Tag Archives: Third Term 2013

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 →

Mpumelelo Obed Mbatha v University of Zululand

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 58/13 Labour Court, 27 Jan. 2012
Labour Appeal Court, 23 Nov. 2012		 5 Sep. 2013 5 Dec. 2013 Cameron J.  6-4

By Avani Singh and Duncan Wild  on 5 December 2013

This matter, which first arose in the Labour Court as an application in terms of section 77(1) and (3) of the Basic Conditions of Employment Act 75 of 1997 (“the BCEA“) for the payment of salaries, raises the question of whether an agreement whereby parties agree to the transfer of a contract of employment without the employee’s consent is unconstitutional.

A majority of the Constitutional Court found that there was no constitutional issue raised, and even if there was the appellant had no prospects of success and so leavel to appeal was refused.  This judgment was written by Cameron J with Justices Fronean, Mhlanta, Skweyiya and Van der Westhuizen concurring.  Justice Madlanga agreed that no constitutional issue was raised, but was the of the view that there was therefore no need to consider the prospects of success.  Continue reading →

Patrick Lorenz Martin Gaertner and Others v The Minister of Finance and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 56/13 Western Cape High Court, 8 Apr. 2013 12 Sep. 2013 14 Nov. 2013 Madlanga J. Unanimous

This case involves a challenge to the sections of the Customs and Excise Act 91 of 1964 (“the Customs Act“) which empowers South African Revenue Service (“SARS“) officials to conduct certain searches without the need for a warrant.  

The Constitutional Court, a judgment authored by Madlanga J, in which the Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J concurred, found the provisions in question to be overbroad in that SARS officials were “given far-reaching powers (breaking in and breaking floors) that may be exercised anywhere, at whatever time and in relation to whomsoever, with no need for the existence of a reasonable suspicion, irrespective of the type of search”. This constituted an unjustifiable limitation of the right to privacy on so the sections were struck down.  The Constitutional Court suspended the declaration of invalidity for a period of six months to allow Parliament to rectify the defect, and provided that in the interim requires SARS to obtain a warrant from a Magistrate or Judge before conducting searches of private residences. Continue reading →

Food & Allied Workers Union v Ngcobo NO and Another

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Case No.  Lower Court Judgments  Hearing Date
 CCT 50/13  KwaZulu-Natal High Court, Durban, 3 April 2012
SCA, 28 March 2013		 29 Aug. 2013

By Mzukisi Kota on 29 May 2013

This case is concerned with the question of whether a trade union is liable for damages to its members where it has failed to perform in terms of a mandate to represent its members in proceedings before the Commission for Conciliation Mediation and Arbitration (“the CCMA”) and the Labour Court.

Broadly, the Labour Relations Act provides that where there is a dispute about the fairness of a dismissal, the dismissed employee may refer the dispute to the CCMA within 30 days of the dismissal.  If the CCMA fails to resolve the dispute through conciliation, it issues a certificate that the dispute remains unresolved and the employee may then refer the dispute to the Labour Court for adjudication.  This referral must be made within 90 days after the CCMA has issued its certificate.  Continue reading →

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

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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

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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 →

Mazibuko, MP v Sisulu, MP and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 115/12 Western Cape High Court, 22 Nov. 2012 28 Mar. 2013 27 Aug. 2013 Moseneke DCJ  6-4

By Duncan Wild on 27 August 2013

The issue in this case is whether section 102(2) of the Constitution provides a minority of members in the National Assembly with a right to bring a motion of no confidence in the President, and if so whether the Rules of the National Assembly fail to give effect to that right.

This case was brought by Ms Lindiwe Mazibuko acting in her capacity as leader of the opposition in the National Assembly under section 57(2) of the Constitution.  On 8 November 2012, Ms Mazibuko gave notice of her intention to move a motion of no confidence in the President, in terms of section 102(2) of the Constitution.  After various internal processes occurred, the Speaker of Parliament determined that the motion could not be tabled for debate.  Continue reading →

Minister of Police and Others v Premier of the Western Cape and Others

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Case No.  Lower Court Judgments  Hearing Date
CCT 13/13 Western Cape High Court, 13 Jan. 2013 6 Aug. 2013

By Duncan Wild on 23 April 2013

The case involves the legality of the Premier of the Western Cape’s (“the Premier’s”) appointment of the O’Regan Commission into complaints related to inefficiency in the South African Police Service (“the SAPS“) stations in Khayelitsha, as well as the breakdown in relations between the SAPS operating in Khayelitsha and the Khayelitsha community (“the O’Regan Commission”).

On 24 August 2012, the Premier established the O’Regan Commission, appointing its chair, former Justice of the Constitutional Court, Catherine O’Regan, and Mr. Vusumuzi Pikoli as commissioners.

On 5 November 2012, the applicants, including the Minister of Police (“the Minister”), the National Commissioner of the SAPS (“the National Commissioner”) and the Western Cape Provincial Commissioner of the SAPS (“the Provincial Commissioner”) launched an application in two parts: first, seeking an interim interdict halting the operation of the O’Regan Commission, and specifically to prevent Commission from giving effect to subpoenas it had issued or to issue further subpoenas, pending the outcome of the second part; and second, seeking an order setting aside the establishment of the O’Regan Commission.

At this stage, it is strictly speaking only the first part of the relief sought that the court had to decide, that is the interim relief pending a court’s final decision on the legality of the Premier’s establishment of the O’Regan Commission. In other words, the lawfulness of the appointment of the Commission is not directly before the court for decision. What the court must determine is whether the applicants have met the requirements for interim relief: the High Court set out these requirements as “the applicant must establish a prima facie right to the relief sought even if such relief may be open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted: that the balance of convenience favour the granting of the interim relief; and the absence of any other satisfactory remedy available to the applicant.”

In addition, the High Court noted that as the applicants based certain of the relief sought in the Constitution, that the test should be applied “cognizant of the normative scheme and democratic principles that underpin the Constitution,” referring to the Constitutional Court’s e-tolling case, National Treasury & Others v Opposition to Urban Tolling Alliance & Others 2012 (11) BCLR 1148 (CC). The prime impact of this is that when considering the balance of convenience, the court must consider the impact of granting an interim interdict that restrains the constitutional or statutory powers of a state functionary or organ of state.

The applicants challenged the legality of the O’Regan Commission on a number of grounds, including that the Premier: acted irrationally in appointing the Commission; did not comply with the Constitutional obligations of co-operative governance in appointing the Commission; did not engage with the relevant constitutional and statutory bodies before appointing the Commission; and usurped the powers of the police by empowering the Commission to issue subpoenas, including the power to subpoena police officials, as well as to investigate crimes. There were other grounds based on an alleged ulterior motive in appointing the Commission, and that appointing a judge as a commissioner was impermissible. 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.