JSC Advertises Judicial Vacancy on the Constitutional Court

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The Judicial Service Commission has invited nominations to fill the vacancy of a Judge on Constitutional Court following the retirement of Justice Skweyiya in May 2014.

Nominations to fill the post must be submitted by 24 April 2015.

For more details see the advertisement here.

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 61/14 Western Cape Division, Cape Town, 24 Feb. 2012 and 12 Feb. 2013
SCA, 24 Mar. 2014
16 Sep. 2014 24 Mar. 2015 Madlanga J  8-1

By Duncan Wild on 27 March 2015

In this case, the Constitutional Court held that entities that engage in lending that falls outside the scope of the National Credit Act 34 of 2005 (“NCA“) (e.g. to entities which exceed the value thresholds set out in the Act) do not need to be registered as credit providers under the NCA, and a failure to register does not invalidate credit agreements outside the scope of the Act.  In addition, the Court reversed the current position regarding how the common law in duplum rule applies when litigation commences. The position before this case being that interest may start running again if the creditor institutes action. The Court, however, found that commencing proceedings will not have an effect on the in duplum rule, and interest may not run again. Interest will only run again on a judgment, which effectively is a new debt which restarts any in duplum calculation. Continue reading

Law Clerks 2016 – Call for Applications

The Constitutional Court has published an advertisement seeking applications from persons who would like to be appointed as a law clerk at the Court for 2016.  Each Justice of the Constitutional Court is assisted by two law clerks whose primary function is to carry out legal research for their respective Justice. The Constitutional Court invites applications from suitable candidates seeking appointment as law clerks for 2016.

For more information on what it’s like to work as a clerk this Mail & Guardian story provides a few first hand accounts.

For more details on the applications please click here.

Oppelt v The Head: Health, Department of Health, Provincial Administration: Western Cape

Case No. Lower Court Judgments Hearing Date
CCT 185/14 Western Cape Division, Cape Town, 21 Nov. 2012
SCA, 25 Sept. 2014
26 Feb. 2015

By Duncan Wild on 30 December 2014

This case involves a determination of whether the conduct of certain health care workers employed by the Western Cape Department of Health acted wrongfully and negligently in failing to treat Mr Charles Oppelt with a certain procedure within 4 hours of his injury, leading to his paralysis.

Continue reading

H v Fetal Assessment Centre

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 74/14 Western Cape Division, Cape Town, 24 Apr. 2014 28 Aug. 2014 11 Dec. 2014 Froneman J  Unanimous

By Duncan Wild on 11 December 2014

This is a case seeking to expand the South African common law to recognise a claim for “wrongful life”, or what the applicant calls “wrongful suffering”.  Historically, such claim have arisen where a medical professional is alleged to have failed to inform parents that there is a high risk that a foetus may be born with abnormalities, and had the parents been informed, they not have permitted the foetus to be born.  The applicant sought to cast the claim as one for “wrongful suffering”, seeking to emphasise that it is not claim with the basis that it would have been better for the child not be born, but that in failing to give the accurate information, the physician caused the suffering of the child once it was born. At present neither of these claims exist in South African law, and the applicant sought to have such a claim recognised.

The Constitutional Court did not recognise the claim for “wrongful life”, but indicated that there was the potential for such a claim in South African law, and so upheld the appeal against the High Court’s dismissal of the claim.  The Constitutional Court, however, found that the parties had not put argument before it on how the constitutional protection for the rights a child impacted the claim, and that it would not develop the common law to recognise this claim without all the facts before it.  Therefore, the Constitutional Court indicated that the applicant could amend their papers and reinstitute the case in the High Court which could then consider whether a valid claim existed and whether the applicant met the requirements for that claim.

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Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Another

Case No. Lower Court Judgments Hearing Date
CCT 163/14 Gauteng Division, Pretoria, 15 Feb. 2013
Gauteng Division, Pretoria, 1 Nov. 2013
Gauteng Division, Pretoria, 18 Jun. 2014
17 Feb. 2015

By Duncan Wild on 15 November 2014

This matter relates to the 2011 Cross Border Transport Amendment Regulations (“the Regulations“) promulgated by the Cross Border Road Transport Agency (“CBRTA”) which purported to increase the permit fees payable by cross border road transport operators by 250%. In February 2013, the High Court declared the regulations invalid subject to six month period of suspension to allow the regulations to be amended. The suspension period expired and no changes were made to the regulations, and so the High Court declared the regulations invalid with retrospective effect. The CBRTA then appealed. Continue reading

Coughlan NO v The Road Accident Fund

Case No. Lower Court Judgments Hearing Date
CCT 160/14 Western Cape Division, 6 Jun. 2013
SCA, 3 Sep. 2014
12 Feb. 2015

By Duncan Wild on 15 November 2014

This matter concerns whether foster child grants made to the foster parent of children whose mother was killed by the driver of a motor car, and for which the Road Accident Fund (“RAF“) admitted liability, are deductible from damages awarded for loss of support to the children.

Continue reading