South Africa Case Law

Solidarity Trade Union and Others v Minister of Health and Others

The Court held that the matter was properly before it despite being an abstract challenge, but that sections 36 to 40 of the National Health Act 61 of 2003 were constitutionally invalid because, on their face, they were not rationally connected to the asserted purposes of broadening access to health care and enforcing norms and standards, and they unjustifiably limited the section 22 right to choose a trade, occupation or profession freely. The provisions were therefore severed from the Act and the High Court’s order was confirmed.

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• Abstract challenge
• Rationality
• Section 22 freedom to choose trade, occupation or profession
• Section 36 limitations analysis
• Severance
• Confirmation of constitutional invalidity

South African Municipal Workers’ Union v Minister of Cooperative Governance and Traditional Affairs and Another

The majority held that extending section 71B to all municipal staff members unjustifiably limited the political rights protected by section 19 of the Constitution because the blanket prohibition was overbroad and not shown to be sufficiently connected to its purpose under section 36(1); the existing narrow limitation was a less restrictive means, so the Labour Court’s declaration of invalidity was confirmed and made retrospective from 1 November 2022.

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• Constitutional invalidity
• Limitation of political rights
• Rationality
• Section 36 justification
• Retrospective effect
• Severance

Speaker of the National Assembly v Public Protector; Democratic Alliance v Public Protector

The Court held that the matter was urgent and that direct appeal was in the interests of justice. It upheld the High Court’s invalidation of the proviso in rule 129AD(3) because limiting representation to a lawyer or expert who may not participate was irrational and inconsistent with the constitutional requirement of a reasonable and procedurally fair enquiry. However, it overturned the High Court on rule 129V, holding that a Judge may permissibly serve on the independent panel because the role is non-judicial, advisory, time-limited, and protected by consultation with the Chief Justice, so i…

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• Section 194 removal process for chapter 9 institution office-bearers
• Legal representation in impeachment/removal proceedings
• Separation of powers
• Rationality
• Procedural fairness
• Cross-appeal

Mabirimisa v General Public Service Sectoral Bargaining Council and Others (JR 481/08)

Mabirimisa v General Public Service Sectoral Bargaining Council and Others (JR 481/08) [2011] ZALCJHB 191 (20 December 2011)

Court

Labour Court Johannesburg

Case number

JR 481/08

Judge

S B Hardie

Review of a refused condonation application was dismissed after the court found the referral was late, poorly explained, and made to the wrong forum.

• Condonation
• Jurisdiction
• Pension Dispute
• Late Referral
• Mutual Interest
• Severance

Zondi v Member of the Executive Council for Traditional and Local Government Affairs and Others

The impounding scheme created by sections 16(1), 29(1), 33, 34 and 37 permits seizure, impoundment, assessment of damages, sale and disposal of livestock without judicial supervision, thereby amounting to impermissible self-help and limiting access to courts under section 34; section 29(1) also unlawfully discriminates on the basis of race and landlessness. By contrast, sections 8, 10(2), 12 and 41(4) can be construed consistently with the Constitution to require notice where the stockowner can be ascertained with reasonable diligence.

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• Access to courts
• Equality
• Procedural fairness
• Self-help
• Impoundment of livestock
• Suspension of invalidity

Premier of the Free State Provincial Government and Others v Firechem Free State (Pty) Ltd. (548/98)

Premier of the Free State Provincial Government and Others v Firechem Free State (Pty) Ltd. (548/98) [2000] ZASCA 28; 2000 (4) SA 413 (SCA); [2000] 3 All SA 247 (A) (29 May 2000)

Court

Supreme Court of Appeal

Case number

548/98

Judges

Schutz, Hefer, Harms, Farlam, Mpati

The Supreme Court of Appeal held that a Firechem delivery contract was unlawful because it departed from the tender and acceptance terms and bypassed proper procurement procedures.

• Tender Board Powers
• Public Procurement
• Contractual Validity
• Presumption Of Legality
• Agreements To Agree
• Severance

Chief Lesapo v North West Agricultural Bank and Another

Section 38(2) authorises the Bank to bypass the courts and seize and sell a debtor's property through self help, thereby denying the debtor the protection of the judicial process and limiting the section 34 right of access to courts. The limitation is not justified under section 36(1) because the purpose of speed and cost-saving is achieved only minimally, while the intrusion on debtors' rights is substantial and less restrictive means were available. The provision is therefore unconstitutional and invalid in its entirety.

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• Access to courts
• Self help
• Rule of law
• Constitutional validity
• Severance
• Suspension of invalidity

South African National Defence Union v Minister of Defence and Another

Section 126B(2) read with section 126B(4) imposed a sweeping and unjustifiable restriction on the freedom of expression of Defence Force members and was therefore unconstitutional. Members of the Permanent Force were also held to be 'workers' for purposes of section 23(2), so section 126B(1)'s total ban on trade union membership was an unjustifiable limitation of that right and invalid. The Court ordered actual severance of the offending words and suspended only the invalidity of section 126B(1) for three months to allow regulations to be made.

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• Freedom of expression
• Freedom of association
• Trade union membership
• Rights of members of the armed forces
• Limitation of rights
• Severance

S v Coetzee and Others

The Court held that section 245 is unconstitutional because it creates a reverse onus that infringes the presumption of innocence and is not justified under section 33(1). The Court also held that section 332(5), at least in respect of directors, imposes a reverse onus that permits conviction despite reasonable doubt and is not justified under section 33(1); the reference to servants is additionally unconstitutional. The majority accepted severance of the offending words in section 332(5) so that the unconstitutional burden could be removed while preserving the remainder of the provision.

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• Presumption of innocence
• Reverse onus provisions
• Vicarious criminal liability
• Severance
• Fair trial rights

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others

Section 2(1) of the Indecent or Obscene Photographic Matter Act 37 of 1967, read with section 1’s definition, is unconstitutionally overbroad because it sweeps in a vast range of constitutionally protected expressive material and therefore unreasonably and unjustifiably limits freedom of expression. It cannot be saved by severance or reading down, and invalidity should not be suspended because the remaining 1974 Act sufficiently addresses legitimate regulatory concerns.

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• Freedom of expression
• Right to privacy
• Overbreadth
• Severance
• Reading down
• Obscenity regulation