Tag Archives: Nkabinde J

Mansingh and Others v General Council of the Bar and Another

Posted on by
Reply
Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 43/13 North Gauteng High Court, 09 Feb. 2012
Supreme Court of Appeal, 15 Mar. 2013		 22 Aug. 2013 28 Nov. 2013 Nkabinde J. Unanimous

By Greg Palmer and Duncan Wild on 28 November 2013.

The case concerns whether the President’s power to confer ‘honours’ under section 84(2)(k) of the Constitution includes the power to award ‘senior counsel’ or ‘silk’ status to advocates.

The appellant, Ms Mansingh, is a practising advocate and a member of the Johannesburg Society of Advocates (“the JSA“).  Ms Mansingh successfully sought a declaratory order in the North Gauteng High Court to the effect that section 84(2)(k) of the Constitution does not authorise the President to award ‘senior counsel’ status to advocates.

The General Council of the Bar (“the GCB“) (an affiliation of the ten Societies of Advocates in the country) and the JSA appealed to the Supreme Court of Appeal (“the SCA“).

Section 84(2)(k) of the Constitution provides as follows:

“Powers and functions of the President:

(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.

(2) The President is responsible for –

. . .

(k) conferring honours.”

The JSA and the GCB took the matter on appeal to the SCA, and the SCA concluded that the power to confer honours bestowed upon the President by section 84(2)(k) of the Constitution included the authority to confer the status of ‘senior counsel’ on practising advocates.

The Constitutional Court, in an unanimous judgment authored by Justice Nkabinde, and in which Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Skweyiya J, Van der Westhuizen J and Zondo J concurred, also found that the power of conferring honours was sufficiently broad to include the power conferring senior counsel status, and so dismissed the application. Continue reading →

Coetzee v National Commissioner of Police and Others

Posted on by
Reply
Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 124/12 North Gauteng High Court, 11 Oct. 2012
Supreme Court of Appeal, 16 Nov. 2012		 21 May. 2013 29 Aug. 2013 Nkabinde J.  Unanimous

By Duncan Wild on 13 September 2013.

The case originally involved a challenge to the requirements for a lawful arrest, in circumstances where the appellant, Mr Coetzee, was flagged down by a metro police officer and refused to stop, on the basis, according to Mr Cotzee, that he would drive to the nearest police station.  The case also considers whether the North Gauteng High Court was correct in ordering that Mr Coetzee be released from custody on the basis of his unlawful detention.

The respondents appeal to the Supreme Court of Appeal who upheld the appeal finding for the respondents, ordering the applicant to pay the costs of the appeal. In the Constitutional Court the remaining issue was an appeal against the costs order of the Supreme Court of Appeal.  The Constitutional Court, in an unanimous judgment authored by Nkabinde J (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Skweyiya J and Zondo J concurring), found that the appeal did not relate to a constitutional issue, and so leave to appeal should not be granted. Continue reading →

The Association of Regional Magistrates of Southern Africa v The President of the Republic of South Africa and Others

Posted on by
Reply
Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 91/12
 North Gauteng High Court, 3 Sep. 2012 19 Feb. 2013 23 May 2013 Nkabinde J. Unanimous

By Duncan Wild on 23 May 2013.

The case is an application to confirm an order of invalidity of the decision by the Independent Commission for the Remuneration of Public Office Bearers published by the President on 26 November 2010 that increased the remuneration of public officer bearers, including Regional Magistrates and Regional Court Presidents (“the Magistrates“) by 5% backdated to 1 April 2010.The decision was challenged in the High Court on the basis that: (1) due to the effect of inflation the “increase” was in fact a decrease, which was impermissible; (2) the Magistrates were not given adequate opportunity to make representations prior to the President’s decision; (3) the President adopted a “one-size-fits-all” approach to the increase without differentiating between different categories of office bearers as required by the Remuneration Commission Act; and (4) the President did not take into account relevant considerations, was unreasonable and irrational.

The High Court found the decision was not administrative action and so not reviewable under the Promotion of Administrative Justice Act, but was reviewable under the principle of legality.  The High Court dismissed the first two grounds on which the decision was challenged, but found that the decision should have and did not differentiate between different categories of office bearer, and so was invalid in respect of the increase applicable to the Magistrates.  Continue reading →