City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others

Case No. Lower Court Judgments Hearing Date
CCT 133/14 Labour Court, 31 Aug. 2012
Labour Appeal Court, 29 May 2014
18 Nov. 2014

By Duncan Wild on 3 November 2014

This case involves the consideration of when the cancellation of a contract under which certain services are outsourced may be considered a transfer of business from the outsourcee to the outsourcer, requiring the outsourcer to take over the employment contracts of the employees of the outsourcer under section 197 of the Labour Relations Act 66 of 1995 (“LRA“.) Continue reading

De Vos NO and Others v Minister of Justice and Constitutional Development and Others

Case No. Lower Court Judgments Hearing Date
CCT 150/14 Western Cape Division, Cape Town, 5 Sep. 2014 17 Nov. 2014

By Duncan Wild on 2 November 2014

This matter involves two cases heard together as they seek similar relief, and concern the fate of persons who, by reason of mental illness or mental defect, are unfit to be tried. The relief sought is an order declaring s 77(6) (a) of the Criminal Procedure Act, 51 of 1977 (“CPA”) to be unconstitutional.  The section provides that where an accused person is found incapable of understanding the proceedings and so unfit to stand trial, when certain conditions are met, the court must order the person be detained in a psychiatric hospital or prison until a judge orders the person’s release.  Continue reading

Chevron SA (Pty) Ltd v Dennis Wilson t/a Wilson’s Transport and Others

Case No. Lower Court Judgments Hearing Date
CCT 88/14 Western Cape Division, Cape Town, 5 Jun. 2014 13 Nov. 2014

By Duncan Wild on 2 November 2014

This matter concerns the constitutionality of section 89(5)(b) of the National Credit Act 34 of 2005 (“NCA“).  This section of the NCA deals with how unlawful credit agreements must be treated. In particular, providing that the credit agreement be declared void and that the consumer must be refunded any money paid under the agreement.  Continue reading

Horn and Others v LA Health Medical Scheme and Another

Case No. Lower Court Judgments Hearing Date
CCT 97/14  Western Cape Division, Cape Town, 1 Mar. 2011

SCA, 29 May 2014

11 Nov. 2014

By Duncan Wild on 1 November 2014

This case concerns the interpretation of interpretation of the rules of a pension fund established for employees of local authorities, and their application, particularly in conveying certain redundancy benefits, on employees who were not employed by a local authority but under a special arrangement.  Continue reading

Sarrahwitz v Maritz NO and Another

Case No. Lower Court Judgments Hearing Date
CCT 93/14 Eastern Cape Division, Grahamstown 7 Feb. 2013 10 Nov. 2014

By Duncan Wild on 1 November 2014

The applicant in this case, Ms Virginia Sarrahwitz seeks a declaration of unconstitutionality of the common law position that immovable property which had been sold but not yet transferred to the purchaser prior to the seller’s insolvency, vests in the trustee of the seller’s insolvent estate. If the trustee does not honour the contract of sale and transfer the property, the purchaser is left only with a concurrent claim against the insolvent estate.

Continue reading

Daluzolo Sali v National Commissioner of the South African Police Services and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 143/13  Labour Court, Port Elizabeth, 21 May 2013 10 Mar. 2014 19 Jun. 2014 Cameron J  10-1

By Duncan Wild on 28 September 2014

The case concerns whether the age requirement in the recruitment polices of the South African Police Service (“SAPS“), unfairly discriminate of the basis of age.

The Constitutional Court denied the applicant leave to appeal on the basis that he had only raised a challenge to constitutionality of  the SAPS recruitment age bar on appeal, which is not acceptable. In addition, the Commissioner of the SAPS had raised the age bar from 30 years, which is set in the application regulations, to 40, and if the Court were to set aside the decision to raise the age limit to 40 years, this would leave the applicant in worse position, by leaving the 30 year age limit in place. The the Constitutional Court held would not be in the interests of justice. Continue reading

Pheko and Others v Ekurhuleni Metropolitan Municipality

Case No. Lower Court Judgments Hearing Date
CCT 19/11 Constitutional Court, 6 Dec. 2011 12 Aug. 2014

By Duncan Wild on 11 August 2014

On 6 December 2011, the Constitutional Court found that the Ekurhuleni Municipality had acted unlawfully in evicting occupier of the Bapsfontein Informal Settlement. The Municipality was ordered to find land in the area on which to relocated the occupiers, to engage meaningfully with those occupiers, and to report the steps taken in order to comply with the order to the Court. The matter is now back before the Court as the Municipality has apparently not yet relocated the occupiers, and in particular has not complied with the Constitutional Court’s order requiring a report on the relocation progress. The Court has therefore called upon the Municipality to show why it should not be held in contempt. Continue reading

Khohliso v The State and Another

Case No. Lower Court Judgments Hearing Date
CCT 12/14 Eastern Cape High Court, Mthatha 12 Dec. 2013 21 Aug. 2014

By Duncan Wild on 4 August 2014

This case concerns whether the High Court’s finding that sections 13(c) and 84(13) of the Environmental Conservation Decree No 9 of 1992 (“the Decree“) were unconstitutional. The Decree was promulgated by the then President of the Republic of the Transkei on 24 July 1992, when the Transkei was still a sovereign independent state. In the remainder of the Eastern Cape Province that Nature and Environmental Conservation Ordinance 19 of 1974 (“the Ordinance“) applies.  The Constitutional Court is faced with two questions: the first is a jurisdictional one, and depends upon whether the Decree is a provincial act, as if it is not provincial then the Constitution does not require the Constitutional Court to confirm its invalidity. The second question is whether the relevant sections of the Decree are unconstitutional in that they provide a different level of liability within the Transkei to the liability imposed under the Ordinance in the remainder of the Eastern Cape.  Continue reading

Helen Suzman Foundation v President of the Republic of South Africa and Others // Glenister v President of the Republic of South Africa and Others

Case No. Lower Court Judgments Hearing Date
CCT 7/14 Western Cape High Court, 13 Dec. 2013 19 Aug. 2014

By Avani Singh and Duncan Wild on 15 May 2014 (updated 19 May 2014 and 18 August 2014)

On 13 December 2013, the Western Cape Division of the High Court, Cape Town (“the High Court”) declared several provisions of the South African Police Service Amendment Act 10 of 2012 (“the 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 unit, the Directorate for Priority Crime Investigation (commonly referred to as the Hawks, which replaced the disbanded Scorpions). The SAPS Amendment Act was enacted following the Constitutional Court previously declaring chapter 6A of the South African Police Service Act 68 of 1995 unconstitutional and invalid to the extent that it failed to secure an adequate degree of independence for the Hawks (see Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)). The Constitutional Court suspended the declaration of invalidity for 18 months to afford Parliament an opportunity to remedy the constitutional defects.

The SAPS Amendment Act was enacted in purported compliance with this decision of the Constitutional Court. The applicants, however, contend that the SAPS Amendment Act does not cure the defects previously identified by the Constitutional Court, and the crux of the constitutional challenge is that the provisions of the SAPS Amendment Act still fail to secure sufficient institutional and operational independence for the Hawks.

The High Court noted that “[t]he present matter, entirely understandably, is a highly emotive one. It goes to the root of public perception. That is why it is necessary to remind ourselves that, just as we must fulfil our duty to declare invalid laws which fail to pass constitutional muster, we must equally guard against falling into the trap of seeking to satisfy hypersensitivity or paranoia.” In setting the test as being one of “adequate independence”, the High Court upheld the applicants’ challenge in part, and declared certain provisions of the SAPS Amendment Act invalid for the following reasons:

  • That the appointment process of the head lacks adequate criteria for such appointment and vests an unacceptable degree of political control in the Minister and Cabinet, which is also in conflict with the standard of international best practice;
  • That the power vested in the Minister to extend the tenure of the head and deputy head is intrinsically inimical to the requirement of adequate independence;
  • That the suspension and removal process not only vests an inappropriate degree of control in the Minister, but also allows for two separate and distinct processes, determined on the basis of arbitrary criteria, each able to find application without any reference to the other; and
  • That there is an unacceptable degree of political oversight in the jurisdiction of the Hawks, and the relevant provisions are themselves so vague that not even those responsible for their implementation are able to agree on how they should be applied.

Following the High Court declaring these provisions of the SAPS Amendment Act to be unconstitutional, the matter was referred to the Constitutional Court for confirmation as is required.

In the upcoming hearing, in addition to seeking confirmation of the High Court’s order, the Helen Suzman Foundation also seeks leave to appeal the High Court’s refusal to declare certain other provisions of the SAPS Amendment Act unconstitutional relating to financial control, integrity testing, conditions of service and co-ordination by Cabinet. Mr Glenister seeks leave to appeal against the whole of the High Court’s order on the basis that the entire scheme of the SAPS Amendment Act is unconstitutional; in the alternative, he aligns himself with the submissions of the Helen Suzman Foundation.

In response, the state argues that the SAPS Amendment Act creates sufficient independence from undue political interference and that the doctrine of separation of powers prevents the courts from being overly prescriptive about the legislative measures taken by the state.

The matter was initially supposed to be heard by the Constitutional Court on 15 May 2014. However, due to the fact that the President’s written argument was not correctly served on the applicants or filed with the Court, the matter had to be postponed, and was rescheduled for 19 August 2014.

Powertech Transformers DPM v NUMSA obo Jongikhaya Chris Sinuko and Others

Case No. Lower Court Judgments Hearing Date
CCT 186/13 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