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Citation
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Judgment date
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| December 2015 |
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Reported
Excessive delay in prosecuting a review justified dismissal of review and refusal of leave to appeal.
Labour law — review of CCMA arbitration award — dismissal of review for excessive delay — obligations to reconstruct incomplete CCMA record (rule 7A) — arbitrator’s duties to decide core issues — competence of reinstatement/back‑pay where resignation would have taken effect — remedial consequences and costs.
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15 December 2015 |
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Reported
Whether to remit or decide on the merits when the arbitration record is missing and whether dismissal was unfair.
Labour law — review of arbitration award — missing mechanical record of arbitration — duty to reconstruct record — remedy when no record exists — remittal v decision on merits; fairness of dismissal — procedural fairness (excluded witnesses) and substantive fairness (sanction mitigation); reinstatement as remedy.
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10 December 2015 |
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Reported
Section 78 execution orders are appealable if final in effect; eviction execution pending appeal was set aside.
Civil procedure – Magistrates’ Court Act s78 execution orders – appealability where order has the effect of a final judgment (s83(b)). Interlocutory relief – ‘final in effect’ test for appealability. Eviction law – irreparable harm from loss of home; just and equitable balancing under PIE. Appellate review – interference where discretion misdirected, wrong principles applied or facts misunderstood. Municipal housing obligations and administrative allocation failures.
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2 December 2015 |
| November 2015 |
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Reported
Applicants succeeded: IEC failures in registrations and roll provision rendered municipal by‑elections not free and fair.
Electoral law — IEC obligations — voter registration — register only in voting district where voter is ordinarily resident; sufficient particularity of address required. Electoral law — voters’ roll — section 16(3) requires provision of roll segments including addresses (where available) to candidates on certification. Constitutional law — right to free and fair elections (s 19) — material administrative failures (incorrect registrations, late roll provision, omission of addresses) can render by‑elections not free and fair. Procedural law — Electoral Court jurisdiction under s 20(1)(a) of Commission Act to review any IEC decision relating to electoral matters. Remedies — set aside of tainted by‑elections and fresh by‑elections ordered; prospective declaratory relief to clarify IEC obligations.
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30 November 2015 |
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Reported
A transport utility’s breach of public safety duties (open train doors) can attract delictual liability for passenger injuries.
Delict; transposition of public-law breaches into private-law delict; organ of state duty to protect rail passengers; wrongfulness of omissions; reasonable organ of state standard; role of resource constraints; negligence for open train doors; factual (but-for) and legal causation; availability of non-judicial remedies; liability for damages.
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26 November 2015 |
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Reported
Leave to appeal refused; arbitration upheld and equality claim must ordinarily first be pursued in the Equality Court.
Arbitration Act s 3(2) — setting aside arbitration agreement — high threshold of ‘good cause’. Religious associations — internal discipline and arbitration as appropriate forum for church governance disputes. Equality law — unfair discrimination on ground of sexual orientation and principle of constitutional subsidiarity (Promotion of Equality and Prevention of Unfair Discrimination Act — Equality Court jurisdiction). Civil procedure — rule 16A notice when raising constitutional issues; admission of amicus curiae; procedural compliance relevant to leave to appeal.
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24 November 2015 |
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Reported
A sub-lessee cannot oppose commercial eviction by contesting the lessor’s title; no development of the common law warranted.
Common law – Lease and eviction – Rule that lessee/sub-lessee cannot dispute lessor’s title to resist ejectment after lease termination; Boompret; development of common law under s39(2) – when required; statutory retail licences do not confer possessory rights displacing common law on these facts; enrichment lien pleaded late – not entertained on appeal; Rule 33 practice note and appellate role – court of first and last instance limits.
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19 November 2015 |
| October 2015 |
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Reported
Delayed transfer and treatment of a rugby-related cervical injury constituted wrongful, negligent refusal of emergency medical treatment, causally linked to paralysis.
Delict — medical negligence and wrongfulness — delayed treatment of low-velocity cervical spinal injury — evaluation of competing expert evidence (Linksfield) — factual causation where prompt closed reduction within four hours would probably prevent permanent paralysis — section 27(3) emergency medical treatment — institutional protocol versus emergency exception; costs.
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14 October 2015 |
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Reported
A broad interdict restraining the applicant’s speech about the fund was unjustified and set aside.
Freedom of expression — defamation — test is whether publication is likely to injure the plaintiff’s reputation in the estimation of reasonable readers; omission of later successful appeal not necessarily defamatory — allegations of maladministration and repayment of funds may be true or protected comment — prior restraint and overbroad interdict unjustified.
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1 October 2015 |
| September 2015 |
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Reported
Whether PAIA gives effect to s32(2) and whether Parliament failed to legislate disclosure of private political funding.
Constitutional law – access to information (s 32) – national legislation (PAIA) enacted to give effect to right – constitutional subsidiarity – proper route for challenging adequacy of statute (section 172) – exclusive jurisdiction (s 167(4)(e)) – political party funding disclosure – separation of powers.
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30 September 2015 |
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Reported
A consent settlement made an order of court is binding and enforceable; re‑enrolment under that order was not barred by rule 32 and did not breach access to court.
Settlement agreements — made an order of court — vest terms with status of court order and give finality / res judicata; enforcement may be by execution, contempt or other suitable processes. Procedure — courts may use inherent powers (s173) to regulate process; substance over form where settlement order prescribes enforcement steps; re‑enrolment under a consent order is not a prohibited second summary judgment under rule 32. Constitutional law — clause undertaking not to oppose an application does not automatically violate s34 where the party had opportunity to ventilate defences. Court orders — must be clear, unambiguous and readily enforceable; courts should guard against granting orders that are incapable of enforcement.
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29 September 2015 |
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Reported
Statutory rights to enter land for communications infrastructure do not require prior consent but must comply with applicable law and servitude safeguards.
Electronic communications — Statutory rights to enter land and construct networks under ECA ss 22–24 — Meaning of “due regard to applicable law” — Common law servitudes (civiliter modo) and municipal by‑laws applicable — Deprivation under Constitution s 25(1) — Not arbitrary where exercise is subject to notice, consultation, supervision and compensation — PAJA applicability left open.
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23 September 2015 |
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Reported
Appeal dismissed as moot; section 34 may, in exceptional contexts, engage commissions but does not automatically obligate Legal Aid to fund representation.
Constitutional law – Mootness and interests of justice – Section 34 (access to courts/tribunals) – Application to commissions of inquiry – Context‑specific test for applicability – State‑funded legal representation is not automatically required; funding governed by statutory/administrative framework – Administrative law – review and limits on funding discretion.
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22 September 2015 |
| August 2015 |
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Reported
Court extends suspension of invalidity for 12 months as just and equitable to avoid public prejudice.
Constitutional law – extension of suspension of order of invalidity – determined by what is just and equitable; factors include adequacy of prior suspension period, applicant’s diligence in pursuing legislative cure, and consequences to public/government/Parliament; legislative process and parliamentary amendment scope may justify extension.
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28 August 2015 |
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Reported
Whether the State is a single employer under the Compensation Act or provincial employers remain individually liable.
Compensation for Occupational Injuries and Diseases Act — meaning of “employer” — secondment — State as single employer vs individually liable spheres — section 35(1) limitation of actions — role of sections 39(2), 84(1) and 88(1) — constitutional interpretation (section 39(2)) promoting Bill of Rights and protecting right to bodily integrity.
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25 August 2015 |
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Reported
Section 5(4) limits only occupation/use rights to 12 months; provisional associations remain juristic and retain standing to sue.
Communal Property Associations Act – s5(4) – provisional association acquires juristic status and limited right to occupy/use land for 12 months; does not cease to exist on expiry – extension conditional on s5(5). Statutory interpretation – purposive, Constitutionally informed construction. Director-General’s duties – obligation to assist communities to achieve permanent registration. Legal standing – association that qualifies for registration has standing to sue.
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20 August 2015 |
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Reported
A presiding councillor may not use a casting vote to decide matters listed in section 160(2) of the Constitution.
Local government — Municipal Structures Act s30(4) — casting vote — incompatibility with Constitution s160(3)(b) — approval of budgets and other s160(2) matters — reading-in as remedy — prospective effect and saving past decisions.
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18 August 2015 |
| June 2015 |
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Reported
A grocer’s wine licence can be property, but the provincial law changing licensing was not an arbitrary deprivation.
Property — constitutional protection of commercial/state-issued licences; section 25 — whether statutory licence to sell wine in grocery stores is "property"; Deprivation — whether transitional legislative scheme deprived licence-holders; Arbitrariness — standard for legislative deprivation (sliding scale from rationality to proportionality); Regulatory change and legislative facts — provincial liquor regulation and transitional arrangements; Remedy — confirmation of invalidity withheld.
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30 June 2015 |
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Reported
Mandatory institutionalisation or imprisonment under s77(6)(a) is unconstitutional absent judicial discretion and proper safeguards.
• Criminal Procedure Act s77(6)(a) – capacity to understand proceedings – peremptory effect and removal of judicial discretion.
• Detention and institutionalisation – section 12 (freedom and security) – substantive and procedural protection against arbitrary deprivation of liberty.
• Children’s rights – s28: detention as last resort and best interests – mandatory institutionalisation/imprisonment unconstitutional for children.
• Mental health law interaction – compatibility with Mental Health Care Act safeguards and judge‑in‑chambers review.
• Remedy – reading‑in and suspension of declaration for legislative amendment.
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26 June 2015 |
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Reported
Court may substitute administrative award only in exceptional circumstances where it is in as good a position and outcome is foregone conclusion.
Administrative law – PAJA s 8(1)(c)(ii)(aa) – substitution of administrative action – test for exceptional circumstances: (i) court in as good a position as administrator and (ii) foregone conclusion, considered cumulatively – other factors (delay, bias, incompetence, fairness) relevant – substitution extraordinary remedy – tender validity period not absolute bar – appellate interference limited where lower court exercised discretion in true sense.
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26 June 2015 |
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Reported
Admitting extra‑curial admissions against co‑accused is unconstitutional; common‑law prohibition restored and convictions set aside.
Evidence – hearsay; extra‑curial statements of accused; admissibility against co‑accused. Criminal Procedure – distinction between confessions and admissions; section 219A CPA. Evidence Amendment Act 45 of 1988 – section 3, section 3(2): hearsay exceptions do not validate evidence otherwise inadmissible. Constitutional law – equality (section 9(1)) and fair trial (section 35): differentiation between admissions and confessions irrational and unconstitutional. Common law – restoration of rule excluding extra‑curial statements against co‑accused; common‑purpose/conspiracy executive‑statement exception not decided.
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25 June 2015 |
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Reported
A superior court may relax res judicata in exceptional circumstances to revisit final criminal convictions to prevent grave injustice.
Criminal procedure – res judicata – finality of criminal convictions – courts may, in rare and exceptional circumstances, relax res judicata under section 173 and develop common law under section 39(2) to avoid grave injustice. Evidence – extra‑curial statements of an accused against a co‑accused – admissibility and requirement for independent corroboration; convictions based predominantly on such statements may be unsafe. Constitutional remedy – equality and fair trial considerations where unrepresented applicants failed to raise meritorious constitutional issues earlier.
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25 June 2015 |
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Reported
The applicant’s delictual claim for adultery is not wrongful and therefore unsustainable under constitutional public policy.
Delict — actio iniuriarum — adultery — contumelia and loss of consortium — wrongfulness assessed against public policy now informed by constitutional values (dignity, privacy, freedom of association, bodily integrity) — development of common law under section 39(2) — comparative and international trends towards abolition.
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19 June 2015 |
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Reported
Exit charge on capital export is a regulatory measure, not a tax requiring money-Bill procedure.
Constitutional law — money Bills — distinction between taxes and regulatory charges — dominant-purpose test; Exchange control — exit charge under reg 10(1)(c) is regulatory, not a tax; Interpretation of Currency and Exchanges Act s9(4) — "calculated to raise revenue" means intended/designed, not merely likely; Delegation — broad executive discretion in exchange-control context permissible given need for speed, expertise; Standing and public-interest cross-appeal — speculative challenges refused.
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18 June 2015 |
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Reported
Extension of suspension granted due to public-consultation delay; respondents awarded costs.
Constitutional remedies – suspension of declaration of invalidity – extension of suspension period; Factors for extension: sufficiency of explanation, prejudice, prospects of correction, orderly state administration; Separation of powers – deference to Parliament and value of holistic legislative revision; Urgency and procedural conduct; Costs awarded to respondents.
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15 June 2015 |
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Reported
Mandatory refund provision in s89(5)(b) unlawfully deprived credit providers of property by denying judicial discretion.
Constitutional law — Property (s 25) — Monies paid under credit agreements constitute property — Deprivation by mandatory refund under s 89(5)(b) — Procedural arbitrariness where statute denies judicial discretion — Unjustified enrichment does not cure arbitrariness — Limitation not justified under s 36 — Remedy: require courts to make just and equitable orders (Amendment Act mirrors cure).
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5 June 2015 |
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Reported
Alienation of Land Act’s exclusion of vulnerable purchasers who paid in full within one year violates equality and housing rights.
Alienation of Land Act 68 of 1981 – Chapter II (sections 21–22) – under‑inclusivity – whether protections for instalment purchasers must extend to vulnerable purchasers who paid in full within one year – constitutional rights engaged: s 26 (access to adequate housing), s 9 (equality) – negative obligation not to impair existing access to housing – remedy: reading‑in and severance to add “vulnerable purchaser” and amend section 4 – relief prospective to unfinalised insolvent estates; court may not raise prescription mero motu.
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4 June 2015 |
| May 2015 |
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Reported
Section 197(2) transfers employment-related pension/redundancy obligations to the transferee; appellants sued the wrong party.
Labour law — transfer of business as a going concern — section 197(2) LRA — effect on contracts, rights and obligations; pension/redundancy obligations taken over by transferee unless subsection (6) agreement or pension transfer applies — contracts of employment not terminated by transfer; procedural fairness — right to be heard (s 34) — no ambush by SCA; scope and interpretation of pension fund rule 7.1A(1).
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14 May 2015 |
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Reported
A suspended declaration of constitutional invalidity is retrospectively effective when suspension lapses unless court expressly limits it.
Constitutional law – declaration of invalidity – doctrine of objective constitutional invalidity – default retrospective effect; section 172(1)(b)(i) remedial power to limit retrospectivity; suspended declarations – interpretation of orders and judgments; functus officio and limits on varying final orders after suspension expiry; separation of powers and revival of invalid legislation; inherent powers (s173) and narrow scope for post-expiry variation.
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12 May 2015 |
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Reported
Leave to appeal dismissed: applicant failed to establish unfair discrimination or a reasonable apprehension of judicial bias.
Employment Equity Act s6 and s11 — unfair discrimination allegations on listed and arbitrary grounds — burden shifting: employer to justify in s11(1), complainant to prove irrationality in s11(2); employer’s business/operational needs as justification; judicial bias — actual bias and reasonable apprehension tests; disclosure of past associations; costs discretion of Labour Court and appellate courts.
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7 May 2015 |
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Reported
Failure to prove service barred a contempt finding; municipal officials and provincial actors joined and attorney penalised.
Contempt of court — civil contempt and committal — requisites: existence of order, service/notice, non‑compliance, wilfulness/mala fides — Fakie standard and safeguards — courts may initiate contempt proceedings mero motu — state organs’ duty to comply with constitutional orders — joinder of municipal and provincial office‑bearers for implementation — costs de bonis propriis for grossly negligent attorney.
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7 May 2015 |
| April 2015 |
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Reported
Section 197 of the LRA applies to municipal entities and was triggered, causing automatic transfer of employees.
Labour law – section 197 LRA – transfer of business as a going concern – automatic transfer of employment contracts. Municipal law – applicability of Municipal Systems Act to municipal entities – relationship with labour legislation. Constitutional law – compatibility of s197 with sections 152 and 160 of the Constitution; organs of state performing public functions remain subject to labour obligations. Test for transfer – NEHAWU factors: substance over form; transfer of tangible/intangible assets; continuity of business and customer base; role of employees and know‑how.
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20 April 2015 |
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Reported
Foster and child support grants are not deductible from RAF loss‑of‑support awards; Timis on deduction was incorrect.
Children — social assistance — deductibility of foster child and child support grants from Road Accident Fund loss‑of‑support awards; grants stem from State’s duties under sections 27 and 28; grants payable to foster parents not the child; no double compensation; Timis reconsidered and limited.
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20 April 2015 |
| March 2015 |
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Reported
Court retained supervisory jurisdiction, limited objections to five issues, imposed an expedited RFP timetable and restricted further relief to this Court.
Constitutional Court supervisory jurisdiction – tender remedy – Request for Proposals – limited remaining objections by incumbent service provider (beneficiaries; biometrics; free withdrawals; functional evaluation criteria; home deliveries) – expedited timetable for amendment, circulation, bidding and award – further relief to be sought in this Court with beneficiaries’ interests central.
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24 March 2015 |
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Reported
Leave to appeal refused: temporary, individual suspension of ‘undesirability’ findings did not satisfy OUTA appeal requirements.
Constitutional law — Review of urgent interim relief — Temporary suspension of individual declarations of ‘undesirability’ — Scope of judicial relief vis-à-vis executive authority — Application of OUTA criteria for appeals against interim orders.
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24 March 2015 |
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Reported
Excluded credit agreements are not void for non-registration; the in duplum interest cap applies during litigation.
National Credit Act – registration of credit providers – scope of s 4 exclusions – whether excluded agreements must be counted for s 40 registration thresholds – failure to register and invalidity under ss 40(4) and 89(2)(d). Common law – in duplum rule – arrear interest capped at capital – whether cap suspended pendente lite – Oneanate reconsidered and overruled. Post-judgment interest – runs from date of judgment at contractual rate on whole judgment debt. Suretyship – liability relative to principal debtor (not decided as unnecessary).
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24 March 2015 |
| February 2015 |
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Reported
Successful private challengers to state conduct are ordinarily entitled to costs; departures must be carefully justified.
Constitutional litigation — costs — application of Biowatch principle — successful private litigant vs State ordinarily entitled to costs — courts must give carefully articulated and convincing reasons to depart — adverse costs chill access to constitutional remedies — exceptional circumstances may justify direct appellate intervention on costs alone.
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26 February 2015 |
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Reported
A default Labour Court judgment was rescinded for lack of jurisdiction and reliance on unserved, contradictory affidavits.
Labour law – rescission – s 165(a) LRA – default judgment erroneously granted – jurisdictional prerequisite under s 191(5) (90‑day rule) and need for condonation – service of affidavits and change of pleaded case – duty to require oral evidence where material contradictions affect relief – procedural fairness in default proceedings.
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17 February 2015 |
| January 2015 |
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Reported
Court set aside President’s proclamation criminalising health services before essential regulations existed as irrational.
Constitutional law — Direct access to Constitutional Court — Review of exercise of public power — President’s power to bring legislation into force — Standard of review: rationality — Premature commencement of National Health Act provisions criminalising health services absent enabling regulations — Proclamation declared invalid.
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27 January 2015 |
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Reported
Whether section 89(2)(c) prohibits opinion or only false factual electoral statements; SMS held to be comment, not covered.
Electoral law – publication of false information to influence elections – distinction between factual statements and comment/opinion – section 89(2)(c) and item 9(1)(b) construed narrowly; penal electoral provisions interpreted restrictively; appeals from Electoral Court to higher courts competent.
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19 January 2015 |
