On 19 May 2014
The central question in this case is the extent to which the South African Police Service (SAPS) has domestic and/or international law obligations to investigate alleged crimes against humanity, including torture, committed by Zimbabweans in Zimbabwe. The High Court and the Supreme Court of Appeal (the SCA) found that, on the facts of this particular case, SAPS were indeed obliged to investigate these allegations. Continue reading
By Duncan Wild on 15 May 2014 (updated 19 May 2014)
The highly-anticipated case was delayed because of an administrative error on the part of the legal team representing President Jacob Zuma, according to counsel for the President, Kemp J Kemp.
The President’s written argument was not correctly served on the applicants nor filed with some of the justices of the Constitutional Court. Accordingly, on 15 May 2014, the case was postponed until August 2014 and the President was ordered to pay the wasted costs for the day, including the costs of two counsel.
On 13 December 2013, Western Cape Division of the High Court, Cape Town (“Cape Town High Court“) declared several provisions of the South African Police Service Amendment Act 10 of 2012 (“SAPS Amendment Act”) constitutionally invalid in two cases, heard together, brought by Mr Hugh Glenister and the Helen Suzman Foundation.
The SAPS Amendment Act relates to the state’s anti-corruption entity, known as the Hawks which was formed pursuant to the the finding of constitutional invalidity made by this Constitutinal Court in Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC). The Western Cape High Court found that sections of the SAPS Amendment Act did not grant sufficient independence to the Hawks. This decision is now before the Constitutional Court for confirmation. Continue reading
By Michael Mbikiwa on 25 June 2014
The central legal question in this case is whether a debt restructuring proposal, purportedly sent to a creditor in terms of section 86(1) of the National Credit Act, is an act of insolvency for the purposes of section 8(g) of the Insolvency Act. However, in a unanimous judgment by van der Westhuizen J, the Constitutional Court (the “Court”) refused the application for leave to appeal without needing to reach this central question. Continue reading
||Lower Court Judgments
||Labour Court, 1 February 2012;
Labour Appeal Court, 2 December 2013
|12 May. 2014
By Sarah McGibbon on 1 May 2014
This case is an appeal against the judgment of Coppin AJA in the Labour Appeal Court (“LAC“). The primary questions to be considered by the Constitutional Court are (i) whether the LAC has the power to decide grounds of review that were not fully canvassed by the Labour Court; (ii) whether the arbitrator should have found that he did not have the jurisdiction to arbitrate the dispute; and (iii) whether the decision of the LAC to confirm the arbitrator’s award was correct. Continue reading
By Duncan Wild 12 April 2014
This matter pertains to the validity of section 44 of the Land Use and Planning Ordinance (“LUPO“) in so far as it allows the provincial government of the Western Cape, through the applicant, the Minister of Local Government, Environmental Affairs and Development Planning, Western Cape (“Minister“), to hear appeals from the decisions municipalities on certain land use planning decisions. The key question in the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers in relation to land use planning. The potential importance of the Constitutional Court’s decision in this matter lies in the fact that in the relationship between provincial and municipal power.
The Constitutional Court, in an unanimous decision authored by Cameron J, confirmed the High Court’s finding of invalidity of section 44, however, but not in its entirety. We set out the background to the matter and the High Court’s decision below.
By Duncan Wild on 12 April 2014
In this case certain sections of the Pounds Ordinance, no 18 of 1938 (“the Ordinance“) which deals with the impoundment of livestock are challenged on various grounds, including its violation of the rights to equality, against the arbitration deprivation of property, to just administrative action and to the right of access to courts.
The Ordinance provides for the establishment of municipal pounds and the appointment of poundmasters. It provides that stray animals found on private property may be sent by the owner of that property to a pound, and for the impoundment of unattended animals found in public places.
The High Court found the Ordinance to be invalid, and the decision went for confirmation to the Constitutional Court. The Constitutional Court, however, in a unanimous decision authored by Dambuza AJ, found that the as the Ordinance did not amount to a “provincial act”, the High Court’s finding of invalidity did not require confirmation by the Constitutional Court to be effective. In the Eastern Cape then, the High Court’s order of invalidity stands, but not in the Western Cape and Northern Cape, the Constitutional Court however ordered that its decision be delivered to the Premier’s of the Western Cape and Northern Cape.
||Lower Court Judgments
|| Labour Court Johannesburg, 3 February 2011
Supreme Court of Appeal, 24 May 2013
|19 Nov. 2013
||10 Apr. 2014
|| Zondo J
By Greg Palmer and Duncan Wild on 12 April 2014
This case concerns an appeal by the National Union of Public Service & Allied Workers Union (“NUPSAWU“) against the decision of the Labour Court in terms of which the dismissal of ten employees of the National Lotteries Board (“NLB“) was found to be procedurally and substantively fair. Reinstatement of the employees was sought by NUPSAWU. The Constitutional Court, in a majority decision by Zondo J, overturned the decision of the Supreme Court of Appeal and ordered that the employees be re-instated