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.

Download the judgment here.


Mpumelelo Obed Mbatha v University of Zululand

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 58/13 Labour Court, 27 Jan. 2012
Labour Appeal Court, 23 Nov. 2012
5 Sep. 2013 5 Dec. 2013 Cameron J.  6-4

By Avani Singh and Duncan Wild  on 5 December 2013

This matter, which first arose in the Labour Court as an application in terms of section 77(1) and (3) of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA“) for the payment of salaries, raises the question of whether an agreement whereby parties agree to the transfer of a contract of employment without the employee’s consent is unconstitutional.

A majority of the Constitutional Court found that there was no constitutional issue raised, and even if there was the appellant had no prospects of success and so leavel to appeal was refused.  This judgment was written by Cameron J with Justices Fronean, Mhlanta, Skweyiya and Van der Westhuizen concurring.  Justice Madlanga agreed that no constitutional issue was raised, but was the of the view that there was therefore no need to consider the prospects of success.  Continue reading

South African Informal Traders Forum and Others v City of Johannesburg and Others

 Case No.  Lower Court Judgments  Hearing Date
 CCT 173/13  South Gauteng High Court, 27 November 2013 5 December 2013

By Duncan Wild on 4 December 2013

The first applicant, South African Informal Traders Forum (“SAITF“), is an association of informal traders, the second to one thousand two hundred and twelfth applicants (“the Traders“) until recently were informal traders doing business in the inner city of Johannesburg. During October 2013, all of the Traders were removed from their trading locations and their goods impounded, preventing them from trading. The first respondent, the City of Johannesburg (“the City“) states this was necessary to determine which of the Traders were operating unlawfully.

On 19 November 2013, SAITF and the Traders launched an application in the Gauteng Local Division of the High Court of South Africa in Johannesburg (“Johannesburg High Court“), on an urgent basis, seeking first that the Traders be allowed to trade in the City, pending the resolution of second part of the application, which is a review of the lawfulness City’s actions in removing the Traders. The Johannesburg High Court found that the application was not urgent and so struck it from the roll. This would allow SAITF and the Traders to continue with the review application in the ordinary course, which could take several months to resolve. As the Traders would not be permitted to Trade during this period, this would, they say, cause them great prejudice as they would have no means to earn a living for at least several months.

SAITF and the Traders therefore approached the Constitutional Court seeking leave to appeal against the decision of the Johannesburg High Court, and either allowing the Traders to trade pending the outcome of the appeal in the Constitutional Court, or allowing them to trade pending the determination of the review application by the Johannesburg High Court.



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

Mansingh and Others v General Council of the Bar and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 43/13 North Gauteng High Court, 09 Feb. 2012
Supreme Court of Appeal, 15 Mar. 2013
22 Aug. 2013 28 Nov. 2013 Nkabinde J. Unanimous

By Greg Palmer and Duncan Wild on 28 November 2013.

The case concerns whether the President’s power to confer ‘honours’ under section 84(2)(k) of the Constitution includes the power to award ‘senior counsel’ or ‘silk’ status to advocates.

The appellant, Ms Mansingh, is a practising advocate and a member of the Johannesburg Society of Advocates (“the JSA“).  Ms Mansingh successfully sought a declaratory order in the North Gauteng High Court to the effect that section 84(2)(k) of the Constitution does not authorise the President to award ‘senior counsel’ status to advocates.

The General Council of the Bar (“the GCB“) (an affiliation of the ten Societies of Advocates in the country) and the JSA appealed to the Supreme Court of Appeal (“the SCA“).

Section 84(2)(k) of the Constitution provides as follows:

Powers and functions of the President:

(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.

(2) The President is responsible for –

. . .

(k) conferring honours.”

The JSA and the GCB took the matter on appeal to the SCA, and the SCA concluded that the power to confer honours bestowed upon the President by section 84(2)(k) of the Constitution included the authority to confer the status of ‘senior counsel’ on practising advocates.

The Constitutional Court, in an unanimous judgment authored by Justice Nkabinde, and in which Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Skweyiya J, Van der Westhuizen J and Zondo J concurred, also found that the power of conferring honours was sufficiently broad to include the power conferring senior counsel status, and so dismissed the application. Continue reading

Useful resource on Constitutional Litigation

Although, not something we ordinarily do, but in the spirit of brining of attention to how the Constitutional Court works, the ConCourtBlog is recommending a new book that has been published that focuses on the rules and principles applicable to litigating in the Constitutional Court.

The book is authored by two advocates, Max de Plessis and Jason Brickhill, and an attorney, Glenn Penfold*, entitled “Constitutional Litigation”, all with significant experience acting in the Constitutional Court.  The book is a useful, accessible and practical resource that will be a useful tool for constitutional law practitioners and students, and anyone who is interested in how the Constitutional Court works.

Deputy Chief Justice Moseneke has said of the book “I welcome the publication of Constitutional Litigation and have no doubt that it will add much to our evolving procedural law as well as to the ability of practitioners to do justice to the cases of their clients – an outcome that is consistent with the mission of our Constitution.”

You can find more information on the book, and order it here:

*Disclosure: Penfold, and the editor of ConCourtBlog work at the same law firm.

The Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoon Bay Lifestyle Estate (PTY) LTD and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 41/13 Western Cape High Court, 31 Aug. 2011
Supreme Court of Appeal, 15 Mar. 2013
20 Aug. 2013 20 Nov. 2013 Mhlantla AJ Unanimous

By Michael Dafel and Duncan Wild 

This matter pertains to the validity of a decision by the Western Cape provincial government to refuse a proposed development.  Lying at the heart of the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers to rezone and subdivide land.  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 in deciding aspects of the same land development.

The Constitutional Court, in an unanimous decision authored by Acting-Justice Mhltantla, did not decide the issue of which level of government the Constitution gave the power to rezone or subdivide land, but did hold that under the applicable legislation the municipality was the competent authority to make the decision on subdivision, and the Provincial Minister the competent authority to decide on the rezoning application. Continue reading