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
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

Sigcau v The President of the Republic of South Africa and Others

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author

North Gauteng High Court, 12 Apr. 2012
21 Feb. 2013
13 Jun. 2013 The Court Unanimous

The case involves a challenge by Justice Mpondombini Sigcau to President’s Minutes published on 3 November 2012, under the by the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (“New Act“), that recognized Zanuzuko Tyelovuyo Sigcau as the King of the amaPondo after an investigation by a commission appointed in terms of the Traditional Leadership and Governance Framework Act 41 of 2003 (“Old Act“).

The issues involve whether the commission acted fairly, impartially and rationally, whether or not the decision it took was published within the necessary time, and whether the Constitution allows someone other than a traditional structure such as the Royal Family to determine who the King or Queen should be.  The High Court found that the Commission acted in accordance with its mandate, fairly and impartially and that the Constitution did not require only a traditional structure to be able to appoint a King or Queen.

The Constitutional Court in a unanimous judgment by the Court, constituting: Mogoeng CJ, Moseneke DCJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J, found that President had purported to exercise powers not conferred on him under the New Act. In addition, due to material differences between the New and Old Acts, he could be said to have issued the notice under the Old Act. Therefore, the notice recognizing Zanuzuko Tyelovuyo Sigcau was set aside.

Download the judgment here.

S v Nabolisa

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author

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.

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.

Liebenberg NO and Others v Bergrivier Municipality

Case No.
Lower Court Judgments Hearing Date Judgment Date Majority Author
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