SUMMARY OF CONSTITUTIONAL CASES

SUMMARY OF CONSTITUTIONAL CASES - 2006

NO.	APPLICANT/S	RESPONDENT/S	MINISTRY/DEPT	SECT/ACT IN DISPUTE	NATURE OF DISPUTE	FINDINGS/JUDGMENT	COMPLIANCE BY GVT
1.	Helicopter and Marine Services (Pty) Ltd and Another	VSA Waterfront Properties (Pty) Ltd and Others	None	Aviation Act 74 of 1962	Direct Access for Leave to Appeal	Application dismissed Applicant to pay costs	None
2.	Minister of Home Affairs and Another	Fourie and Lesbian and Gay Quality Project	Minister of Home Affairs	Section 30 (1) of the Marriage Act 25 of 1961	Section 30 (1) to be inconsistent with the constitution which guarantees the quality insofar as the said provision did not recognise same sex unions as a valid marriage	It was held that Marriage Act was unconstitutional in this respect and declared the provision invalid to the extent to the inconsistency which declaration of invalidity was suspended for 12 months	This decision led to the promulgation of the Civil Union Act, 17 of 2006 after much debate
3.	Zondi	MEC for Traditional and Local Government Affairs	Local Government	Natal Pound Ordinance 37 of 1947	The said legislation gave the land owner the right to impound animals which were trespassing on his or her land to be inconsistent with the Constitution.	The said legislation was held to be unconstitutional and suspended the declaration of invalidity for a period of 12 months to enable the Provincial Legislature to correct the inconsistency.	The Provincial Legislature will have to amend the Ordinance by the 28^th of November 2007.
4.	Mtotywa and Others	NDPP	Minister of Justice	None	Application for direct access	This case emphasises that constitutional issues are first to be determined by the High Court, then the Supreme Court of Appeal and only thereafter the Constitutional Court, save in exceptional circumstances	None

NO.	APPLICANT/S	RESPONDENT/S	MINISTRY/DEPT	SECT/ACT IN DISPUTE	NATURE OF DISPUTE	FINDINGS/JUDGMENT	COMPLIANCE BY GVT
5.	Ex Parte: Minister of Social Development	None	Social Development	Social Assistance Act	The Constitutional Court had previously declared invalid certain proclamations issued under the Social Assistance Act to be unconstitutional. The Minister applied for an extension for the suspension of invalidity.	The Constitutional Court held that it had no power to retrospectively to grant a further extension	If the Government or its Ministers or the Provincial Government and its MEC’s wish to apply for an extension of the suspension of invalidity, it is important that such application must be heard prior to the previous period suspension.
6.	Matatiele Municipality and Others	President of the Republic of South Africa	Minister of Justice	The Constitution 12 Amendment Act of 2005	Whether the said Act was unconstitutional and invalid as it unlawfully usurp the functions of the Municipal Demarcations Board which was an independent authority vested with the power to draw municipal boundaries.	The Section dealing with the transfer of cross boundary in the cross boundary Municipalities Laws Repeal and Related Matters Act, 23 of 2005, to be invalid. Order of invalidity suspended for 18 months	Exact parameters cannot be laid down as to what would be considered sufficient in the facilitation of public involvement by Provincial Legislatures. Each case will have to be determined on its own merits.
7.	Doctors for Life	International Speaker of the National Assembly & Others	Minister of Health	Termination of Pregnancy Amendment Act, Sterilisation Amendment Act, Traditional Health Practitioner’s Act, and the Dental Technicians Amendment Act	In this case at issue was not the public participation that a Provincial Legislature was obliged to ensure that the public participation that was required by the NCOP	It was held that the Constitution contemplated that Parliament and the Provincial Legislatures would have a considerable discretion to determine how best to fulfil their duties to facilitate public involvement. The said Statutes were declared invalid	Parliament to re-enact the statutes in a manner which would be consistent with the Constitutional

NO.

APPLICANT/S

RESPONDENT/S

MINISTRY/DEPT

SECT/ACT IN DISPUTE

NATURE OF DISPUTE

FINDINGS/JUDGMENT

COMPLIANCE BY GVT

Steenkamp

Provincial Tender Board

Tender Board for the Eastern Cape

None

The issue was whether a statutory body or other administrative organ who has the power or duty to exercise a statutory discretion or administration function could held liable for damages in delict for a wrongful exercise of such duty, power or functions.

The Court held that there were compelling public considerations requiring that the adjudicators of disputes should be immune from damages claimed in respect of incorrect or negligent but honest decisions.

Statutory bodies such as Tender Boards whose decisions will affect various members of the public will generally not be held liable for damages for incorrect decisions. They will, however, be liable for damages where the decision is taken mala fides

Magajane

North West Gambling Board

Section 65 of the North West Gambling Act 2 of 2001

The search and seizure without a warrant to be unconstitutional as it was an infringement of the right to privacy

The Court held that Section 65 was unconstitutional and that there was no reason why the inspectors and the police should not be required to obtain a warrant prior to the search and seizure

No order as to costs

This case is important to the South African Police Services and to the Provincial Departments of Tourism as it states that less restrictive measures should be taken which such are available where the measures infringe the right to privacy

NO.	APPLICANT/S	RESPONDENT/S	MINISTRY/DEPT	SECT/ACT IN DISPUTE	NATURE OF DISPUTE	FINDINGS/JUDGMENT	COMPLIANCE BY GVT
10.	Van Der Merwe	Road Accident Fund	Minister of Public Works and Transport	Road Accident Fund Act	Damages of spouses married out of community of property remain the personal property of such spouse. While certain damages awarded to a spouse married in community of property remain such spouses personal property, this does not include damages for patrimonial loss, such as damages for medical expense and loss of earnings.	In this case the court held that this exclusion which had the effect of such amounts falling within the joint estate was unconstitutional as it amounted to unfair discrimination compared to spouses married out of community of property Respondent to pay the costs	None
11.	Minister of Health	New Clicks SA (Pty) Ltd	Minister of Health	None	The Court had to decide and it held that if a law is declared invalid by a court other than the Constitutional Court, it is that court that should order the suspension of the invalidity of the Act	It was further held that an application for leave to appeal or an appeal with regard to the invalidity of an Act of Parliament does not suspend the operation of the judgment. Neither does it revive the law Applicant to pay the costs	None
12.	Phumela Gaming Leisure Ltd	Grundlingh	None	National Gambling Act 7 of 2004	Direct access to challenge certain provisions of the Gambling Act	Application dismissed. The Court, however, dealt with the delictual test for wrongfulness and whether or not in the particular circumstance the Court should allow a claim based on delict No order as to costs	None
13.	Gory	Kolver	None	Intestate Succession Act 81 of 1987	Unfair discrimination against partners in same sex relationship in that such partner could not inherit	Section 1(1) declared unconstitutional and was to include “or partner in a same sex life partnership in which the partners have undertaken reciprocal duties of support”	None

NO.	APPLICANT/S	RESPONDENT/S	MINISTRY/DEPT	SECT/ACT IN DISPUTE	NATURE OF DISPUTE	FINDINGS/JUDGMENT	COMPLIANCE BY GVT
14.	Minister of Safety and Security	Luiters	Minister of Safety and Security	None	Application for Leave to Appeal where the SCA held that the Minister was vicariously responsible for the actions of an off duty policeman	The Court held that the application for leave to appeal should not be granted as there were no prospects of success. Further, that this was not a constitutional issue	None
15.	Union of Refugee Woman	Director: PSISRA & Minister of Safety and Security	Minister of Safety and Security	Section 23 (1) (a) of the Security Act	Application concerned the rights of refugees to work in the private security industry. Section 23 (1) (a) was challenged as it violates the rights to equality and discriminates against non-citizens	Application dismissed. The right to equality was held not to be violated by Section 23 (1) (a)	None
16.	Lekolwane	Minister of Justice and Constitutional Development	Minister of Justice	None	Application for postponement	The Court held that the application for postponement cannot be claimed as of right and in order to obtain such application, good cause needs to be shown. The issue is also whether it was in the interest of Justice to grant the postponement	None
17.	Fraser	ABSA Bank Ltd & NDPP	Minster of Justice	Prevention of Organised Crime Act 121 of 1998	The question raised was whether a creditor of a person whose property was subject to a restraint order, was entitled to intervene in proceedings where the person whose property was subject to the restraint order applied to Court for legal expenses	The Court held that the creditor was entitled to intervene but such intervention would only be allowed where there were circumstances where it was in the interest of justice that such intervention be allowed	None

NO.	APPLICANT/S	RESPONDENT/S	MINISTRY/DEPT	SECT/ACT IN DISPUTE	NATURE OF DISPUTE	FINDINGS/JUDGMENT	COMPLIANCE BY GVT
18.	South African Police	Public Servants Association	Minister of Safety and Security	Regulation 24 (6) of the SAPS Act	The issue was whether the Commission was obliged to promote a person to a post which had been upgraded and in respect of which the salary had been increased without advertising the post. The said Regulation used the work “may” insofar as the upgrading of the post was concerned	The Court held that the word “may” gave the Commissioner a discretion to promote the person to the up-Post without advertising the post. The Court, however, dealt with factors to be taken into account and how words should be interpreted, taking into account the provisions of the Constitution	None However, this case lays down the basis for the construction of Statutes within a constitutional dispensation and how words should be interpreted within a Constitutional context
19.	SABC	NDPP & Shaik	Minister of Justice	None	The SABC applied for leave to appeal against the judgment of the SCA, refusing it permission to broadcast on radio and television the appeal proceedings brought by Shaik. The test adopted by the SCA was that the broadcasting should not be permitted unless the Court was satisfied that it would not inhibit justice in that Court.	The Court held that that it would only interfere with the ruling of the SCA if it found that it did not act judicially in exercising its discretion or based the exercise of that discretion on wrong principles of law or a misdirection of the material facts	None
20.	AAA Investments (Pty) Ltd	The Micro Finance Regulatory Council & The Minister of Trade & Industry	Minister of Trade & Industry	The Micro Finance Regulatory Council rules and regulations	The Applicant attacked the said rules on the basis that they were invalid and unconstitutional and that the scope of these rules was so private that the constitution did not apply to them.	It was held that the rules were valid. The rules made were done by an Organ of State exercising a public power. The Appeal was dismissed	None This judgment is important in that it deals with what constitutes an Organ of State, it describes and defines what a public function is and it deals with the requirements of a valid delegation

NO.	APPLICANT/S	RESPONDENT/S	MINISTRY/DEPT	SECT/ACT IN DISPUTE	NATURE OF DISPUTE	FINDINGS/JUDGMENT	COMPLIANCE BY GVT
21.	Prophet	NDPP	Minster of Justice	Prevention of Organised Crime Act	The Applicant contended that the forfeiture order as well as Chapter 6 of the said Act was unconstitutional in that it deprived him of his property	The Court held that the provisions were not unconstitutional and the Application was dismissed	None
22.	SA Liquor Trader’s Association and Others	Chairperson of the Gauteng Liquor Board	None	Gauteng Liquor Act 2 of 2003, Section 1	The definition of “shebeen” challenged as it was vague and irrational	It was held that the definition was inconsistent with the constitution and violated the rule of law	Gauteng Liquor Act to be amended. Liquor Acts of other provinces to be brought in line with this judgment