Minister of Mineral Resources of the Republic of South Africa and Others v Sishen Iron Ore Company (Pty) Limited and Another

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

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

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

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

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

Mazibuko, MP v Sisulu, MP and Another

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