By Duncan Wild on 3 October 2014
The primary question in this case was whether a third party can bring a claim against the party to a contract (where the claimant is not a party to the contract) as a result of loss suffered by the third party caused by the intentional repudiation of the contract.
The Constitutional Court, in a unanimous judgment by Justice Khampepe dismissed the appeal, finding that that cancellation of the contract in question was not wrongful as it did not fit within the existing law concerning interference with a contract, and nor was it necessary to recognise such a claim.
By Duncan Wild on 28 September 2014
The case concerns whether the age requirement in the recruitment polices of the South African Police Service (“SAPS“), unfairly discriminate of the basis of age.
The Constitutional Court denied the applicant leave to appeal on the basis that he had only raised a challenge to constitutionality of the SAPS recruitment age bar on appeal, which is not acceptable. In addition, the Commissioner of the SAPS had raised the age bar from 30 years, which is set in the application regulations, to 40, and if the Court were to set aside the decision to raise the age limit to 40 years, this would leave the applicant in worse position, by leaving the 30 year age limit in place. The the Constitutional Court held would not be in the interests of justice. Continue reading
||Lower Court Judgments
||North Gauteng High Court, 28 Aug. 2012
SCA, 27 Mar. 2013
|10 Sep. 2013
11 Feb. 2014
|29 Nov. 2013
17 Apr. 2014
| Froneman J.
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.
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.
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.
||Lower Court Judgments
|| Labour Court Johannesburg, 3 February 2011
Supreme Court of Appeal, 24 May 2013
|19 Nov. 2013
||10 Apr. 2014
|| Zondo J
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
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.