Author Archives: duncanwild2013

Tulip Diamonds FZE v Minister of Justice and Constitutional Development and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 93/12 South Gauteng High Court, 9 Jun. 2011
SCA, 7 Sep. 2012		 26 Feb. 2013 13 Jun. 2013 Van der Westhuizen J. 6-3

The issue is whether Tulip Diamonds FZE (“Tulip“), an entity incorporated in Dubai, has legal standing to challenge a decision by the Minister of Justice and Constitutional Development to give assistance to the Belgian authorities following a Letter of Request for such assistance sent under the International Co-operation in Criminal Matters Act 75 of 1996 (“the Act“).  The documents are required in a criminal investigation into a Belgian company, Omega Diamonds. The South African authorities were requested to search and seize certain documents from a South African company, Brinks (Southern Africa) (Pty) Ltd (“Brinks“), related to shipments of diamonds from Angola to Tulip in Dubai.  The SCA held that Tulip had no standing to challenge the decision and the issuance of a subpoena by the Kempton Park Magistrate’s Court requiring Brinks to produce the relevant documents, because Tulip did not have a sufficient interest in those documents.  According to the SCA, Tulip did not show that the documents in question were confidential or that Brinks had a contractual duty to preserve their confidentiality, and so Tulip had no proprietary right in the documents.   Continue reading →

Sigcau v The President of the Republic of South Africa and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT84/12

 North Gauteng High Court, 12 Apr. 2012
 21 Feb. 2013
 13 Jun. 2013 The Court Unanimous

The case involves a challenge by Justice Mpondombini Sigcau to President’s Minutes published on 3 November 2012, under the by the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (“New Act“), that recognized Zanuzuko Tyelovuyo Sigcau as the King of the amaPondo after an investigation by a commission appointed in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (“Old Act“).

The issues involve whether the commission acted fairly, impartially and rationally, whether or not the decision it took was published within the necessary time, and whether the Constitution allows someone other than a traditional structure such as the Royal Family to determine who the King or Queen should be.  The High Court found that the Commission acted in accordance with its mandate, fairly and impartially and that the Constitution did not require only a traditional structure to be able to appoint a King or Queen.

The Constitutional Court in a unanimous judgment by the Court, constituting: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J, found that President had purported to exercise powers not conferred on him under the New Act. In addition, due to material differences between the New and Old Acts, he could be said to have issued the notice under the Old Act. Therefore, the notice recognizing Zanuzuko Tyelovuyo Sigcau was set aside.

Download the judgment here.

S v Nabolisa

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT105/12

 KwaZulu-Natal High Court, 4 May 2011
SCA, 1 Oct. 2012		 7 Mar. 2013

 12 Jun. 2013 Jafta J. 7-3

Mr Frank Nabolisa was convicted, along with his co-accused Mrs Cheryl Cwele, of dealing in dangerous dependence-producing drugs.  He was sentenced to 12 years imprisonment, and on appeal the SCA upheld his conviction and increased his sentence to 20 years. Mrs Cwele did not appeal.

Mr Nabolisa alleges in his appeal against both his sentence and conviction on the following bases: (1) the High Court and SCA infringed his right to a fair trial by not allowing him to present certain evidence; (2) the High Court and SCA erred in interpreting the Drug Trafficking Act 140 and 1992 to apply to a situation where the drugs in question were not collected nor imported into South Africa (the alleged trafficking happened in Brazil); and (3) the SCA is not empowered to increase a sentence where the State has not appealed the sentence imposed by the High Court.

On the third point, the majority of the Constitutional Court, in a judgment authored by Justice Jafta (in which Chief Justice Mogoeng and Justices Froneman, Khampepe, Mhlanta AJ, Nkabinde and Zondo concurred) found that without a formal notice of appeal by the State against the sentence imposed, the State cannot merely notify the court of its appeal against the sentence in written argument before the appeal court. Without such a formal appeal in accordance with section 316 of the Criminal Procedure Act, the issue was not properly before the SCA, and hence the increase in Mr Nabolisa’s sentence should be set aside. The majority therefore set aside the sentence imposed by the SCA, reinstating the 12 year sentence imposed by the High Court.

Justice Skweyiya wrote a minority judgment (in which Deputy Chief Justice Moseneke and Justice van der Westhuizen concurred) finding that there was a long established practice that the State could motivate an increase in sentence where the accused brings an appeal without the need to bring a formal cross-appeal. The minority found that the sentence issue had been fully argued in the SCA and Mr Nabolisa had adequate notice that the State would seek an increase in his sentence. According to the minority there was no irregularity or unfairness and so they would not have interfered with the SCA’s order to increase Mr Nabolisa’s sentence.

Download the judgment here.

Mpofu v Minister of Justice and Constitutional Development and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 124/11
 WLD (now South Gauteng High Court),
4 May 2001
 29 Nov. 2012
 6 Jun. 2013 Skweyiya J. 8-3

Mr Mandla Mpofu was convicted of murder, kidnapping, assault, robbery with aggravating circumstances and unlawful possession of firearms and ammunition, and was sentenced to twenty years imprisonment.  At the time he committed the crimes, Mr Mpofu claimed he was sixteen years old, and he has appealed his sentence on the basis that the High Court did not adequately take into account the rights of children in section 28 of the Constitution, and specifically that “every child has the right not to be detained except as a measure of last resort….[and] the child may be detained only for the shortest appropriate period of time“.

The Majority of the Constitutional Court, in a judgment written by Justice Skweyiya and concurred in by Chief Justice Mogoeng, Deputy Chief Justice Moseneke and Justices Cameron, Froneman, Jafta, Zondo and Yacoob dismissed Mr Mpofu’s application for leave for appeal and application on the basis he had not shown he was under 18 at the time the offence was committed, and so section 28 would not relevant. In addition, the application for leave was made more than 10 year s after Mr Mpofu’s sentence, and despite two additional applications for leave to appeal that did not raise the issue of his age, was not adequately explained.

Justice Van der Westhuizen wrote a dissenting judgment finding that on the wording of the High Court judgment, Mr Mpofu was a child at the time of the offence, and the High Court had failed to take this into account during sentencing. Justice Van der Westhuizen would have set aside the sentence and replaced it with one of 20 years imprisonment. Justices Nkabinde and Khampepe concurred in this judgment.

Download the judgment here.

Liebenberg NO and Others v Bergrivier Municipality

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 104/12 Western Cape High Court, 25 Aug. 2011
SCA, 1 Oct. 2012		 12 Mar. 2013 6 Jun. 2013 Mhlantla AJ. 7-2

Prior to the adoption of the interim Constitution in 1993, rural landowners did not have to pay rates to municipalities.  In 1993 the Local Government: Transition Act 209 of 1993 (“Transition Act“) was enacted to provide uniformity in local government throughout South Africa, and that every part of a province should fall within the jurisdiction of a local council.  Between 2001 and 2009, various farm owners within the Bergrivier Municipality refused to pay municipal rates.  Various specific issues were raised regarding different rates imposed in different years during that period, but in essence the Constitutional Court will have to determine whether the Municipality was empowered to impose the rates at the relevant time, and if so whether the Municipality did so within its powers.

In a judgment written by Acting Justice Mhlantla, the majority of the Constitutional Court (including Chief Justice Mogoeng, Deputy Chief Justice Moseneke and Justices Froneman, Nkabinde, Skweyiya and Zondo) found that section 10G(7) of the Transition Act empowered the Bergrivier Municipality to impose the rates for the 2006/2007 and 2008/2009 financial years.  In addition the majority found that the Municipality had substantially complied with the relevant statutory provisions in respect of the rates imposed between 2001 to 2005.  Continue reading →

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

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Case No.  Lower Court Judgments  Hearing Date
CCT 12/2013
 North Gauteng High Court, 4 Jan. 2013 30 May 2013

By Avani Singh on 29 April 2013.

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. Continue reading →

Mayelane v Ngwenyama and Another (Women’s Legal Centre Trust as Amicus Curiae)

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 57/12 North Gauteng High Court, 24 Mar. 2010
SCA, 1 Jun. 2012		 20 Nov. 2012 30 May 2013 Froneman J, Khampepe J and Skweyiya J. Unanimous
By Michael Dafel on 31 May 2013

In a matter that will in all likelihood prove significant for the future regulation of polygamous customary marriages in South Africa, the Constitutional Court, without invitation from the parties and without hearing argument, developed living customary law of the Xitsonga (Tsonga) community to include a requirement that the first wife must provide her consent for her husband to marry subsequent wives.  For the majority of the Court, this legal development was necessitated to ensure that customary practices are in conformity with Constitutional values. Continue reading →

Grootboom v National Prosecuting Authority & Another

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Case No.  Lower Court Judgments  Hearing Date
CCT 08/13 Labour Court, 18 Dec. 2009
Labour Appeal Court, 21 Sep. 2012		  23 May 2013

By Michael Dafel on 16 April 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. Continue reading →

M&G Media Limited and Others v Chipu NO and Others

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Case No.  Lower Court Judgments  Hearing Date
 CCT 136/12 North Gauteng High Court, 9 Dec 2012  14 May 2013

Disclosure: Webber Wentzel is representing the appellants in this matter. Duncan Wild, Greg Palmer and Ben Winks have been involved in the instruction. The author of this post is independent of Webber Wentzel and has not been involved in the matter.

By Michael Dafel on 29 April 2013.

In this matter, members of the media have called on the Constitutional Court to determine the constitutionality of section 21(5) of the Refugees Act 130 of 1998.  The provision states that ‘the confidentiality of asylum applications and the information contained therein must be ensured at all times’.  The media argue that the provision is unconstitutional in so far as it entails a blanket ban on media access to Refugee Appeal Board (“the RAB“) hearings.  They argue that the RAB must be vested with a discretion on whether, and on what conditions, to allow media access to an asylum hearing.  The state, on the other hand, argues that a blanket ban is necessary to ensure the safety of asylum applicants as well as their family and witnesses.

This case stems out of a decision of the RAB to refuse members of the media access to the asylum appeal of Radovan Krejcir.  Mr Krejcir is a fugitive from the Czech Republic, and since entering South Africa on a false passport in 2007 has been allegedly linked to crimes committed in South Africa.  Owing to the refusal, the media approached the High Court for an order reviewing the RAB’s decision on the grounds that it should have interpreted section 21(5) as affording it a discretion to permit media access, or alternatively declaring section 21(5) unconstitutional to the extent that it doesn’t afford such a discretion.  The North Gauteng High Court held that, although the provision limits the section 16 right to freedom of expression, this limitation is nonetheless reasonable and justifiable owing to the need to protect asylum applicants.  The media’s interest in access to the hearings was substantially outweighed by the privacy and dignity interests of asylum seekers, the safety of their witnesses, and the integrity of the asylum system as a whole. Continue reading →

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

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 Case No.  Lower Court Judgments  Hearing Date
 CCT 135/12 South Gauteng High Court, 7 Dec. 2011

Supreme Court of Appeal, 30 Nov. 2012

  9 May 2013

By Greg Palmer on 17 April 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.

In 2010 the governing body of Rivonia Primary School (“the School“) had prepared an admission policy which was accepted by the Gauteng Department of Education (“the Department“).  According to this policy the capacity of the school was set at 770 learners, of which 120 would be admitted to Grade 1.

The School had declined to admit a child to its Grade 1 class for the 2011 school year. The child was twentieth on the waiting list of applicants for admission. The mother of the child appealed to officials in the Department. A few weeks into the 2011 school year the head of the Department instructed the principal of the School to admit the child. Before the governing body of the School had made a decision on the instructions of the Head of Department, in a letter to the principal the Head of the Department purported to withdraw the principal’s admission function. Officials from the Department arrived at the School shortly thereafter to physically place the child in a classroom.

The relevant provision is Section 5(5) of the South African Schools Act 84 of 1996 (“the Act“), which provides that subject to the Act and any applicable provincial law, “the admission policy of a public school is determined by the governing body of such school.”

The South Gauteng High Court held, per Mbha J, that the Act does not appropriate to the school governing body the unqualified power to determine the school’s admission policy, and that the power to determine the maximum capacity of a public school in Gauteng vests in the Gauteng Department and not in the school governing body.  It also held that the Member of the Executive for Education, Gauteng Province, has the power to intervene in the school governing body’s power to determine the admission policy of a public school.

The Supreme Court of Appeal, per Cachalia JA writing for a unanimous court, held that the governing body’s power under section 5(5) of the Act to determine the admission policy of a school necessarily includes the power to determine the school’s capacity.  Any doubt of this is removed by section 5A of the Act, which allows the Minister of Education to prescribe minimum and uniform norms and standards for ‘the capacity of a school in respect of the number of learners a school can admit’, and then requires the school’s governing body to comply with these norms and standards when compiling the school’s admission policy.

The Supreme Court of Appeal overturned the order of the High Court (save for the order of costs in that court, and relief pertaining to the withdrawal of the School principal’s admission function), and declared that the instruction given to the School principal to admit the learner contrary to the school’s admission policy, and the placing of the learner in the school, were unlawful.

The Constitutional Court will have to decide the issue of whether on a proper interpretation of the provisions of the Act and other applicable legislation, the power to determine the capacity of a public school in Gauteng vests in the head of the Department or the governing body of the public school as part of its power to determine an admission policy for that public school.

It will also determine whether the head of Department’s decision to admit the learner to the School was lawful and justified.