National Union of Public Service & Allied Workers Union (NUPSAWU) obo Mani and Others v National Lotteries Board

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 75/13  Labour Court Johannesburg, 3 February 2011
Supreme Court of Appeal, 24 May 2013
19 Nov. 2013 10 Apr. 2014  Zondo J  6-3

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

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Savoi and Others v National Director of Public Prosecutions and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 71/13 Kwazulu-Natal High Court, 17 May 2013 11 Nov. 2013 20 Mar. 2014  Madlanga J  Unanimous

By Duncan Wild and Greg Palmer on 23 March 2014

This case involves a constitutional challenge to certain sections of the Prevention of Organised Crime Act 21 of 1998 (“POCA“). Some of the sections are predicated on the definitions (also challenged) in POCA of “pattern of racketeering activity” and “enterprise” and which the applicants contend are unconstitutional, invalid and void for vagueness. Chapter 2 of POCA is also challenged on the basis that it operates retrospectively in violation of section 35(3)(1) of the Constitution and the Rule of Law, and section 2(2) of POCA is said to violate the fair trial rights of an accused.

The Constitutional Court, in an unanimous judgment authored by Justice Madlanga, and concurred in by Moseneke ACJ, Skweyia ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J, dismissed these challenges finding that the impugned sections of POCA were defensible.

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Loureiro and Others v iMvula Quality Protection (Pty) Ltd

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 40/13 South Gauteng High Court, 30 Sep. 2011
SCA, 15 Mar. 2013 
6 Nov. 2013 20 Mar. 2014  Van der Westhuizen J  Unanimous

By Duncan Wild on 23 March 2014

Imvula Quality Protection (Pty) Ltd (“iMvula“) was hired to provide security guards to guard the home of Lincio Loureiro (“Loureiro“) and his family. In January 2009, an armed robbery occurred at the house after a man pretending to be a police was allowed entry to the house by a guard employed by Imvula.

The Constitutional Court found that iMvula had breached its contractual duty, owed to Loureiro, not to allow access to the premises to any person without authorisation. In addition, that iMvula, as a security company, owed a duty to prevent harm, and in addition, the guard on duty had breached that duty by negligently failing to take the necessary precautions in allowing the disguised robber access. Continue reading

Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 94/13 Western Cape Division of the High Court,  21 Jun. 2012 27 Feb. 2014  Cameron J  Unanimous

By Duncan Wild on 16 March 2014

The case came before the Constitutional Court as an application for the confirmation of a an order by the Western Cape High Court which had found section of the Estate Agency Affairs Act 112 of 1976 (“EAAA“) and the Financial Intelligence Centre Act 38 of 2001 (“FICA“) to be constitutionally invalid. The sections, 32A of the EAAA and 45B of FICA afforded search and seizure powers to regulatory bodies.

The Estate Agency Affairs Board (“the Board“) regulates compliance with EAAA and was a supervisory body responsible for enforcing FICA compliance.  The Board suspected that the respondent, Auction Alliance (Pty) Ltd (“Auction Alliance“) had contravened both the EAAA and FICA and so attempted to conduct a search of Auction Alliance’s premises without a warrant under the challenged sections.  Auction Alliance refused to allow the inspectors from the board access, and instead brought this application, seeking to to prevent the Board from conducting the warrantless search, and to declare the relevant provisions invalid. It was agreed that in the interim the documents sought by the Board would be kept in the possession of KPMG pending the resolution of the litigation. The Board also brought a counter-application seeking that the High Court issue a search warrant allowing a search of Auction Alliance’s premises.  Continue reading

Kubyana v Standard Bank of South Africa Limited

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 65/13 North Gauteng High Court, 8 Nov. 2012 7 Nov. 2013 20 Feb. 2014 Mhlantla AJ  Unanimous

By Duncan Wild on 20 February 2014

The applicant, Moshomo Kubyana (“Kubyana“), entered a credit agreement to finance the purchase of the car with the respondent, The Standard Bank of South Africa (“Standard Bank“). This agreement was subject to the National Credit Act 34 of 2005 (“NCA“).

When Kubyana defaulted on the agreement Standard Bank sent a notice of default to Kubyana by registered post under section 129 of the NCA. The notice was not collected and returned to Standard Bank. The High Court found that the NCA did not require personal service and allowed a credit provider to send the notice by registered post. Kubyana had not provided any explanation as to why the notice did not reach him, and in these circumstances the High Court could not refuse judgment based on non-compliance with the NCA.

The Constitutional Court, in a decision authored by Mhlantla AJ (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Madlanga J and Van der Westhuizen J concurring) found that Standard Bank had complied with its obligations under the NCA. In effect it found that the notice requirement under section 129 was important in order to bring the consumer’s attention to his or her rights, and to achieve resolution without the need to go to court.  However, what is required of the credit provider is to take those steps sufficient to bring the notice to the attention of a reasonable consumer.   Continue reading

Khumalo and Another v MEC for Education, Kwazulu-Natal

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 10/13 Labour Court, Durban, 6 Jul. 2010
Labour Appeal Court, 29 Aug. 2012
8 Aug. 2013 18 Dec. 2013  Skweyiya J  8-2

By Duncan Wild on 21 December 2013

The case involves whether the promotions of two persons within the Kwazulu-Natal Department of Education (“the Department”) should be set aside as unlawful.

Mr. Khumalo, the first appellant, applied for and was promoted to the position of Chief Personnel Officer in the Department in April 2004.  Mr. Ritchie, the second appellant in this matter, had also applied for the post but was not shortlisted. He challenged the failure to shortlist him before the General Public Servants Sectoral Bargaining Council on the basis he should have been shortlisted as he met all the requirements for the post.  As a result of this process, Mr. Ritchie and the Department entered into a settlement agreement whereby Mr. Ritchie was granted a protected promotion to the post to which Mr. Khumalo had already been promoted, and Mr. Khumalo was allowed to retain his promotion.

The Labour Court and Labour Appeal Court had set aside both promotions, but the Constitutional Court, in a majority judgment written by Justice Skweyiya, ordered that both promotion be upheld. Justice Zondo, concurred in by Justice Jafta, wrote a minority judgment in which he agreed with the result of the majority but for different reasons.  Continue reading

Dengetenge Holdings (Pty) Limited v Southern Sphere Mining and Development Company Limited and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 39/13 North Gauteng High Court, 17 Jun. 2011
Supreme Court of Appeal, 11 Mar. 2013
15 Aug. 2013 13 Dec. 2013  Jafta J  8-3

By Avani Singh and Duncan Wild on 18 December 2013.

After the record had been filed in the matter in an appeal to the Supreme Court of Appeal (“SCA“), the appeal lapsed for failure by the appellant, Dengetenge Holdings (Pty) Limited (“Dengetenge”), to prosecute it by timeously filing its heads of argument. The issue for determination before the SCA was whether the default should be condoned and the appeal revived.

The majority of the Constitutional Court, in a judgment written by Jafta J, found that leave to appeal should be granted, but that the appeal should be dismissed. Justice Jafta also found, in respect of the High Court judgment, that Dengetenge had not first utilsed the internal appeal before going to the High Court, but that regardless, Dengetenge had conceded in the High Court that the rights were awarded to it unlawfully.  

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Ferris and Another v Firstrand Bank Limited and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 52/13 South Gauteng High Court, 5 Oct. 2012 5 Nov. 2013 12 Dec. 2013  Moseneke ACJ  Unanimous

By Duncan Wild on 12 December 2013

The applicants, Destri Ferris and Soraya Ferris, entered a credit agreement with the Firstrand Bank Limited (“Firstrand“). They defaulted on their payments, and applied for debt review under section 86 of the National Credit Act 2005 (“NCA“). The debt counsellor proposed a debt restructuring which Firstrand refused. The matter was referred to the Magistrate’s Court, but then Firstrand terminated the review. Notice was not given to the Magistrate’s Court or the applicants of the termination.  The Magistrate’s Court, being unaware of the termination, ordered a debt restructuring. Firstrand instituted summons against the applicants, and after the applicants attorneys failed to comply with procedural steps in the litigation (without the knowledge of the applicants themselves), a judgment was taken against them in default.

When the applicants became aware of the judgment they applied to have the judgment rescinded, but this was refused. The applicants then appealed to Supreme Court of Appeal but leave to appeal was refused.

The Constitutional Court, in a unanimous judgment by Acting Chief Justice Moseneke (Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Van der Westhuizen J and Zondo J), found there was no basis to interfere with the SGHC’s decision. Firstrand was entitled to proceed to enforce the loan agreement under the National Credit Act as the applicants had breached the debt-restructuring order. The requirements for rescission of a judgment were therefore not met.

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Ngewu and Another v Post Office Retirement Fund and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 117/13 Direct Access 7 Nov. 2013 5 Dec. 2013  Madlanga J.  Unanimous

By Duncan Wild

On 7 March 2013, the Constitutional Court delivered judgment in Ngewu and Another v Post Office Retirement Fund and Others (our summary here), in which sections of the Post Office Act 44 of 1958 (“the Post Office Act“) were declared unconstitutional for its failure to incorporate the “clean break” principle. The “clean break” principle means that a divorced spouse can make a “clean break” by claiming their share of the former spouse’s pension interest at the time of the divorce.

The government was given eight months to amend the section, failing which the Constitutional Court provided a draft provision in an annexure to its judgment to be read into the Post Office Act as section 10F that provides for the “clean break” principle.

The Minister of Communications brought an urgent application on 4 November 2013 for an extension of the period for the legislature to amend the Post Office Act. The Minister says that the previous Minister (Ms Dina Pule) failed to table a statutory amendment before Cabinet, and the new Minister needs six more months to conclude the parliamentary process to have the Post Office Act amended.

Ms Ngewu (the original applicant) opposes this application on the basis that the delay has not been adequately explained and that a further delay would cause prejudice, whereas if the Constitutional Court’s order takes effect there will be no harm.

The Constitutional Court dismissed the application for an extension with costs on 6 November 2013, this means the Post Office Act will now be read in accordance with the order of the Court made on 7 March 2013, and will incorporate the clean break mechanism.

In an unanimous judgment authored by Madlanga J the Constitutional Court found that the Minister had not adequately explained the reason for the delay in bringing the application only three days before the period expired, or delay in finalising the amendments. In addition, the Court found that the State would suffer no real prejudice if the reading in took effect. In addition, the previous Minister had agreed to the reading in order, and so was well aware of possibility of the reading in taking effect.

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Minister of Justice and Constitutional Development and Another v Nontombi Masingili and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 44/13 Western Cape High Court, 20 Mar. 2013 27 Aug. 2013 28 Nov. 2013 Van der Westhuizen J. Unanimous

By Sarah McGibbon and Duncan Wild on 28 November 2013

This case appears before the Constitutional Court by way of confirmation proceedings in terms of section 172(2) of the Constitution, following Blignaut J and Van Staden AJ of the Western Cape High Court (“WCHC“) declaring section 1(1)(b) of the Criminal Procedure Act 51 of 1977 (“the impugned provision“) (which sets out the definition of aggravating circumstances in the context of robbery with aggravating circumstances) unconstitutional.

The Constitutional Court, in an unanimous judgment authored by Justice Van der Westhuizen (Chief Justice Mogoeng, Deputy Chief Justice Moseneke, and Justices Cameron, Froneman, Jafta, Madlanga, Nkabinde, Skweyiya and Zondo, as well as Acting Justice Mhlantla concurred) refused to confirm the High Court’s declaration.  Continue reading