Tag Archives: Western Cape High Court

Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 61/14 Western Cape Division, Cape Town, 24 Feb. 2012 and 12 Feb. 2013
SCA, 24 Mar. 2014		 16 Sep. 2014 24 Mar. 2015 Madlanga J  8-1

By Duncan Wild on 27 March 2015

In this case, the Constitutional Court held that entities that engage in lending that falls outside the scope of the National Credit Act 34 of 2005 (“NCA“) (e.g. to entities which exceed the value thresholds set out in the Act) do not need to be registered as credit providers under the NCA, and a failure to register does not invalidate credit agreements outside the scope of the Act.  In addition, the Court reversed the current position regarding how the common law in duplum rule applies when litigation commences. The position before this case being that interest may start running again if the creditor institutes action. The Court, however, found that commencing proceedings will not have an effect on the in duplum rule, and interest may not run again. Interest will only run again on a judgment, which effectively is a new debt which restarts any in duplum calculation. Continue reading →

Helen Suzman Foundation v President of the Republic of South Africa and Others // Glenister v President of the Republic of South Africa and Others

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Case No. Lower Court Judgments Hearing Date
CCT 7/14 Western Cape High Court, 13 Dec. 2013 19 Aug. 2014

By Avani Singh and Duncan Wild on 15 May 2014 (updated 19 May 2014 and 18 August 2014)

On 13 December 2013, the Western Cape Division of the High Court, Cape Town (“the High Court”) declared several provisions of the South African Police Service Amendment Act 10 of 2012 (“the SAPS Amendment Act”) constitutionally invalid in two cases, heard together, brought by Mr Hugh Glenister and the Helen Suzman Foundation.

The SAPS Amendment Act relates to the state’s anti-corruption unit, the Directorate for Priority Crime Investigation (commonly referred to as the Hawks, which replaced the disbanded Scorpions). The SAPS Amendment Act was enacted following the Constitutional Court previously declaring chapter 6A of the South African Police Service Act 68 of 1995 unconstitutional and invalid to the extent that it failed to secure an adequate degree of independence for the Hawks (see Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC)). The Constitutional Court suspended the declaration of invalidity for 18 months to afford Parliament an opportunity to remedy the constitutional defects.

The SAPS Amendment Act was enacted in purported compliance with this decision of the Constitutional Court. The applicants, however, contend that the SAPS Amendment Act does not cure the defects previously identified by the Constitutional Court, and the crux of the constitutional challenge is that the provisions of the SAPS Amendment Act still fail to secure sufficient institutional and operational independence for the Hawks.

The High Court noted that “[t]he present matter, entirely understandably, is a highly emotive one. It goes to the root of public perception. That is why it is necessary to remind ourselves that, just as we must fulfil our duty to declare invalid laws which fail to pass constitutional muster, we must equally guard against falling into the trap of seeking to satisfy hypersensitivity or paranoia.” In setting the test as being one of “adequate independence”, the High Court upheld the applicants’ challenge in part, and declared certain provisions of the SAPS Amendment Act invalid for the following reasons:

  • That the appointment process of the head lacks adequate criteria for such appointment and vests an unacceptable degree of political control in the Minister and Cabinet, which is also in conflict with the standard of international best practice;
  • That the power vested in the Minister to extend the tenure of the head and deputy head is intrinsically inimical to the requirement of adequate independence;
  • That the suspension and removal process not only vests an inappropriate degree of control in the Minister, but also allows for two separate and distinct processes, determined on the basis of arbitrary criteria, each able to find application without any reference to the other; and
  • That there is an unacceptable degree of political oversight in the jurisdiction of the Hawks, and the relevant provisions are themselves so vague that not even those responsible for their implementation are able to agree on how they should be applied.

Following the High Court declaring these provisions of the SAPS Amendment Act to be unconstitutional, the matter was referred to the Constitutional Court for confirmation as is required.

In the upcoming hearing, in addition to seeking confirmation of the High Court’s order, the Helen Suzman Foundation also seeks leave to appeal the High Court’s refusal to declare certain other provisions of the SAPS Amendment Act unconstitutional relating to financial control, integrity testing, conditions of service and co-ordination by Cabinet. Mr Glenister seeks leave to appeal against the whole of the High Court’s order on the basis that the entire scheme of the SAPS Amendment Act is unconstitutional; in the alternative, he aligns himself with the submissions of the Helen Suzman Foundation.

In response, the state argues that the SAPS Amendment Act creates sufficient independence from undue political interference and that the doctrine of separation of powers prevents the courts from being overly prescriptive about the legislative measures taken by the state.

The matter was initially supposed to be heard by the Constitutional Court on 15 May 2014. However, due to the fact that the President’s written argument was not correctly served on the applicants or filed with the Court, the matter had to be postponed, and was rescheduled for 19 August 2014.

Minister of Local Government, Environmental Affairs and Development Planning Western Cape v The Habitat Council and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 117/13 Western Cape High Court, 14 Aug. 2013 10 Feb. 2014 4 Apr. 2014  Cameron J  Unanimous

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.

Continue reading →

Estate Agency Affairs Board v Auction Alliance (Pty) Ltd and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 94/13 Western Cape Division of the High Court,  21 Jun. 2012 27 Feb. 2014  Cameron J  Unanimous

By Duncan Wild on 16 March 2014

The case came before the Constitutional Court as an application for the confirmation of a an order by the Western Cape High Court which had found section of the Estate Agency Affairs Act 112 of 1976 (“EAAA“) and the Financial Intelligence Centre Act 38 of 2001 (“FICA“) to be constitutionally invalid. The sections, 32A of the EAAA and 45B of FICA afforded search and seizure powers to regulatory bodies.

The Estate Agency Affairs Board (“the Board“) regulates compliance with EAAA and was a supervisory body responsible for enforcing FICA compliance.  The Board suspected that the respondent, Auction Alliance (Pty) Ltd (“Auction Alliance“) had contravened both the EAAA and FICA and so attempted to conduct a search of Auction Alliance’s premises without a warrant under the challenged sections.  Auction Alliance refused to allow the inspectors from the board access, and instead brought this application, seeking to to prevent the Board from conducting the warrantless search, and to declare the relevant provisions invalid. It was agreed that in the interim the documents sought by the Board would be kept in the possession of KPMG pending the resolution of the litigation. The Board also brought a counter-application seeking that the High Court issue a search warrant allowing a search of Auction Alliance’s premises.  Continue reading →

Johanna Malan v City of Cape Town

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Case No. Lower Court Judgments Hearing Date
CCT 143/13 Western Cape High Court, 22 April 2013 20 Feb. 2014

By Avani Singh on 19 February 2014

This is an application for leave to appeal against a decision of the Western Cape High Court (per Dolama J) (“the High Court“) that ordered the eviction of Johanna Malan (“Malan“).  The main issue for determination is whether the City of Cape Town (“the City“) was entitled to cancel Malan’s lease and seek her eviction, along with that of her children, from property owned by it and forming part of its sub-economic housing scheme. Continue reading →

J v The State

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 Case No.  Lower Court Judgments  Hearing Date
 CCT 114/13  Western Cape High Court, 21 Aug. 2013 6 Feb. 2014

By Duncan Wild on 3 January 2013 The case involves a confirmation of a finding by the Western Cape Division of the High Court of South Africa, Cape Town (“Cape Town High Court“) that section 50(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (“Sexual Offences Act“) was unconstitutional.  The section provides that the details of a person convicted of a sexual offence under the Sexual Offences Act must be entered into the National Register of Sexual Offenders (“Register“). Continue reading →

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

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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 →

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

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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

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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 →

Minister of Police and Others v Premier of the Western Cape and Others

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 13/13 Western Cape High Court, 13 Jan. 2013 6 Aug. 2013 1 Oct. 2013 Moseneke DCJ  Unanimous

By Duncan Wild on 1 October 2013

The case involves the legality of the Premier of the Western Cape’s (“the Premier’s”) appointment of the O’Regan Commission into complaints related to inefficiency in the South African Police Service (“the SAPS“) stations in Khayelitsha, as well as the breakdown in relations between the SAPS operating in Khayelitsha and the Khayelitsha community (“the O’Regan Commission”).

On 24 August 2012, the Premier established the O’Regan Commission, appointing its chair, former Justice of the Constitutional Court, Catherine O’Regan, and Mr. Vusumuzi Pikoli as commissioners.

On 5 November 2012, the applicants, including the Minister of Police (“the Minister”), the National Commissioner of the SAPS (“the National Commissioner”) and the Western Cape Provincial Commissioner of the SAPS (“the Provincial Commissioner”) launched an application in two parts: first, seeking an interim interdict halting the operation of the O’Regan Commission, and specifically to prevent Commission from giving effect to subpoenas it had issued or to issue further subpoenas, pending the outcome of the second part; and second, seeking an order setting aside the establishment of the O’Regan Commission.

In the High Court, it was only the first part of the relief sought that the court had to decide, that is the interim relief pending a court’s final decision on the legality of the Premier’s establishment of the O’Regan Commission. In other words, the lawfulness of the appointment of the Commission was not directly before the court for decision. In the Constitutional Court, however, the argument was made by the Social Justice Coalition as amicus curiae that this matter involved a dispute between organs of state, it fell within the exclusive jurisdiction of the Constitutional Court in terms of section 167(4) of the Constitution. In addition, the applicants sought direct access and an order of invalidity in respect of the decision to appoint the O’Regan Commission.

The Constitutional Court agreed that the matter did fall within its exclusive jurisdiction to decide, and therefore considered whether the decision to appoint the O’Regan Commission was in fact inconsistent with the Constitution and invalid. 

The applicants challenged the legality of the O’Regan Commission on a number of grounds, including that the Premier: acted irrationally in appointing the Commission; did not comply with the Constitutional obligations of co-operative governance in appointing the Commission; did not engage with the relevant constitutional and statutory bodies before appointing the Commission; and usurped the powers of the police by empowering the Commission to issue subpoenas, including the power to subpoena police officials, as well as to investigate crimes. There were other grounds based on an alleged ulterior motive in appointing the Commission, and that appointing a judge as a commissioner was impermissible.

The High Court found that none of the grounds had merit and so therefore dismissed the application for interim relief seeking to halt the conduct of the O’Regan Commission.

The Constitutional Court, in a unanimous judgment authored by Deputy Chief Justice Moseneke (Chief Justice Mogoeng, Justices Cameron, Froneman, Jafta, Madlanga, Nkabinde, Skweyiya, Van der Westhuizen and Zondo, and Acting Justice Mhlantla concurring) dismissed the application and found that the decision was not inconsistent with the Constitution and invalid.  Continue reading →