Tag Archives: Fourth Term 2013

Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 12/13 North Gauteng High Court, 4 Jan. 2013 30 May. 2013 3 Oct. 2013 Khampepe J Unanimous

This case comes before the Constitutional Court by way of confirmation proceedings in terms of section 172(2) of the Constitution, following the North Gauteng High Court (“NGHC”) per Rabie J having declared sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Act”) to be unconstitutional.

In the NGHC, the applicants challenged the constitutional validity of sections 15 (“Acts of consensual sexual penetration with certain children (statutory rape)”), 16 (“Acts of consensual sexual violation with certain children (statutory sexual assault)”) and 56(2) (dealing with defences in respect of sections 15 and 16 of the Act) (collectively, “the impugned provisions”). The impugned provisions criminalise a wide range of consensual sexual activities involving children aged between 12 and 15 years, including all forms of kissing on the mouth. The applicants did not challenge the impugned provisions insofar as they relate to the sexual conduct of adults; however, to the extent that the impugned provisions criminalise the sexual conduct of children, the applicants argued that they are unconstitutional. This affects the consensual sexual activity of a child aged between 16 and 18 years with a child aged between 12 and 15 years, as well as the consensual sexual activity of two children aged between 12 and 15 years.

The Constitutional Court found that the effect of the sections was not rationally connected to the government purpose of protecting children.  The criminalisation of this behaviour was found to negatively impact children by criminalising developmentally normative conduct by adolescents. The sections violated the affected children’s’ privacy, dignity and was not in children’s best interest as required by the section 28 of the Constitution. Continue reading →

Minister of Police and Others v Premier of the Western Cape and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 13/13 Western Cape High Court, 13 Jan. 2013 6 Aug. 2013 1 Oct. 2013 Moseneke DCJ  Unanimous

By Duncan Wild on 1 October 2013

The case involves the legality of the Premier of the Western Cape’s (“the Premier’s”) appointment of the O’Regan Commission into complaints related to inefficiency in the South African Police Service (“the SAPS“) stations in Khayelitsha, as well as the breakdown in relations between the SAPS operating in Khayelitsha and the Khayelitsha community (“the O’Regan Commission”).

On 24 August 2012, the Premier established the O’Regan Commission, appointing its chair, former Justice of the Constitutional Court, Catherine O’Regan, and Mr. Vusumuzi Pikoli as commissioners.

On 5 November 2012, the applicants, including the Minister of Police (“the Minister”), the National Commissioner of the SAPS (“the National Commissioner”) and the Western Cape Provincial Commissioner of the SAPS (“the Provincial Commissioner”) launched an application in two parts: first, seeking an interim interdict halting the operation of the O’Regan Commission, and specifically to prevent Commission from giving effect to subpoenas it had issued or to issue further subpoenas, pending the outcome of the second part; and second, seeking an order setting aside the establishment of the O’Regan Commission.

In the High Court, it was only the first part of the relief sought that the court had to decide, that is the interim relief pending a court’s final decision on the legality of the Premier’s establishment of the O’Regan Commission. In other words, the lawfulness of the appointment of the Commission was not directly before the court for decision. In the Constitutional Court, however, the argument was made by the Social Justice Coalition as amicus curiae that this matter involved a dispute between organs of state, it fell within the exclusive jurisdiction of the Constitutional Court in terms of section 167(4) of the Constitution. In addition, the applicants sought direct access and an order of invalidity in respect of the decision to appoint the O’Regan Commission.

The Constitutional Court agreed that the matter did fall within its exclusive jurisdiction to decide, and therefore considered whether the decision to appoint the O’Regan Commission was in fact inconsistent with the Constitution and invalid. 

The applicants challenged the legality of the O’Regan Commission on a number of grounds, including that the Premier: acted irrationally in appointing the Commission; did not comply with the Constitutional obligations of co-operative governance in appointing the Commission; did not engage with the relevant constitutional and statutory bodies before appointing the Commission; and usurped the powers of the police by empowering the Commission to issue subpoenas, including the power to subpoena police officials, as well as to investigate crimes. There were other grounds based on an alleged ulterior motive in appointing the Commission, and that appointing a judge as a commissioner was impermissible.

The High Court found that none of the grounds had merit and so therefore dismissed the application for interim relief seeking to halt the conduct of the O’Regan Commission.

The Constitutional Court, in a unanimous judgment authored by Deputy Chief Justice Moseneke (Chief Justice Mogoeng, Justices Cameron, Froneman, Jafta, Madlanga, Nkabinde, Skweyiya, Van der Westhuizen and Zondo, and Acting Justice Mhlantla concurring) dismissed the application and found that the decision was not inconsistent with the Constitution and invalid.  Continue reading →