Tag Archives: Fourth Term 2013

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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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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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 →

Kubyana v Standard Bank of South Africa Limited

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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

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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

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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 →

Dengetenge Holdings (Pty) Limited v Southern Sphere Mining and Development Company Limited and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 39/13 North Gauteng High Court, 17 Jun. 2011
Supreme Court of Appeal, 11 Mar. 2013		 15 Aug. 2013 13 Dec. 2013  Jafta J  8-3

By Avani Singh and Duncan Wild on 18 December 2013.

After the record had been filed in the matter in an appeal to the Supreme Court of Appeal (“SCA“), the appeal lapsed for failure by the appellant, Dengetenge Holdings (Pty) Limited (“Dengetenge”), to prosecute it by timeously filing its heads of argument. The issue for determination before the SCA was whether the default should be condoned and the appeal revived.

The majority of the Constitutional Court, in a judgment written by Jafta J, found that leave to appeal should be granted, but that the appeal should be dismissed. Justice Jafta also found, in respect of the High Court judgment, that Dengetenge had not first utilsed the internal appeal before going to the High Court, but that regardless, Dengetenge had conceded in the High Court that the rights were awarded to it unlawfully.  

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Ferris and Another v Firstrand Bank Limited and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 52/13 South Gauteng High Court, 5 Oct. 2012 5 Nov. 2013 12 Dec. 2013  Moseneke ACJ  Unanimous

By Duncan Wild on 12 December 2013

The applicants, Destri Ferris and Soraya Ferris, entered a credit agreement with the Firstrand Bank Limited (“Firstrand“). They defaulted on their payments, and applied for debt review under section 86 of the National Credit Act 2005 (“NCA“). The debt counsellor proposed a debt restructuring which Firstrand refused. The matter was referred to the Magistrate’s Court, but then Firstrand terminated the review. Notice was not given to the Magistrate’s Court or the applicants of the termination.  The Magistrate’s Court, being unaware of the termination, ordered a debt restructuring. Firstrand instituted summons against the applicants, and after the applicants attorneys failed to comply with procedural steps in the litigation (without the knowledge of the applicants themselves), a judgment was taken against them in default.

When the applicants became aware of the judgment they applied to have the judgment rescinded, but this was refused. The applicants then appealed to Supreme Court of Appeal but leave to appeal was refused.

The Constitutional Court, in a unanimous judgment by Acting Chief Justice Moseneke (Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Van der Westhuizen J and Zondo J), found there was no basis to interfere with the SGHC’s decision. Firstrand was entitled to proceed to enforce the loan agreement under the National Credit Act as the applicants had breached the debt-restructuring order. The requirements for rescission of a judgment were therefore not met.

Download the judgment here.

Ngewu and Another v Post Office Retirement Fund and Others

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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.