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Judgment date
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| December 2014 |
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Reported
Section 9(4A) of the Insolvency Act includes domestic employees; petitions must be made accessible to employees.
Insolvency Act s9(4A) – "employees" includes domestic employees – interpretation in light of Constitution and LRA; "Furnish" is peremptory in obligation but the prescribed modes are directory – petition must be made available in a manner reasonably likely to make it accessible to employees; Non-compliance not always fatal – cannot be used as mere technical defence where sequestration otherwise benefits creditors; Section 12(1) advantage to creditors – requires a reasonable prospect that some pecuniary benefit will result; test is broad and flexible.
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19 December 2014 |
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Reported
Vesting of excess subdivision land under section 28 LUPO is expropriation requiring compensation under the Expropriation Act.
Land Use Planning Ordinance s28 — vesting of public streets and places; 'normal need' limits uncompensated vesting; excess land vests but attracts compensation; structure plans are not 'policy' under s28; vesting of excess land constitutes expropriation under s25; compensation to be calculated under the Expropriation Act; no obligation to exhaust LUPO appeal/review remedies before suing for compensation.
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15 December 2014 |
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Reported
Whether a specialist Commission properly applied historic customary succession rules and whether its decision was irrational under PAJA.
• Constitutional and administrative law – Traditional Leadership and Governance Framework Act s25(3): Commission must consider and apply the customary law and customs of the relevant community as they were when events occurred.
• PAJA review – s6(2)(e)(iii) and s6(2)(f)(ii)(cc)/(dd): whether relevant considerations were ignored and whether decisions are rationally connected to information and reasons.
• Deference – specialist tribunals with expertise in customary law should be accorded appropriate respect; rationality review is deferential.
• Customary law – existence and application of usurpation (‘might and bloodshed’) practice and its effect on transmissibility of kingship.
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15 December 2014 |
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Reported
Referral to conciliation under s191 is a jurisdictional precondition and each employer must be duly served.
Labour law – Labour Relations Act s191 – referral to conciliation is a jurisdictional precondition to Labour Court adjudication; s191(3) service requirement must be satisfied in respect of each employer; substantial compliance does not occur by informal notice to associated employers; Rule 22 joinder cannot circumvent s191; waiver and estoppel not established where shared HR and common representation occurred.
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12 December 2014 |
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Reported
A child’s claim for damages after negligent prenatal misdiagnosis may be viable; the child’s best interests are paramount.
Delict — negligent prenatal misdiagnosis — potential recognition of child’s claim for patrimonial damages; constitutional imperative — child’s best interests (s28(2)) paramount; development of common law (s39(2)) — foreign law as guidance (s39(1)(c)); exception procedure inappropriate where factual and normative complexity requires trial; issues: harm, wrongfulness, causation, negligence, damages.
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11 December 2014 |
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Reported
Decree 9 is pre-1994 law but not a provincial Act; High Court’s invalidity order took immediate effect.
Constitutional law – confirmation jurisdiction – sections 167(5) and 172(2)(a) – when Constitutional Court must confirm High Court declaration of invalidity.* Status of pre-1994 (old-order/TBVC) legislation – indicators: origin, territorial application, and especially post-1994 legislative treatment/endorsement.* Environmental law – Decree 9 (Transkei) – criminalisation of possession of protected wild animal parts and strict liability provision challenged under fair trial/presumption of innocence and equality (section 9).* Incorporation by reference, partial repeal/amendment by Parliament, assignment of executive functions and executive action do not automatically amount to legislative endorsement.
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2 December 2014 |
| November 2014 |
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Reported
Court confirms invalidity of SAPS Act provisions that permit undue executive control over the anti‑corruption unit.
Constitutional law — State obligation to create an adequately independent anti‑corruption entity — Adequacy shown by structural and operational independence and public confidence; location within SAPS not per se unconstitutional. Administrative law — Delegation and discretionary power — Ministerial policy guidelines and undefined referral powers may arrogate operational scope and are constitutionally impermissible. Public law — Appointment and tenure — renewability/extension of tenure and unfettered suspension/removal powers threaten institutional independence. Evidence — striking out scandalous, irrelevant or hearsay material in constitutional litigation; costs principles (Biowatch). Severability — excision of unconstitutional words/sections to preserve functioning statute.
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27 November 2014 |
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Reported
Direct access and leave to appeal refused; Court prioritised restoring basic municipal services and upheld administrator’s lawful remedial role.
Constitutional law — section 167(6) direct access — urgency and interests of justice; Provincial intervention in local government — section 139(1)(c) — appointment of administrator; Local government obligations — sections 152 and 153 of the Constitution and Municipal Systems Act — duty to provide basic services (water, sanitation); Right of access to sufficient water — section 27; Judicial relief — remedial jurisdiction to protect communities and limits on immediate constitutional intervention where administrator lawfully acts; Considerations from OUTA on interests of justice and urgency.
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18 November 2014 |
| October 2014 |
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Reported
The SAPS must investigate alleged extraterritorial torture; suspect presence is not required to commence investigation.
Constitutional and criminal law; international crimes—duty to investigate torture as a crime against humanity; universality and complementarity; presence requirement applies to adjudication not to investigation; limits by subsidiarity and practicability; administrative law review of refusal to investigate.
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30 October 2014 |
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Reported
A state's intentional contract cancellation does not automatically create delictual liability to a third‑party lender.
Delict – pure economic loss – wrongfulness enquiry – intentional interference with contractual relations – requirement of inducement/accessory liability – relevance of defendant’s intention and foreseeability – vulnerability to risk and availability of contractual/insolvency remedies – state accountability insufficient to impose private-law duty.
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3 October 2014 |
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Reported
Court amended an ambiguous eviction order to protect residential occupiers under section 26(3) and PIE while allowing commercial eviction.
Constitutional law – section 26(3) – eviction from home – court must consider all relevant circumstances and ensure PIE compliance before evicting residential unlawful occupiers. PIE – application – protects natural persons occupying land as a dwelling; does not apply to juristic persons or occupants using premises solely for commercial purposes. Civil procedure – ambiguous orders – appellate courts may amend defective or ambiguous orders to ensure compliance with constitutional protections. Eviction law – distinction between commercial occupants/juristic persons and residential occupiers under PIE.
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3 October 2014 |
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Reported
President acted under the wrong statute; Commission’s factual finding of kingship disintegration was upheld.
Constitutional law – administrative action – exercise of statutory power under wrong Act – illegality of acting under an Act that does not confer the power (Sigcau principle); Traditional leadership – Framework Act v Amendment Act – roles of Commission and President in recognition of kingships; Judicial review – deference to specialist administrative bodies on customary-law factual findings; Standards for setting aside factual findings – unreasonableness and irrationality threshold.
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2 October 2014 |
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Reported
An appellate court violated the applicant's section 34 right by ordering liability against it without affording a hearing.
Constitutional law – Right of access to courts and fair public hearing (s 34) – audi alteram partem – appellate court must not make orders adverse to non‑parties without hearing them. Civil procedure – Appeal – power of appellate court to correct or vary judgments and the limits where non‑parties are affected. Attorneys Act s 78(2A) – conveyancers’ duty to invest trust monies in interest‑bearing account – fiduciary holding of deposit and transfer duty funds. Restitution and interest – liability for interest beyond interest accrued in trust account improperly imposed on non‑party fiduciary.
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2 October 2014 |
| September 2014 |
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Reported
Municipal cancellation of a public‑housing lease is permissible only when constitutional safeguards and just, equitable PIE balancing are met.
Housing – public rental housing – lease clauses – termination on notice and summary cancellation – constitutional scrutiny against s 26 and public policy. Housing – PIE – courts must balance interests; eviction must be just and equitable. Administrative/procedural duty – municipalities must, ordinarily, engage with long‑term lessees and afford opportunity to rectify breaches before cancelling housing leases. Contract law – unequal bargaining power and public function of housing leases inform reasonableness of contractual terms.
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18 September 2014 |
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Reported
Municipal plan approval must occur only after the authority is satisfied that section 7(1)(b)(ii) disqualifying factors will not be triggered.
Administrative law – municipal approval of building plans – National Building Regulations and Building Standards Act s 7(1)(b)(ii) – approval requires decision-maker to be satisfied that disqualifying factors (disfigurement, unsightliness, derogation of market value, danger to life or property) will not be triggered – Walele interpretation binding; Building Control Officers’ recommendations under s 6 necessary; reasonable suspicion of bias requires proof.
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11 September 2014 |
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Reported
Refusal to appoint did not unfairly discriminate; lawful implementation of employment equity upheld.
Constitution — equality — section 9(2) remedial measures and section 9(3) prohibition on unfair discrimination; Employment Equity Act — section 6(2) affirmative action, section 15 numerical targets (not quotas) and section 15(4) prohibition of absolute barriers; Implementation of employment-equity measures — subject to judicial scrutiny; Standard of review — minimum rationality, with fairness/proportionality scrutiny where constitutional values (dignity, service delivery, multiple designated groups) are engaged; Procedure — new causes of action and review claims must be pleaded and not raised for first time on appeal.
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2 September 2014 |
| August 2014 |
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Reported
Whether the CPI appropriately converts past property loss to present-day equitable redress under the Restitution Act.
Constitutional and restitution law — Restitution of Land Rights Act (s 33 and s 35) — meaning of "equitable redress" and proper purpose of financial compensation — timing of valuation (time of dispossession as starting point; escalation to present-day value) — appropriateness of Consumer Price Index as measure of "changes over time in the value of money" (fits consumption/purchasing-power cases but not always for investment-like property losses) — appellate restraint on interfering with discretionary remedial orders — limits to Land Claims Court’s jurisdiction to order State to fund memorial plaques.
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26 August 2014 |
| June 2014 |
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Reported
The pre-2008 s19(b)(ii) of the RAF Act unfairly discriminated against household passengers, breaching section 9.
Road Accident Fund Act (pre-2008) s19(b)(ii) — exclusion of household members/dependents from RAF compensation. Constitutional law — equality (section 9) — Differentiation lacks rational connection and amounts to indirect discrimination on listed grounds (marital status, age) — fails Harksen test. Remedy — declaration of invalidity confirmed; limited retrospectivity; pending, non-prescribed claims governed by Transitional Act with delayed one-year election period. Costs — respondents ordered to pay applicant's costs, including costs of two counsel.
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19 June 2014 |
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Reported
Leave refused because applicant was factually insolvent and a statutory amendment rendered the legal issue unnecessary.
Insolvency Act s8(g) – act of insolvency – whether a debt-restructuring/debt-review notice under National Credit Act s86(1) constitutes an act of insolvency. National Credit Act s86 – debt review/debt-restructuring proposals and their legal effect in insolvency proceedings. Insolvency – factual (actual) insolvency as an independent ground for sequestration; appellate restraint in revisiting factual findings. Constitutional jurisdiction – arguable point of law of general public importance; interests of justice and effect of legislative amendment. Statutory amendment – insertion excluding debt-review applicants from being regarded as having committed an act of insolvency (s8A).
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19 June 2014 |
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Reported
Applicant’s age-discrimination challenge fails for not properly raising a constitutional attack; leave to appeal refused.
Constitutional law – equality (section 9) and Employment Equity Act – age discrimination; burden of proof on employer to justify listed-ground discrimination. Administrative/Statutory interpretation – Regulation 11(2) permits waiver, not amendment, of Regulation 11(1); power to amend Regulations vests with Minister under SAPS Act. Civil procedure/constitutional litigation – requirement to raise constitutional challenges clearly and in lower courts; leave to appeal to Constitutional Court discretionary and may be refused where effective relief cannot be given. Employment law – employment policy or practice includes recruitment and selection criteria; waivers/policy choices reviewable in appropriate proceedings.
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19 June 2014 |
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Reported
Minister’s executive dismissal of state-owned entity board members was substantively valid but procedurally unlawful under Companies Act.
State-owned companies – dismissal of board members – distinction between executive and administrative action under Constitution and PAJA – Minister’s s 8(c) dismissal power held executive; PAJA inapplicable – requirement of good cause and rationality satisfied – procedural requirements of Companies Act s 71(1)&(2) applicable and unmet – remedy: declarator of procedural unlawfulness but substantive dismissal not set aside.
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10 June 2014 |
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Reported
Occupiers had standing to intervene because the interim order authorised acts that could effect their eviction and demolition.
Land and housing — Interim interdicts forbidding occupation, removal and demolition — Whether such interim orders can operate against existing occupiers — Locus standi of occupiers to intervene — Eviction and demolition protections under PIE and section 26(3) — Proper conduct of organs of state before courts.
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6 June 2014 |
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Reported
An unregistered home builder may not recover payment; courts may refuse to enforce arbitration awards that would sanction statutory illegality.
Housing law – Housing Consumers Protection Measures Act – section 10(1)(b) – registration prerequisite to receiving consideration; Arbitration – enforcement of arbitral awards – court may refuse to make award an order where enforcement would sanction statutory prohibition and be contrary to public policy; Constitutional law – deprivation of property (s25) and access to courts (s34) – statutory disentitlement to payment for unregistered builder not arbitrary and refusal to enforce award does not violate access to courts.
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5 June 2014 |
| May 2014 |
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Reported
An appeal attacking factual findings raises no constitutional issue; prolonged delay in compiling the trial record is condemned.
Criminal law – Appeal – Attack on trial court factual findings does not raise a constitutional issue for the Constitutional Court; no reasonable prospects of success. Delay – Unacceptable delay in compiling/providing the trial record condemned; such delay can render proceedings unfair; duty on judicial officers to prevent delays; matter reported to Judicial Service Commission.
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20 May 2014 |
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Reported
A spoliation order may require return of a tampered vehicle seized unlawfully; statutory prohibitions do not automatically bar restoration.
Spoliation — mandament van spolie — available against police for unlawful seizure; statutory interpretation — s 68(6)(b) and s 89(1) of National Road Traffic Act do not oust spoliation; possession "without lawful cause" distinguishes tampered vehicle from inherently unlawful articles; restoration before enquiry into lawfulness; statutes to be read compatibly with common law and Constitution.
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15 May 2014 |
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Reported
Compulsory registration of child sex offenders without judicial discretion violates the child’s best‑interests constitutional right.
Criminal law — Sexual Offences Act s50(2)(a) — compulsory inclusion of convicted persons on National Register for Sex Offenders — application to child offenders — best‑interests principle (s28(2)) — peremptory registration without court discretion or opportunity to make representations unjustifiably limits child’s rights — limitation analysis under s36 — remedy: declaration of invalidity insofar as it applies to child offenders; declaration suspended to allow parliamentary correction; reporting directive.
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6 May 2014 |
| April 2014 |
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Reported
Court orders re-run of invalid social-grants tender, suspends invalidity with safeguards to protect beneficiaries and ensure accountability.
Public procurement — unconstitutional tender award — remedial principle to correct invalid administrative action — power under section 172(1)(b) to suspend declaration of invalidity on conditions — ordering a re-run of tender with safeguards — contractor performing public function bears constitutional obligations — protection of beneficiaries and accountability measures.
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17 April 2014 |
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Reported
Purchaser who paid over 50% may demand transfer and specific performance, subject to curing arrears.
Alienation of Land Act s27(1) – purchaser paid ≥50% – right to demand transfer and to seek specific performance; s27(3) provides additional remedy (cancellation) but does not exclude specific performance; reciprocity/exceptio non adimpleti contractus – purchaser in arrears must purge arrears or be equitably conditioned; forfeiture clauses and Conventional Penalties Act – disproportionate penalties contrary to public policy/constitutional values; equitable conditioning of transfer (simultaneous payment and registration of mortgage).
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17 April 2014 |
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Reported
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10 April 2014 |
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Reported
Section 44 LUPO is unconstitutional: provinces may not hear appeals that substitute municipal zoning or subdivision decisions.
Constitutional law; local government – municipal planning (zoning and subdivision) lies within municipal competence; provincial appellate substitution under section 44 LUPO unconstitutional; provincial oversight/regulation distinct from direct decisional intervention; remedy: declaration of invalidity confirmed but non-retrospective.
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4 April 2014 |
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Reported
Court allowed urgent appeal and granted interim relief protecting lawful traders from unlawful municipal evictions.
Constitutional jurisdiction – direct appeals against interlocutory orders under s167(6); urgent appeals as exception; interim interdict – prima facie right, irreparable harm and balance of convenience; municipal law – informal trading by-laws and Businesses Act s6A procedures; administrative law – unlawful evictions and failure to follow statutory designation process.
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4 April 2014 |
| March 2014 |
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Reported
Confirmation dismissed: Pounds Ordinance not a provincial Act, so Constitutional Court lacked jurisdiction to confirm.
Constitutional law — Confirmation jurisdiction — Whether a pre‑constitutional Pounds Ordinance is a "provincial Act" under ss 167(5) and 172(2)(a); Property and access to courts — impoundment, sale and destruction of livestock without judicial supervision; Equality — discriminatory provisions affecting landless stockowners; Separation of powers — confirmation requirement confined to Acts of Parliament, provincial Acts and presidential conduct.
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25 March 2014 |
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Reported
Unlawful administrative approvals remain effectual until set aside; administration should bring formal review to impugn them.
Administrative law — unlawful political dictation — validity of administrative approvals — effect of unlawful administrative action — whether an unlawful decision remains effectual until set aside — duty of organ of state to bring review/counter‑application — role of PAJA and section 172 remedial discretion — remittal vs substitution.
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25 March 2014 |
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Reported
A security company is contractually and delictually liable when its guard admits robbers contrary to an express prohibition.
Private security industry; contract – express prohibition in guarding agreement and strict liability; contract breach by admitting unauthorised persons; delict – wrongfulness informed by constitutional norms; negligence of security guards; vicarious liability of security companies; role of public policy in imposing liability.
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20 March 2014 |
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Reported
Applicants’ constitutional challenges to POCA’s definitions, evidentiary provision and retrospectivity dismissed; High Court’s severance not confirmed.
Criminal law – Prevention of Organised Crime Act – Definitions: "pattern of racketeering activity" and "enterprise" – vagueness and overbreadth challenge dismissed; Evidence – s 2(2) POCA permits otherwise inadmissible hearsay, similar-fact and previous-conviction evidence subject to proviso preserving fair trial – admissibility assessed case-by-case; Retrospectivity – Chapter 2 not retrospective as conviction requires post-enactment pattern; Fault element – phrase "ought reasonably to have known" denotes negligence standard and is constitutionally valid; Standing and abstract challenges – permissible but carry heavy burden. |
20 March 2014 |
| February 2014 |
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Reported
Warrantless regulatory searches infringe privacy; court confirmed invalidity, suspended relief and prescribed interim warrant rules.
Constitutional law – Right to privacy – Statutory authorisations for warrantless searches and seizures – Sections 32A (Estate Agency Act) and 45B (FICA) invalid for permitting overly broad, warrantless searches; remedial principles – limitation of retrospective effect and suspension to avoid regulatory lacunae; reading-in warrant requirements for searches of private residences and where criminal suspicion exists; courts may not, absent statutory basis, grant warrants under inherent jurisdiction or section 172(1)(b).
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27 February 2014 |
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Reported
A credit provider complies with s129 by taking steps that would bring the notice to a reasonable consumer’s attention.
National Credit Act – s129 and s130 – required procedures before debt enforcement – meaning of ‘delivery’ – reasonable consumer standard – registered mail and Post Office notification as usual modes of proof – evidential burden shifts to consumer to rebut delivery inference; clarification of Sebola.
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20 February 2014 |
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Reported
The Contingency Fees Act (and its sections 2 and 4) was not shown to be unconstitutional; leave to appeal dismissed.
Contingency Fees Act 66 of 1997 — constitutionality — rationality review for general legislative challenge — section 36 limitations enquiry where fundamental rights (access to courts) alleged — legislative distinction between regulation of legal practitioners and lay funders rational given lawyers' role and ethical duties — applicants lacked evidence of clients' rights limitation and representative standing.
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20 February 2014 |
