Tag Archives: North Gauteng High Court

National Commissioner of the South African Police Service v Southern African Litigation Centre and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 2/14 North Gauteng High Court, 12 May 2012
SCA, 27 Nov. 2013		 19 May 2014 30 Oct. 2014 Majiedt AJ  Unanimous

On 30 October 2014

The central question in this case is the extent to which the South African Police Service (SAPS) has domestic and/or international law obligations to investigate alleged crimes against humanity, including torture, committed by Zimbabweans in Zimbabwe.  The High Court and the Supreme Court of Appeal (the SCA) found that, on the facts of this particular case, SAPS were indeed obliged to investigate these allegations.

The Constitutional Court in a unanimous judgment dismissed the appeal by the SAPS and ordered SAPS to investigate the alleged crimes.

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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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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 →

The Minister of Defence and Military Veterans v Maomela Moreti Motau & Others

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 Case No.  Lower Court Judgments  Hearing Date
 CCT 133/13 Gauteng Division of the High Court, Pretoria 17 Feb. 2014

By Nurina Ally on 1 February 2014

The Constitutional Court has previously commented that the characterisation of a particular decision as being of an administrative nature is “something of a puzzle”.  In Motau, the Court is being asked to decipher one dimension of that puzzle.

The case concerns the scope of judicial review and raises the question of when conduct by an executive functionary should be characterised as administrative action. 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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Minister of Mineral Resources of the Republic of South Africa and Others v Sishen Iron Ore Company (Pty) Limited and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 58/13 North Gauteng High Court, 20 Dec. 2011 SCA, 28 Mar. 2013 5 Sep. 2013 12 Dec. 2013  Jafta J., and Moseneke DCJ  Unanimous

By Duncan Wild on 12 December 2013

Prior the coming into effect of the Mineral and Petroleum Resources Development Act 28 of 2002 (“the MPRDA“), the Sishen Iron Ore Company (Pty) Ltd (“SIOC“) and ArcelorMittal South Africa Limited (“ArcelorMittal“) were co-holders of a mining right in respect of iron and quartzite on eight properties of twenty-one properties making up the Sishen mine.  SIOC held 78.6% and ArcelorMittal 21.4% of the right.  This right is referred to an an “old order” mining right, as it was granted under the pre-MPRDA regime. When the MPRDA came into force, ArcelorMittal and SIOC were entitled to convert their old order rights into new order mining rights under the MPRDA, as provided for in the MPRDA’s Transitional Arrangements. There was a five year period in which application needed to be made for the conversion, SIOC converted its right prior to the expiration of this period, but ArcelorMittal did not. After the expiration of the five year period, the Deputy-Director General: Mineral Regulation: Department of Mineral Resources (“Deputy D-G“) purported to grant a prospecting right in respect of iron ore in respect of seven of the eight Sishen properties to Imperial Crown Trading 289 (Pty) Ltd (“ICT“).  The basis this prospecting right was granted was the assumption by the Deputy D-G that as ArcelorMittal had not converted its portion of the mining right. The grant of this right to ICT is the subject of this case. The Constitutional Court found that SIOC could only apply for and be granted the share of the right it had previously held (78.6%), but that only SIOC could apply for the remaining shares, and therefore it was not open to the D-G to any other party. Continue reading →

Mansingh and Others v General Council of the Bar and Another

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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 →

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 →

Coetzee v National Commissioner of Police and Others

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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 →

National Society for the Prevention of Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 120/12
 North Gauteng High Court, 15 Nov. 2012 19 Mar. 2013
 11 July 2013 Zondo J. Unanimous

By Duncan Wild on 22 July 2013

The National Society for the Prevention of Cruelty to Animals (“NSPCA“) brought an application to have sections 2 and 3 of Performing Animals Protection Act 24 of 1935 declared unconstitutional, because the sections grant Magistrates the power to license the “exhibiting and training” of performing animals or guard dogs.  The NSPCA says it is an executive function to perform acts such as licensing, and not the judiciary’s, and so the sections infringe the principle of separation of powers enshrined in the Constitution and should be set aside.  The High Court agreed with the NSPCA and declared the sections unconstitutional.  The Constitutional Court confirmed this finding of unconstitutionality in a judgment authored by Justice Zondo. The primary basis for the finding was that the allocation of this executive type function to the judicial branch was an unjustifiable infringement of the separation of powers.

Download the judgment here.