By Duncan Wild on 27 March 2015
In this case, the Constitutional Court held that entities that engage in lending that falls outside the scope of the National Credit Act 34 of 2005 (“NCA“) (e.g. to entities which exceed the value thresholds set out in the Act) do not need to be registered as credit providers under the NCA, and a failure to register does not invalidate credit agreements outside the scope of the Act. In addition, the Court reversed the current position regarding how the common law in duplum rule applies when litigation commences. The position before this case being that interest may start running again if the creditor institutes action. The Court, however, found that commencing proceedings will not have an effect on the in duplum rule, and interest may not run again. Interest will only run again on a judgment, which effectively is a new debt which restarts any in duplum calculation. Continue reading
The Constitutional Court has published an advertisement seeking applications from persons who would like to be appointed as a law clerk at the Court for 2016. Each Justice of the Constitutional Court is assisted by two law clerks whose primary function is to carry out legal research for their respective Justice. The Constitutional Court invites applications from suitable candidates seeking appointment as law clerks for 2016.
For more information on what it’s like to work as a clerk this Mail & Guardian story provides a few first hand accounts.
For more details on the applications please click here.
By Duncan Wild on 11 December 2014
This is a case seeking to expand the South African common law to recognise a claim for “wrongful life”, or what the applicant calls “wrongful suffering”. Historically, such claim have arisen where a medical professional is alleged to have failed to inform parents that there is a high risk that a foetus may be born with abnormalities, and had the parents been informed, they not have permitted the foetus to be born. The applicant sought to cast the claim as one for “wrongful suffering”, seeking to emphasise that it is not claim with the basis that it would have been better for the child not be born, but that in failing to give the accurate information, the physician caused the suffering of the child once it was born. At present neither of these claims exist in South African law, and the applicant sought to have such a claim recognised.
The Constitutional Court did not recognise the claim for “wrongful life”, but indicated that there was the potential for such a claim in South African law, and so upheld the appeal against the High Court’s dismissal of the claim. The Constitutional Court, however, found that the parties had not put argument before it on how the constitutional protection for the rights a child impacted the claim, and that it would not develop the common law to recognise this claim without all the facts before it. Therefore, the Constitutional Court indicated that the applicant could amend their papers and reinstitute the case in the High Court which could then consider whether a valid claim existed and whether the applicant met the requirements for that claim.
||Lower Court Judgments
||Application for Direct Access
||10 Feb. 2015
By Duncan Wild on 15 November 2014
This matter involves an application for an order by the Constitutional Court that Parliament is obliged to pass legislation that would require the disclosure of the sources and amounts of money donated privately to political parties (“funding legislation“), and that in not passing such legislation, Parliament has failed in its duty. The applicant further argues that making such an order falls within the exclusive jurisdiction of the Constitutional Court, requiring direct access to the Court. Continue reading
The Chief Justice has issued a directive under Rule 32(2) indicating that the period between 16 December 2014 and 2 January 2015 will not be counted in the period permitted in the Constitutional Court Rules for lodging applications, responding affidavits and filing other documents and process. The directive does not apply to dates within the period that have been provided in specific directions.
Read the full directive here.
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
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