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

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 135/12 South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012
9 May. 2013 3 Oct. 2013 Mhlantla AJ 7-2

By Duncan Wild on 3 October 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.

The Constitutional Court, in a judgment authored by Acting Justice Mhlantla with  Deputy Chief Justice Moseneke, Justices Froneman, Khampepe, Nkabinde and Skweyiya and Acting Justice Bosielo concurring, found that although the school governing body had the ability to determine the capacity of a school, a Provincial Department maintains ultimate control, and a school’s admission policy cannot inflexibly limit the discretion of the Head of Department. Continue reading

Brittania Beach Estate (Pty) Ltd and others v Saldanha Bay Municipality

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 11/13 Western Cape High Court, 6 Jun. 2011
SCA, 30 Nov. 2012
28 May 2013 5 Sep. 2013 Froneman J.  Unanimous

By Duncan Wild on 12 September 2012

The case involves a challenge brought by a property developer (“Brittania“) against a tariff used to determine bulk infrastructure development levies by the Saldanha Bay Municipality (“the Municipality“).  Section 42 of the Land Use Planning Ordinance 15 of 1985 (“LUPO”) allows a municipality to impose conditions on the grant of applications for rezoning and sub-division of land (the applications are made in terms of sections 16 and 25 of LUPO).  The tariff for the calculation of capital contributions is set by council resolution. Continue reading

Coetzee v National Commissioner of Police and Others

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

Head of Department, Department of Education Free State Province v Welkom High School and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 103/12 Free State High Court, 12 May 2011
SCA, 28 Sep. 2012
 5 Mar. 2013  10 July 2013 Khampepe J.  5-3

By Duncan Wild on 22 July 2013

In this case the Constitutional Court had to determine whether the Department of Education may order the principal of a public school to readmit learners to that school in circumstances where the school’s governing body has adopted a policy which provides for the mandatory exclusion of the learners.

The case involved two schools, Welkom High School and Harmony High School (“the Schools“), that had adopted policies dealing with learner pregnancies.  In essence, both policies allowed the school to exclude a learner who became pregnant from the school for a period of time. In 2010, a learner was excluded from each of the Schools under these policies and the learners complained to the provincial Department of Education. Soon thereafter, the  Head of Department, Department of Education Free State Province (“HOD“) wrote to each of the Schools directing that the learners be re-admitted.

Each school then brought an application to court that were subsequently consolidated into one matter, and the High Court granted an order declaring the HOD had no authority to compel a school principle from acting in a manner contrary to the policy adopted by the school governing body; declared the exclusion of the learners valid in law; and interdicted the HOD from taking steps to undermine the schools decisions.  Continue reading

Mukaddam and Others v Pioneer Food (Pty) Ltd and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 115/12 Western Cape High Court, 7 April 2011
SCA, 29 Nov. 2012
 7 May 2013
 27 June 2013 Jafta J.  Unanimous

By Duncan Wild on 29 June 2013.

The issue is whether the applicants can receive certification from the court in order to bring a class action against the respondents.  The case is brought by Mr. Imraan Ismail Mukaddam, W E M Distributors CC and Mr. Abdul Kariem Ebrahim (“the applicants”).  The applicants are bread distributors in the Western Cape who purchase bread from one or other of the respondents, all major South African bread producers, and distribute it mainly to informal traders who in turn sell it to consumers.

The Constitutional Court set aside the prior decisions of the High Court and SCA, finding that the incorrect standard had been applied, and that the test had been incorrectly applied, and allowed the applicants to file further papers with the High Court which would then have to reconsider the certification. Continue reading

Government of the Republic of Zimbabwe v Fick and Others

Case No. Lower Court Judgments  Hearing Date Judgment Date Majority Author Vote
CCT 101/12
North Gauteng High Court, 6 Jun. 2011
SCA, 20 Sep. 2012
 28 Feb. 2013  27 June 2013 Mogoeng CJ.  Unanimous

By Duncan Wild and Ben Winks on 29 June 2013.

This case concerns the recognition and enforcement of two judgments by the Tribunal of the Southern African Development Community (“SADC“) against Zimbabwe, and the consequent attachment of immovable property owned by Zimbabwe in South Africa.  As a sovereign state, Zimbabwe is generally immune from the jurisdiction of, and execution by, the domestic courts of other states.

The Constitutional Court found that Zimbabwe was not immune from the jurisdiction of the South African courts in respect of judgments of the SADC Tribunal, and that all the requirements for the recognition of a foreign judgement (the definition of which the Court extended to include international tribunals) had been met. Zimbabwe’s appeal was therefore dismissed with costs. Continue reading

Tulip Diamonds FZE v Minister of Justice and Constitutional Development and Others

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
Vote
CCT 93/12 South Gauteng High Court, 9 Jun. 2011
SCA, 7 Sep. 2012
26 Feb. 2013 13 Jun. 2013 Van der Westhuizen J. 6-3

The issue is whether Tulip Diamonds FZE (“Tulip“), an entity incorporated in Dubai, has legal standing to challenge a decision by the Minister of Justice and Constitutional Development to give assistance to the Belgian authorities following a Letter of Request for such assistance sent under the International Co-operation in Criminal Matters Act 75 of 1996 (“the Act“).  The documents are required in a criminal investigation into a Belgian company, Omega Diamonds. The South African authorities were requested to search and seize certain documents from a South African company, Brinks (Southern Africa) (Pty) Ltd (“Brinks“), related to shipments of diamonds from Angola to Tulip in Dubai.  The SCA held that Tulip had no standing to challenge the decision and the issuance of a subpoena by the Kempton Park Magistrate’s Court requiring Brinks to produce the relevant documents, because Tulip did not have a sufficient interest in those documents.  According to the SCA, Tulip did not show that the documents in question were confidential or that Brinks had a contractual duty to preserve their confidentiality, and so Tulip had no proprietary right in the documents.   Continue reading

S v Nabolisa

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
Vote
CCT105/12

KwaZulu-Natal High Court, 4 May 2011
SCA, 1 Oct. 2012
7 Mar. 2013

12 Jun. 2013 Jafta J. 7-3

Mr Frank Nabolisa was convicted, along with his co-accused Mrs Cheryl Cwele, of dealing in dangerous dependence-producing drugs.  He was sentenced to 12 years imprisonment, and on appeal the SCA upheld his conviction and increased his sentence to 20 years. Mrs Cwele did not appeal.

Mr Nabolisa alleges in his appeal against both his sentence and conviction on the following bases: (1) the High Court and SCA infringed his right to a fair trial by not allowing him to present certain evidence; (2) the High Court and SCA erred in interpreting the Drug Trafficking Act 140 and 1992 to apply to a situation where the drugs in question were not collected nor imported into South Africa (the alleged trafficking happened in Brazil); and (3) the SCA is not empowered to increase a sentence where the State has not appealed the sentence imposed by the High Court.

On the third point, the majority of the Constitutional Court, in a judgment authored by Justice Jafta (in which Chief Justice Mogoeng and Justices Froneman, Khampepe, Mhlanta AJ, Nkabinde and Zondo concurred) found that without a formal notice of appeal by the State against the sentence imposed, the State cannot merely notify the court of its appeal against the sentence in written argument before the appeal court. Without such a formal appeal in accordance with section 316 of the Criminal Procedure Act, the issue was not properly before the SCA, and hence the increase in Mr Nabolisa’s sentence should be set aside. The majority therefore set aside the sentence imposed by the SCA, reinstating the 12 year sentence imposed by the High Court.

Justice Skweyiya wrote a minority judgment (in which Deputy Chief Justice Moseneke and Justice van der Westhuizen concurred) finding that there was a long established practice that the State could motivate an increase in sentence where the accused brings an appeal without the need to bring a formal cross-appeal. The minority found that the sentence issue had been fully argued in the SCA and Mr Nabolisa had adequate notice that the State would seek an increase in his sentence. According to the minority there was no irregularity or unfairness and so they would not have interfered with the SCA’s order to increase Mr Nabolisa’s sentence.

Download the judgment here.

Liebenberg NO and Others v Bergrivier Municipality

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
Vote
CCT 104/12 Western Cape High Court, 25 Aug. 2011
SCA, 1 Oct. 2012
12 Mar. 2013 6 Jun. 2013 Mhlantla AJ. 7-2

Prior to the adoption of the interim Constitution in 1993, rural landowners did not have to pay rates to municipalities.  In 1993 the Local Government: Transition Act 209 of 1993 (“Transition Act“) was enacted to provide uniformity in local government throughout South Africa, and that every part of a province should fall within the jurisdiction of a local council.  Between 2001 and 2009, various farm owners within the Bergrivier Municipality refused to pay municipal rates.  Various specific issues were raised regarding different rates imposed in different years during that period, but in essence the Constitutional Court will have to determine whether the Municipality was empowered to impose the rates at the relevant time, and if so whether the Municipality did so within its powers.

In a judgment written by Acting Justice Mhlantla, the majority of the Constitutional Court (including Chief Justice Mogoeng, Deputy Chief Justice Moseneke and Justices Froneman, Nkabinde, Skweyiya and Zondo) found that section 10G(7) of the Transition Act empowered the Bergrivier Municipality to impose the rates for the 2006/2007 and 2008/2009 financial years.  In addition the majority found that the Municipality had substantially complied with the relevant statutory provisions in respect of the rates imposed between 2001 to 2005.  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
Vote
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