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Unconstitutional provisions

Legislation provisions that have been declared unconstitutional by a court. They are resolved when new legislation is passed.
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Compensation for Occupational Injuries and Diseases Act, 1993
Copyright Act, 1978
  • 6. Nature of copyright in literary or musical works Unresolved

    Section 6 declared unconstitutional, invalid and inconsistent with the rights of persons with visual and print disabilities, as set out in sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution, to the extent that these provisions of the Copyright Act limit the access of such persons to published literary works, and artistic works as may be included in such literary works, in accessible format copies.

    Judgment
    Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33 (21 September 2022)
    Date deemed unconstitutional
    21 September 2022
    End of suspension period
    21 September 2024
    Provision as at 1 April 1989:

    6. Nature of copyright in literary or musical works

    Copyright in a literary or musical work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:
    (a)Reproducing the work in any manner or form;
    (b)publishing the work;
    (c)performing the work in public;
    (d)broadcasting the work;
    (e)causing the work to be transmitted in a diffusion service, unless such service transmits a lawful broadcast, including the work, and is operated by the original broadcaster;[paragraph (e) substituted by section 3(b) of Act 56 of 1980]
    (f)making an adaptation of the work;
    (g)doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (e) inclusive.
    [section 6 amended by section 3(a) of Act 56 of 1980]
  • 7. Nature of copyright in artistic works Unresolved

    Section 7 declared unconstitutional, invalid and inconsistent with the rights of persons with visual and print disabilities, as set out in sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution, to the extent that these provisions of the Copyright Act limit the access of such persons to published literary works, and artistic works as may be included in such literary works, in accessible format copies.

    Judgment
    Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33 (21 September 2022)
    Date deemed unconstitutional
    21 September 2022
    End of suspension period
    21 September 2024
    Provision as at 1 April 1989:

    7. Nature of copyright in artistic works

    Copyright in an artistic work vests the exclusive right to do or to authorize the doing of any of the following acts in the Republic:
    (a)Reproducing the work in any manner or form;
    (b)publishing the work;
    (c)including the work in a cinematograph film or a television broadcast;
    (d)causing a television or other programme, which includes the work, to be transmitted in a diffusion service, unless such service transmits a lawful television broadcast, including the work, and is operated by the original broadcaster;[paragraph (d) substituted by section 4(b) of Act 56 of 1980]
    (e)making an adaptation of the work;
    (f)doing, in relation to an adaptation of the work, any of the acts specified in relation to the work in paragraphs (a) to (d) inclusive.
    [section 7 amended by section 4(a) of Act 56 of 1980]
Criminal Procedure Act, 1977
  • 18. Prescription of right to institute prosecution Unresolved

    The declaration of constitutional invalidity of section 18 of the Criminal
    Procedure Act 51 of 1977 made by the High Court of South Africa,
    Gauteng Local Division, Johannesburg is confirmed.

    Judgment
    Levenstein and Others v Estate Frankel and Others [2018] ZACC 16 (14 June 2018)
    Date deemed unconstitutional
    14 June 2018
    End of suspension period
    14 June 2020
    Provision as at 1 November 1993:

    18. Prescription of right to institute prosecution

    (1)The right to institute a prosecution for any offence, other than an offence in respect of which the sentence of death may be imposed, shall, unless some other period is expressly provided by law, lapse after the expiration of a period of twenty years from the time when the offence was committed.
    (2)The right to institute a prosecution for an offence in respect of which the sentence of death may be imposed, shall not be barred by lapse of time.
  • 332. Prosecution of corporations and members of associations (5) Unresolved

    Section 332(5) of the Criminal Procedure Act No 51 of 1977 was declared unconstituional.

    Judgment
    S v Coetzee and Others (CCT 50/1995) [1997] ZACC 2 (6 March 1997)
    Date deemed unconstitutional
    6 March 1997
    Provision as at 1 November 1993:
    (5)When an offence has been committed, whether by the performance of any act or by the failure to perform any act, for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or servant of the corporate body shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it, and shall be liable to prosecution therefor, either jointly with the corporate body or apart therefrom, and shall on conviction be personally liable to punishment therefor.
  • 245. Evidence on charge of which false representation is element Unresolved

    Sections 245 of the Criminal Procedure Act No 51 of 1977 was declared unconstitutional.

    Judgment
    S v Coetzee and Others (CCT 50/1995) [1997] ZACC 2 (6 March 1997)
    Date deemed unconstitutional
    6 March 1997
    Provision as at 1 November 1993:

    245. Evidence on charge of which false representation is element

    If at criminal proceedings at which an accused is charged with an offence of which a false representation is an element, it is proved that the false representation was made by the accused, he shall be deemed, unless the contrary is proved, to have made such representation knowing it to be false.
Divorce Act, 1979
  • 7. Division of assets and maintenance of parties (3) Unresolved

    Subsection 7(3) of the Divorce Act 70 of 1979 is declared inconsistent with the Constitution and invalid to the extent that it fails to include the dissolution of marriage by death.

    Judgment
    E B v E R and Others; K G v Minister of Home Affairs and Others (CCT 158/22; CCT 364/21) [2023] ZACC 32 (10 October 2023)
    Date deemed unconstitutional
    10 October 2023
    End of suspension period
    10 October 2025
    Provision as at 14 May 2024:
    (3)A court granting a decree of divorce in respect of a marriage out of community of property—
    (a)entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;
    (b)entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22(6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988; or
    (c)entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law,
    may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned.[subsection (3) added by section 36(b) of Act 88 of 1984 and substituted by section 2(a) of Act 3 of 1988 and by section 1 of Act 12 of 2020]
  • 7. Division of assets and maintenance of parties (3) (a) Unresolved

    Paragraph (a) of subsection 7(3) of the Divorce Act 70 of 1979 (Divorce Act) is declared inconsistent with the Constitution and invalid to the extent that it fails to include marriages concluded on or after the commencement of the Matrimonial Property Act 88 of 1984 (Matrimonial Property Act).
    …
    Pending any remedial legislation as contemplated in paragraph 3 above, paragraph (a) of subsection 7(3) of the Divorce Act is to be read as excluding the words [in square brackets] below:
    “(a) entered into [before the commencement of the Matrimonial Property Act, 1984,] in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;”

    Judgment
    E B v E R and Others; K G v Minister of Home Affairs and Others (CCT 158/22; CCT 364/21) [2023] ZACC 32 (10 October 2023)
    Date deemed unconstitutional
    10 October 2023
    End of suspension period
    10 October 2025
    Provision as at 14 May 2024:
    (a)entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded;
Mediation in Certain Divorce Matters Act, 1987
  • 4. Powers and duties of Family Advocates Unresolved

    1. The order of the High Court, Gauteng Local Division, Johannesburg, declaring section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 to be inconsistent with the Constitution and invalid is confirmed to the extent that it precludes never-married parents and married parents who are not going through a divorce, and their children, from accessing the services of the Office of the Family Advocate in the same manner as married parents who are divorced or going through a divorce do.

    …

    3. During the period of suspension referred to in paragraph 2, the Mediation in Certain Divorce Matters Act shall be deemed to include the following additional provision:

    “Section 4A
    (1) The Family Advocate shall––
    (a) after an application has been instituted that affects, or is likely to affect, the exercise of any right, by a parent or non-parent with regard to the custody or guardianship of, or access to, a child; or after an application has been lodged for the variation, rescission or suspension of an order with regard to any such rights, complete Annexure B to the regulations, if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable them to furnish the court at the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to them by the court.
    (2) Any Family Advocate may, if they deem it in the interest of any minor or dependent child concerned apply to the court concerned for an order authorising him or her to institute an enquiry contemplated in sub-section (1)(a).
    (3) Any Family Advocate may, if they deem it in the interest of any minor or dependent child concerned, and shall, if so requested by a court, appear at the hearing of any application referred to in sub-section (1)(a) and may adduce any available evidence relevant to the application and cross-examine witnesses giving evidence thereat.”

    Judgment
    Centre for Child Law v T S and Others [2023] ZACC 22 (29 June 2023)
    Date deemed unconstitutional
    29 June 2023
    End of suspension period
    29 June 2025
    Provision as at 24 June 1987:

    4. Powers and duties of Family Advocates

    (1)The Family Advocate shall—
    (a)after the institution of a divorce action; or
    (b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979 (Act No. 70 of 1979),
    if so requested by any party to such proceedings or the court concerned, institute an enquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependent child of the marriage concerned or regarding such matter as is referred to him by the court.
    (2)A Family Advocate may—
    (a)after the institution of a divorce action; or
    (b)after an application has been lodged for the variation, rescission or suspension of an order with regard to the custody or guardianship of, or access to, a child, made in terms of the Divorce Act, 1979,
    if he deems it in the interest of any minor or dependent child of a marriage concerned, apply to the court concerned for an order authorizing him to institute an enquiry contemplated in subsection (1).
    (3)Any Family Advocate may, if he deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a court, appear at the trial of any divorce action or the hearing of any application referred to in subsections (1)(b) and (2)(b) and may adduce any available evidence relevant to the action or application and cross-examine witnesses giving evidence thereat.
National Credit Act, 2005
  • 89. Unlawful credit agreements (5) (b) Resolved

    The order made by the Western Cape Division of the High Court is confirmed to the extent set out below:
    Section 89(5)(b) of the National Credit Act 34 of 2005 is declared inconsistent with the Constitution and invalid.
    To remedy the defect, from 5 June 2014 to 13 March 2015, section 89(5) of the National Credit Act is deemed to read as follows:
    “(5) If a credit agreement is unlawful in terms of this section, despite any other legislation or any provision of an agreement to the contrary, a court must make a just and equitable order including but not limited to an order that:
    (a) The credit agreement is void as from the date the agreement was entered into.”

    Judgment
    Chevron SA (Pty) Ltd v Wilson t/a Wilson's Transport and Others [2015] ZACC 15 (5 June 2015)
    Date deemed unconstitutional
    5 June 2015
    Date resolved
    13 March 2015
    Resolving amendment
    National Credit Amendment Act, 2014
    Provision as at 30 June 2021:
    (b)[paragraph (b) deleted by section 27(b) of Act 19 of 2014]
National Prosecuting Authority Act, 1998
  • 12. Term of office of National Director and Deputy National Directors (4) Resolved

    Section 12(4) was declared unconstitutional

    Date deemed unconstitutional
    18 September 2018
    Date resolved
    22 October 2020
    Resolving amendment
    Judicial Matters Amendment Act, 2020
    Provision as at 19 August 2024:
    (4)[subsection (4) deleted by section 2(a) of Act 12 of 2020]
  • 12. Term of office of National Director and Deputy National Directors (6) Resolved

    Section 12(6) was declared constitutionally invalid only to the extent that the section permits the suspension by the President of an NDPP and Deputy NDPP for an indefinite period and without pay.

    Date deemed unconstitutional
    13 August 2018
    End of suspension period
    13 February 2020
    Date resolved
    22 October 2020
    Resolving amendment
    Judicial Matters Amendment Act, 2020
    Provision as at 19 August 2024:
    (6)
    (a)The President may provisionally suspend the National Director or a Deputy National Director from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office—
    (i)for misconduct;
    (ii)on account of continued ill-health;
    (iii)on account of incapacity to carry out his or her duties of office efficiently; or
    (iv)on account thereof that he or she is no longer a fit and proper person to hold the office concerned.
    (aA)The period from the time the President suspends the National Director or a Deputy National Director to the time he or she decides whether or not to remove the National Director or Deputy National Director may not exceed 12 months.[paragraph (aA) inserted by section 2(b) of Act 12 of 2020]
    (b)The removal of the National Director or a Deputy National Director, the reason therefor and the representations of the National Director or Deputy National Director (if any) shall be communicated by message to Parliament within 14 days after such removal if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.
    (c)Parliament shall, within 30 days after the message referred to in paragraph (b) has been tabled in Parliament, or as soon thereafter as is reasonably possible, pass a resolution as to whether or not the restoration to his or her office of the National Director or Deputy National Director so removed, is recommended.
    (d)The President shall restore the National Director or Deputy National Director to his or her office if Parliament so resolves.
    (e)The National Director or a Deputy National Director provisionally suspended from office shall receive, for the duration of such suspension, his or her full salary.[paragraph (e) substituted by section 2(c) of Act 12 of 2020]
Promotion of Access to Information Act, 2000
  • 35. Mandatory protection of certain records of South African Revenue Service Unresolved

    The order of constitutional invalidity of the High Court of sections 35 and 46 of the Promotion of Access to Information Act 2 of 2000 (PAIA), to the extent that they preclude access to tax records by a person other than the taxpayer (a requester), even in circumstances where the requirements set out in section 46 of PAIA are met, is confirmed.

    Judgment
    Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others (CCT 365/21) [2023] ZACC 13 (30 May 2023)
    Date deemed unconstitutional
    30 May 2023
    End of suspension period
    30 May 2025
    Provision as at 30 June 2021:

    35. Mandatory protection of certain records of South African Revenue Service

    (1)Subject to subsection (2), the information officer of the South African Revenue Service, referred to in section 2(3), must refuse a request for access to a record of that Service if it contains information which was obtained or is held by that Service for the purposes of enforcing legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997).
    (2)A record may not be refused in terms of subsection (1) insofar as it consists of information about the requester or the person on whose behalf the request is made.
  • 46. Mandatory disclosure in public interest Unresolved

    The order of constitutional invalidity of the High Court of sections 35 and 46 of the Promotion of Access to Information Act 2 of 2000 (PAIA), to the extent that they preclude access to tax records by a person other than the taxpayer (a requester), even in circumstances where the requirements set out in section 46 of PAIA are met, is confirmed.

    Pending any measures Parliament might take to address the constitutional invalidity, the impugned provisions shall be read as follows:
    (a) Section 46 of PAIA shall read:
    “46 Mandatory disclosure in public interest
    Despite any other provision of this Chapter, the information officer of a public body must grant a request for access to a record of the body contemplated in section 34(1), 35(1), 36(1), 37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(a) or (b), 42(1) or (3), 43(1) or (2), 44(1) or (2) or 45, if—
    (a) the disclosure of the record would reveal evidence of—
    (i) a substantial contravention of, or failure to comply with, the law; or
    (ii) an imminent and serious public safety or environmental risk; and
    (b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.”

    Judgment
    Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others (CCT 365/21) [2023] ZACC 13 (30 May 2023)
    Date deemed unconstitutional
    30 May 2023
    End of suspension period
    30 May 2025
    Provision as at 30 June 2021:

    46. Mandatory disclosure in public interest

    Despite any other provision of this Chapter, the information officer of a public body must grant a request for access to a record of the body contemplated in section 34(1), 36(1), 37(1)(a) or (b), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(a) or (b), 42(1) or (3), 43(1) or (2), 44(1) or (2) or 45, if—
    (a)the disclosure of the record would reveal evidence of—
    (i)a substantial contravention of, or failure to comply with, the law; or
    (ii)an imminent and serious public safety or environmental risk; and
    (b)the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.
Standardisation of Electricity By-law, 1999
  • 14. Disconnection of supply (1) Unresolved

    The words "without notice" in section 14(1) in standardisation of Electricity By-law, 1999 was declared unconstitutional and are severed from by-law 14(1).

    Date deemed unconstitutional
    3 December 1999
    Provision as at 17 March 1999:
    When any charges due to the council for or in connection with electricity supplied are in arrear, the council may at any time without notice disconnect the supply to the electrical installation concerned or any part thereof until such charges together with the reconnection charge determined by the council are fully paid.
Tax Administration Act, 2011
  • chp_6__sec_67 Unresolved

    The order of constitutional invalidity of the High Court of sections 67 and 69 of the Tax Administration Act 28 of 2011 (TAA) to the extent that they—
    (a) preclude access to information being granted to a requester in respect of tax records in circumstances where the requirements set out in section 46 of PAIA are met; and
    (b) preclude a requester from further disseminating information obtained as a result of a PAIA request
    is confirmed.

    Pending any measures Parliament might take to address the constitutional invalidity, the impugned provisions shall be read as follows:

    Section 67(4) of the TAA shall be read as if the phrase “unless the information has been received in terms of the Promotion of Access to Information Act 2 of 2000” appeared immediately before the full stop.

    Judgment
    Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others (CCT 365/21) [2023] ZACC 13 (30 May 2023)
    Date deemed unconstitutional
    30 May 2023
    End of suspension period
    30 May 2025
  • chp_6__sec_69 Unresolved

    The order of constitutional invalidity of the High Court of sections 67 and 69 of the Tax Administration Act 28 of 2011 (TAA) to the extent that they—
    (a) preclude access to information being granted to a requester in respect of tax records in circumstances where the requirements set out in section 46 of PAIA are met; and
    (b) preclude a requester from further disseminating information obtained as a result of a PAIA request
    is confirmed.

    Pending any measures Parliament might take to address the constitutional invalidity, the impugned provisions shall be read as follows:
    Subsection 69(2) of the TAA shall be read as if it contained an additional paragraph (bA) after the existing paragraph (b):

    “(bA) where access has been granted for the disclosure of the information in terms of the Promotion of Access to Information Act 2 of 2000”

    Judgment
    Arena Holdings (Pty) Ltd t/a Financial Mail and Others v South African Revenue Service and Others (CCT 365/21) [2023] ZACC 13 (30 May 2023)
    Date deemed unconstitutional
    30 May 2023
    End of suspension period
    30 May 2025