Mansingh and Others v General Council of the Bar and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 43/13 North Gauteng High Court, 09 Feb. 2012
Supreme Court of Appeal, 15 Mar. 2013
22 Aug. 2013 28 Nov. 2013 Nkabinde J. Unanimous

By Greg Palmer and Duncan Wild on 28 November 2013.

The case concerns whether the President’s power to confer ‘honours’ under section 84(2)(k) of the Constitution includes the power to award ‘senior counsel’ or ‘silk’ status to advocates.

The appellant, Ms Mansingh, is a practising advocate and a member of the Johannesburg Society of Advocates (“the JSA“).  Ms Mansingh successfully sought a declaratory order in the North Gauteng High Court to the effect that section 84(2)(k) of the Constitution does not authorise the President to award ‘senior counsel’ status to advocates.

The General Council of the Bar (“the GCB“) (an affiliation of the ten Societies of Advocates in the country) and the JSA appealed to the Supreme Court of Appeal (“the SCA“).

Section 84(2)(k) of the Constitution provides as follows:

Powers and functions of the President:

(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.

(2) The President is responsible for –

. . .

(k) conferring honours.”

The JSA and the GCB took the matter on appeal to the SCA, and the SCA concluded that the power to confer honours bestowed upon the President by section 84(2)(k) of the Constitution included the authority to confer the status of ‘senior counsel’ on practising advocates.

The Constitutional Court, in an unanimous judgment authored by Justice Nkabinde, and in which Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Skweyiya J, Van der Westhuizen J and Zondo J concurred, also found that the power of conferring honours was sufficiently broad to include the power conferring senior counsel status, and so dismissed the application. Continue reading

Useful resource on Constitutional Litigation

Although, not something we ordinarily do, but in the spirit of brining of attention to how the Constitutional Court works, the ConCourtBlog is recommending a new book that has been published that focuses on the rules and principles applicable to litigating in the Constitutional Court.

The book is authored by two advocates, Max de Plessis and Jason Brickhill, and an attorney, Glenn Penfold*, entitled “Constitutional Litigation”, all with significant experience acting in the Constitutional Court.  The book is a useful, accessible and practical resource that will be a useful tool for constitutional law practitioners and students, and anyone who is interested in how the Constitutional Court works.

Deputy Chief Justice Moseneke has said of the book “I welcome the publication of Constitutional Litigation and have no doubt that it will add much to our evolving procedural law as well as to the ability of practitioners to do justice to the cases of their clients – an outcome that is consistent with the mission of our Constitution.”

You can find more information on the book, and order it here:  http://www.jutalaw.co.za/products/constitutional-litigation

*Disclosure: Penfold, and the editor of ConCourtBlog work at the same law firm.

The Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoon Bay Lifestyle Estate (PTY) LTD and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 41/13 Western Cape High Court, 31 Aug. 2011
Supreme Court of Appeal, 15 Mar. 2013
20 Aug. 2013 20 Nov. 2013 Mhlantla AJ Unanimous

By Michael Dafel and Duncan Wild 

This matter pertains to the validity of a decision by the Western Cape provincial government to refuse a proposed development.  Lying at the heart of the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers to rezone and subdivide land.  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 in deciding aspects of the same land development.

The Constitutional Court, in an unanimous decision authored by Acting-Justice Mhltantla, did not decide the issue of which level of government the Constitution gave the power to rezone or subdivide land, but did hold that under the applicable legislation the municipality was the competent authority to make the decision on subdivision, and the Provincial Minister the competent authority to decide on the rezoning application. Continue reading

Patrick Lorenz Martin Gaertner and Others v The Minister of Finance and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 56/13 Western Cape High Court, 8 Apr. 2013 12 Sep. 2013 14 Nov. 2013 Madlanga J. Unanimous

This case involves a challenge to the sections of the Customs and Excise Act 91 of 1964 (“the Customs Act“) which empowers South African Revenue Service (“SARS“) officials to conduct certain searches without the need for a warrant.  

The Constitutional Court, a judgment authored by Madlanga J, in which the Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurred, found the provisions in question to be overbroad in that SARS officials were “given far-reaching powers (breaking in and breaking floors) that may be exercised anywhere, at whatever time and in relation to whomsoever, with no need for the existence of a reasonable suspicion, irrespective of the type of search”. This constituted an unjustifiable limitation of the right to privacy on so the sections were struck down.  The Constitutional Court suspended the declaration of invalidity for a period of six months to allow Parliament to rectify the defect, and provided that in the interim requires SARS to obtain a warrant from a Magistrate or Judge before conducting searches of private residences. Continue reading

Botha and Another v Rich NO and Others

Case No.  Lower Court Judgments  Hearing Date
CCT 89/13 Northern Cape High Court, 13 Nov. 2009

Northern Cape High Court (Full Bench), 28 Mar. 2013
20 Nov. 2013

By Duncan Wild

The respondents in the this matter are the trustee’s of the JJW Hendriks Trust (“the Trust“) that owned certain property in De Aar. In November 2003 the Trust sold the property to the first respondent, Lorraine Botha (“Botha“) and the parties entered an agreement in accordance with the Alienation of Land Act 68 of 1981 (“the Act“). Of particular relevance, the parties agreed that section 19 of the Act would apply to the agreement, this section provides that the seller my terminate the contract only if: she has notified the purchaser of a breach and called upon the purchaser to rectify the breach in no less than 30 days, and the purchaser has failed to rectify the breach. The agreement stipulated that the purchase price was to be R240,000 and would be paid in installments of R4,000 a month. Continue reading

Member of the Executive Council for Health in the Eastern Cape and Another v Kirland Investments (Pty) Limited t/a Eye & Laser Institute

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 7/13  Eastern Cape High Court
SCA, 16 May 2013
12 Nov. 2013 25 Mar. 2014 Cameron J  7-3

By Duncan Wild on 28 September 2014

This is an application for leave to appeal against a judgment of the Supreme Court of Appeal (“SCA“), handed down on 16 May 2013. The matter involves the application of the maxim of functus officio. In addition, one of the central questions before the Constitutional Court is the extent to which the decision in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) applies to the facts of the matter, and whether the principle in Oudekraal needs to be developed or relaxed in certain instances. In particular, the principle that once an administrative decision is made it exists as a fact and has legal effect until it is set aside by a court in proceedings for judicial review.

The majority of the Constitutional Court, in a decision written by Cameron J, dismissed the appeal with costs.  Continue reading

Ngqukumba v Minister of Safety and Security and Others

Case No.  Lower Court Judgments  Hearing Date
 CCT 71/13 Eastern Cape High Court, 20 Oct. 2011
SCA, 31 May 2013
14 Nov. 2013

By Duncan Wild

In this case the appellant’s motor vehicle was seized by the police acting under the Criminal Procedure Act 51 of 1977 (“the Criminal Procedure Act“).  After the vehicle was seized the police discovered that it did not comply with the National Road Traffic Act 93 of 1996 (“the National Road Traffic Act“). The High Court and Supreme Court of Appeal found that the vehicle had been seized unlawfully, but that as it would be unlawful for the appellant to be in possession of a vehicle that did not comply with the National Road Traffic Act, the court not order the return of the vehicle, until it complied with the law. The question before the Constitutional Court is whether it is correct, that despite an unlawful seizure of vehicle, the vehicle may not be returned to its owner if it is discovered that possession of the vehicle would be unlawful.  Continue reading