Leo Boonzaier | Constitutional Court 2015: Pending judgments

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Later this week, we will preview the South African Constitutional Court’s upcoming hearings. For now, we take stock of the judgments that are pending. By our count, there are at least twelve.

Fourth term 2014

Three are from the fourth term of 2014. These are:

Sarrahwitz v Maritz NO, an affecting case about a desperate plaintiff who lost the house in which she was living —­ as well as the purchase price, which she had already paid in full — when the seller went insolvent (update: the judgment was handed down on Thursday, 4 June 2015);

Horn v LA Health Medical Scheme, a thoroughly uninteresting case about pension fund rules, in which the Court has asked for further submissions on a peripheral issue of labour law (update: the judgment was handed down on Thursday, 14 May 2015); and

De Vos NO v Minister of Justice, which involves an important constitutional challenge to section 77(6) of the Criminal Procedure Act (pdf). This section, which the Western Cape High Court found unconstitutional, requires a court to detain indefinitely any accused person whom it finds unfit to stand trial because of a mental illness.

First term 2015

There are eight judgments outstanding from the first term of 2015. The most high-profile of these are My Vote Counts (covered in detail in a previous post) and Reserve Bank v Shuttleworth, which is about the legality of the exit levy imposed on Mark Shuttleworth when he emigrated from South Africa and took his assets with him. The Supreme Court of Appeal (‘SCA’) declared the levy, totaling over R250m, unlawful and ordered the Reserve Bank to repay it.

We also await the Court’s judgment in Oppelt v Department of Health, a tragic case in which a teenage rugby player was left paralysed after a scrum collapsed. The SCA held that, even assuming the health care services were negligent in placing the plaintiff in traction only fourteen hours after the injury, there was insufficient evidence that this had caused his paralysis. This was largely because the evidence of the plaintiff’s medical expert was “at the very least questionable”. The Constitutional Court’s last judgment on causation, Lee v Minister of Correctional Services, was vexing and poorly reasoned. Here, however, the plaintiff’s submissions largely avoid the question of causation, instead targeting the SCA’s assessment of the expert evidence.

When a court declares a tender process invalid, as it often does, that process must normally be re-run (as in the recent AllPay, the Court’s three-part magnum opus on procurement law). But that is extremely costly and time-consuming. And sometimes it seems clear which tenderer ought to have won. So when, one might ask, can a court use its exceptional powers under the Promotion of Administrative Justice Act to substitute a winning tenderer? That is the issue in Trencon Construction v IDC, which may have important implications for our ailing procurement system.

And we are still waiting for the Court’s judgment in Chevron v Wilson’s Transport, where it must pronounce on the constitutionality of section 89(5)(b) of the much-maligned National Credit Act, which imposes severe consequences on credit providers who are not registered. (The Court invalidated other parts of this section in 2012.) The Court canceled the hearing late last year, but then strangely reinstated it, having requested additional written argument on the relevance of the law of unjustified enrichment. (Update: the judgment was handed down on Friday, 5 June 2015.)

Making up the numbers for the first term of 2015 are:

S v Mhlongo; S v Nkosi, a difficult case in which the applicants were convicted of murder by the North West High Court (which also dismissed their appeal), but say the law of evidence was misapplied;

Shoprite Checkers v MEC for Economic Affairs, in which Shoprite brings a constitutional challenge (upheld by the High Court) to section 71 of the Eastern Cape Liquor Act (pdf) which caused Shoprite to lose its licence to sell wine on its premises and therefore amounted, it says, to an arbitrary deprivation of its “property”; and

Cross-Border Transport Agency v Central African Road Services, which is about what happens when a declaration of constitutional validity is suspended, and the period of suspension comes to an end: is the law invalid from the date the declaration was made, or from the date the period of suspension ended? (Update: the judgment was handed down on Tuesday, 12 May 2015.)

Of the four acting judges on the Court in the first term of 2015, only one, Acting Judge Tshiqi, has handed down judgments thus far. By contrast, we await the first output of Acting Judges Jappie, Theron and Molemela. It is likely that each of them will write the main judgment in one of the eight cases discussed above.

Other cases to watch

In addition, the Court has asked for legal argument, but scheduled no oral hearing, in a few other cases. Sometimes this means the case is relatively straightforward, and the Court will decide it without putting the parties to the time and expense of a hearing. Sometimes it means the Court is still deciding whether to have a hearing.

Of particular interest is DE v RH, in which the plaintiff sought damages for the adultery committed by the defendant with the plaintiff’s then wife. The SCA, in a carefully reasoned judgment, said that the action for adultery is not in keeping with contemporary values and struck it from South African law. Conspicuously, however, the SCA said it had reached this conclusion without considering constitutional norms. It will be fascinating to see whether the Constitutional Court is willing to let that be the last word.  (Update: the Court gave judgment, without holding a hearing, on Thursday, 19 June 2015.)

Equally fascinating — for it also raises questions about conservative sexual morality — is De Lange v Presiding Bishop of the Methodist Church. The applicant was a minister in the respondent Church who made public that she was a lesbian, and concluded a same-sex civil union, without the Church’s approval. As a result, the Church held a disciplinary hearing and “discontinued” her from the ministry. The lawfulness of that decision is at the core of the case, but technical difficulties obstructed the SCA from reaching it: the dispute between the applicant and her Church had already been arbitrated; and, when the applicant later brought High Court proceedings, she disavowed what seemed her most compelling argument, namely that the Church had unfairly discriminated against her because of her sexual orientation. The Constitutional Court, which tends to take a more flexible approach than the SCA to matters of procedure, has taken an interest in the case and asked for argument on affidavit about whether the Church’s rules are consistent with the applicant’s constitutional rights to equality, freedom of religion and freedom of association. (Update: the matter has been set down for hearing on Thursday, 27 August 2015.)

Part II, on the Court’s upcoming hearings, can now be read here.

Leo Boonzaier

About Leo Boonzaier

Leo is an Editor for the African Legal Centre, and he reports on the Constitutional Court of South Africa. He has BSocSci and LLB degrees from the University of Cape Town and a BCL from the University of Oxford. He has worked as a visiting researcher at the Max Planck Institute for Private Law in Hamburg, Germany, and more recently as a law clerk at the Constitutional Court of South Africa. He is currently a doctoral student at the University of Oxford.