|
Citation
|
Judgment date
|
| December 2021 |
|
|
Reported
Whether surviving partners in qualifying permanent life partnerships are entitled to maintenance and intestate succession benefits under the Constitution.
Constitutional law — equality and dignity — marital status discrimination — whether surviving partner in a permanent life partnership with reciprocal duties of support may claim maintenance and intestate succession benefits — reading‑in remedies and 18‑month suspension for Parliament to legislate; precedent (Volks) and common‑law developments (Paixão) considered.
|
31 December 2021 |
|
Reported
An aspirant asylum seeker who expresses intent must be afforded an opportunity to apply; non‑refoulement prevails despite amendments.
Refugee law — applicability of Refugees Amendment Act (2017) and new Regulations — interaction with section 2 non‑refoulement; whether an illegal foreigner who expresses an intention to apply for asylum must be afforded the opportunity to apply; effect of delay in evincing intention; requirement for immigration officer interview and showing good cause for lack of asylum transit visa; lawfulness of detention.
|
30 December 2021 |
|
Reported
Leave to appeal refused where claim depended on disputed facts and no arguable constitutional issue justified developing the directing‑mind doctrine.
Company law – Liquidation – Standing of creditor – requirement to establish an undisputed liquidated claim before seeking liquidation. Company law – Directing‑mind/controlling‑mind doctrine – attribution of director’s acts to company – doctrine applied pragmatically; no need for constitutional development absent rights infringement. Constitutional jurisdiction – raising an arguable point of law of general public importance – misapplication of settled test not constitutive of a constitutional issue. Civil procedure – leave to appeal – material factual disputes preclude Constitutional Court jurisdiction on leave application.
|
13 December 2021 |
|
Reported
Leave to appeal refused where dispute concerned factual findings and settled law on trustees’ authority to bind a trust.
Insolvency and sequestration – standing to sequestrate a trust – requirement to establish a claim, act of insolvency and advantage to creditors. Trust law – authority of trustees – powers determined by trust deed; quorum/number of trustees as capacity-defining condition; single trustee cannot bind trust absent authority. Constitutional jurisdiction – apex court will not entertain appeals that raise only factual disputes; misdirection on facts is not an arguable point of law of general public importance. Civil procedure – application of Plascon-Evans rule in motion proceedings involving factual disputes.
|
13 December 2021 |
|
Reported
Labour Court may, in exceptional circumstances, substitute CCMA demarcation awards; substitution upheld here assigning employers to MIBCO.
Labour law — Demarcation (s62 LRA) — CCMA commissioner’s award subject to review — Labour Court’s powers under ss 145 and 158 LRA — Substitution of arbitration awards permissible only in exceptional circumstances — NEDLAC consultation mandatory in s62 process — historic determinations not necessarily binding.
|
10 December 2021 |
|
Reported
Whether challenges to municipal manager appointments under invalidated section 54A should proceed given delay and mootness.
Local government — Section 54A Municipal Systems Act — validity and interpretation — effect of SAMWU declaration and expiry of suspension — mootness — delays and condonation — remedial powers under section 172 and doctrine of objective constitutional invalidity — just and equitable relief — public interest and service delivery.
|
8 December 2021 |
|
Reported
Whether constitutional damages are an appropriate remedy for a municipality’s persistent breach of the right to adequate housing.
Constitutional law — Section 26 (housing) — Enforcement remedies; Section 38 — Appropriate relief — constitutional damages; Socio‑economic rights — subsidiarity and reasonableness; Remedies — contempt, structural interdict, eviction, delict; Finality — once‑and‑for‑all/res judicata; Admission of further evidence in Constitutional Court.
|
7 December 2021 |
| November 2021 |
|
|
Reported
Where mental incapacity made instituting an RAF claim impossible, prescription did not run until curator appointment.
Road Accident Fund Act — s 23(1) time‑bar — s 23(2)(b),(c) exceptions — Prescription Act s 13(1)(a) — common‑law impossibility/ incapacity principles (lex non cogit ad impossibilia; contra non valentem) — interpretation under s 39(2) and s 233 of the Constitution — CRPD relevance — prescription does not run where objectively impossible to institute claim until curator appointed.
|
19 November 2021 |
|
Reported
Section 66(2)(c) requires a proportionality‑based reasonableness assessment of secondary strikes.
Labour law – Secondary strikes – s 66(2)(c) LRA – "reasonable in relation to possible direct or indirect effect" imports proportionality and reasonableness; threshold for effect is low (possible, indirect) but courts must weigh nature, extent and impact of secondary strikes on primary and secondary employers; assessment is fact‑sensitive and may consider form, duration, number of employees, sector, safety/violence and mitigation; interdict under s 66(3) permissible where no effect on primary employer or disproportionate harm to secondary employer.
|
12 November 2021 |
|
Reported
A court must set aside invalid administrative recognition unless just and equitable reasons justify suspension; the State must pay costs.
Constitutional and administrative law – review of administrative action under PAJA – setting aside Identification and Recognition decisions as unlawful, unconstitutional and invalid. Constitutional remedies – section 172(1) remedial command: default is immediate setting aside of invalid administrative action; suspension or limitation requires weighty justification. Limits of judicial process power – section 173 cannot be used to avoid section 172(1) consequences. Costs – Biowatch/Affordable Medicines principle: where private litigant substantially succeeds against the State in vindicating constitutional rights, the State ordinarily pays costs.
|
12 November 2021 |
|
Reported
Subsidiarity bars direct constitutional claims where statutory and contractual labour remedies are available; no constitutional defamation issue shown.
Constitutional law – subsidiarity – whether plaintiff may directly invoke sections 23 and 17 when Labour Relations Act and contractual remedies provide relief. Labour law – organisational rights – enforcement via LRA/CCMA and contractual dispute-resolution. Defamation – assessment through constitutional prism requires a demonstrated constitutional dimension; mere labelling insufficient. Jurisdiction – Constitutional Court will not entertain ordinary disputes dressed as constitutional issues. Costs – Biowatch applies where private parties perform public functions; costs orders set aside; parties to bear own costs.
|
12 November 2021 |
|
Reported
When a court-appointed practitioner in a voluntary business rescue resigns, the company’s board appoints the replacement under section 139(3).
Companies Act (Chapter 6) – Business rescue – Appointment, removal and replacement of practitioners – Interpretation of section 139(3) – Whether replacement of practitioner appointed under s130(6)(a) vests with company (board) or with independent creditors represented in s130 proceedings – Statutory purpose of efficient rescue and avoidance of lacunae.
|
9 November 2021 |
|
Reported
Court ordered urgent enforcement of housing-order: respondents must repair roof to render home fit for habitation.
Constitutional law — urgency in enforcement of housing-related orders; interpretation of remedial orders — scope limited to pleaded restoration but includes defects integral to roof replacement; enforcement — power to order municipal inspection and cost-shifting where respondents fail to comply; rights engaged — dignity, access to housing, basic education.
|
8 November 2021 |
|
Reported
The Premier’s withdrawal and recognition notices were unlawful because they were taken under the wrong statutory provision and are set aside prospectively.
Constitutional and administrative law – traditional leadership – removal and recognition of senior traditional leaders – interaction between the Traditional Leadership and Governance Framework Act and provincial legislation – role of provincial commissions and the Premier. Statutory interpretation – s12, s13 and s30 of Limpopo Act read with ss25–26 of Framework Act – when Premier may implement commission recommendations. Legality – functionary must act under correct statutory power; a decision taken under a wrong provision is unlawful (Harris principle). Remedy – setting aside of invalid administrative acts and the discretionary imposition of prospective effect to avoid prejudice and disruption.
|
5 November 2021 |
| October 2021 |
|
|
Reported
Warrantless searches under s13(7)(c) unconstitutional; searches in cordoned areas must comply with CPA ss21–22; damages declined.
Constitutional law — South African Police Service Act s13(7)(c) — warrantless searches — overbreadth and privacy (s14) infringement — severance and interim reading-in — searches within cordoned areas must comply with Criminal Procedure Act ss21–22; paragraphs (a) and (b) of s13(7) upheld; constitutional damages not awarded where effective alternative remedies exist; interdict granted against non-SAPS officials who raided without authority.
|
22 October 2021 |
|
Reported
An arbitrator’s reinstatement order should stand unless intolerability is proven to a high, weighty evidentiary standard.
Labour law — s 193 LRA — reinstatement is primary remedy for substantively unfair dismissal; s 193(2)(b) permits consideration of intolerability but requires high threshold; heightened evidentiary burden where employee exonerated; review vs appeal — Labour Court must apply Sidumo reasonableness standard and may not rehear the matter; peremption — policy considerations may justify not enforcing acquiescence; condonation granted.
|
19 October 2021 |
|
Reported
Appellate court wrongly substituted its view for a specialist tribunal’s findings; prohibition of the hospital merger was justified.
Competition law – Mergers – section 12A assessment of substantial lessening of competition; deference to specialist Tribunal’s factual and predictive findings; interpretation of Competition Act with reference to the Preamble and Constitution (ss 7(2), 27, 39(2)); public interest in access to health care; remedy – when prohibition appropriate versus conditional approval.
|
15 October 2021 |
|
Reported
Dissolution under section 139(1)(c) is a last resort; exceptional circumstances, appropriateness and cooperative engagement are required.
Local government — Provincial intervention under section 139(1)(c) — dissolution of municipal council — jurisdictional facts: failure to fulfil executive obligation, appropriateness, and exceptional circumstances — appropriateness requires contextual assessment; less intrusive measures relevant — principle of legality and cooperative governance — remedy: investigation under item 14(4) of Schedule 1 rather than mandamus forcing attendance.
|
4 October 2021 |
| September 2021 |
|
|
Reported
A section 12B referral does not oust High Court jurisdiction; courts may refuse stays pending arbitration in appropriate circumstances.
Petroleum Products Act s12B – statutory arbitration does not oust High Court jurisdiction; Arbitration Act s6(2) – judicial discretion to grant or refuse stay; stay of proceedings – timing, undue delay and scope of arbitral relief; franchise agreements – proof of new contract and right of occupation; access to courts (s34) – not infringed by s6(2).
|
28 September 2021 |
|
Reported
Section 10 of the Births and Deaths Registration Act unlawfully discriminated against unmarried fathers and was severed as constitutionally invalid.
Births and Deaths Registration Act — s10 (notice of birth of child born out of wedlock) — constitutionality — unfair discrimination (s9) on grounds of marital status, sex and gender — children’s rights (name and nationality) and dignity — Harksen multi-stage test; remedy — severance of s10 and proviso in s9(2); interplay of s9 and s10; parental consent and best interests of the child.
|
22 September 2021 |
|
Reported
An organ of state university must justify removing an existing language‑of‑choice under section 29(2) before phasing out Afrikaans.
Constitutional law; education — section 29(2) — right to receive education in an official language of choice; organ of state obligation to consider all reasonable educational alternatives; equity, practicability and redress requirements; review under legality and rationality; procedural compliance with internal rules; remedy and suspended order to enable implementation.
|
22 September 2021 |
|
Reported
Direct access granted but challenge to the Commission’s candidate-deadline extension dismissed; Commission may amend timetable under s11(2).
Election law — Interpretation of court orders — Scope of amendments “reasonably necessary” to election timetable; Electoral Commission’s statutory power under s11(2) of the Municipal Electoral Act to amend timetables for free and fair elections; reviewability of timetable amendments and allegations of ulterior motive.
|
20 September 2021 |
|
Reported
Court refused pre-emptive judicial postponement beyond constitutional 90 days but set aside proclamation for foreclosing registration weekend.
Constitutional law – local government elections – section 159(2) – regularity of elections; Electoral law – Electoral Commission’s duty to ensure free and fair elections – limits of judicial pre-emptive relief; Administrative law – rationality review of proclamation – setting aside proclamation for foreclosing voter registration; Statutory interpretation – Municipal Structures Act and Municipal Electoral Act – interaction with section 172 remedial powers; Covid-19 – pandemic as factor in assessing freeness and fairness; Remedy – section 172(1)(b) just and equitable orders; Separation of powers – role of Parliament in amending constitutional election time-limits.
|
18 September 2021 |
|
Reported
Applicant’s rescission bid dismissed — deliberate non‑participation, no rescindable error, finality and interests of justice prevail.
Direct access — rescission of Constitutional Court order; Rule 42(1)(a) — ‘granted in absence’ and ‘erroneously granted’ requirements; common‑law rescission — reasonable explanation and bona fide defence; finality, functus officio and legal certainty; interests of justice and scope to revisit final orders; constitutionality of motion procedure in contempt leading to imprisonment (s 12(1)(b), s 35(3)) — dissenting view; role of international law (interpretative aid vs. domestic ground for rescission).
|
17 September 2021 |
|
Reported
An organ of state is estopped from denying payment for court‑ordered audit work and must consider procurement deviation to appoint the auditor.
• Administrative law – enforcement of constitutional court orders – ensuring compliance and setting timelines.
• Procurement law – s 217 Constitution; Treasury Regulation 16A.6.4 (deviation from competitive bidding).
• Estoppel – prior acceptance and payment estop an organ of state from denying contractual completion and refusing payment for subsequent court-ordered work.
• Relief – direction to consider deviation appointment, negotiated fees with fallback fee determination, timelines for document exchange and Treasury approval.
|
10 September 2021 |
|
Reported
Labour disputes over collective agreements lie in arbitration; courts must not order costs without reasons and fairness under s162 LRA.
Labour law — jurisdiction — interpretation and application of alleged collective agreements — s24 LRA; Costs in labour matters — presumption that costs do not follow the result; s162 LRA fairness standard; Constitutional right of access to dispute-resolution fora (s34) and protection of labour rights (s23).
|
7 September 2021 |
|
Reported
A magistrate must receive evidence relevant to the Minister’s section 11 surrender decision; appellate courts may re-open proceedings.
Extradition — section 10 committal enquiry — scope of evidence admissible; magistrate obliged to receive evidence relevant to Minister’s section 11 surrender decision. Extradition — interaction of Geuking, Garrido and Robinson II — magistrate may receive but not decide section 11 matters. Remedies — appellate courts may re-open committal proceedings or order corrective measures under section 13(2) of the Extradition Act and s172 of the Constitution.
|
6 September 2021 |
|
Reported
Section 12B arbitration does not oust High Court jurisdiction; stays must only be refused for compelling reasons.
Petroleum Products Act s12B — statutory arbitration does not oust High Court jurisdiction; Arbitration Act s6 applies mutatis mutandis; stay of proceedings requires compelling reasons to refuse referral where s12B invoked; courts must consider s12B’s remedial purpose and industry context (Business Zone).
|
3 September 2021 |
| August 2021 |
|
|
Reported
Regulatory registration duties under Child Care Act do not create private-law duty to ensure daily safety at ECD centres.
Delict — Wrongfulness — Legal duty — Whether regulatory registration duties under Child Care Act/regulations and aspirational Guidelines translate into a private-law duty to ensure day-to-day safety at Early Childhood Development (ECD) centres; statutory interpretation of regulation 30(4); public-policy considerations (foreseeability, alternative remedies, chilling effect); scope of provincial oversight versus operational control.
|
27 August 2021 |
| July 2021 |
|
|
Reported
Section 10(1) invalid to the extent it proscribes "hurtful" speech; applicant’s article declared hate speech under the narrowed test.
Promotion of Equality and Prevention of Unfair Discrimination Act — section 10(1) — constitutionality — "hurtful" held vague and unconstitutional; reasonable‑person objective test for hate speech; paragraphs (a)–(c) read conjunctively; sexual orientation as prohibited ground justified; remedial reading‑in suspended for 24 months; applicant’s article constituted hate speech.
|
30 July 2021 |
|
Reported
A water board’s differential tariff was rational and lawful; the Minister lacked statutory power to approve tariffs.
Water services law – Water Services Act s31 – water boards’ power to set and enforce tariffs; differentiation and cross-subsidies. Administrative law – rationality review (decisional vs procedural rationality) – differentiation lawful if rationally connected to legitimate objective. Constitutional principle of legality – executive may not exercise powers not conferred by statute. Local Government: Municipal Finance Management Act s42 – does not itself empower Minister to approve water-board tariffs.
|
23 July 2021 |
|
Reported
Reinstatement restores employee, not enriches; back pay must use correct earnings and account for subsequent lower pay.
Labour law — unfair dismissal — reinstatement and back pay — mitigation by securing subsequent employment — correct quantification requires using accurate prior and subsequent earnings; reinstatement should restore, not enrich.
|
6 July 2021 |
|
Reported
Whether the Public Protector lawfully found the President breached the Executive Ethics Code over CR17 campaign donations.
Executive Members’ Ethics Act and Executive Ethics Code – interpretation of ‘wilfully mislead’ – Public Protector’s investigative powers under section 182 and Members Act – distinction between state affairs and internal party campaigns – duty to disclose campaign donations as personal benefit – audi alteram principle and disclosure of adverse evidence – limits on Public Protector’s remedial and supervisory orders; remit of constitutional challenge to Code.
|
1 July 2021 |
| June 2021 |
|
|
Reported
Whether unsuspended punitive imprisonment may be imposed in civil contempt motion proceedings without criminal trial safeguards.
Constitutional law — contempt of court — direct access — admissibility of extra‑curial public statements as hearsay — distinction between coercive (suspended) and punitive (unsuspended) committal — limits of civil contempt procedure in imposing punitive custodial sentences — interaction with sections 12 and 35(3) rights — role of DPP and referral for criminal prosecution — costs (punitive). |
29 June 2021 |
|
Reported
Leave to appeal refused: succession dispute was factual and academic; SCA’s remarks about varying a trust deed were obiter and not binding.
Trust law – conflict between trust deed and later-adopted governing document – whether a church constitution can vary a trust deed and effect succession. Interpretation – factual findings versus questions of law; obiter dicta versus ratio decidendi. Constitutional jurisdiction – leave to appeal under s167(3)(b)(ii); interests of justice and academic disputes. Separation of powers – judicial interpretation of statutes does not amount to usurpation of legislative power. Trust Property Control Act – alleged inability to vary trust provisions by extraneous instruments (no precedent established).
|
22 June 2021 |
|
Reported
Union’s challenge to dismissals lacked prospects, but Labour Appeal Court’s unexplained costs order breached labour-costs principles and was set aside.
Labour law – dismissal for safety breaches – wilful disregard of verbal and written instructions in a mining context can justify dismissal. Labour procedure – costs in labour matters – the rule that costs follow the result does not ordinarily apply; courts must provide reasons when awarding costs (Zungu; Dorkin). Judicial review – appeal court may intervene where costs orders reflect an improper exercise of discretion. Constitutional jurisdiction – appeals engaging section 23 (fair labour practices) and section 34 (access to courts).
|
20 June 2021 |
|
Reported
Leave to appeal refused; applicants ordered to pay punitive attorney-and-client costs for vexatious baseless attacks on judges.
Constitutional Court — leave to appeal — Anton Piller order — in camera hearings — Biowatch principle inapplicable to frivolous or private disputes — vexatious allegations against judicial officers — punitive costs (attorney and client).
|
18 June 2021 |
|
Reported
|
17 June 2021 |
|
Reported
|
11 June 2021 |
| May 2021 |
|
|
Reported
Loyalty‑programme sale and membership contracts, though linked, are not the ‘same’ for section 24C deferred‑income relief.
Tax — s 24C Income Tax Act — deferred‑income allowance for future expenditure — requirement that income and obligation arise from the ‘same’ contract — Big G sameness test — when inextricably linked contracts satisfy sameness — application to retailer loyalty programmes.
|
21 May 2021 |
|
Reported
Criminal Procedure Act 51 of 1977 — Section 276B — non-retrospectivity of non-parole periods in terms of section 276B — non-applicability of section 276B at the time of sentencing.
Section 12(1)(a) of the Constitution — substantive and procedural requirements — fatal misdirection where no opportunity to make representations on non-parole period
|
21 May 2021 |
|
Reported
|
14 May 2021 |
|
Reported
|
13 May 2021 |
| April 2021 |
|
|
Reported
Exclusion of adopted children from a private trust found unfairly discriminatory and contrary to public policy; adopted children declared beneficiaries.
Trust deed interpretation; 1937 Children’s Act proviso; whether "children/descendants/issue/legal descendants" include adopted children; unfair discrimination on ground of birth/adoptive status; conflict between freedom of testation and equality/public policy; remedy — treating exclusion pro non scripto and declaring adopted children beneficiaries.
|
16 April 2021 |
|
Reported
Section 21(2)(a) of the Matrimonial Property Act perpetuates apartheid-era racial and gender discrimination and is unconstitutional.
Matrimonial property — Section 21(2)(a) MPA unconstitutional as perpetuating racial and gender discrimination from s22(6) BAA; intersectional harm to Black women; remedy converting affected marriages to community of property with opt-out and savings; costs against Minister; attorney’s fees forfeited.
|
14 April 2021 |
|
Reported
|
1 April 2021 |
|
Reported
A liability order separating quantum does not automatically preclude courts from considering non‑lump‑sum compensation or developing the common law.
Court orders – interpretation – contextual and purposive approach; res judicata – limits of liability orders; development of common law – section 173; constitutional values – right of access to healthcare and fair hearing; public-healthcare and undertaking-to-pay defences.
|
1 April 2021 |
| February 2021 |
|
|
Reported
|
19 February 2021 |
|
Reported
RICA fails to safeguard privacy: designated‑judge independence, notification, ex parte protections, data management and journalist/lawyer safeguards.
Constitutional law — Privacy (s 14) — Interception of communications — Regulation of Interception of Communications and Provision of Communication‑Related Information Act (RICA) — Whether RICA affords adequate safeguards: independence of designated Judge, post‑surveillance notification, ex parte authorisation safeguards, data‑management procedures, special protections for journalists and lawyers — Bulk communications surveillance — lawfulness — Remedy: limited confirmation of invalidity, 36‑month suspension and interim read‑in of protections for notification and journalist/lawyer targets.
|
4 February 2021 |
| January 2021 |
|
|
Reported
Direct access granted; respondent must obey commission summons and testify, with section 3(4) privileges (including against self-incrimination).
Constitutional procedure – direct access to Constitutional Court – urgency and interests of justice. Commissions Act – section 3 powers to summon witnesses; secretary issues summons; regulation 10(6) directions by Chairperson. Witnesses before commissions – duty to appear and answer lawful questions; no general right to remain silent. Privilege – section 3(4) incorporates privileges applicable in criminal trials, including against self-incrimination; witness must claim privilege before Chairperson. Amicus curiae – criteria for admission; two organizations admitted, one individual refused.
|
28 January 2021 |
