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 →

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 →

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 →

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.