Category Archives: Recent Judgments

Overviews of recent decisions handed down by the Constitutional Court of South Africa

KwaZulu-Natal Joint Liaison Committee v Member of the Executive Council Department of Education, KwaZulu-Natal and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 60/12 KwaZulu-Natal High Court, 4 Oct. 2011 22 Nov. 2012 25 Apr. 2013 Cameron J. 6-4

By Duncan Wild on 25 April 2013

The KwaZulu-Natal Joint Liaison Committee (“”the Committee“) is an association of independent schools that describe themselves as impoverished and dependent on State subsidies.  The Committee brought the case on the basis that the KwaZulu-Natal Department of Education (“the Department“) issued a notice in September 2008 setting out “approximate” subsidies for the 2009/2010 year.  The subsidies actually paid out were on average 30% less than stipulated in the notice.

The question the Constitutional Court had to determine is whether issuing the notice, against a background of payments in previous years that did align with the amounts set out in the notices, created a binding obligation to pay the amounts set out in the notice.

A secondary question, in part argued by the amicus, the Centre for Child Law, is that bearing in mind the right to basic education, the issuing of the notice created a legitimate expectation amongst the schools that the subsidies would not be significantly reduced when paid.

In the main judgment authored by Justice Cameron (and concurred in by Moseneke DCJ, Froneman J, Khampepe J, Skweyiya J and Yacoob J), it was held that the notice did not give rise to a contractual obligation.  The notice did, however, find that once a public official had made a public statement of a promise to pay specified amounts, that amount could not be unilaterally reduced after the due date for payment. The Constitutional Court therefore overturned the High Court decision and ordered the Department to pay the approximate amounts specified in the 2008 notice.  Continue reading →

Pilane and Another v Pilane and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT  46/12
 North West High Court, 30 Jun. 2011
 13 Sep. 2012
 28 Feb. 2013 Skweyiya J. 8-2

Mr Nyalala Pilane, the officially recognized Kgosi and the Traditional Council of the Bakgatla-Ba-Kgafela Traditional Community (“the Traditional Council“), obtained an order in the High Court against Mr Mmuthi Pilane and Mr R Dintwe to prevent them from holding meetings under the auspices of certain entities without their permission, from acting in contravention of statutes governing traditional leadership and representing themselves as a traditional authority.  

The Majority of the Constitutional Court overturned the decision of the High Court and set aside the interdict.  The Majority held that the requirements for an interdict had not been met, primarily on the basis that Mr Nyalala Pilane and the Traditional Council did not have rights to prevent Mr Mmuthi Pilane and Mr Dintwe from ” [o]rganising or proceeding with any meeting purporting to be a meeting of the Traditional Community or Motlhabe Tribal Authority without proper authorisation by either of the [respondents].”  Neither did they show that Mr Mmuthi Pilane or Mr Dintwe had or were likely to breach of the statutes governing traditional leadership. Finally, the Majority held that merely using the names “Bakgatla-Ba-Kautlwale” and “Bakgatla-Ba-Motlhabe” did not suggest that Mr Mmuthi Pilane or Mr Dintwe were claiming to be a traditional authority, but these names were merely “signifiers of the applicants’ ancestral lineage and their place of settlement“. Continue reading →

Mazibuko, MP v Sisulu, MP and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 115/12 Western Cape High Court, 22 Nov. 2012 28 Mar. 2013 27 Aug. 2013 Moseneke DCJ  6-4

By Duncan Wild on 27 August 2013

The issue in this case is whether section 102(2) of the Constitution provides a minority of members in the National Assembly with a right to bring a motion of no confidence in the President, and if so whether the Rules of the National Assembly fail to give effect to that right.

This case was brought by Ms Lindiwe Mazibuko acting in her capacity as leader of the opposition in the National Assembly under section 57(2) of the Constitution.  On 8 November 2012, Ms Mazibuko gave notice of her intention to move a motion of no confidence in the President, in terms of section 102(2) of the Constitution.  After various internal processes occurred, the Speaker of Parliament determined that the motion could not be tabled for debate.  Continue reading →

National Society for the Prevention of Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 120/12
 North Gauteng High Court, 15 Nov. 2012 19 Mar. 2013
 11 July 2013 Zondo J. Unanimous

By Duncan Wild on 22 July 2013

The National Society for the Prevention of Cruelty to Animals (“NSPCA“) brought an application to have sections 2 and 3 of Performing Animals Protection Act 24 of 1935 declared unconstitutional, because the sections grant Magistrates the power to license the “exhibiting and training” of performing animals or guard dogs.  The NSPCA says it is an executive function to perform acts such as licensing, and not the judiciary’s, and so the sections infringe the principle of separation of powers enshrined in the Constitution and should be set aside.  The High Court agreed with the NSPCA and declared the sections unconstitutional.  The Constitutional Court confirmed this finding of unconstitutionality in a judgment authored by Justice Zondo. The primary basis for the finding was that the allocation of this executive type function to the judicial branch was an unjustifiable infringement of the separation of powers.

Download the judgment here.

Head of Department, Department of Education Free State Province v Welkom High School and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 103/12 Free State High Court, 12 May 2011
SCA, 28 Sep. 2012		  5 Mar. 2013  10 July 2013 Khampepe J.  5-3

By Duncan Wild on 22 July 2013

In this case the Constitutional Court had to determine whether the Department of Education may order the principal of a public school to readmit learners to that school in circumstances where the school’s governing body has adopted a policy which provides for the mandatory exclusion of the learners.

The case involved two schools, Welkom High School and Harmony High School (“the Schools“), that had adopted policies dealing with learner pregnancies.  In essence, both policies allowed the school to exclude a learner who became pregnant from the school for a period of time. In 2010, a learner was excluded from each of the Schools under these policies and the learners complained to the provincial Department of Education. Soon thereafter, the  Head of Department, Department of Education Free State Province (“HOD“) wrote to each of the Schools directing that the learners be re-admitted.

Each school then brought an application to court that were subsequently consolidated into one matter, and the High Court granted an order declaring the HOD had no authority to compel a school principle from acting in a manner contrary to the policy adopted by the school governing body; declared the exclusion of the learners valid in law; and interdicted the HOD from taking steps to undermine the schools decisions.  Continue reading →

Mukaddam and Others v Pioneer Food (Pty) Ltd and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 115/12 Western Cape High Court, 7 April 2011
SCA, 29 Nov. 2012		  7 May 2013
  27 June 2013 Jafta J.  Unanimous

By Duncan Wild on 29 June 2013.

The issue is whether the applicants can receive certification from the court in order to bring a class action against the respondents.  The case is brought by Mr. Imraan Ismail Mukaddam, W E M Distributors CC and Mr. Abdul Kariem Ebrahim (“the applicants”).  The applicants are bread distributors in the Western Cape who purchase bread from one or other of the respondents, all major South African bread producers, and distribute it mainly to informal traders who in turn sell it to consumers.

The Constitutional Court set aside the prior decisions of the High Court and SCA, finding that the incorrect standard had been applied, and that the test had been incorrectly applied, and allowed the applicants to file further papers with the High Court which would then have to reconsider the certification. Continue reading →

Government of the Republic of Zimbabwe v Fick and Others

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Case No. Lower Court Judgments  Hearing Date Judgment Date Majority Author Vote
CCT 101/12
 North Gauteng High Court, 6 Jun. 2011
SCA, 20 Sep. 2012		  28 Feb. 2013  27 June 2013 Mogoeng CJ.  Unanimous

By Duncan Wild and Ben Winks on 29 June 2013.

This case concerns the recognition and enforcement of two judgments by the Tribunal of the Southern African Development Community (“SADC“) against Zimbabwe, and the consequent attachment of immovable property owned by Zimbabwe in South Africa.  As a sovereign state, Zimbabwe is generally immune from the jurisdiction of, and execution by, the domestic courts of other states.

The Constitutional Court found that Zimbabwe was not immune from the jurisdiction of the South African courts in respect of judgments of the SADC Tribunal, and that all the requirements for the recognition of a foreign judgement (the definition of which the Court extended to include international tribunals) had been met. Zimbabwe’s appeal was therefore dismissed with costs. Continue reading →

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.