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South Africa Case Law

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Constitutional Law [2016] ZAGPPHC 45

Lawyers for Human Rights v Minister of Home Affairs and Others (39171/2014)

Lawyers for Human Rights v Minister of Home Affairs and Others (39171/2014) [2016] ZAGPPHC 45; [2016] 2 All SA 168 (GP); 2016 (4) SA 207 (GP) (3 February 2016)

Court
North Gauteng High Court, Pretoria
Case number
39171/2014
Judge
N Janse Van Nieuwenhuizen

Sections 34(1)(b) and (d) of the Immigration Act unconstitutionally limit the rights of detainees by failing to provide an automatic right to appear in person before a court to challenge the lawfulness of their detention and any extension thereof, as required by section 35(2)(d) of the Constitution. The limitation is not justified under section 36(1), as Home Affairs failed to provide any factual basis for the alleged administrative burden. The appropriate remedy is to declare the impugned provisions invalid to the extent of the limitation and to read in wording that ensures detainees are bro…

Source excerpt

  • Immigration Detention
  • Judicial Oversight
  • Separation Of Powers
  • Reading In And Severance
  • Limitation Of Rights
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Criminal Law [2008] ZASCA 47

S v Geldenhuys (470/2007)

S v Geldenhuys (470/2007) [2008] ZASCA 47; 2009 (1) SACR 1 (SCA); [2008] 3 All SA 8 (SCA); 2008 (9) BCLR 940 (SCA) (31 March 2008)

Court
Supreme Court of Appeal
Case number
470/2007
Judges
Streicher, Cameron, Nugent, Van Heerden, Kgomo

Sections 14(1)(b) and 14(3)(b) of the Sexual Offences Act 23 of 1957 are unconstitutional to the extent that they differentiate between heterosexual and same-sex sexual activities by setting the legal age of consent at 16 and 19 years, respectively. This distinction constitutes unfair discrimination on the grounds of sexual orientation, which is not justified under section 36(1) of the Constitution. The appropriate remedy is to sever the words 'under the age of 19 years' and read in 'under the age of 16 years' for both boys and girls, thereby setting a uniform age of consent. The declaration…

Source excerpt

  • Sexual Offences Act
  • Age Of Consent
  • Unfair Discrimination
  • Constitutional Invalidity
  • Reading In And Severance
  • Children S Rights
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Constitutional Law [2003] ZACC 4

National Director of Public Prosecutions v Mohamed NO and Others (CCT44/02)

National Director of Public Prosecutions v Mohamed NO and Others (CCT44/02) [2003] ZACC 4; 2003 (1) SACR 561; 2003 (5) BCLR 476 ; 2003 (4) SA 1 (CC) (3 April 2003)

Court
Constitutional Court
Case number
CCT44/02
Judges
Ackermann, Chaskalson, Langa, Goldstone, Madala, Mokgoro, Moseneke, Ngcobo, O'Regan, Yacoob

Section 38 of the Prevention of Organised Crime Act does not preclude the High Court from issuing a rule nisi together with an interim preservation order. The phrase 'by way of an ex parte application' merely prescribes the initiating procedure and does not exclude the audi alteram partem principle. The inherent jurisdiction of the High Court and established common law practice permit the granting of interim orders and rules nisi to protect both the interests of the State and affected parties. The absence of explicit reference to a rule nisi in section 38 does not imply its exclusion, especia…

Source excerpt

  • Fair Hearing Right
  • Audi Alteram Partem
  • Statutory Interpretation
  • Preservation Of Property Order
  • Remedial Orders
  • Reading In And Severance
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About this LexChat collection

South Africa decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

Source links and collection timestamps are retained alongside the indexed records.