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Constitutional Court of South Africa
- www.constitutionalcourt.org.za
; http://www.saflii.org/za/cases/ZACC/
14
October 2009
CCT40/09
[2009] ZACC 32
Head of Department : Mpumalanga Department of Education
and Another v Hoerskool Ermelo and Another
School language policy
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Excerpt
:
"4. The School Governing Body of Hoërskool Ermelo must -
1.
review and determine a language policy in terms of section
6(2) of the Schools Act and the
Constitution ;
2. by not later than Monday 16 November 2009 lodge with this
Court an affidavit setting out the process that was followed
to review its language policy and a copy of the language
policy.
5.The
Head of Department : Mpumalanga Department of Education must
by not later than Monday 16 November 2009 lodge a report with
this Court setting out the likely demand for grade 8 English
places at the start of the school year in 2010 and setting out
the steps that the Department has taken to satisfy this likely
demand for an English or parallel medium high school in the
circuit of Ermelo"
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ConCourt
: Education department acted unlawfully on Hoërskool Ermelo
- 14 October
The Constitutional Court ruled on Wednesday that the
Mpumalanga education department acted unlawfully when it
forced a school to change its language policy. But the
Constitutional Court also ordered the school governing body of
Hoërskool Ermelo to review its language policy which gives
preference to Afrikaans speaking children. - The
Richmark Sentinel website
AfriForum
welcomes Hoërskool Ermelo's victory in Constitutional Court
- 14 October
The civil rights initiative AfriForum – that assisted Hoërskool
Ermelo with funding for legal costs in the school’s struggle
to remain an Afrikaans-medium school – welcomed the ruling
of the Constitutional Court in favour of this school, as a
victory for both mother-tongue education, as well as the
rights of Afrikaans schools. - The
Richmark Sentinel website
14
October 2009
CCT12/09
[2009] ZACC 31
Abahlali Basemjondolo Movement SA and Another v Premier
of the Province of Kwazulu-Natal and Others
Validity of the KwaZulu-Natal
Elimination and Prevention of Re-emergence of Slums Act
- relationship between national, provincial and local government
in the provision of housing - is it legitimate for
municipalities and owners of property to be compelled to evict
certain categories of unlawful occupier?
Excerpt
:
It is declared that section 16 of the KwaZulu-Natal
Elimination and Prevention of Re-emergence of Slums Act 6 of
2007 is inconsistent with the Constitution and
invalid"
KZN
Slums Act ruled unconstitutional - 14 October
The Constitutional Court ruled on Wednesday that a law that
would have allowed mass evictions in KwaZulu-Natal was
unconstitutional. "I conclude that section 16 of the Slums
Act is inconsistent with the Constitution and invalid,"
said deputy chief justice Dikgang Moseneke. - IOL
website
Provinces
can pass land laws - 15 October
Provincial legislatures can pass laws on land and housing but
its members need to be cautious about how they interpret the
execution of the law.
This judgment was handed down in the Constitutional Court
yesterday. - Sowetan
website
Kennedy
Road olive branch a sham - 16 October
The hatchet job on Durban's Kennedy Road informal settlement
continued this week with an alleged 'healing process' by the
KwaZulu-Natal government. - allAfrica
website
Landmark
judgment in favour of poor - 18 October
In a major legal victory for poor people's rights to housing and
shelter, the Constitutional Court this week struck down the KwaZulu-Natal
Slums Act. The court upheld shackdweller movement
Abahlali base Mjondolo's (ABM) application that the Act was
unconstitutional. The KwaZulu-Natal Slums Act empowered
municipalities to evict illegal occupants from state land and
derelict buildings, and to force private landowners to do
likewise or face fines or imprisonment - all at the behest of
the provincial housing minister. - Mail
& Guardian website
9
October 2009
CCT
43/09 [2009] ZACC 30
Joseph and Others v City of Johannesburg and Others
Termination of electricity supply to applicants' place of
residence following accumulation by landlord of substantial
arrears in payments - whether any legal relationship exists
between the applicants and City Power outside the bounds of
contractual privity that entitles the applicants to procedural
fairness before their household electricity supply is terminated
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The
Constitutional Court handed down judgment in the matter
of Joseph amd others v City of Johannesburg and
others [2009] JOL 24365 (CC) this morning.
This
matter dealt with "the termination of electricity
supply to the applicant's place of residence" after
the landlord had accumulated a significant amount in
arrear payments. The applicants in this matter
approached the court seeking reconnection of their
electricity supply as well as an order declaring that
they were entitled to procedural fairness.
In
its judgment, the court examined the following issues :
1.
Whether the applicants were entitled to procedural
fairness in terms of section 3 of PAJA ;
2.
If so, "whether the electricity by-laws were
impliedly repealed by the credit control by-laws, and if
not, whether the electricity by-laws can be read
consistently with PAJA".
Source
: LexisNexis |
9
October 2009
CCT
53/09 [2009] ZACC 29
Minister for Justice and Constitutional Development v
Nyathi and Others : Reasons for orders and supplementary
order
State's constitutional obligation to pass legislation within a
specific time frame
Keyphrase :
State Liability Act 20 of 1957
ConCourt
: here's how to attach state assets - 9 October
The Constitutional Court
has explained how people who have successfully sued the
state can attach assets if government refuses to pay. The order
will stay in force for the next two years or until Parliament
passes legislation to deal with the issue. The decision means
people owed money by the state can attach removable assets from
national or provincial assets for as long as this order is in
force. - Eye Witness
News website
14
October 2009 : For immediate release
Law
Society welcomes Constitutional Court judgment ensuring
speedy and effective enforcement of judgment debts against
governmetn departments
The
Law Society of South Africa (LSSA) welcomes the judgment
passed by the
Constitutional Court
on Friday, 9 October 2009, which provides for members of
the public to obtain the settlement of judgment orders
against national or provincial governments within a
maximum of 75 days. In the event that the relevant
government department and treasury fail to satisfy the
judgment debt within this period, the attachment and
execution of movable State assets is permitted.
The
Co-Chairpersons of the LSSA,
Thoba Poyo-Dlwati
and
Henri van Rooyen
echo Justice Yvonne Mkogoro's view and trust that the
procedure outlined by the
Constitutional Court
will 'foster compliance within the defaulting departments
and avoid attachment and execution of State property. At
the same time, it provides a more cost effective and
expeditious avenue for judgment creditors seeking to
enforce judgment debts. It is hoped that judgment debts
will be satisfied at the first instance and judgment
creditors will never need to resort to the attachment and
execution of State assets. To have to do so would be
unfortunate'.
'The
LSSA appreciates the fact that the Constitutional Court
was required on the one hand to protect the rights of
judgment creditors – particularly people who lack access
to legal resources – and ensure that they can obtain
effective and speedy relief, and on the other hand to
protect vital State assets. The interim procedure ordered
by the court attempts to do this. We trust that national
and provincial departments, including the Treasury, will
commit themselves to comply with the
Constitutional Court
’s order', say the Co-Chairpersons.
The
interim procedure – which will remain in force for two
years or until the unconstitutional aspects of the State
Liability Act are amended (whichever is the
soonest) – is as follows : Should the judgment debt
remain unpaid 30 days after the date of judgment, the
judgment creditor may serve notice on the relevant
officials [the relevant treasury, the State Attorney, the
accounting officer of the national or provincial
department as well as the executive authority of the
department. The relevant treasury shall within 14
days of service of the order, ensure the judgment debt is
settled, or will itself settle the judgment debt or make
acceptable arrangements with the judgment creditor for the
settlement of the judgment debt. If the debt remains
unpaid after those 14 days have expired, the judgment
creditor may apply to court to execute against movable
property owned by the State and used by the relevant
department, empowering the sheriff to attach the property.
Once the property has been attached, parties with a direct
and material interest may apply to court for a stay of
execution on grounds that it is in the interests of
justice for the execution to be stayed. If no application
to that effect is made, the sheriff may remove and sell
the property in execution of the judgment debt, 30 days
after the attachment. The aggregate time period from the
date of final judgment until the date of execution would
thus be approximately 75 days.
The
LSSA – which represents the attorneys' profession –
intervened as a party in this matter earlier this year on
the grounds that attorneys represent the vast majority of
persons who litigate against the State. The LSSA pointed
out to the
Constitutional Court
the practical difficulties that judgment creditors face
when seeking to execute judgment debts against State
property. In most instances, persons who obtain judgment
orders against the national or provincial governments are
indigent or may not have the resources to act in their own
names against the State when State departments fail to
settle judgment debts. Justice Yvonne Mokgoro said in her
judgment that '[t]he Law Society clearly has a material
interest in this matter. Its members represent the
majority of people who normally litigate against the
state. The rights of its members' clients are profoundly
affected by the absence of effective enforcement of
judgment debts and the state’s delay in providing
remedial legislation'.
The
LSSA has and will continue to monitor and comment on draft
legislation, such as the State
Liability Bill, to ensure that the best interest of
the members of the public – which are the clients of
attorneys – are protected in any new legislation
Issued
on behalf of the co-Chairpersons of the Law Society of
South Africa
by
Barbara Whittle
Communication Manager : Law Society of South Africa
Telephone : 012-366 8800 or 083-380 1307
E-mail : barbara@lssa.org.za
Website : www.lssa.org.za |
8
October 2009
CCT
39/09 [2009] ZACC 28
Mazibuko and Others v City of Johannesburg and Others
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According
to section 27(1)(b) of the Constitution
of the
Republic
of
South Africa
, 1996, "everyone has the right to have
access to sufficient water".
In
the matter of Mazibuko & others v City of
Johannesburg & others (Centre on Housing Rights
& Evictions as amicus curiae) [2009] JOL 24351 (CC)
where judgment was handed down in the Constitutional
Court this morning, the court had to deal with the
proper interpretation of section 27(1)(b) of the
Constitution.
The
applicants in the matter are all residents from a very
old area in
Soweto, called Phiri. The residents initially had access to
piped water, however this changed with time due to the
fact that the piping became corroded due to the lack of
corrosion protection and there was major leakage in the
piping. The residents had been charged a flat rate of
R68,40 per month for water consumption during this time
for an estimated amount of 20 litres of water. This was
far less than the actual amount of water consumed.
Due to the implementation of a new system by the
city, the aim of which was to reduce the consumption of
water, the flat-rate system was abandoned. The
applicants were not happy with the new system and the
manner in which it was being implemented, for various
reasons.
The
major issues addressed by the court in the judgment were
as follows :
1.
Whether the policy of the city of
Johannesburg
relating to the free supply of six kilolitres of basic
water per month to all accountholders was in conflict
with the provisions of the Constitution ;
2.
"Whether the installation of pre-paid water-metres
by the first and second respondents" was lawful.
Source
: LexisNexis |
Court
rules prepaid water meters not illegal - 8 October
The Constitutional Court decided on Thursday that Johannesburg
prepaid water meters are not illegal, as opponents of the
devices have claimed. Lindiwe Mazibuko and a group of Phiri,
Soweto, residents had challenged the installation of the
meters, saying they were not covered by the city bylaws. They
also wanted the monthly free water allocation increased from
six kilolitres to 50 kilolitres. - Mail
& Guardian website
Water
is life (but life is cheap) - 13 October
"Water is life . . . Without it, we will die",
writes justice Kate O'Regan in the Constitutional Court
judgment of Mazibuko and Others v City of
Johannesburg and Others, handed down late last week. But
if water is life, do the lives of poor people in Soweto count
for less than, say, the lives of rich people living in
Sandton? This is the question that comes to mind when one
reads the carefully argued (but, to my mind, utterly
unconvincing) judgment of the Constitutional Court in the
above mentioned case. - Pierre de Vos on the Constitutionally
Speaking blog
Dept
welcomes court judgment on "Phiri Case" - 15
October
The Department of Water Affairs has welcomed the
Constitutional Court ruling in the case of Mazibuko and others
vs the City of Johannesburg Metro Municipality and others
(the Phiri case). - BuaNews
Online website
Phiri
ruling is a lost opportunity - 20 October
Ever since the Constitutional Court delivered its judgment in
Grootboom (the first constitutional case dealing with the
right to housing), critics have accused the court of
unnecessarily restricting the scope of the socio-economic
rights enshrined in our Constitution. - Mail
& Guardian website
Water
rights reduced to a trickle - 21 October
The Constitutional Court has a responsibility to develop the
meaning of all the rights in the Bill of Rights, no less so
socioeconomic rights such as the right of everyone to have
access to sufficient water. This requires an explanation of
what purposes the particular right is intended to achieve, as
well as of the standards against which the state (and in
appropriate cases, private parties) should be measured in
assessing whether they have complied with their obligations.
Such standards are also essential for civil society in holding
the state accountable for its human rights obligations. - Mail
& Gaurdian website
8
October 2009
CCT
21/09 [2009] ZACC 27
Bothma v Els and Others
Private prosecution for rape which occurred 39 years ago
Rape
trial begins after 40 years - 8 October
A woman who claims she was raped over 40 years ago is allowed to
have the matter brought to trial, the Constitutional Court ruled
on Thursday. The court ruled that the High Court in Kimberly was
wrong to give the man she accused a permanent stay of
prosecution. Reading the judgment, Judge Albie Sachs said his
right to a fair trial would be protected by a presumption of
innocence. - IOL website
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Media
release from the Women's Legal Centre - 14 October 2009
Constitutional
Court allows for private prosecution of child abuse
despite 39 year delay
On
08 October 2009, the Constitutional Court allowed a
claimant to pursue a private prosecution on allegations of
child sexual abuse despite the 39 year delay in
instituting legal proceedings.
After
the Prosecution Authority declined to prosecute, the
claimant instituted a private prosecution in the Kimberly
[sic] Regional Magistrates' Court, against a family
friend who allegedly sexually abused her 39 years ago when
she was 13 years of age.
The
accused, who is nearly 80 years of age, denied the
allegations and made an application in the Kimberley High
Court for the permanent stay of the private prosecution on
the basis that it infringed his constitutional right to a
fair trial. The High Court issued the stay of the private
prosecution on the grounds that the claimant unreasonably
delayed the institution of the proceedings and that such
delay would cause the accused irreparable trial prejudice.
The
claimant then made an application to the Constitutional
Court for leave to appeal to have the High Court's
decision set aside. The High Court's decision was set
aside by the Constitutional Court. The Constitutional
Court held that the High Court erred in making its
decision as it failed to take into account the nature of
the alleged wrongdoing and the claimant's claim that the
trauma associated with the alleged sexual abuse resulted
in the delay in instituting the legal proceedings. The
Court also held that the High Court would only be in the
position to test prejudice during the trial and that the
accused's right to be presumed innocent before found
guilty in court would have protected him.
"The
decision has developed the law from a women's rights
perspective. It recognises the seriousness, gravity and
impact of child sexual abuse and guarantees women access
to the courts in order to address injustices that they
suffered as children", said Cherith Sanger, an
attorney at the Women's Legal Centre who acts as
consultant for the claimant aid.
The
claimant, led by her legal representative, Steven
Groenewald of Towell Groenewald attorneys in Kimberly,
will proceed with her case in the Kimberly Regional
Magistrate's Court at the end of October 2009.
Source
: Women's Legal Centre Trust |
7
October 2009
CCT64/08
[2009] ZACC 26
Gcaba v Minister for Safety and Security and Others
Jurisdiction of the High Court and the Labour Court over
labour-related matters - whether the conduct of a public sector
employer towards an employee amounts to administrative action
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According
to section 173 of the Labour
Relations Act 66 of 1995, the
Labour Appeal Court
has exclusive jurisdiction "to hear and determine
all appeals against final judgments and the final orders
of the
Labour Court
, and to decide any questions of law reserved in terms
of section 158(4)".
According
to section 169 of the Constitution
of the
Republic
of
South Africa
, 1996, a high court may decide on any
constitutional matter, "except one that only a
Constitutional court may decide . . ."
In
the matter of Gcaba v Minister for Safety &
Security [2009] JOL 24338 (CC), where judgment was
handed down in the Constitutional Court this morning,
the applicant had applied for a vacancy (an upgraded
position) in respect of which he was shortlisted,
however he was ultimately not chosen for the position.
The applicant subsequently approached a Bargaining
Council and thereafter a High Court in order to have the
decision not to have him appointed for the position in
question, reviewed.
It
was held by Erasmus J in High Court that such a
court did not have the jurisdiction to deal with a case
which "related to an employment matter", and
the case was dismissed. An application for leave to
appeal was then made.
The
Constitutional Court
dealt with the following two issues in its judgment :
1.
Whether a constitutional issue had been raised ;
2.
Whether it was in the interests of justice for the
Constitutional Court
to grant the application for leave to appeal.
Source
: LexisNexis |
Constitutional
Court tries to fix its own balls-up - 7 October
It's not only State Prosecutor Gerrie Nel that makes "mistakes"
(otherwise known as a balls-up). Today the Constitutional Court
handed down judgment in the case of Gcaba v Minister of
Safety and Security, in effect overturning or "clarifying"
previous judgments handed down in Fredericks (in
2002) and Chirwa (in 2007) without actually saying
so explicitly. This remarkable judgment, written by Justice Van
der Westhuizen for a unanimous court, seems to lay some of the
blame for the "confusion" (read "balls-up")
at the door of "lower court judges, legal representatives
and academics" (the Constitutional Court, of course, being
blameless) for creating "complexity and confusion rather
than clarity and guidance". This is a bit cheeky, to say
the least, as the Constitutional Court now seems to want to
blame others for the balls-up entirely of the Constitutional
Court's own making. - Pierre de Vos on the Constitutionally
Speaking blog
Labour
court better bet for state employees - 8 October
The Constitutional Court yesterday sought to clarify an
uncertainty that has been plaguing the courts for more than a
year : if a public servant wants to challenge an employment-
related decision of his employer, which court should he go to,
the labour court or the high court? - allAfrica
website
Hlophe
to stop ConCourt appeal - 5 October
Cape Judge President John Hlophe will withdraw his appeal to the
Constitutional Court over an alleged violation of his rights,
one of his lawyers said on Monday. - News24
website
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