Consitutional Practice 07052015 - Ettienne Barnard Attorneys Practice 20150507.pdf · George v Fairmead 1958 (2) 465 “Where a man is asked to put his signature to a document he

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CONSTITUTIONALPRACTICE

2015/06/012

ETTIENNE BARNARD

ATTORNEYS

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REFERENCES

� The Constitution of the Republic of South Africa

Act 108 of 1996

� www.constitutionalcourt.org.za

� The Bill of Rights Handbook by Iain Currie and

Johan de Waal

� Slides available on the Ettienne Barnard

Attorneys website www.barnards.co.za

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Constitutional Litigation Structure

� Analyze the facts

� Identify if there is a constitutional issue

� Identify which section of the constitution is

infringed

� Does the party have locus standi

� Does the court have jurisd. re constitution

� Is the infringement justifiable (Sec 36)

� What remedy is appropriate

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� NB – Constitutional issue must be raised at

earliest opportunity

� Must join relevant Minister if attacking legislation

� In a nutshell: legislation now falls be construed

in a manner consistent with the foundational

values of human dignity, equality and freedom

as encapsulated in the Bill of Rights.

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Jurisdiction

� Magistrates’ Court

� Only apply Constitution

� May not declare any act unconstitutional

� But court can decide on Constitutional matters if

act gives it jurisdiction i.e. Equality Courts

� High Court

� Wide Constitutional Powers

� May decide any Constitutional matter except Sec

167(4)

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Jurisdiction

� The Supreme Court of Appeal

� Same jurisdiction as High Courts for

Constitutional Matters

� Constitutional Court

� Sec 167(4) exclusive matters for Constitutional

Court

� Can declare acts unconstitutional

� Final Court of Appeal

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Rule 10A High Court

� If in any proceedings before the court, the validity of alaw is challenged, whether in whole or in part and

whether on constitutional grounds or otherwise, the partychallenging the validity of the law shall join the provincial

or national executive authorities responsible for theadministration of the law in the proceedings and shall inthe case of a challenge to a rule made in terms of the

Rules Board for Courts of Law Act, 1985 (Act 107 of1985), cause a notice to be served on the Rules Board

for Courts of Law, informing the Rules Board for Courts

of Law thereof.

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Rule 16 A High Court

16A Submissions by an amicus curiae

� (1) (a) Any person raising a constitutional issue in an application or action shall give notice thereof to the registrar at the time of filing the relevant affidavit or pleading.

� (b) Such notice shall contain a clear and succinct description of the constitutional issue concerned.

� (c) The registrar shall, upon receipt of such notice, forthwith place it on a notice board designated for that purpose.

� (d) The notice shall be stamped by the registrar to indicate the date upon which it was placed on the notice board and shall remain on the notice board for a period of 20 days.

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� Must give summary of provisions

of the Constitution that is alleged to be contravened

� Duty of the Registrar to place notice on notice board and keep it there for 20 days

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Contracts

“The Bank hereby notifies all its customers that

while it will exercise every reasonable care, it is

not liable for any loss or damage caused to any

article lodged with it for safe custody whether by

theft, rain, flow of storm water, wind, hail,

lightning, fire, explosion, action of the elements

or as a result of any cause whatsoever, including

war or riot damage, and whether the loss or

damage is due to the Bank’s negligence or not.”

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Contracts

� Before the Constitution

� George v Fairmead 1958 (2) 465

� “Where a man is asked to put his signature to a

document he cannot fail to realise that he called

upon to signify, by doing so, his assent to whatever words appear above his signature”

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Contracts

� Courts have been reluctant to apply the

provisions of the Bill of Rights to contracts

� Napier v Barkhuizen (4) SA 1 (SCA) 2006 (4) SA

p1

� “if we reject liability for any claim made under

this policy we will be released from liability

unless summons is served….within 90 days of

repudiation”

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Contract

� A contractual term that is contrary to public policy is unenforceable and that public policy now derives from

the Constitution

� The Appeal Court accepted that the constitutional values

of equality and dignity may, however, prove to be decisive when the issue of the parties’ relative

bargaining positions is an issue.

� All law, including the common law of contract, is now

subject to constitutional control.

� Facts before the court “extremely slim”

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Contract

� Constitutional Court confirmed Appeal Court about public policy

� Barkhuizen v Napier 2007 (5) SA 323 (CC) 2007 (5) SA p323

� Time –limitation clauses in contracts are permissible as a general rule

� Sec 34 could be limited

� Must look at the facts of a case

� In this case no evidence that parties not in equal bargaining position

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Contracts

� Consumer Protection Act

� Sec 50(1) – any limitation clause of no force and

effect unless:

� Fact, nature and effect drawn to attention before

signature;

� Plain language

� Signed at the provision

� Sec 58 – whether term of contract is unfair or

unreasonable

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� Analyse the facts

� Identify if there is a constitutional issue

� Identify which section of the constitution is infringed

� Does the party have locus standi

� Does the court have jurisd. re constitution

� Is the infringement justifiable (Sec 36)

� What remedy is appropriate

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CLIENT HEADS

� Contracts are enforced unless they violate public policy

� the bill of rights is a very clear expression of public policy� the exemption clause violates the public policy stated in

� section 34 - access to court;

� 25 -property deprived � 9 - equality

� 10 - human dignity of the bill of rights

� this violation is not reasonable and justifiable in our open and democratic society for the following reasons:

� people do not have the same bargaining power when concluding a contract and therefore it impugns their right to dignity and equality

� Therefore the court should not enforce it

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HOTEL HEADS

� Contracts are enforced unless they violate public policy� the bill of rights is a very clear expression of public policy� the exemption clause does not violate the constitution in

any way because major persons of competent understanding shall have the utmost liberty of contracting and that their agreements shall be held sacred and shall be enforced by the courts.

� If it does violate the constitution it is justifiable and reasonable as there is a need in the open and democratic society for people to be able to contract freely and of their own will - their right to freedom and dignity demand respect for the autonomy of consenting adults.

� The clause must therefore be enforced

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Contracts

� Jordan v Faber – 15/12/2009 Northern Cape High Court

� Attorney and own client enter into lease agreement

� Contra bones mores – recognised that the Bill of Rights represents a reliable statement of public policy

� Attorney in trust position

� No equal bargaining position

� Contract void ab initio

Contracts

� EVERFRESH MARKET VIRGINIA (PTY) LTD v

SHOPRITE CHECKERS (PTY) LTD 2012 (1) SA

256 (CC)

� Lease Agreement

� the applicability of principles of good faith in

contract law and ubuntu might have persuaded

the court to entertain the appeal

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Contracts

7.2 The borrower fails to pay to the lender any amount including any interest payment

when due ..within a period three (3)

business days after receipt .. of written

demand .... then an event of default shall be

deemed to have occurred and the lender

shall be entitled …., forthwith …..to claim

and recover from the borrower all amounts owing

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Contracts

� R86-57 arrear rental

� Total outstanding amount R 7,6 million

� Not demanded properly

� the question arises would such a

clause interpreted in terms of the version contended for by applicants

breach public policy?

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Contracts

� Combined Developers v Arun Holdings and Others 2015 (3) SA 215 (WCC)

� The implementation of clause 7.2 as

sought by applicants is so startlingly draconian and unfair that this particular

construction of the clause must be in

breach of public policy

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Waiver of Rights

� Kroese and Kroese (NWM)

(unreported case no 145/13) 18-4-

2013

� Hattingh and Hattingh (NWM)

(unreported case no 144/13) 18-4-

2013

� Cannot waive a right to basic

necessities28

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� TAX

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Tax

� Section 9 – Equality

� Did not have an opportunity to put her case before the court

� Section 10 – Dignity

� Her name was listed at the credit buro

� Section 34 – Access to court

� Could not oppose matter and sec40(2)(a) cannot attack validity of the statement

� Section 32 – Access to information

� No further particulars

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Tax

� Metcash Trading Ltd v Commissioner, South African Revenue Services 2001(1)SA 1109 (CC)

� Action by commissioner was administrative act and reviewable

� The Act provide adequate avenues for resolution of the dispute

� Sec 40(5) may limit access to court but is justifiable as it

was important that tax be settled speedily and in full.

� The Promotion Of Administrative Act 3 of 2000 (PAJA)

TAX ADMINISTRATION ACT 28 OF 2011

� 174 Effect of statement filed with clerk or registrar

� A certified statement filed under section 172

must be treated as a civil judgment lawfully

given in the relevant court in favour of SARS for

a liquid debt for the amount specified in the

statement.

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TAX

� Modibane v SARS GSJ 2011

� Cannot rescind

� Kruger v CIR

� Metcash

� Barnard v SARS

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� High Court

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High Court

� Mittal Steel South Africa Ltd t/a Vereeniging

Steel v Pipechem CC 2008 (1) SA 640 (C)

� Sec 34 – access to court

� Sec 8(4) – juristic person is entitled to protection

of the Bill of Rights

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High Court

� The fact that default judgment can be taken just

because it is not an attorney delivering a

defence is tantamount to denial of right of

access to court

� Not justifiable limitation

� Member of CC may therefore defend matter in

his personal capacity as long as he has authority

to do so

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Muslim marriages

� It is trite law that presently in terms of our law a

Muslim marriage which has not been registered

in terms of South African law is invalid

� Daniels v Campbell 2004 (5) SA 331 CC - a

party to a monogamous Muslim marriage is

seen as a spouse – for purposes of intestate

succession

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Muslim marriages

� Hassam v Jacobs 2009 (5) SA 572 – polygynous

Muslim marriage – intestate inheritance

� Sec 9 - Equality

� Sec 30 - Language and culture

� Sec 31- Cultural, religious and linguistic

communities

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Muslim marriages

� The grounds of discrimination:

� Religion - in the sense that the particular religion

concerned was in the past not one deemed to be worthy of respect;

� Marital status - because polygynous Muslim marriages are not afforded the protection other

marriages receive; and

� Gender - in the sense that it is only the wives in

polygynous Muslim marriage that are affected by

the Act’s exclusion

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Muslim marriages

� Section 1 of the Intestate Succession Act 81 of

1987 must be read as though the words “or

spouses” appear after the word “spouse”

wherever it appears in section 1 of the Intestate

Succession Act.

� The declaration of invalidity operates

retrospectively with effect from 27 April 1994

� The Minister has to pay the costs even though

did not oppose the application

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Muslim Marriages

� Women’s Legal Centre Trust v President of the Republicof SA 2009 (6) SA 94 (CC)

� The applicant sought direct access to the ConstitutionalCourt under s 167(4) (e) of the Constitution (relying on

the CC's alleged exclusive jurisdiction in the matter).

� It complained that, notwithstanding express

constitutional recognition of a system of personal andfamily law adhered to by people of a particular religion,

the executive and legislature had failed to passlegislation recognising and regulating marriagesconcluded under Islamic law.

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Muslim Marriage

� As to the CC's exclusive jurisdiction, that s 167(4) (e) was precise in delineating the actors on whom it

imposed obligations. They were the President and Parliament. 'The State' was not included. By contrast,

the obligation to enact legislation to fulfill the rights in the Bill of Rights fell upon the National Executive, organs of State, Ch 9 institutions, Parliament and the President.

The obligation did not fall on the President and Parliament alone.

� Therefore the High Court has jurisdiction to hear the matter.

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Muslim Marriage

� In respect of the application for direct access, that the power to grant litigants direct access outside the CC's exclusive competence was one the CC rarely exercised, and with good reason.

� It was loath to be a court of first and last instance, thereby depriving all parties to a dispute of a right of appeal.

� It was also loath to deprive itself of the benefit of other courts' insights.

� In addition, a multistage litigation process had the advantage of isolating and clarifying issues, as well as bringing to the fore the evidence that was most pertinent to them.

Muslim Marriage

� Imams are now accredited as

marriage officers in terms of the Marriage Act

� Muslim Unions now have legal status

� Must sit exam and achieve 70% mark.

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Hindu marriages

� It is trite law that presently in terms of our law a

Hindu marriage which has not been registered in

terms of South African law is invalid

� Govender v Ragavayah NO 2008 (6) SA (D) –

� After Daniels v Campbell

� The word “spouse” in the act must be interpreted

to include a spouse of Hindu marriages for

purposes of intestate succession

� Did not go to ConCourt for confirmation

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Hindu marriages

� Singh v Rampersal 2007 (3) SA 445 D – did not

want to recognise Hindu marriage for purposes

of divorce.

� Marriage and Divorce Acts unconstitutional

� Equality and dignity

� Anybody can get married in terms of Marriage Act – no bar against that

� So no violation of rights

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� NCA

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NCA

� Sec 9 (1) – equality

� Sec 8(4) – juristic person is entitled to protection

of the Bill of Rights

� Surety excluded because of Sec 4(2)(c)

� Harksen v Lane NO 1998 (1) SA 300 (CC)

� Standard Bank of SA Hunkydory Investment 194

(Pty) Ltd 2010 (1) SA 627 (C)

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NCA

� Rationality of NCA

�Allow entrepreneurship to flourish

�A Juristic Person usually has legal

advice

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JURISTIC PERSON

� Weare & Another N.O v Ndebele & others 2009

(1) SA600 CC

� CC not decided yet if juristic persons can have

protection of Bill of Rights

� Two requirements:

� Nature of the right

� Nature of the juristic person

� Santa Clara County v Southern Pacific Railroad

- USA

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� State Liability

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State Liability

� Sec 34 – access to court

� Sec 8(1) – Bill applies to everybody

� Sec 9 – Dignity

� Sec 10 - Equality

� Sec 165(5) – order of court binds all person

� Sec 195(1)(f) – public administration must be

accountable

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State Liability

� Nyathi v MEC of Health Gauteng and Minster of

Justice 2008 (5) SA 94 (CC)

� Sec 3 places the state above the law

� It does not treat the creditors as equal before the

law

� Limitations are not reasonable nor justifiable

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State Liability

� Sec 3 is unconstitutional

� The state has 12 months to enact legislation

� By 31 July 2008 State Attorney must provide the

court with list of matters not paid and what has

happened the 200 cases mentioned by

Applicant

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State Liability

� The legislation has not been enacted – should

have been done by 2 June 2009

� On 1 June 2009 the The Minister of Justice and

Constitutional Development brought an urgent

application to extend the deadline

� Regulations have been made and circulated for

comments

� The Law Society of South Africa has indicated

that they will oppose this application

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State Liability

� MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT v NYATHI AND OTHERS 2010 (4) SA 567

(CC)

� Law Society was admitted as an interested party

� The State Liability Bill has been circulated.

� Not enough time to consult with all roll players

� Court made an order that will operate in the

meantime until the act has been promulgated

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State Liability

� If a final order against a national or provincialdepartment for the payment of money is notsatisfied within thirty (30) days of the date ofjudgment, the judgment creditor may serve thecourt order in terms of Rule 4 of the UniformRules of Court or Rule 9 of the Magistrates’Court Rules of Court, on the relevant national orprovincial treasury, the State Attorney, theaccounting officer of the relevant national orprovincial department, as well as the ExecutiveAuthority of the Department concerned;

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State Liability

� (b) The court order served on the

officials referred to in paragraph (a) of

this order must be accompanied by a

certificate by the registrar or clerk of

the relevant court, certifying that no

appeal, review or rescission

proceedings are pending in respect

thereof;

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State Liability

� (c) The relevant treasury shall within fourteen

(14) days of service of the order, cause the

judgment debt to be settled, or itself settle the

judgment debt, or make acceptable

arrangements with the judgment creditor, for the

settlement of the judgment debt;

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State Liability

� (d) Should the relevant treasury fail to cause thejudgment debt to be satisfied, itself settle the debt ormake acceptable arrangements with the judgmentcreditor for the settlement of the judgment debt within thetime period specified in paragraph (c) of this order, thejudgment creditor may apply for a writ of execution interms of Rule 45 of the Uniform Rules of Court or awarrant of execution in terms of Rule 36 of theMagistrates’ Courts Rules, against movable propertyowned by the state and used by the relevant department,whichever is applicable;

� (e) The sheriff of the relevant court shall, pursuant to thewrit of execution or warrant of execution, attach but notremove the identified movable property;

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State Liability

� (f) In the absence of any application contemplated inparagraph (g) of this order, the sheriff of the relevantcourt may after the expiration of thirty (30) days fromthe date of attachment, remove and sell the attachedmovable property in execution of the judgment debt;and

� (g) A party having a direct and material interest may,during the periods referred to in paragraph (f) of thisorder, apply to the court which granted the order, for astay on grounds that the execution of the attachedassets is not in the interests of justice.

State Liability

� State Liability Act 2011

� 30 August 2011

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RAF

� ROAD ACCIDENT FUND AND ANOTHER v MDEYIDE 2011 (2) SA 26 (CC)

� Sec 34 - The fundamental right of access to courts is

essential for constitutional democracy under the rule of law.

� In the interests of social certainty and the quality of

adjudication, it is important, though, that legal disputes be finalised timeously.

� Claims thus lapse, or prescribe, after a certain period of time.

� This has been recognised in our legal system — and others — for centuries

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RAF

� Section 23(1) provides for prescription of claims in

terms of s 17 of the Act:

� ''(1) Notwithstanding anything to the contrary in any

law contained, but subject to subsections (2) and

(3), the right to claim compensation B under section 17 from the Fund or an agent in respect of loss or

damage arising from the driving of a motor vehicle in

the case where the identity of either the driver or the

owner thereof has been established, shall become

prescribed upon the expiry of a period of three years from the date upon which the cause of action arose.'

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RAF

� Section 12(1) of the Prescription Act stipulates that prescription it begins as

soon as the debt is due.

� In terms of s 12(3) of the same Act, a debt is deemed to be due when a creditor has

knowledge of the identity of the debtor and

of the facts from which the debt arises.

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RAF

� The Prescription Act and RAF Act are thus

inconsistent.

� Therefore, s 12(3) of the Prescription Act, which

requires the creditor to have 'knowledge of the

identity of the debtor and of the facts from which

the debt arises' before prescription begins to run

cannot apply to claims under the RAF Act

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RAF

� The right of access to courts as provided for in s

34 of the Constitution is indeed limited by s 23(1)

of the RAF Act

� However, the potential harm to the viability and

functioning of the RAF, should a knowledge

requirement or provision for condonation be

imported into the scheme of s 23(1), outweighs

the possible negative impact of the provision

� So justifiable limitation

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Criminal

� Centre for Child Law v Minister of Justice and

Constitutional Development and others 2009 (6)

SA 632 (CC)

� Criminal Law Amendment Act1 (CLAA) 105 of

1997 amended by Section 1 of the Criminal Law

(Sentencing) Amendment Act 38 of 2007.

� The impugned sections make minimum

sentences applicable to offenders aged 16 and

17 at the time they committed the offence

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Criminal

� Although the Centre did not act on behalf of (or

join) any particular child sentenced under the

statute as amended, its provisions are clearly

intended to have immediate effect on its

promulgation. So the prospect of children being

sentenced under the challenged provisions was

immediate, and the issue anything but abstract

or academic.

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Criminal

� It is declared that sections dealing with the

imposing of minimum sentences on 16 and 17

year old are invalid

� Sec 28 of the Constitution violated

� Did not make this retrospective

� By 30 September 2009 the Minster must give a

list of al the children in jail which has been

sentenced in terms of the Act

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THREE ACTS

� Promotion of Access to Information Act 2 of

2000 (PAIA)

� Promotion of Administrative Justice Act 3 of

2000 (PAJA)

� Promotion of Equality and Prevention of Unfair

Discrimination Act 4 of 2000

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PAIA

� Sec 32 of Bill of Rights

� Public Bodies

� Private Bodies

� Procedure

� Fees

PAIA

� Avusa Publishing Eastern Cape (Pty) Ltd v

Qoboshiyane NO and Others 2012 (1) SA 158

(ECP)

� will be against public interest

� De Lange and Another v Eskom Holdings Ltd

and Others 2012 (1) SA 280 (GSJ)

� Long-term bulk purchase agreement.

� Public body to prove that secrecy justified.

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PAIA

� INDUSTRIAL DEVELOPMENT CORPORATION

OF SOUTH AFRICA LTD v PFE

INTERNATIONAL INC (BVI) AND OTHERS

2012 (2) SA 269 (SCA)

� Party may not utilise PAIA after commencement

of proceedings if access to document “provided

for in any other law”

� PFE INTERNATIONAL AND OTHERS v

INDUSTRIAL DEVELOPMENT CORPORATION

OF SOUTH AFRICA LTD 2013 (1) SA 1 (CC)

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PAIA

� Nkume v Firstrand Bank Ltd 2012 (4) SA 121

(ECM)

� Sec 62 of NCA consumer can request in writing

why credit was refused

� Remedy is independent of any remedy ito Paia

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Promotion of Administrative Justice -PAJA

� General Administrative Law

� Applies to all instances of administrative action

� Indicates how powers to take admin action given

by other laws must be exercised

� Action must be lawful and reasonable

� Fair Procedure

� Reasons given

� Erf 16 Bryntirion (Pty) Ltd v Minister of Public

Works (914/10) [2011] ZASCA 246 (1December

2011)

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Equality

� Sec 9(4)

� Persons and institutions other than the state

� Equality Courts

� Wide Powers of Enforcement

� List of discriminations

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Equality Courts

� Find out if local Magistrates' Court are an Equality Court. See list on Dept of Justice Website

� Lodge your Complaint with the Clerk.

� The Equality Clerk must, within 7 days, notify the "Respondent" about the Complaint. The Respondent will be given a copy of Form 4 that, if they want, they can use to give their side to the incident. They must return Form 4 to the Equality Clerk within 10 days of receiving it.

� The Equality Clerk must also pass details of the Complaint to the Presiding Officer within 3 days of lodging it.

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Equality Court

� The Presiding Officer must decide within 7 days if the case should be heard by the Equality Court, or if

another forum would be more appropriate to deal with it.

� If the Presiding Officer agrees this is an Equality Court

case, the Equality Clerk must set the first court date, which is called a Directions Hearing. At this Hearing, the

Presiding Officer will sort out issues such as:

� when can the parties come to trial,

� does anyone need an interpreter;

� should Assessors be used?

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Equality Court

� The Equality Clerk must then have the Notice of

the Hearing on the parties served.

� If the Presiding Officer thinks another forum

would be more appropriate (perhaps the

CCMA), she or he will complete a referral Form

and send this to the Equality Clerk. The Equality

Clerk will notify the alternative forum. It is then

for the alternative forum to contact the parties to

the Complaint.

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85Interior Map of Constitutional Court

The Library

Library

Staircase

The Court

Room

The Foyer

86Exterior Map of Constitutional Court

Library FacadeLibrary FacadeLibrary FacadeLibrary Facade

Library ExtensionLibrary ExtensionLibrary ExtensionLibrary Extension

Judge’s CourtyardJudge’s CourtyardJudge’s CourtyardJudge’s Courtyard

Entrance on Entrance on Entrance on Entrance on

Constitution SquareConstitution SquareConstitution SquareConstitution Square

Court EntranceCourt EntranceCourt EntranceCourt Entrance

Great African StepsGreat African StepsGreat African StepsGreat African StepsGreat African StepsGreat African StepsGreat African StepsGreat African Steps

Main DoorsMain DoorsMain DoorsMain Doors

87

Entrance on

Constitution

Square

88

Court Entrance

89

Main DoorsMain DoorsMain DoorsMain Doors

90The Foyer…

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91The Foyer 92

The CourtroomThe CourtroomThe CourtroomThe Courtroom

93

The Judge’s

Court Yard

94The Great African Steps

95The Great African Steps 96

The Library

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97The Library Staircase… 98The Library Staircase

99The Library Extension 100The Library Facade

101

Chief Justice

Sandile Ngcobo

Justice Edwin

Cameron

Justice Johan

Froneman

Justice Sisi

Khampepe

Justice Zac YacoobJustice Chris Jafta

Justice Thembile

Skweyiya

Justice Johann Van

der Westhuizen

Justuce Bess

Nkabinde

Justice Mogoeng

Mogoeng

Deputy Chief

Justice

Dikgang

Current Judges 102

Constitutional Court Rules

� Rule 1(3)

� lodge 25 copies of all relevant documents and

an electronic version thereof that is compatible with the software used by the Court, with the

Registrar.

� Exparte Omar 2006(2) SA 284 CC – not

providing can lead to rejecting of application.

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103


� Rule 1(4)

� All documents may be given by registered post or

by facsimile or other electronic copy

� If done by electronic copy, must lodge with the

Registrar a hard copy of the notice

� certificate by such a party verifying the date of

such communication or notice.

104


� Rule 1(7)

� Applications shall be legible and in double-spaced, typewritten format on A4-size paper

� Rule 4(4)

� All documents submitted to the Court shall be subject to the payment of R75, 00 court fees in the form of a revenue stamp: Provided that if a party satisfies the Registrar that he is indigent the payment of court fees shall be waived.

105


� Rule 5 – Joinder of Organs of State

� If not done – must be done within 5 days within

issue raised.

� Prophet v National Director of Public Prosecutors 2007(6) SA 169 CC

� The applicant had failed to join the Minister of

Justice as a party and his leave to appeal was not granted

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� Rule 6 Representation of parties

� No person shall be entitled to appear on behalf of any

party at any proceedings of the Court unless he she is

entitled to appear in the high courts.

� Rule 4(11)(a)

� If it appears to the Registrar that a party is

unrepresented, he shall refer such party to the nearest

office or officer of the Human Rights Commission, the

Legal Aid Board, a law clinic or such other appropriate

body or institution that may be willing and in a position to

assist such party.


� 18 Direct access to court

� Elsie Gundwana v Steko Development CC and others

[2011] SACC 14

� Even if one accepts that the applicant may not eventually

be successful in obtaining relief for herself, that is noabsolute bar to granting her direct access. The

constitutionality of the rule is an issue that potentiallyaffects many others: if the rule is found to beunconstitutional this Court’s acceptance of the doctrine

of objective unconstitutionality means that its effects willextend far beyond the immediate confines of the

applicant’s own particular circumstances

107 108


� 19 Appeals

� Mabosa v Law Society, Northern Provinces and another 2005 (2) SA 117

� that it was clear from Rule 19 of the Constitutional Court

Rules that where an application for leave to appeal to

the SCA was refused by the President of the SCA, a

refusal that was ordinarily unaccompanied by reasons,

any subsequent appeal to the Constitutional Court had

to be considered an appeal against the High Court

decision, and the time for lodging the appeal extended

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Constitution Seventeenth Amendment Act of 2012

� The Constitutional Court -

� (a) is the highest court of the Republic; and

� (b) may decide -

� (i) constitutional matters; and

� (ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which

ought to be considered by that Court; and

� (c) makes the final decision whether a matter is within its jurisdiction.

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Appeals

� Paulsen and Another v Slip Knot Investments

777 (Pty) Limited [2015] ZACC 5

� (a) the matter raises an arguable point of law;

� (b) that point is one of general public

importance; and

� (c) the point ought to be considered by this

Court.

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the matter raises an arguable point of law

� a point of law must have some prospects of

success.

� Examples:

� The Supreme Court of Appeal may have expressed

itself on the matter by a narrow majority;

� A minority view in the Supreme Court of Appeal maybe quite forceful

� Different divisions of the High Court may haveexpressed divergent views on the point, with no

pronouncement on it by the Supreme Court of

Appeal

111

the matter raises an arguable point of law

� There may be no authoritative pronouncement

on an issue; with available, cogent academic or

expert views on it being divergent;

� The matter may raise a new and difficult

question of law; or

� The answer to the question in issue may not be

readily discernible.

� Ultimately, whether a point of law is arguable

depends on the particular circumstances of each

case.

112

general public importance

� it must transcend the narrow interests of the litigants and

� implicate the interest of a significant part of

the general public

� It will serve a litigant well to identify in

clear language what it is that makes the point of law one of general public

importance

113

the point ought to be considered by this Court

� To summarise, a holding that a matter raises an

arguable point of law of general public

importance does not inexorably lead to a

conclusion that the matter must be entertained.

Whether the matter will, in fact, receive our

attention will depend on the interests of justice

� Look at previous Con court cases with regard to

leave to appeal

114

20

115


� TWEE JONGE GEZELLEN (PTY) LTD v THE LAND BANK [2011] ZACC 2

� The requirements for leave to appeal:

� First, the case must raise a constitutional issue or an issue connected therewith so as to fall within the jurisdiction of this Court.

� Secondly, it must be in the interests of justice that leave to appeal be granted.

� Not necessarily any prospect of success

116


� Elsie Gundwana

� The constitutional validity of the rule

cannot depend on the subjective position

of a particular applicant. It is either objectively valid or it is not

� Twee Jonge Gezellen

� Effect is subjective position of party - can

he pay or not


� Cherangani Trade & Invest 107 (Pty) Ltd v Alan Clifford Case CCT 116/09 [2011] ZACC

12

� Leave to appeal refused

� the interpretation the applicant now advanced was not raised in the High Court and it would be undesirable for the Constitutional Court to be the Court of first and

last instance

� the State had not been joined in the High Court

proceedings although it had a direct and substantial interest in the matter

117 118


� May send documents electronically [email protected]:

� But must provide hard copy to Register

� If a disk is made available to the Registrar the file will be copied and the disk will be returned to the party concerned. Where a disk or an electronic copy of a document other than a record is provided, the party need lodge only 13 copies of the document concerned with the Registrar.

119


� After record is lodged the Registrar will inform

the parties when the heads of argument must be

lodged

� The appellant may lodge heads in answer to the

respondent's argument within 10 days from the

date on which the respondent's argument was

served on the appellant.

� Chief Justice may make directions

120


� Rule 22 Taxation of costs and attorneys' fees

� Rule 22 (1)

Rules 17 (taxation) and 18 (fees) of the Supreme

Court of Appeal Rules regarding taxation and attorneys' fees shall apply, with such modifications as may be necessary.

� Rule 22 (2)

In the event of oral and written argument, a fee for written argument may in appropriate circumstances

be allowed as a separate item.

21

121


� Gory v Kolver NO and others (Starke and others

intervening) 2007 (4) SA 97 (CC)

� The exceptional circumstances of this case call

for an exceptional costs order. Justice and

equity thus require that the Minister should be

ordered to pay both the plaintiff and defendant’s

cost in CC and lower court

122


� South African Liquor Traders Association and

Others v Chairperson, Gauteng Liquor Board

and Others [2006] ZACC 7; 2006 (8) BCLR 901

(CC).

� In that case, this Court ordered costs against the

office of the State Attorney de bonis propriis on

the scale as between attorney and client.

123


� Rule 33 Execution: Section 3 of the Constitutional Court Complementary Act, 1995 (Act 13 of 1995)

Costs orders of the Court shall be executed in

the magistrate's court

124

Slides available on the

Ettienne Barnard Attorneys website www.barnards.co.za

125

GENDER LAW

126

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Parental responsibilities and right of

unmarried fathers

� Common law position

� No parental authority

� Apply to High Court

� Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC)

� Natural Father of Children born out of Wedlock Act

� Repealed by Children’s Act

Parental responsibilities and right of unmarried fathers – Sec 21

� The biological father of a child who does not

have parental responsibilities and rights in

respect of the child, acquires full parental

responsibilities and rights in respect of the child:

� if at the time of the child's birth he is living with the mother in a permanent life-partnership; or


unmarried fathers – Sec 21

� if he, regardless of whether he has lived or is living with the mother:

� consents to be identified or successfully applies to be identified as the child's father or pays damages

in terms of customary law;

� contributes or has attempted in good faith to contribute to the child's upbringing for areasonable period; and

� contributes or has attempted in good faith to contribute towards expenses in connection with the

maintenance of the child for a reasonable period.



� This section does not affect the duty of a

father to contribute towards the maintenance

of the child.

� If there is a dispute between the biological

father and the biological mother of a child with

regard to the fulfillment by that father of the

conditions set out above, the matter must be referred for mediation to a family advocate,

social worker, social service professional or

other suitably qualified person.



� Any party to the mediation may have the outcome of the mediation reviewed by a

court.

� This section applies regardless of whether the child was born before or

after the commencement of this Act.


� Permanent life partnership

� Reasonable Period

� Does not have to pay full maintenance

� Merely contribution

� Even if have court order

23


� S v J (695/10) [2010] ZASCA 139 (19

November 2010)

� Discusses the impact of Sec 21 of the Act.

Confirm that unwedded fathers automatically

requires parental rights if adhere to

requirements of Sec 21.

Customary Marriages

� Marriages entered into before the

commencement of the Recognition of

Customary Marriages Act 120 0f 1998, the

proprietary consequences continue to be

governed by customary law.

� The concepts of "in" or "out of community of

property" are unknown in customary law.

� These marriages are regarded as out of

community of property.

Customary Marriages

� Gumede v President of the Republic of South

Africa 2009 (3) SA 152 (CC)

� Monogamous customary marriages

� Before Act – married in community of property

� Women have equal status and capacity

� Lacuna – polygamous marriages

� Act must be amended

Customary Marriages

� Recognition of Customary Marriages Act 120 0f 1998 – 15 November 2000

� Must be 18 years

� In accordance with customary law of indigenous people (so not Muslim or Hindu marriages)

� Must register the marriage within 3 months not invalidate marriage – just proof of marriage

Customary Marriages

� No spouse married under Marriage Act may enter into another marriage

� Should a husband wishes to enter into a

further customary marriage, must apply to court to approve a written contract which

will regulate the future matrimonial

property system of his marriages

Customary Marriages

� The Act allows spouses to apply to court to change their marital system if married

before commencement of act.

� Marriages entered into after the commencement of the Act, the proprietary

consequences will depend on whether the

marriage is monogamous or polygamous.

24

Customary Marriages

MONOGAMOUS CUSTOMARY MARRIAGES

� the property arrangement will be that of a

marriage in community of property. These

marriages have the same consequences as a

civil marriage.

� Spouses can marry out of community of

property provided they enter into an

Antenuptial contract.

Customary Marriages

� POLYGAMOUS CUSTOMARY MARRIAGES

� Take cognizance of the written contract

which regulates the marriage, whether it be in or out of community of property.

Customary Marriages

� Inheritance

� Bhe v Magistrate, Khayelitsha 2005 (1) SA 580

(CC)

� The fact that only males can inherit in terms of

customary law is unconstitutional

� Reform of Customary Law of Succession and

Regulation of Related Matters Act 11 of 2009

� Females can inherit as well

� Spouses in polygamous marriages – child’s share

141

Legislation

� The Children’s Act 38 of 2005

� The Choice on Termination of Pregnancy Act 92

of 1996

� The Domestic Violence Act 116 of 1998

� The Employment Equity Act 55 of 1998

� The Promotion of Equality and Prevention of

Unfair Discrimination Act 4 of 2000

� The Criminal Law (Sexual Offences and Related

Matters) Amendment Act 32 of 2007

142

143

Slides available on the

Ettienne Barnard Attorneys website www.barnards.co.za

144

Sale of Immovable Property

� JAPHTA v SCHOEMAN & OTHERS 2005 (2) SA 140 (CC)

� The failure in Sec 66(1)(a) of the Magistrate’s Court Act to provide judicial oversight over immovable property execution sales was declared unconstitutional & invalid.

� S66(1)(a) was amended by adding the words “a court, after consideration of all relevant circumstances, may

order execution” before the words “against the immovable property of the party”

25

145


� A formal application in terms of Rule 55 of the Magistrate’s Court Act must therefore be brought before

court, setting out all the relevant circumstances before execution against immovable properties may proceed.

� An example when an application may be brought is

where there is insufficient movable property to satisfy judgment eg. Nulla Bona Return

146


� In the matter Standard Bank of SA Ltd v

Saunderson & others 2006(2) SA 264 (SCA) the

Highest Court of Appeal looked at claims for

arrear bond payments.

� The SCA found that a clerk or registrar may

grant the warrant of execution for immovable

goods without an application to court

147


� The summons must however comply with the

following:

� A prayer must be included declaring the

mortgaged properties executable in summons

� The defendants must be informed that the order

to execute might infringe their right of access to

adequate housing in summons

148


� Rule 5(10) warning re right to housing where

immediately executable order will be sought:

“The defendant’s attention is drawn to section

26(1) of the Constitution of the Republic of

South Africa which accords to everyone the

right to have access to adequate housing.

Should the defendant claim that the order for

eviction will infringe that right it is incumbent on

the defendant to place information supporting

that claim before the Court”.


� Elsie Gundwana v Steko Development CC and

others 2011 (3) SA 608(CC)

� Judgement 11 April 2011

� The ultimate constitutional issue in this matter is

whether a High Court registrar, in the course of

ordering default judgment under rule 31(5)(b) of

the Uniform Rules of Court, may grant an order

declaring mortgaged property that is a person’s

home specially executable

149


� Default Judgement in 2003 before Japhta

� Divergent approaches in the High Courts and

Saunderson dealt with a case emanating from the High Court.

� Rule 46 High Court – 24 December 2010

� The effect of this judgment is to overturn the findings

of the Supreme Court of Appeal in Saunderson, to the extent that they found that the registrar was

constitutionally competent to make execution orders when granting default judgment in terms of rule

31(5)(b).

150

26


� This judgment does not, however, suggest that the

practical suggestions made to ensure that

defendants are alerted to the possibility of theimpact that judgment may have on their

fundamental rights, should be discarded.

151 152


� In the matter of Reshat Schloss v Gordhan

Taramathi & others (unreported judgment on

10/10/2005 under case number 2657/2005 by

Cape High Court) the court found that:

� The Jaftha matter applies retrospectively

� If the warrant of execution was invalid then sale

of execution was void

153


� In the matter of P Markom v D Menqa & others (unreported judgement on 12/09/2006 under case

number 1195/06 in Cape High Court) the court confirmed the Reshat Schloss case. A short history of the case is

as follows:

� The property sold in May 2005 after default judgment was

obtained.

� It was transferred to purchaser in November 2005.

� The property was then sold again.

� An interdict to stop transfer of property to second buyer

was granted by Court

154


� The matter went on Appeal to SCA

� Menqa and another v Markom & others 2008(2) SA 120 (SCA)

� The court held, that sales in execution of immovable property (and subsequent sales) were invalid if the warrant of execution pursuant to which the sales had taken place had been issued by the clerk of the magistrates' court without judicial supervision, and the absence of this procedural safeguard imperilled a party's s 26(1) constitutional rights, even if they occurred prior to the Jaftha case (supra), and could not be saved by an application of s 70 of the C Magistrates' Courts Act.

155


� If a sale in execution was null and void because it violated the principle of legality, the sheriff had no authority to transfer ownership to the purchaser, who would therefore not acquire ownership despite registration of the property in his or her name.

� Directing the Registrar of Deeds to reregister the property in the first respondent's name would not take into account what the first appellant had paid for the property and the first respondent's possible unjust enrichment.

� So the matter must back to court again to determine the amount if any that the appellant must pay the respondent to get the property back.


� Gundwana – Retrospectivety

� It must be remembered that these orders were

issued only where default judgments were

granted by the registrar. In order to turn the

clock back in these cases aggrieved debtors will

first have to apply for the original default

judgment to be set aside

156

27


� Second homes

� Mkhize v Umvoti Municipality and others

2012(1)SA1(SCA)

� Judicial oversight also required.

157


� FirstRand Bank Ltd v Folscher and Another

2011 (4) SA 314 (GNP)

� Effect of R 46 High Court Amendment

� Individual – not company or trust

� List of relevant circumstances

� Affidavit by creditor – duty bound to make full

disclosure

� Sec 129 NCA – warning in letter

� Writ of execution – refer to R 31(5)(d) –

reconsider judgement

158


� Nedbank v Fraser 2011 (4) SA 363 (GSJ)

� Protect also juristic persons

� Can set matter down to hear further evidence

� List of factors

� Where the possibility of reinstatement of the

underlying loan agreement exists the provisions

of s 129(3) and (4) of the NCA should be

brought to the attention of the judgment debtor.

159


� Standard Bank v Bekker 2011 (6) SA 111 WCC

� Relevant circumstances will depend on the

peculiar facts of a matter

� Summons should indicate whether or not it is the

debtors primary residence and all other

information

� Practice note 33 of WCHC must be complied

with – NCA reg

� Long Form – Absa v Xanti 2006 (5) SA 289 (C)

160

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