Minister of Justice and Constitutional Development and Another v Nontombi Masingili and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 44/13 Western Cape High Court, 20 Mar. 2013 27 Aug. 2013 28 Nov. 2013 Van der Westhuizen J. Unanimous

By Sarah McGibbon and Duncan Wild on 28 November 2013

This case appears before the Constitutional Court by way of confirmation proceedings in terms of section 172(2) of the Constitution, following Blignaut J and Van Staden AJ of the Western Cape High Court (“WCHC“) declaring section 1(1)(b) of the Criminal Procedure Act 51 of 1977 (“the impugned provision“) (which sets out the definition of aggravating circumstances in the context of robbery with aggravating circumstances) unconstitutional.

The Constitutional Court, in an unanimous judgment authored by Justice Van der Westhuizen (Chief Justice Mogoeng, Deputy Chief Justice Moseneke, and Justices Cameron, Froneman, Jafta, Madlanga, Nkabinde, Skweyiya and Zondo, as well as Acting Justice Mhlantla concurred) refused to confirm the High Court’s declaration.  Continue reading

Mansingh and Others v General Council of the Bar and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 43/13 North Gauteng High Court, 09 Feb. 2012
Supreme Court of Appeal, 15 Mar. 2013
22 Aug. 2013 28 Nov. 2013 Nkabinde J. Unanimous

By Greg Palmer and Duncan Wild on 28 November 2013.

The case concerns whether the President’s power to confer ‘honours’ under section 84(2)(k) of the Constitution includes the power to award ‘senior counsel’ or ‘silk’ status to advocates.

The appellant, Ms Mansingh, is a practising advocate and a member of the Johannesburg Society of Advocates (“the JSA“).  Ms Mansingh successfully sought a declaratory order in the North Gauteng High Court to the effect that section 84(2)(k) of the Constitution does not authorise the President to award ‘senior counsel’ status to advocates.

The General Council of the Bar (“the GCB“) (an affiliation of the ten Societies of Advocates in the country) and the JSA appealed to the Supreme Court of Appeal (“the SCA“).

Section 84(2)(k) of the Constitution provides as follows:

Powers and functions of the President:

(1) The President has the powers entrusted by the Constitution and legislation, including those necessary to perform the functions of Head of State and head of the national executive.

(2) The President is responsible for –

. . .

(k) conferring honours.”

The JSA and the GCB took the matter on appeal to the SCA, and the SCA concluded that the power to confer honours bestowed upon the President by section 84(2)(k) of the Constitution included the authority to confer the status of ‘senior counsel’ on practising advocates.

The Constitutional Court, in an unanimous judgment authored by Justice Nkabinde, and in which Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Skweyiya J, Van der Westhuizen J and Zondo J concurred, also found that the power of conferring honours was sufficiently broad to include the power conferring senior counsel status, and so dismissed the application. Continue reading

The Minister of Local Government, Environmental Affairs and Development Planning of the Western Cape v Lagoon Bay Lifestyle Estate (PTY) LTD and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 41/13 Western Cape High Court, 31 Aug. 2011
Supreme Court of Appeal, 15 Mar. 2013
20 Aug. 2013 20 Nov. 2013 Mhlantla AJ Unanimous

By Michael Dafel and Duncan Wild 

This matter pertains to the validity of a decision by the Western Cape provincial government to refuse a proposed development.  Lying at the heart of the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers to rezone and subdivide land.  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 in deciding aspects of the same land development.

The Constitutional Court, in an unanimous decision authored by Acting-Justice Mhltantla, did not decide the issue of which level of government the Constitution gave the power to rezone or subdivide land, but did hold that under the applicable legislation the municipality was the competent authority to make the decision on subdivision, and the Provincial Minister the competent authority to decide on the rezoning application. 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

Grootboom v National Prosecuting Authority & Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
 CCT 08/13 Labour Court, 18 Dec. 2009Labour Appeal Court, 21 Sep. 2012 23 May. 2013 21 Oct. 2013 Bosielo AJ Unanimous

By Michael Dafel and Duncan Wild on 23 October 2013.

This matter stems from a decision by the NPA to invoke section 17(5)(a)(i) of the Public Service Act 103 of 1994 (Act) to discharge the employment services of Mr Grootboom.  In the Constitutional Court, Mr Grootboom seeks an order for that decision to be set aside.

The Constitutional Court, in a judgment authored by Bosielo AJ, in which Moseneke DCJ, Froneman J, Jafta J, Khampepe, J, Mhlantla AJ, Nkabinde J and Skweyiya J concurred) found that the decison to to discharge the services of Mr Grootboom should be set aside, as the requirements of section 17(5)(a)(i) had not been met.  In addition, the Majority found that the NPA’s late filing of answering affidavits and written submissions could not be condoned as there was no proper explanation for the delay.

Justice Zondo wrote an opinion in which he agreed with the order granted by Bosielo AJ, but thought that the late filing of affidavits and written submissions to the court should be condoned.  Continue reading

Food & Allied Workers Union v Ngcobo NO and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 50/13 South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012
29 Aug. 2013 9 Oct. 2013 Cameron J Unanimous

By Mzukisi Kota and Duncan Wild on 10 October 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.

The Constitutional Court, in an unanimous judgment authored by Justice Cameron (joined by Deputy Chief Justice Moseneke, Justices Froneman, Jafta, Madlanga, Nkabinde, Skweyiya, Van der Westhuizen, Zondo and Acting Justice Mhlantla), found that once the Union had undertaken to provide legal assistance to its member, it could not unilaterally withdraw that assistance. If it failed to accord with its agreement with its members, it could be held liable for that failure. So the Constitutional Court refused to grant leave to appeal as there were not prospects of success in the appeal. Continue reading

Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 12/13 North Gauteng High Court, 4 Jan. 2013 30 May. 2013 3 Oct. 2013 Khampepe J Unanimous

This case comes before the Constitutional Court by way of confirmation proceedings in terms of section 172(2) of the Constitution, following the North Gauteng High Court (“NGHC”) per Rabie J having declared sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“the Act”) to be unconstitutional.

In the NGHC, the applicants challenged the constitutional validity of sections 15 (“Acts of consensual sexual penetration with certain children (statutory rape)”), 16 (“Acts of consensual sexual violation with certain children (statutory sexual assault)”) and 56(2) (dealing with defences in respect of sections 15 and 16 of the Act) (collectively, “the impugned provisions”). The impugned provisions criminalise a wide range of consensual sexual activities involving children aged between 12 and 15 years, including all forms of kissing on the mouth. The applicants did not challenge the impugned provisions insofar as they relate to the sexual conduct of adults; however, to the extent that the impugned provisions criminalise the sexual conduct of children, the applicants argued that they are unconstitutional. This affects the consensual sexual activity of a child aged between 16 and 18 years with a child aged between 12 and 15 years, as well as the consensual sexual activity of two children aged between 12 and 15 years.

The Constitutional Court found that the effect of the sections was not rationally connected to the government purpose of protecting children.  The criminalisation of this behaviour was found to negatively impact children by criminalising developmentally normative conduct by adolescents. The sections violated the affected children’s’ privacy, dignity and was not in children’s best interest as required by the section 28 of the Constitution. 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

National Society for the Prevention of Cruelty to Animals v Minister of Agriculture, Forestry and Fisheries and Others

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.