Tag Archives: urgent application

Ngewu and Another v Post Office Retirement Fund and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 117/13 Direct Access 7 Nov. 2013 5 Dec. 2013  Madlanga J.  Unanimous

By Duncan Wild

On 7 March 2013, the Constitutional Court delivered judgment in Ngewu and Another v Post Office Retirement Fund and Others (our summary here), in which sections of the Post Office Act 44 of 1958 (“the Post Office Act“) were declared unconstitutional for its failure to incorporate the “clean break” principle. The “clean break” principle means that a divorced spouse can make a “clean break” by claiming their share of the former spouse’s pension interest at the time of the divorce.

The government was given eight months to amend the section, failing which the Constitutional Court provided a draft provision in an annexure to its judgment to be read into the Post Office Act as section 10F that provides for the “clean break” principle.

The Minister of Communications brought an urgent application on 4 November 2013 for an extension of the period for the legislature to amend the Post Office Act. The Minister says that the previous Minister (Ms Dina Pule) failed to table a statutory amendment before Cabinet, and the new Minister needs six more months to conclude the parliamentary process to have the Post Office Act amended.

Ms Ngewu (the original applicant) opposes this application on the basis that the delay has not been adequately explained and that a further delay would cause prejudice, whereas if the Constitutional Court’s order takes effect there will be no harm.

The Constitutional Court dismissed the application for an extension with costs on 6 November 2013, this means the Post Office Act will now be read in accordance with the order of the Court made on 7 March 2013, and will incorporate the clean break mechanism.

In an unanimous judgment authored by Madlanga J the Constitutional Court found that the Minister had not adequately explained the reason for the delay in bringing the application only three days before the period expired, or delay in finalising the amendments. In addition, the Court found that the State would suffer no real prejudice if the reading in took effect. In addition, the previous Minister had agreed to the reading in order, and so was well aware of possibility of the reading in taking effect.

Download the judgment here.

 

South African Informal Traders Forum and Others v City of Johannesburg and Others

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 Case No.  Lower Court Judgments  Hearing Date
 CCT 173/13  South Gauteng High Court, 27 November 2013 5 December 2013

By Duncan Wild on 4 December 2013

The first applicant, South African Informal Traders Forum (“SAITF“), is an association of informal traders, the second to one thousand two hundred and twelfth applicants (“the Traders“) until recently were informal traders doing business in the inner city of Johannesburg. During October 2013, all of the Traders were removed from their trading locations and their goods impounded, preventing them from trading. The first respondent, the City of Johannesburg (“the City“) states this was necessary to determine which of the Traders were operating unlawfully.

On 19 November 2013, SAITF and the Traders launched an application in the Gauteng Local Division of the High Court of South Africa in Johannesburg (“Johannesburg High Court“), on an urgent basis, seeking first that the Traders be allowed to trade in the City, pending the resolution of second part of the application, which is a review of the lawfulness City’s actions in removing the Traders. The Johannesburg High Court found that the application was not urgent and so struck it from the roll. This would allow SAITF and the Traders to continue with the review application in the ordinary course, which could take several months to resolve. As the Traders would not be permitted to Trade during this period, this would, they say, cause them great prejudice as they would have no means to earn a living for at least several months.

SAITF and the Traders therefore approached the Constitutional Court seeking leave to appeal against the decision of the Johannesburg High Court, and either allowing the Traders to trade pending the outcome of the appeal in the Constitutional Court, or allowing them to trade pending the determination of the review application by the Johannesburg High Court.