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

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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Mdodana v Premier of the Eastern Cape and Others

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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Savoi and Others v National Director of Public Prosecutions and Another

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

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

Kubyana v Standard Bank of South Africa Limited

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 65/13 North Gauteng High Court, 8 Nov. 2012 7 Nov. 2013 20 Feb. 2014 Mhlantla AJ  Unanimous

By Duncan Wild on 20 February 2014

The applicant, Moshomo Kubyana (“Kubyana“), entered a credit agreement to finance the purchase of the car with the respondent, The Standard Bank of South Africa (“Standard Bank“). This agreement was subject to the National Credit Act 34 of 2005 (“NCA“).

When Kubyana defaulted on the agreement Standard Bank sent a notice of default to Kubyana by registered post under section 129 of the NCA. The notice was not collected and returned to Standard Bank. The High Court found that the NCA did not require personal service and allowed a credit provider to send the notice by registered post. Kubyana had not provided any explanation as to why the notice did not reach him, and in these circumstances the High Court could not refuse judgment based on non-compliance with the NCA.

The Constitutional Court, in a decision authored by Mhlantla AJ (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Madlanga J and Van der Westhuizen J concurring) found that Standard Bank had complied with its obligations under the NCA. In effect it found that the notice requirement under section 129 was important in order to bring the consumer’s attention to his or her rights, and to achieve resolution without the need to go to court.  However, what is required of the credit provider is to take those steps sufficient to bring the notice to the attention of a reasonable consumer.   Continue reading

Competition Commission v Pioneer Hi-bred International Inc and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 58/13 Competition Tribunal, 14 Oct. 2011
Competition Appeal Court, 28 May 2012
4 Nov. 2013 18 Dec. 2013  Skwyeyia ADCJ  Unanimous

By Sarah McGibbon and Duncan Wild on 21 December 2013

In November the Constitutional Court will hear an application for leave to appeal against a costs order of the Competition Appeal Court (“CAC“) brought by the Competition Commission (“Commission“).

The Constitutional Court, in a unanimous decision written by Acting Deputy Chief Justice, Skweyiya, found that it was generally undesirable to hinder the good faith performance by the Commission of its functions with the threat of a costs order, and in the absence of reasons for the costs order imposed in this case, the costs order should be set aside. Continue reading

Khumalo and Another v MEC for Education, Kwazulu-Natal

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 10/13 Labour Court, Durban, 6 Jul. 2010
Labour Appeal Court, 29 Aug. 2012
8 Aug. 2013 18 Dec. 2013  Skweyiya J  8-2

By Duncan Wild on 21 December 2013

The case involves whether the promotions of two persons within the Kwazulu-Natal Department of Education (“the Department”) should be set aside as unlawful.

Mr. Khumalo, the first appellant, applied for and was promoted to the position of Chief Personnel Officer in the Department in April 2004.  Mr. Ritchie, the second appellant in this matter, had also applied for the post but was not shortlisted. He challenged the failure to shortlist him before the General Public Servants Sectoral Bargaining Council on the basis he should have been shortlisted as he met all the requirements for the post.  As a result of this process, Mr. Ritchie and the Department entered into a settlement agreement whereby Mr. Ritchie was granted a protected promotion to the post to which Mr. Khumalo had already been promoted, and Mr. Khumalo was allowed to retain his promotion.

The Labour Court and Labour Appeal Court had set aside both promotions, but the Constitutional Court, in a majority judgment written by Justice Skweyiya, ordered that both promotion be upheld. Justice Zondo, concurred in by Justice Jafta, wrote a minority judgment in which he agreed with the result of the majority but for different reasons.  Continue reading