On 30 October 2014
The central question in this case is the extent to which the South African Police Service (SAPS) has domestic and/or international law obligations to investigate alleged crimes against humanity, including torture, committed by Zimbabweans in Zimbabwe. The High Court and the Supreme Court of Appeal (the SCA) found that, on the facts of this particular case, SAPS were indeed obliged to investigate these allegations.
The Constitutional Court in a unanimous judgment dismissed the appeal by the SAPS and ordered SAPS to investigate the alleged crimes.
By Duncan Wild on 3 October 2014
The primary question in this case was whether a third party can bring a claim against the party to a contract (where the claimant is not a party to the contract) as a result of loss suffered by the third party caused by the intentional repudiation of the contract.
The Constitutional Court, in a unanimous judgment by Justice Khampepe dismissed the appeal, finding that that cancellation of the contract in question was not wrongful as it did not fit within the existing law concerning interference with a contract, and nor was it necessary to recognise such a claim.
By Michael Mbikiwa on 25 June 2014
The central legal question in this case is whether a debt restructuring proposal, purportedly sent to a creditor in terms of section 86(1) of the National Credit Act, is an act of insolvency for the purposes of section 8(g) of the Insolvency Act. However, in a unanimous judgment by van der Westhuizen J, the Constitutional Court (the “Court”) refused the application for leave to appeal without needing to reach this central question. Continue reading
||Lower Court Judgments
||North Gauteng High Court, 28 Aug. 2012
SCA, 27 Mar. 2013
|10 Sep. 2013
11 Feb. 2014
|29 Nov. 2013
17 Apr. 2014
| Froneman J.
By Duncan Wild and Mzukisi Kota
AllPay Consolidated Investment Holdings (Pty) Ltd (“Allpay“) bid for a tender from the South African Social Security Agency (“SASSA“) to administer the national social grant system worth R10 billion, but the tender was awarded to Cash Paymaster Services (Pty) Ltd (“CPS“). Allpay then challenged the decision in the North Gauteng High Court (“NGHC“) on the basis of alleged flaws in the tender process, including the composition of the Bid Evaluation Committee, the failure of CPS to submit separate provincial bids, and the failure to assess CPS’s BEE partners capacity to perform their obligations. The NGHC accepted Allpay’s challenge, but the SASSA appealed to the Supreme Court of Appeal (“SCA“).
The Constitutional Court unanimously found the tender unlawful, but in view of the potential ramifications requested further submissions on an appropriate remedy.
In a second judgment on remedy the Court, an another unanimous decision authored by Justice Froneman, found that a new tender process should be carried out, but that in the mean itme Cash Paymaster was to continue providing the services in view of the constitutional and contractual obligations to maintain a workable payment system.
By Duncan Wild 12 April 2014
This matter pertains to the validity of section 44 of the Land Use and Planning Ordinance (“LUPO“) in so far as it allows the provincial government of the Western Cape, through the applicant, the Minister of Local Government, Environmental Affairs and Development Planning, Western Cape (“Minister“), to hear appeals from the decisions municipalities on certain land use planning decisions. The key question in the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers in relation to land use planning. The potential importance of the Constitutional Court’s decision in this matter lies in the fact that in the relationship between provincial and municipal power.
The Constitutional Court, in an unanimous decision authored by Cameron J, confirmed the High Court’s finding of invalidity of section 44, however, but not in its entirety. We set out the background to the matter and the High Court’s decision below.
By Duncan Wild and Greg Palmer on 23 March 2014
This case involves a constitutional challenge to certain sections of the Prevention of Organised Crime Act 21 of 1998 (“POCA“). Some of the sections are predicated on the definitions (also challenged) in POCA of “pattern of racketeering activity” and “enterprise” and which the applicants contend are unconstitutional, invalid and void for vagueness. Chapter 2 of POCA is also challenged on the basis that it operates retrospectively in violation of section 35(3)(1) of the Constitution and the Rule of Law, and section 2(2) of POCA is said to violate the fair trial rights of an accused.
The Constitutional Court, in an unanimous judgment authored by Justice Madlanga, and concurred in by Moseneke ACJ, Skweyia ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J, dismissed these challenges finding that the impugned sections of POCA were defensible.
By Duncan Wild on 23 March 2014
Imvula Quality Protection (Pty) Ltd (“iMvula“) was hired to provide security guards to guard the home of Lincio Loureiro (“Loureiro“) and his family. In January 2009, an armed robbery occurred at the house after a man pretending to be a police was allowed entry to the house by a guard employed by Imvula.
The Constitutional Court found that iMvula had breached its contractual duty, owed to Loureiro, not to allow access to the premises to any person without authorisation. In addition, that iMvula, as a security company, owed a duty to prevent harm, and in addition, the guard on duty had breached that duty by negligently failing to take the necessary precautions in allowing the disguised robber access. Continue reading