Country Cloud Trading CC v MEC for Infrastructure Development, Gauteng

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 185/13  Gauteng Local Division, 8 Aug. 2012
SCA, 26 Nov. 2013
20 May 2014 3 Oct. 2014 Khampepe J  Unanimous

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.

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

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

Head of Department, Department of Education Free State Province v Welkom High School and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 103/12 Free State High Court, 12 May 2011
SCA, 28 Sep. 2012
 5 Mar. 2013  10 July 2013 Khampepe J.  5-3

By Duncan Wild on 22 July 2013

In this case the Constitutional Court had to determine whether the Department of Education may order the principal of a public school to readmit learners to that school in circumstances where the school’s governing body has adopted a policy which provides for the mandatory exclusion of the learners.

The case involved two schools, Welkom High School and Harmony High School (“the Schools“), that had adopted policies dealing with learner pregnancies.  In essence, both policies allowed the school to exclude a learner who became pregnant from the school for a period of time. In 2010, a learner was excluded from each of the Schools under these policies and the learners complained to the provincial Department of Education. Soon thereafter, the  Head of Department, Department of Education Free State Province (“HOD“) wrote to each of the Schools directing that the learners be re-admitted.

Each school then brought an application to court that were subsequently consolidated into one matter, and the High Court granted an order declaring the HOD had no authority to compel a school principle from acting in a manner contrary to the policy adopted by the school governing body; declared the exclusion of the learners valid in law; and interdicted the HOD from taking steps to undermine the schools decisions.  Continue reading

Mayelane v Ngwenyama and Another (Women’s Legal Centre Trust as Amicus Curiae)

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
CCT 57/12 North Gauteng High Court, 24 Mar. 2010
SCA, 1 Jun. 2012
20 Nov. 2012 30 May 2013 Froneman J, Khampepe J and Skweyiya J. Unanimous
By Michael Dafel on 31 May 2013

In a matter that will in all likelihood prove significant for the future regulation of polygamous customary marriages in South Africa, the Constitutional Court, without invitation from the parties and without hearing argument, developed living customary law of the Xitsonga (Tsonga) community to include a requirement that the first wife must provide her consent for her husband to marry subsequent wives.  For the majority of the Court, this legal development was necessitated to ensure that customary practices are in conformity with Constitutional values. Continue reading