Justices on leave and Acting Justices

During the fourth term Chief Justice Mogoeng and Justice Khampepe are on long leave. Acting Justices Nonkosi Mhlanta (for her third consecutive term as an acting justice) and Nambitha Dambuza (a judge of the Eastern Cape Division) have been appointed. Deputy Chief Justice Moseneke has been appointed as Acting Chief Justice, and Justice Skweyiya as Acting Deputy Chief Justice

Justice Johann van der Westhuizen is on a medical leave of absence for part of the term.

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Grootboom v National Prosecuting Authority & Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
 CCT 08/13 Labour Court, 18 Dec. 2009Labour Appeal Court, 21 Sep. 2012 23 May. 2013 21 Oct. 2013 Bosielo AJ Unanimous

By Michael Dafel and Duncan Wild on 23 October 2013.

This matter stems from a decision by the NPA to invoke section 17(5)(a)(i) of the Public Service Act 103 of 1994 (Act) to discharge the employment services of Mr Grootboom.  In the Constitutional Court, Mr Grootboom seeks an order for that decision to be set aside.

The Constitutional Court, in a judgment authored by Bosielo AJ, in which Moseneke DCJ, Froneman J, Jafta J, Khampepe, J, Mhlantla AJ, Nkabinde J and Skweyiya J concurred) found that the decison to to discharge the services of Mr Grootboom should be set aside, as the requirements of section 17(5)(a)(i) had not been met.  In addition, the Majority found that the NPA’s late filing of answering affidavits and written submissions could not be condoned as there was no proper explanation for the delay.

Justice Zondo wrote an opinion in which he agreed with the order granted by Bosielo AJ, but thought that the late filing of affidavits and written submissions to the court should be condoned.  Continue reading

Food & Allied Workers Union v Ngcobo NO and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 50/13 South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012
29 Aug. 2013 9 Oct. 2013 Cameron J Unanimous

By Mzukisi Kota and Duncan Wild on 10 October 2013

This case is concerned with the question of whether a trade union is liable for damages to its members where it has failed to perform in terms of a mandate to represent its members in proceedings before the Commission for Conciliation Mediation and Arbitration (“the CCMA”) and the Labour Court.

The Constitutional Court, in an unanimous judgment authored by Justice Cameron (joined by Deputy Chief Justice Moseneke, Justices Froneman, Jafta, Madlanga, Nkabinde, Skweyiya, Van der Westhuizen, Zondo and Acting Justice Mhlantla), found that once the Union had undertaken to provide legal assistance to its member, it could not unilaterally withdraw that assistance. If it failed to accord with its agreement with its members, it could be held liable for that failure. So the Constitutional Court refused to grant leave to appeal as there were not prospects of success in the appeal. Continue reading

MEC for Education, Gauteng Province v The Governing Body of the Rivonia Primary School

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 135/12 South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012
9 May. 2013 3 Oct. 2013 Mhlantla AJ 7-2

By Duncan Wild on 3 October 2013.

The case concerns whether it is the Provincial Department of Education or the governing body of a public school that has the power to determine the number of learners that the school may admit, and whether the Provincial Department of Education may override any determination in this respect by a governing body.

The Constitutional Court, in a judgment authored by Acting Justice Mhlantla with  Deputy Chief Justice Moseneke, Justices Froneman, Khampepe, Nkabinde and Skweyiya and Acting Justice Bosielo concurring, found that although the school governing body had the ability to determine the capacity of a school, a Provincial Department maintains ultimate control, and a school’s admission policy cannot inflexibly limit the discretion of the Head of Department. Continue reading

Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 12/13 North Gauteng High Court, 4 Jan. 2013 30 May. 2013 3 Oct. 2013 Khampepe J Unanimous

This case comes before the Constitutional Court by way of confirmation proceedings in terms of section 172(2) of the Constitution, following the North Gauteng High Court (“NGHC”) per Rabie J having declared sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Act”) to be unconstitutional.

In the NGHC, the applicants challenged the constitutional validity of sections 15 (“Acts of consensual sexual penetration with certain children (statutory rape)”), 16 (“Acts of consensual sexual violation with certain children (statutory sexual assault)”) and 56(2) (dealing with defences in respect of sections 15 and 16 of the Act) (collectively, “the impugned provisions”). The impugned provisions criminalise a wide range of consensual sexual activities involving children aged between 12 and 15 years, including all forms of kissing on the mouth. The applicants did not challenge the impugned provisions insofar as they relate to the sexual conduct of adults; however, to the extent that the impugned provisions criminalise the sexual conduct of children, the applicants argued that they are unconstitutional. This affects the consensual sexual activity of a child aged between 16 and 18 years with a child aged between 12 and 15 years, as well as the consensual sexual activity of two children aged between 12 and 15 years.

The Constitutional Court found that the effect of the sections was not rationally connected to the government purpose of protecting children.  The criminalisation of this behaviour was found to negatively impact children by criminalising developmentally normative conduct by adolescents. The sections violated the affected children’s’ privacy, dignity and was not in children’s best interest as required by the section 28 of the Constitution. Continue reading