KwaZulu-Natal Joint Liaison Committee v Member of the Executive Council Department of Education, KwaZulu-Natal and Others

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
CCT 60/12 KwaZulu-Natal High Court, 4 Oct. 2011 22 Nov. 2012 25 Apr. 2013 Cameron J. 6-4

By Duncan Wild on 25 April 2013

The KwaZulu-Natal Joint Liaison Committee (“”the Committee“) is an association of independent schools that describe themselves as impoverished and dependent on State subsidies.  The Committee brought the case on the basis that the KwaZulu-Natal Department of Education (“the Department“) issued a notice in September 2008 setting out “approximate” subsidies for the 2009/2010 year.  The subsidies actually paid out were on average 30% less than stipulated in the notice.

The question the Constitutional Court had to determine is whether issuing the notice, against a background of payments in previous years that did align with the amounts set out in the notices, created a binding obligation to pay the amounts set out in the notice.

A secondary question, in part argued by the amicus, the Centre for Child Law, is that bearing in mind the right to basic education, the issuing of the notice created a legitimate expectation amongst the schools that the subsidies would not be significantly reduced when paid.

In the main judgment authored by Justice Cameron (and concurred in by Moseneke DCJ, Froneman J, Khampepe J, Skweyiya J and Yacoob J), it was held that the notice did not give rise to a contractual obligation.  The notice did, however, find that once a public official had made a public statement of a promise to pay specified amounts, that amount could not be unilaterally reduced after the due date for payment. The Constitutional Court therefore overturned the High Court decision and ordered the Department to pay the approximate amounts specified in the 2008 notice.  Continue reading

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

Case No.  Lower Court Judgments  Hearing Date
CCT 12/2013
North Gauteng High Court, 4 Jan. 2013 30 May 2013

By Avani Singh on 29 April 2013.

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. 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

Grootboom v National Prosecuting Authority & Another

Case No.  Lower Court Judgments  Hearing Date
CCT 08/13 Labour Court, 18 Dec. 2009
Labour Appeal Court, 21 Sep. 2012
 23 May 2013

By Michael Dafel on 16 April 2013.

This matter stems from a decision by the NPA to invoke section 17(5)(a)(i) of the Public Service Act 103 of 1994 (Act) to discharge the employment services of Mr Grootboom.  In the Constitutional Court, Mr Grootboom seeks an order for that decision to be set aside. Continue reading

M&G Media Limited and Others v Chipu NO and Others

Case No.  Lower Court Judgments  Hearing Date
 CCT 136/12 North Gauteng High Court, 9 Dec 2012  14 May 2013

Disclosure: Webber Wentzel is representing the appellants in this matter. Duncan Wild, Greg Palmer and Ben Winks have been involved in the instruction. The author of this post is independent of Webber Wentzel and has not been involved in the matter.

By Michael Dafel on 29 April 2013.

In this matter, members of the media have called on the Constitutional Court to determine the constitutionality of section 21(5) of the Refugees Act 130 of 1998.  The provision states that ‘the confidentiality of asylum applications and the information contained therein must be ensured at all times’.  The media argue that the provision is unconstitutional in so far as it entails a blanket ban on media access to Refugee Appeal Board (“the RAB“) hearings.  They argue that the RAB must be vested with a discretion on whether, and on what conditions, to allow media access to an asylum hearing.  The state, on the other hand, argues that a blanket ban is necessary to ensure the safety of asylum applicants as well as their family and witnesses.

This case stems out of a decision of the RAB to refuse members of the media access to the asylum appeal of Radovan Krejcir.  Mr Krejcir is a fugitive from the Czech Republic, and since entering South Africa on a false passport in 2007 has been allegedly linked to crimes committed in South Africa.  Owing to the refusal, the media approached the High Court for an order reviewing the RAB’s decision on the grounds that it should have interpreted section 21(5) as affording it a discretion to permit media access, or alternatively declaring section 21(5) unconstitutional to the extent that it doesn’t afford such a discretion.  The North Gauteng High Court held that, although the provision limits the section 16 right to freedom of expression, this limitation is nonetheless reasonable and justifiable owing to the need to protect asylum applicants.  The media’s interest in access to the hearings was substantially outweighed by the privacy and dignity interests of asylum seekers, the safety of their witnesses, and the integrity of the asylum system as a whole. Continue reading

The Governing Body of the Rivonia Primary School v MEC for Education, Gauteng Province


 Case No.  Lower Court Judgments  Hearing Date
 CCT 135/12 South Gauteng High Court, 7 Dec. 2011

Supreme Court of Appeal, 30 Nov. 2012

 9 May 2013

By Greg Palmer on 17 April 2013.

The case concerns whether it is the Provincial Department of Education or the governing body of a public school that has the power to determine the number of learners that the school may admit, and whether the Provincial Department of Education may override any determination in this respect by a governing body.

In 2010 the governing body of Rivonia Primary School (“the School“) had prepared an admission policy which was accepted by the Gauteng Department of Education (“the Department“).  According to this policy the capacity of the school was set at 770 learners, of which 120 would be admitted to Grade 1.

The School had declined to admit a child to its Grade 1 class for the 2011 school year. The child was twentieth on the waiting list of applicants for admission. The mother of the child appealed to officials in the Department. A few weeks into the 2011 school year the head of the Department instructed the principal of the School to admit the child. Before the governing body of the School had made a decision on the instructions of the Head of Department, in a letter to the principal the Head of the Department purported to withdraw the principal’s admission function. Officials from the Department arrived at the School shortly thereafter to physically place the child in a classroom.

The relevant provision is Section 5(5) of the South African Schools Act 84 of 1996 (“the Act“), which provides that subject to the Act and any applicable provincial law, “the admission policy of a public school is determined by the governing body of such school.”

The South Gauteng High Court held, per Mbha J, that the Act does not appropriate to the school governing body the unqualified power to determine the school’s admission policy, and that the power to determine the maximum capacity of a public school in Gauteng vests in the Gauteng Department and not in the school governing body.  It also held that the Member of the Executive for Education, Gauteng Province, has the power to intervene in the school governing body’s power to determine the admission policy of a public school.

The Supreme Court of Appeal, per Cachalia JA writing for a unanimous court, held that the governing body’s power under section 5(5) of the Act to determine the admission policy of a school necessarily includes the power to determine the school’s capacity.  Any doubt of this is removed by section 5A of the Act, which allows the Minister of Education to prescribe minimum and uniform norms and standards for ‘the capacity of a school in respect of the number of learners a school can admit’, and then requires the school’s governing body to comply with these norms and standards when compiling the school’s admission policy.

The Supreme Court of Appeal overturned the order of the High Court (save for the order of costs in that court, and relief pertaining to the withdrawal of the School principal’s admission function), and declared that the instruction given to the School principal to admit the learner contrary to the school’s admission policy, and the placing of the learner in the school, were unlawful.

The Constitutional Court will have to decide the issue of whether on a proper interpretation of the provisions of the Act and other applicable legislation, the power to determine the capacity of a public school in Gauteng vests in the head of the Department or the governing body of the public school as part of its power to determine an admission policy for that public school.

It will also determine whether the head of Department’s decision to admit the learner to the School was lawful and justified.

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

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
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