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Citation
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Judgment date
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| September 2019 |
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Reported
Court declined to decide whether Rule 53 compels disclosure of presidential reshuffle reasons because the matter was moot.
Constitutional and administrative law – review procedure – Uniform Rules of Court, rule 53 – whether rule 53 applies to presidential executive decisions to appoint or dismiss Ministers and compels disclosure of record and reasons. Constitutional law – mootness and interests of justice – when a court should exercise discretion to decide moot appeals, especially interlocutory orders. Separation of powers – role of Rules Board versus courts in developing rules of procedure; limits on judicial advisories. Interpretation of procedural rules – textual and purposive approach to the scope of rule 53.
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18 September 2019 |
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Reported
Applications validly lodged under the DFA before the suspension’s expiry remain ‘pending’ and are to be decided under section 60(2)(a) SPLUMA.
Constitutional law; suspension of declaration of invalidity — purpose to avoid administrative disruption and preserve rights. Administrative law; status of applications submitted under repealed regime — applications validly lodged during suspension remain ‘pending’ if not disposed of. Statutory interpretation; section 60(2)(a) SPLUMA — purposive reading requires continuation and disposal of such pending DFA applications under SPLUMA. Separation of powers; Parliament’s failure to enact remedial legislation created transitional lacuna addressed by SPLUMA.
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10 September 2019 |
| August 2019 |
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Reported
An unlawful arrest can attract liability for subsequent court‑ordered remand where the arrestor foresaw the predictable detention.
Delict — unlawful arrest and detention — factual and legal causation — novus actus interveniens — constitutionally‑infused public policy — foreseeability and subjective knowledge of arresting officer — remand at first appearance not automatically severs liability.
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22 August 2019 |
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Reported
Excluding section 3 from the Upgrading Act’s nationwide extension irrationally discriminated against homeland residents, breaching equality.
Constitutional law – Equality (section 9(1)) – Exclusion of section 3 from nationwide application of Upgrading Act constituted irrational differentiation and violated equality; not justifiable under section 36. Land law – Upgrading of Land Tenure Rights Act – Extension to entire Republic – Reading-in remedy to remove exclusion of section 3. Remedy – Confirmation of High Court declaration of invalidity; immediate effect; costs awarded.
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22 August 2019 |
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Reported
A court may appoint a supervised special master to implement socio‑economic remedies where executive dysfunction prevents vindication of rights.
Land reform — Labour Tenants Act — systemic non‑processing of claims — constitutional and statutory duty to implement claims expeditiously. Remedial powers — section 172 constitutional remedial and supervisory jurisdiction — appointment of court agent/special master to assist implementation. Separation of powers — limits on judicial intervention but permissible supervised remedies where executive dysfunction prevents vindication of rights. Special master — agent of the court, subject to court control, must not usurp core executive budgetary functions. Contempt — burden to prove mala fides; affidavit denials not rebutted; contempt not proven.
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20 August 2019 |
| July 2019 |
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Reported
Whether punitive personal costs may be imposed on a public official for bad faith or gross negligence.
Constitutional office-bearers – personal costs de bonis propriis – tests: bad faith or gross negligence in litigation or performance of public duties. Costs – punitive (attorney-and-client) scale – exceptional remedy requiring conduct that is fraudulent, dishonest, vexatious or an abuse of process. Administrative law – procedural fairness, reasonable apprehension of bias and full disclosure by public litigants; rule 53 record obligations. Declaratory relief – pleadings and procedural fairness when seeking a declaration that an official abused office.
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22 July 2019 |
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Reported
Regulator’s maximum gas‑price approval set aside for irrationality; tariff decision upheld and matter remitted for reconsideration.
Gas law — regulation of maximum prices under Gas Act and Regulations; administrative law — PAJA review; irrationality — failure to consider monopolist’s marginal costs as material factor; tariffs versus prices — distinct methodologies; remedy — setting aside and remittal.
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15 July 2019 |
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Reported
Court permits direct appeal on arguable public‑law competition questions and allows average total cost plus corroborating evidence in predation claims.
Competition law – abuse of dominance – predatory pricing – section 8(c) and 8(d)(iv) of the Competition Act – cost standards (marginal, average variable, average avoidable, average total, long‑run incremental). Constitutional jurisdiction – section 167(3)(b)(ii) – direct appeals on arguable points of law of general public importance – interplay with sections 62–63 of the Competition Act. Procedural – requirement to seek leave from Competition Appeal Court not absolute; interests of justice test for direct access. Evidence – role of profit sacrifice, recoupment, equally efficient competitor test, and probative value of subjective and objective evidence of intent. Remedies – remittal and appellate scope where specialist courts have made divergent findings.
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3 July 2019 |
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Reported
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3 July 2019 |
| June 2019 |
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Reported
Requiring foreign spouses or children on visitor visas to leave to apply for status unjustifiably limits dignity and children's rights.
Immigration law — Regulation 9(9)(a) and section 10(6)(b) — whether foreign spouses/children on visitor visas must apply from outside — change of visa status from s11(1) to s11(6) — limitation of right to dignity and best interests of the child — ministerial waiver (s31(2)(c)) inapplicable to statutory requirement — reading‑in remedy suspended for 24 months.
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28 June 2019 |
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Reported
Derivative misconduct exists but cannot impose a unilateral duty to disclose during strikes; employer must ensure reciprocal safety guarantees before expecting disclosure.
Labour law — Dismissal for misconduct — Derivative misconduct — Duty to disclose/exonerate — Origin and limits of derivative misconduct; duty of good faith versus fiduciary duty; reciprocity in strike contexts; inferential reasoning and burden of proof in collective violent misconduct cases.
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28 June 2019 |
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Reported
A strike‑off application under the Admission of Advocates Act raises no constitutional issue absent specific constitutional pleading; costs against a custos morum require recklessness.
Admission of Advocates Act 74 of 1964 — section 7(1)(d) — fit and proper person test — three‑stage inquiry: (i) proof of misconduct; (ii) fitness to practise (value judgment); (iii) appropriate sanction (discretion). Constitutional jurisdiction — pleadings determine jurisdiction — factual disputes and application of established legal tests do not raise constitutional issues. NPA Act/section 179 — removal from roll under Admission Act is separate; NPA Act not implicated by strike‑off proceedings. Costs — bodies acting in public interest (custos morum) generally not liable for costs unless they acted recklessly or irresponsibly; adverse costs ordered only in special circumstances.
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27 June 2019 |
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Reported
Non-appealability of rule 43 interlocutory matrimonial orders is constitutional; resort to rule 43(6) or inherent powers required.
Superior Courts Act s16(3) — Non-appealability of judgments/orders in proceedings connected with Uniform Rule 43 (interim matrimonial relief); Rule 43 — interim maintenance, custody and contact; Best interests of the child — interlocutory relief and urgency; Equality — rational connection and permissible differentiation; Access to courts — availability of rule 43(6), urgent relief and section 173 inherent powers; Remedy — correction via rule 43(6) or urgent applications, not automatic right of appeal
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27 June 2019 |
| May 2019 |
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Leave to appeal refused; spoliation is possessory and owner must use ordinary legal means to regain possession.
Spoliation — possessory remedy distinct from eviction under s26(3) — owner may regain possession by paying debt or litigating lien substitution; PIE not applicable to voluntary re-occupation; Constitutional Court declines leave where no constitutional or public-law importance.
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17 May 2019 |
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Applicant's challenge to application and constitutionality of common purpose dismissed; condonation granted but leave refused.
Criminal law – common purpose – alleged misapplication and constitutionality; deference to trial court on factual and credibility findings; appellate jurisdiction and interests of justice; condonation of late applications by incarcerated, self-represented appellants.
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17 May 2019 |
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Reported
Non-parole period exceeding statutory limit and ordering a determinate sentence to run after life imprisonment were unlawful.
Criminal procedure – sentencing – non-parole period – validity and limits under s 276B(1)(b) of the Criminal Procedure Act; constitutional right against arbitrary deprivation of freedom (s 12(1)(a)). Correctional Services Act s 39(2)(a)(i) – relation between determinate sentences and life imprisonment; competence to order consecutive operation. Remedy – setting aside unlawful non-parole and consecutive-running orders; antedating determinate sentence to date of sentence.
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3 May 2019 |
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Reported
Tying parole eligibility to date of sentence unlawfully discriminated and retroactively increased prescribed punishment.
Parole as punishment; non-custodial community corrections; equality (s9) — irrational and unfair differentiation by date of sentence; fair trial — right to least severe prescribed punishment (s35(3)(n)) and non-retroactivity; transitional provisions; date of commission of offence to determine parole eligibility.
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3 May 2019 |
| April 2019 |
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Reported
A long delay and reliance on a failed legal strategy do not ordinarily justify condonation for late s189A(13) claims; s189A(13)(d) is conditional.
Labour law – large-scale retrenchments – s189A(13) urgent supervisory remedy – condonation for late referrals – failed legal strategy not automatically good cause – s189A(13)(d) compensation not a stand-alone remedy; available only if (a)–(c) inappropriate; expeditious resolution emphasised.
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30 April 2019 |
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Reported
Section 41 does not bar individual sectional-title owners from enforcing zoning rules affecting common property.
Sectional Titles Act s41 — locus standi of individual unit owners to enforce zoning schemes affecting common property; distinction between proceedings on behalf of the body corporate under s36(6) (curator ad litem procedure) and independent rights to enforce zoning law; constitutional right of access to courts (s34) and interpretive duty (s39(2)).
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24 April 2019 |
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Reported
Whether a municipality’s late challenge to an unlawful procurement may be entertained and the contract declared invalid.
Legality review of state self‑review — assessment of delay under Khumalo test versus PAJA 180‑day bar; duty of organ of state to explain delay; Gijima principle that clearly indisputable unlawfulness must be declared invalid under section 172 despite unexplained delay; procurement law — non‑compliance with section 217 renders award constitutionally invalid; settlement agreements — court will not make an order that goes beyond the lis or validates unconstitutional conduct.
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16 April 2019 |
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Reported
Whether s12(3) requires knowledge of facts showing bad faith in malicious prosecution; Court split on jurisdiction and prescription.
Prescription — Prescription Act 68 of 1969, s 12(3) — meaning of “knowledge of the facts from which the debt arises” — in malicious prosecution claims does it include facts enabling an allegation of bad faith/animus injuriandi; jurisdiction — whether enquiry is legal/constitutional (access to courts, s 34) or purely factual; malicious prosecution — elements (instigation, lack of reasonable and probable cause, animus injuriandi, failure of prosecution); condonation and costs (Biowatch approach).
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9 April 2019 |
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Reported
The applicant's novel, late-raised legal arguments do not justify leave to appeal to the Constitutional Court.
Constitutional Court — jurisdiction and leave to appeal — section 167(3)(b)(ii) — interests of justice (Paulsen) — arguable point of law of general public importance must emerge from the record — late-raised novel legal arguments and common-law remedies (Oryx/Owsianick stepping-in) cannot be entertained for the first time in this Court — reluctance to act as court of first and last instance in developing common law.
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9 April 2019 |
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Reported
A properly procured multi‑year services contract does not automatically attract ministerial approval under section 66 PFMA.
Public Finance Management Act – interpretation of sections 66 and 68 – scope of “any other transaction that binds or may bind . . . to any future financial commitment”.; Procurement law – whether properly procured multi‑year service contracts require ministerial approval under section 66 PFMA.; Statutory interpretation – text, context and purpose; interaction between sections 51, 53, 54, Treasury Regulations and Chapter 8 of the PFMA.; Administrative law – consequences of unauthorised transactions (section 68) not reached where section 66 does not apply.
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2 April 2019 |
| March 2019 |
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Reported
A constitutional court lacks jurisdiction to revisit pure factual or credibility findings to decide RAF Act interpretation issues.
Road Accident Fund Act 56 of 1996 – interpretation of sections 17 and 20(2) – meaning of “moves from that place as a result of gravity”. Constitutional jurisdiction – limits of Constitutional Court jurisdiction where dispute is essentially factual and relies on credibility findings. Statutory interpretation – invocation of section 39(2) does not, without supporting facts, transform a factual dispute into a constitutional matter. Evidentiary and pleading requirements – necessity of factual foundation for foreseeability and causation arguments.
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26 March 2019 |
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Reported
Court refused Parliament’s extension request, set interim prioritisation and reporting regime for land restitution claims.
Constitutional remedial powers under section 172(1)(b) — finality and functus officio — reserved orders — extension of period for legislative compliance — just and equitable remedy — prioritisation of old land restitution claims over claims lodged under invalidated amendment — limits on interdicted claimants’ relief — judicial oversight and reporting obligations for Land Claims Commission.
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19 March 2019 |
| February 2019 |
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Reported
A dispute over a tacit month-to-month municipal contract raised factual issues, not a constitutional matter, so leave was refused.
Public procurement – section 217 – compliance and lawfulness of contracts with organs of state; unlawful contracts void ab initio. Contract law – tacit contracts – tests for existence, factual inferences and onus of proof. Constitutional jurisdiction – misapplication of common law or disputed factual findings do not ordinarily raise constitutional issues warranting this Court’s intervention.
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28 February 2019 |
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Reported
Appeals against the President’s section 17(2)(f) referral refusals are ordinarily not appealable to the Constitutional Court.
Superior Courts Act s17(2)(f) – President’s power to refer refusal of leave to appeal – procedural safety‑net;* Constitutional Court jurisdiction – s167(3) and s167(6) – appealability depends on raising a constitutional issue or an arguable point of law of general public importance;* Appealability – s17(2)(f) refusals ordinarily non‑final, factual (existence of exceptional circumstances) and not appealable to Constitutional Court;* Interests of justice – avoid dual appeals, piecemeal litigation and waste of judicial resources;* Remedy – applicant may seek leave to appeal to Constitutional Court against High Court judgment on merits.
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19 February 2019 |
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Reported
A pre-suspension hearing is not required for precautionary suspension; the Labour Court’s adverse costs order was set aside for lack of fair exercise of discretion.
Labour law – Precautionary suspension – No general entitlement to pre-suspension representations; fairness assessed by reason for suspension and prejudice (payment of salary ameliorates prejudice). Labour procedure – Review and substitution of CCMA awards; remit only when appropriate. Costs – Adverse costs orders in labour matters must be exercised in accordance with section 162 of the LRA and the requirements of law and fairness; failure to give reasons warrants setting aside.
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19 February 2019 |
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Reported
The legitimate expectations test applies to all section 7(1)(b)(ii)(aa) disqualifying factors; decision makers must be positively satisfied none exist.
National Building Regulations – s 7(1)(b)(ii)(aa)(aaa)-(ccc) – disqualifying factors (disfigurement; unsightly/objectionable; derogation in value) – legitimate expectations test applies to all – Walele test (decision maker must be positively satisfied none apply) – discretion circumscribed by Constitutionally required lawfulness, reasonableness and procedural fairness.
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19 February 2019 |
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Reported
Court set aside an unlawfully granted prospecting right, held Schedule II exclusivity lasts one year, and authorised substitution remedy.
Mining law – Schedule II transitional conversion of old‑order rights – requirements for conversion applications; acceptance and return under s 16(3). Administrative law – validity of acceptance/grant where application non‑compliant with prescribed regulations; duty of Regional Manager to return defective applications. Interpretation – Schedule II exclusivity limited to one year; priority in processing under s 9 preserved but exclusivity not indefinite. Remedies – interplay of PAJA and s 172 remedial powers; substitution permitted in exceptional cases (Trencon) where administrator incompetent and delay unjust; Kirland/Oudekraal do not bar judicial set‑aside of unlawful grants.
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15 February 2019 |
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Reported
Whether misapplication of the common‑purpose doctrine raises a constitutional issue engaging Constitutional Court jurisdiction.
Criminal law – doctrine of common purpose – whether misapplication constitutes a constitutional issue – jurisdiction of Constitutional Court; presence requirement and fatal‑blow timing in common‑purpose murder; public policy/legal convictions and constitutional values; interests of justice in granting leave to appeal.
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14 February 2019 |
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Reported
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7 February 2019 |
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Reported
Prior approval for de facto control precludes re-notification when control becomes de jure, but regulator may investigate assurances.
Competition law – merger control – section 12(1) and 12(2) – forms of control (de facto v de jure) – once-off principle for acquisition of control; Competition Tribunal – jurisdiction – power to grant declaratory relief under sections 27(1)(d) and 58; Competition Commission – investigatory and revocation powers under sections 15 and 16(3); notifiability – section 13A obligations and advisory opinions.
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1 February 2019 |
| January 2019 |
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Reported
A High Court may not suspend invalidity of a regulation pending confirmation; Constitutional Court set aside that suspension.
Constitutional law — invalidity of ministerial regulations — declarations of invalidity in respect of regulations are not subject to confirmation by the Constitutional Court; High Court lacks basis to suspend such declarations; administrative law — regulation incompatible with statutory minimum residence requirement for naturalisation; protection against statelessness and rights of the child.
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29 January 2019 |
| December 2018 |
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Reported
Delay does not bar asylum applications; Refugees Act (non‑refoulement) prevails and RSDO alone decides refugee status.
Refugee law — non‑refoulement and section 2 of the Refugees Act — primacy over conflicting statutes; access to asylum process — delay and false documents relevant to credibility but not absolute bars; Refugee Status Determination Officer sole authority to determine refugee status; exclusionary clause s4(1)(b) applies to crimes committed outside the refuge country; Immigration Act must be read harmoniously with the Refugees Act.
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20 December 2018 |
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Reported
The respondent’s suspension of the SADC Tribunal and signing of the 2014 Protocol unlawfully deprived individuals of regional access to justice.
Constitutional law — presidential conduct — sections 231, 232, 7(1)-(2), 8(1) — treaty negotiation and signing; customary international law — Vienna Convention articles 18 and 26 — article 18 obliges a signing State to refrain from acts defeating a treaty’s object and purpose; prematurity — immediate threat to rights justifies early judicial intervention; legality and rationality — President acted unlawfully and irrationally by pursuing an impermissible amendment route and rendering the SADC Tribunal dysfunctional; access to justice — individual access to regional tribunal protected by Treaty and Constitution; remedy — declaration of invalidity and direction to withdraw signature; costs ordered against respondent.
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11 December 2018 |
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Reported
Reinstatement as Inkosi was personal and non‑transmissible, but PAJA review, monetary and succession claims may proceed and must be tried.
Administrative law — PAJA review and standing — transmissibility of remedies: reinstatement as a personal remedy non‑transmissible, but review of administrative action and monetary claims may proceed; res judicata and precedent bind lower courts; interim/interlocutory orders (rule nisi) remain pendente lite where higher court ordered so; consolidation of related proceedings appropriate.
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6 December 2018 |
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Reported
Addition of "veterinarian" to Medicines Act invalid for lack of constitutionally adequate public participation.
Constitution—legislative public participation—sections 59(1)(a), 72(1)(a), 118(1)(a); material committee amendments; notice and targeted consultation; severability of unconstitutional amendment; remedy limited to severance.
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5 December 2018 |
| November 2018 |
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Reported
Practitioner’s unpaid business-rescue fees do not outrank secured creditors or liquidation costs on conversion to liquidation.
Companies Act (Ch 6) – business rescue practitioner’s remuneration – interpretation of sections 135(4) and 143(5) – no “super preference” on conversion to liquidation; Insolvency Act interaction – sections 89(1), 95 and 97 protect secured creditors and liquidation costs; purposive and contextual statutory interpretation; leave to appeal refused.
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29 November 2018 |
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Reported
Late recordal bars the respondent from claiming arrears; a section 129 notice must specify the amount owed.
Alienation of Land Act (ss.20, 26, 19) — late recordal prevents seller receiving consideration; purchaser’s payment obligations arise only on recordal where statute requires it. National Credit Act s.129 — notice of default must draw default to consumer’s attention by specifying amount and nature of arrears. ALA s.19 and NCA s.129 read together: seller must notify recordal and afford reasonable opportunity to pay before cancellation. Cancellation and cancellation of recordal invalid where notice premature.
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28 November 2018 |
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Reported
Whether to extend suspension of invalidity over the Electoral Commission’s duty to record available voter addresses.
Electoral law – Suspension of declaration of invalidity – s172(1)(b) just and equitable relief – obligation to record addresses on national common voters’ roll – meaning of “available”/“reasonably available” addresses – remedial suspension conditions (reporting; flagging/address collection; party access) – balancing electoral integrity, practicality of address collection on voting days, separation of powers and voters’ rights.
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22 November 2018 |
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Reported
Criminalising failure to notify gatherings unjustifiably limits the right to peaceful assembly; convictions set aside.
Constitutional law — Regulation of Gatherings Act s 12(1)(a) — Criminalisation of failure to give notice for gatherings — Right to assemble peacefully s 17 — Limitation analysis under s 36 — Overbreadth and chilling effect of criminal sanction — Less restrictive alternatives available — Remedy: confirmation of invalidity; convictions set aside; declaration not retrospective.
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19 November 2018 |
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Reported
Employer failed to prove operational justification or consideration of alternatives; reinstatement ordered for unfair retrenchments.
Labour law – Section 189A(19) retrenchments – substantive fairness requires operational justification and proper consideration of alternatives; reinstatement is primary remedy; employer bears onus to show reinstatement not reasonably practicable.
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6 November 2018 |
| October 2018 |
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Reported
A reversionary claim to transfer immovable property is a personal "debt" that prescribed; leave to appeal refused.
Prescription Act — claim to re-transfer immovable property under reversionary clause is a "debt"; Reversionary clause constitutes a personal right, not a limited real right; Registration under Deeds Registries Act does not convert personal right into a real right (though it may have practical effects such as notice); Mortgage/security argument fails because accessory security cannot survive prescription of principal obligation; Constitutional access-to-courts issue noted but appeal lacked prospects.
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31 October 2018 |
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Reported
Automatic upgrading of apartheid-era land tenure to ownership violated women's equality rights.
Constitutional law; land tenure and upgrading; automatic conversion of apartheid-era deeds of grant to ownership; gender discrimination and section 9 equality; inadequacy of appeal/notice procedures; retrospective and suspended remedy under section 172(1)(b).
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30 October 2018 |
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Reported
Mining-right holders must ordinarily exhaust MPRDA section 54 remedies; mining rights do not automatically extinguish IPILRA informal land rights.
MPRDA s54 – internal dispute-resolution procedures – requirement to notify and involve Regional Manager before eviction; interaction between MPRDA and IPILRA; IPILRA s2 – deprivation of informal land rights requires consent or communal disposal in accordance with custom (majority decision at properly convened meeting); mining rights do not automatically extinguish informal occupation; amici curiae admissible but new factual evidence inadmissible under rule 31 when not incontrovertible.
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25 October 2018 |
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Reported
Section 7(3) of the Divorce Act unjustifiably excludes Transkei spouses without antenuptial contracts; declaration suspended and read-in ordered.
Divorce Act s7(3) — discrimination — spouses married under Transkei Marriage Act without antenuptial contracts excluded from redistribution on divorce — irrational differentiation — direct access granted — declaration of invalidity suspended and reading-in as interim remedy — remittal to trial court to determine proprietary interests.
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23 October 2018 |
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Reported
A departmental directive banning asylum seekers' visa and in‑country permanent‑residence applications is ultra vires and invalid.
Immigration law — Immigration Directive 21 of 2015 — ultra vires to the extent it imposes a blanket ban on asylum seekers applying for visas; Refugee law — interplay between Refugees Act and Immigration Act — asylum seekers' eligibility to apply for permits and ability to seek exemptions under s31(2)(c); Administrative law — directives and reviewability; Regulation 23 — in‑country applications for permanent residence.
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9 October 2018 |
| September 2018 |
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Reported
The court held section 4(1)(b) of the Refugees Act constitutional, but found procedural unfairness in excluding the applicant.
Refugees Act – Section 4(1)(b) exclusion – Constitutionality – Procedural fairness in asylum decisions – Internal remedies and appeals.
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28 September 2018 |
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Reported
The Competition Commission may use Part B Chapter 5 investigatory powers to determine whether an agreement is a notifiable merger.
Competition law – Merger control – Whether competition authority may investigate whether transaction constitutes a notifiable merger – Scope of investigatory powers under Part B of Chapter 5 (search, summons, interview) – sections 12, 13A, 13B, 21, 49A. Interpretation of court orders – Whether a prior order precludes statutory investigatory powers – purposive construction in context of Act and reasons. Civil procedure – Admission of further evidence on appeal – exceptional circumstances required; relevance limited to material before earlier court. Public interest and costs – constitutional dimension may militate against adverse costs orders.
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28 September 2018 |
