Khumalo and Another v MEC for Education, Kwazulu-Natal

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 10/13 Labour Court, Durban, 6 Jul. 2010
Labour Appeal Court, 29 Aug. 2012
8 Aug. 2013 18 Dec. 2013  Skweyiya J  8-2

By Duncan Wild on 21 December 2013

The case involves whether the promotions of two persons within the Kwazulu-Natal Department of Education (“the Department”) should be set aside as unlawful.

Mr. Khumalo, the first appellant, applied for and was promoted to the position of Chief Personnel Officer in the Department in April 2004.  Mr. Ritchie, the second appellant in this matter, had also applied for the post but was not shortlisted. He challenged the failure to shortlist him before the General Public Servants Sectoral Bargaining Council on the basis he should have been shortlisted as he met all the requirements for the post.  As a result of this process, Mr. Ritchie and the Department entered into a settlement agreement whereby Mr. Ritchie was granted a protected promotion to the post to which Mr. Khumalo had already been promoted, and Mr. Khumalo was allowed to retain his promotion.

The Labour Court and Labour Appeal Court had set aside both promotions, but the Constitutional Court, in a majority judgment written by Justice Skweyiya, ordered that both promotion be upheld. Justice Zondo, concurred in by Justice Jafta, wrote a minority judgment in which he agreed with the result of the majority but for different reasons.  Continue reading

Pilane and Another v Pilane and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT  46/12
North West High Court, 30 Jun. 2011
13 Sep. 2012
28 Feb. 2013 Skweyiya J. 8-2

Mr Nyalala Pilane, the officially recognized Kgosi and the Traditional Council of the Bakgatla-Ba-Kgafela Traditional Community (“the Traditional Council“), obtained an order in the High Court against Mr Mmuthi Pilane and Mr R Dintwe to prevent them from holding meetings under the auspices of certain entities without their permission, from acting in contravention of statutes governing traditional leadership and representing themselves as a traditional authority.  

The Majority of the Constitutional Court overturned the decision of the High Court and set aside the interdict.  The Majority held that the requirements for an interdict had not been met, primarily on the basis that Mr Nyalala Pilane and the Traditional Council did not have rights to prevent Mr Mmuthi Pilane and Mr Dintwe from ” [o]rganising or proceeding with any meeting purporting to be a meeting of the Traditional Community or Motlhabe Tribal Authority without proper authorisation by either of the [respondents].”  Neither did they show that Mr Mmuthi Pilane or Mr Dintwe had or were likely to breach of the statutes governing traditional leadership. Finally, the Majority held that merely using the names “Bakgatla-Ba-Kautlwale” and “Bakgatla-Ba-Motlhabe” did not suggest that Mr Mmuthi Pilane or Mr Dintwe were claiming to be a traditional authority, but these names were merely “signifiers of the applicants’ ancestral lineage and their place of settlement“. Continue reading

Mpofu v Minister of Justice and Constitutional Development and Others

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
CCT 124/11
WLD (now South Gauteng High Court),
4 May 2001

29 Nov. 2012
6 Jun. 2013 Skweyiya J. 8-3

Mr Mandla Mpofu was convicted of murder, kidnapping, assault, robbery with aggravating circumstances and unlawful possession of firearms and ammunition, and was sentenced to twenty years imprisonment.  At the time he committed the crimes, Mr Mpofu claimed he was sixteen years old, and he has appealed his sentence on the basis that the High Court did not adequately take into account the rights of children in section 28 of the Constitution, and specifically that “every child has the right not to be detained except as a measure of last resort….[and] the child may be detained only for the shortest appropriate period of time“.

The Majority of the Constitutional Court, in a judgment written by Justice Skweyiya and concurred in by Chief Justice Mogoeng, Deputy Chief Justice Moseneke and Justices Cameron, Froneman, Jafta, Zondo and Yacoob dismissed Mr Mpofu’s application for leave for appeal and application on the basis he had not shown he was under 18 at the time the offence was committed, and so section 28 would not relevant. In addition, the application for leave was made more than 10 year s after Mr Mpofu’s sentence, and despite two additional applications for leave to appeal that did not raise the issue of his age, was not adequately explained.

Justice Van der Westhuizen wrote a dissenting judgment finding that on the wording of the High Court judgment, Mr Mpofu was a child at the time of the offence, and the High Court had failed to take this into account during sentencing. Justice Van der Westhuizen would have set aside the sentence and replaced it with one of 20 years imprisonment. Justices Nkabinde and Khampepe concurred in this judgment.

Download the judgment here.

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