Khohliso v The State and Another

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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

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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.

Marthinus David de Klerk v Griekwaland West Cooperative CC

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 187/13  Northern Cape Division, 28 Nov. 2011
Northern Cape Division (Full Bench), 30 Aug. 2013		 13 May 2014 19 Jun. 2014 Van der Westhuizen J  Unanimous

By Michael Mbikiwa on 25 June 2014

The central legal question in this case is whether a debt restructuring proposal, purportedly sent to a creditor in terms of section 86(1) of the National Credit Act, is an act of insolvency for the purposes of section 8(g) of the Insolvency Act. However, in a unanimous judgment by van der Westhuizen J, the Constitutional Court (the “Court”) refused the application for leave to appeal without needing to reach this central question. Continue reading →

Powertech Transformers DPM v NUMSA obo Jongikhaya Chris Sinuko and Others

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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 →

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v The Chief Executive Officer of the South African Social Security Agency and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 48/13 North Gauteng High Court, 28 Aug. 2012
SCA, 27 Mar. 2013		 10 Sep. 2013

Remedy 

11 Feb. 2014

 29 Nov. 2013

Remedy

17 Apr. 2014

  Froneman J.  Unanimous

By Duncan Wild and Mzukisi Kota

AllPay Consolidated Investment Holdings (Pty) Ltd (“Allpay“) bid for a tender from the South African Social Security Agency (“SASSA“) to administer the national social grant system worth R10 billion, but the tender was awarded to Cash Paymaster Services (Pty) Ltd (“CPS“).  Allpay then challenged the decision in the North Gauteng High Court (“NGHC“) on the basis of alleged flaws in the tender process, including the composition of the Bid Evaluation Committee, the failure of CPS to submit separate provincial bids, and the failure to assess CPS’s BEE partners capacity to perform their obligations.  The NGHC accepted Allpay’s challenge, but the SASSA appealed to the Supreme Court of Appeal (“SCA“).

The Constitutional Court unanimously found the tender unlawful, but in view of the potential ramifications requested further submissions on an appropriate remedy.

In a second judgment on remedy the Court, an another unanimous decision authored by Justice Froneman, found that a new tender process should be carried out, but that in the mean itme Cash Paymaster was to continue providing the services in view of the constitutional and contractual obligations to maintain a workable payment system.

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Minister of Local Government, Environmental Affairs and Development Planning Western Cape v The Habitat Council and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 117/13 Western Cape High Court, 14 Aug. 2013 10 Feb. 2014 4 Apr. 2014  Cameron J  Unanimous

By Duncan Wild 12 April 2014

This matter pertains to the validity of section 44 of the Land Use and Planning Ordinance (“LUPO“) in so far as it allows the provincial government of the Western Cape, through the applicant, the Minister of Local Government, Environmental Affairs and Development Planning, Western Cape (“Minister“), to hear appeals from the decisions municipalities on certain land use planning decisions.  The key question in the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers in relation to land use planning.  The potential importance of the Constitutional Court’s decision in this matter lies in the fact that in the relationship between provincial and municipal power.

The Constitutional Court, in an unanimous decision authored by Cameron J, confirmed the High Court’s finding of invalidity of section 44, however, but not in its entirety. We set out the background to the matter and the High Court’s decision below.

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Mdodana v Premier of the Eastern Cape and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 85/13 Eastern Cape High Court, 13 Jun. 2013 13 Nov. 2013 25 Mar. 2014  Dambuza AJ  Unanimous

By Duncan Wild on 12 April 2014

In this case certain sections of the Pounds Ordinance, no 18 of 1938 (“the Ordinance“) which deals with the impoundment of livestock are challenged on various grounds, including its violation of the rights to equality, against the arbitration deprivation of property, to just administrative action and to the right of access to courts.

The Ordinance provides for the establishment of municipal pounds and the appointment of poundmasters. It provides that stray animals found on private property may be sent by the owner of that property to a pound, and for the impoundment of unattended animals found in public places.

The High Court found the Ordinance to be invalid, and the decision went for confirmation to the Constitutional Court.  The Constitutional Court, however, in a unanimous decision authored by Dambuza AJ, found that the as the Ordinance did not amount to a “provincial act”, the High Court’s finding of invalidity did not require confirmation by the Constitutional Court to be effective.  In the Eastern Cape then, the High Court’s order of invalidity stands, but not in the Western Cape and Northern Cape, the Constitutional Court however ordered that its decision be delivered to the Premier’s of the Western Cape and Northern Cape.

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

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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

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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

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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 →