The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II

Drucilla Cornell
Stu Woolman
Sam Fuller
Jason Brickhill
Michael Bishop
Diana Dunbar
Copyright Date: 2013
Published by: Fordham University Press
Pages: 1184
https://www.jstor.org/stable/j.ctt13wzx4t
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  • Book Info
    The Dignity Jurisprudence of the Constitutional Court of South Africa: Cases and Materials, Volumes I & II
    Book Description:

    Since the Second World War, dignity has increasingly been recognized as an important moral and legal value. Although important examples of dignity-based arguments can be found in western European and North American case law and legal theory, the dignity jurisprudence of the Constitutional Court of South Africa is widely considered to be the most sweeping in the world. This book brings together the first sixteen years of constitutional jurisprudence addressing the meaning, role, and reach of dignity in the law of South Africa as a multiracial democracy.

    eISBN: 978-0-8232-5030-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-xii)
  3. Preface
    (pp. xiii-xiv)
    Drucilla Cornell, Stu Woolman, Sam Fuller, Jason Brickhill, Michael Bishop and Diana Dunbar
  4. Acknowledgments
    (pp. xv-xviii)
  5. The Dignity Jurisprudence of South Africa
    • Introduction
      (pp. 3-20)
      Drucilla Cornell and Sam Fuller

      The Dignity Jurisprudence of South Africa lies at the very heart of the substantive legal revolution; an ongoing revolution that demands the transformation of South Africa from a horrifically unjust society to one that aspires to justice for all of its citizens. Section 1 of the Constitution explicitly states that the Republic of South Africa is founded on “human dignity, the achievement of equality and the advancement of human rights and freedoms.”¹

      In his workGeneral Theory of Law and the State, Hans Kelsen defined a full legal revolution as “whenever the legal order of a community is nullified and...

    • Equality and Nondiscrimination: Some Analytical Thoughts
      (pp. 21-32)
      Lourens W. H. Ackermann

      A lack of linguistic and other analysis has made the debate on equality and nondiscrimination in the law more complex, and the neglect of such analysis has caused confusion. This article deals with a limited and preliminary, but vital, aspect of equality and nondiscrimination as constitutional and legal concepts and rights. It does not deal with wider aspects of constitutional equality jurisprudence; particularly not with the achievement of restitutional equality,¹ nor with the horizontal application of the Bill of Rights, nor with any detailed analysis of the South African Constitutional Court’s equality jurisprudence to date. The narrow contention being advanced...

    • The Legal Nature of the South African Constitutional Revolution
      (pp. 33-64)
      Lourens W. H. Ackermann

      The dramatic history of the birth of a remarkable constitution is well documented.¹ My overview of its gestation and birth must perforce be deceptively brief. The South African common law is not, historically, Anglo-Saxon but rather from the time of European settlement in 1652, Roman-Dutch. The received Roman-Dutch law was the common law of Holland prior to the latter’s codification in the first decade of the nineteenth century, and as thereafter applied and adapted in South Africa. Since 1815, English law, more particularly in the fields of company law, evidence, and criminal procedure, has exercised considerable influence. But when difficult...

    • Dignity Jurisprudence: Building a New Law on Earth
      (pp. 65-72)
      Roger Berkowitz

      South African dignity jurisprudence is part of a revolution under way in constitutional thought. The revolution revolves around the guarantee of human dignity as the constitutive right underlying modern legal systems. Article 1 of Germany’s 1948 postwar Basic Law makes human dignity an inviolable right. The 1948 Universal Declaration of Human Rights establishes the inherent human dignity of all persons as the foundation of freedom, justice, and peace in the world. In the 1960s, the International Conventions on both Civil and Political Rights and on Economic and Social Rights both employ human dignity as the backbone of modern human rights....

    • The Architecture of Dignity
      (pp. 73-124)
      Stu Woolman

      South Africa boasts one of the world’s most developed bodies of dignity jurisprudence. Only the Federal Constitutional Court’s gloss on the meaning of dignity in Germany’s Basic Law can match the richness of our Constitutional Court’s account.

      As the epigraph from Justice Ackermann suggests, the richness of this jurisprudence flows, in part, from South African history. The Truth and Reconciliation Commission (TRC), for example, recognized that dignity has its roots in the simple idea that justice consists of the refusal to turn away from suffering. The TRC’s unflinching commitment to the provision of a historical record of such suffering under...

    • Notes
      (pp. 125-170)
  6. Legal Cases (1995–2008)
    • Makwanyane
      (pp. 173-228)

      This case, one of the first to be heard by the Constitutional Court, concerned the constitutionality of the death penalty. In terms of section 277(1)(a) of the Criminal Procedure Act 51 of 1977 the death penalty was a competent sentence for a conviction of murder. However, no executions had taken place in South Africa since 1989. Section 9 of the Interim Constitution provided that everyone has the right to life. However, the Interim Constitution did not expressly state whether the death sentence remained no longer a competent punishment in our constitutional order.

      The two accused had been convicted in the...

    • Williams
      (pp. 229-239)

      A full bench of the Cape Supreme Court (now the Western Cape High Court) consolidated five discrete cases in which six convicted juveniles were sentenced to receive a “moderate correction” of a number of strokes with a light cane. At the time of each trial, and prior to the inception of the Interim Constitution, juvenile whipping was a competent sentence in terms of section 294 of the Criminal Procedure Act 51 of 1977 (CPA). The full bench of the Cape Supreme Court referred the consolidated matter to the Constitutional Court.

      The applicants contended that section 294 of the CPA violated...

    • Ferreira
      (pp. 240-273)

      This case concerned the constitutionality of provisions in the Companies Act 61 of 1973 that pertained to the winding up of companies. Section 417 provided that the master of the High Court may summon and examine any person mentioned in subsection 1 as to their affairs with the company that is being wound up. Section 417(2)(b) provided as follows: “Any such person may be required to answer any question put to him at the examination, notwithstanding that the answer might tend to incriminate him, and any answer given to any such question may thereafter be used in evidence against him.”...

    • Bernstein
      (pp. 274-290)

      Following one of the largest financial collapses in South African history, the Cape Provincial Division of the High Court ordered, in terms of sections 417 and 418 of the Companies Act, a commission of enquiry into the affairs of certain companies in the Tollgate Group. Mr. Bernstein and other partners and employees of a partnership of chartered accountants that audited the Tollgate Group (“the applicants”) were summoned to the commission of enquiry. The applicants’ attorneys were furnished with a number of issues the commission wished to engage during the questioning of the auditor’s witnesses. However, it became evident to all...

    • Soobramoney
      (pp. 291-298)

      Mr. Soobramoney was a forty-one-year-old diabetic suffering from ischaemic heart disease, cerebro-vascular disease, and irreversible chronic renal failure. While no cure existed for his illnesses, his life could be prolonged by means of regular renal dialysis. This treatment was readily available in private hospitals. However, it was expensive and beyond the reach of an unemployed person such as Mr. Soobramoney. The local state hospital in Durban had a dialysis program. However, the hospital did not have sufficient resources to provide dialysis treatment for all patients suffering from chronic renal failure. In order to spread its scarce resources as effectively as...

    • Walker
      (pp. 299-327)

      Mr. Walker, a resident of Constantia Park, a formerly white suburb of Pretoria, challenged the constitutionality of certain actions of the Pretoria City Council. The council was established after the amalgamation of a number of former black townships (Atteridgeville and Mamelodi) and Pretoria. For at the time of the litigation, the population of Atteridgeville and Mamelodi was virtually all black, while the denizens of old Pretoria were almost exclusively white.

      The council had sued Mr. Walker for overdue charges in respect of municipal services rendered to him. The issue arose from the levying by the council of charges for water...

    • National Coalition for Gay and Lesbian Equality [1999]
      (pp. 328-352)

      The National Coalition for Gay and Lesbian Equality, a voluntary association of South African gay, lesbian, bisexual, and transgendered people and organizations, brought an application to the High Court challenging both common law and statutory proscriptions that criminalized private, consensual, anal sex between men. The Coalition argued that the law unfairly discriminated against gay men on the ground of sexual orientation.

      The High Court declared the criminalization of consensual sodomy unconstitutional. Justice Heher concluded that the law discriminated on the basis of sexual orientation and was therefore presumptively unfair. The state could offer no compelling argument to justify the disrimination...

    • August
      (pp. 353-359)

      Neither the Final Constitution nor the 1998 Electoral Act disenfranchised prisoners. However, the 1993 Electoral Act disqualified persons from voting on four grounds. In particular, it denied the exercise of the franchise to persons who were “detained in a prison after being convicted and sentenced without the option of a fine in respect of … [m]urder, robbery with aggravating circumstances and rape; or (ii) any attempt to commit [such an] offence.” Given that universal adult suffrage is a fundamental value in terms of section 1 of the Constitution and that section 19 guarantees every adult citizen the right to vote...

    • National Coalition for Gay and Lesbian Equality [2000]
      (pp. 360-377)

      Section 25(5) of the Aliens Control Act 96 of 1991 allowed for the spouse of a permanent resident of South Africa to be issued an immigration permit. It did not provide the same benefit for same-sex life partners of permanent residents. The applicants claimed that this differentiation amounted to unfair discrimination against same-sex life partners of permanent residents.

      The applicants approached the Cape Provincial Division of the High Court for an order declaring section 25(5) inconsistent with the Constitution and therefore invalid. A full bench found that the challenged provision was indeed inconsistent with the Constitution as it amounted to...

    • Dawood
      (pp. 378-389)

      In terms of section 25(9)(b) of the Aliens Control Act 96 of 1991, a foreign spouse of a South African citizen or permanent resident, who was in South Africa and wished to secure an immigration permit, had to possess, already, a valid temporary residence permit. If the foreign spouse did not possess such a permit, then two consequences followed (should she or he wish to secure an immigration permit). The foreign spouse would have to wait outside South Africa and the couple would be forced to separate. Or the South African spouse would have to leave South Africa in order...

    • Christian Education South Africa
      (pp. 390-405)

      Section 10 of the South African Schools Act 84 of 1996 (SASA) prohibits the use of corporal punishment in schools. The appellant, a voluntary association, was an umbrella body of 196 independent Christian schools in South Africa that catered to some 14,500 pupils. The appellant contended that the blanket ban on administering corporal punishment in schools violated the religious freedom of parents of the children in those schools to consent to the school administering corporal punishment. The parents, and the voluntary association representing them, regard corporal punishment as integral to their conception of a Christian education. The appellant sought an...

    • Hoffmann
      (pp. 406-414)

      Mr. Hoffmann applied for a position as a cabin attendant with South African Airways (SAA). After successfully making it through the four-stage selection process, he was considered a suitable candidate. His employment, however, was subject to a medical examination. That battery of tests encompassed an HIV test. The medical examination showed that he was clinically fit and suitable to be a cabin attendant; the blood test showed that he was HIV-positive. Based upon the positive test for HIV alone, SAA decided that Hoffmann could not be employed as a cabin attendant. Hoffmann approached the High Court for an order directing...

    • Grootboom
      (pp. 415-430)

      This case emanates from the tragic housing shortage created by and inherited from apartheid South Africa. Mrs. Grootboom and most of the other respondents had previously lived in squalid conditions in an informal settlement known as Wallacedene. Wallacedene residents had no water, sewerage, or refuse removal services. Only 5 percent of the shacks had electricity. Almost half of the people living in Wallacedene were children, more than 25 percent were unemployed, and the majority earned less than R500 a month. Many residents had applied for low-cost housing. After seven years they were no closer to being allocated a house. In...

    • Moseneke
      (pp. 431-438)

      Intestate estates are ordinarily administered by the master of the High Court. However, section 27(3)(a) of the Black Administration Act 38 of 1927 prohibited the master from administering the intestate estates of black people. That task was assigned, by regulation 3(1) to the act, to the local magistrate. The applicants in this case were the family of a deceased black man who had died intestate. Aggrieved by this differentiation, they sought an order directing the master of the High Court, instead of a magistrate, to register and to administer the estate of the deceased and to declare regulation 3(1) constitutionally...

    • Dodo
      (pp. 439-450)

      Mr. Dodo was convicted of murder in the Eastern Cape High Court. Section 51(1) of the Criminal Law Amendment Act 105 of 1997 obliges the High Court to sentence an accused convicted of offences specified in the act to life imprisonment. However, under section 51(3)(a), if the court is satisfied that “substantial and compelling circumstances” exist that justify the imposition of a lesser sentence, it may impose such a sentence. This mandatory sentencing scheme was challenged in the High Court on the grounds that it infringed the fair trial rights of an accused in section 35(3)(c) of the Constitution to...

    • Mamabolo
      (pp. 451-466)

      In August 2001 Eugene Terreblanche—the well-known leader of the Afrikaner Nationalist organization, the Afrikaner Weerstandbeweging—was granted bail pending an appeal of his conviction for attempted murder by Justice Els in the Transvaal High Court. An official in the Department of Correctional Services—Mr. Russell Mamabolo—issued a statement in which he disagreed with the order. He noted that since Terreblanche was only appealing the nature of the offence, not the sentence, bail should not have been granted.Beeld, a daily newspaper, reported Mamabolo’s statement. Justice Els read theBeeld’s report and summoned Mamabolo to explain whether he made...

    • Mohamed
      (pp. 467-479)

      At the time the Constitutional Court heard the matter, the appellant had already been deported from South Africa and was on trial in a US federal district court on capital charges related to the bombings of US embassies in Nairobi, Kenya and Dar es Salaam, Tanzania in August 1998. Prior to his deportation, Mr. Mohamed had entered South Africa illegally and had applied for asylum under a false name. He was granted temporary residence while his application was processed. He was later identified by a US agent and then arrested, detained, and interrogated by South African officials before finally being...

    • Booysen
      (pp. 480-482)

      Section 26(2)(a) of the Aliens Control Act 96 of 1991 requires an applicant for a work permit to submit the application from outside the country and then only to enter the country once the permit is issued. Section 26(3)(b) provides that work permits are to be issued to spouses of South Africans only if they do not or are not likely to pursue an occupation in which a sufficient number of persons are available in South Africa to meet the requirements of the inhabitants of South Africa. The applicants in this case were the spouses of four marriages concluded in...

    • Carmichele
      (pp. 483-501)

      In April 1995, Alix Carmichele (Carmichele) was assaulted by François Coetzee while staying at the house of a friend of hers in a secluded coastal village. Coetzee, who lived near Carmichele, already had convictions for housebreaking and indecent assault and, at the time of his attack on the applicant, was facing a charge of rape for which he had been released unconditionally. Both the investigating officer and the prosecutor in that case supported Coetzee’s release and did not inform the magistrate of Coetzee’s previous convictions. Carmichele’s friend, after finding out about Coetzee’s release from custody pleaded with the investigating officer...

    • Investigating Directorate of Serious Economic Offences
      (pp. 502-514)

      The National Prosecuting Authority Act 32 of 1998 provides for the search and seizure of property by an investigating director in the office of the National Director of Public Prosecutions, to facilitate the investigation of certain specified offences. Sections 28 and 29 deal with investigations and searches, respectively. Section 28 provides for an inquiry where there is reasonable suspicion that a specified offence has been committed and a preparatory investigation where the investigator is unsure whether there are reasonable grounds for an inquiry. Section 29 provides for the issuing of search warrants for purposes of inquiries and preparatory investigations in...

    • Prince
      (pp. 515-536)

      One of the admission requirements of the Attorney’s Act 53 of 1979 is that a person be “fit and proper.” As part of the process for admission as an attorney, the appellant applied to the Cape Law Society to have his contract of community service registered. The appellant, who was a practicing Rastafarian, disclosed to the Law Society that not only did he have two previous convictions for possession of cannabis, but that he intended to continue its use for sacramental purposes. The Law Society declined to register his contract of community service. It took the view that a person...

    • Islamic Unity Convention
      (pp. 537-547)

      Clause 2(a) of the Code of Conduct for Broadcasting Services (the Code) contained in Schedule 1 to the Independent Broadcasting Authority Act 153 of 1993 provided that

      broadcasting licensees shall … not broadcast any material which is indecent or obscene or offensive to public morals or offensive to the religious convictions or feelings of any section of the population or likely to prejudice the safety of the state or the public order or relations between sections of the population.

      The Islamic Unity Convention ran a community radio station that aired an interview with a historian and author who, during the...

    • Khumalo
      (pp. 548-558)

      Bantu Holomisa, the leader of the United Democratic Movement, sued theSunday Worldover an article that alleged that Mr. Holomisa was involved with a gang of bank robbers and under police investigation for his involvement.

      In the High Court, theSunday Worldaverred, by way of exception, that because the contents of the article “were matters in the public interest” and that the respondent had failed “to allege in his particulars of claim that the article was” false, Mr. Holomisa had failed to satisfy the requirements for a cause of action in defamation. The High Court dismissed the applicant’s...

    • Du Toit
      (pp. 559-564)

      The applicants were a lesbian couple who had been in a life partnership since 1989. They wished to adopt jointly two children. However, the relevant adoption legislation only allowed for heterosexual couples to adopt children jointly. The second applicant alone therefore became the adoptive parent of the children. Several years later the applicants brought an application in the Transvaal Provincial Division for an order declaring unconstitutional and invalid sections 17(a), 17(c), and 20(1) of the Child Care Act 74 of 1983 and section 1(2) of the Guardianship Act 192 of 1993 on the grounds that they prohibited homosexual couples from...

    • Jordan
      (pp. 565-591)

      The applicants—a brothel owner, a salaried employee of the brothel, and a prostitute—pleaded guilty in the Magistrates’ Court to contravening the Sexual Offences Act 23 of 1957. Section 20(1)(aA) of that act, made it an offence to have sex for reward. However, it only criminalized the act of prostitution and the maintaining of a brothel. It did not speak to the securing of a prostitute’s services by a customer. The appellants challenged the constitutionality of both these provisions on various grounds.

      As the Magistrates’ Court had no power to declare the provisions of statutes invalid, the appellants accepted...

    • Khosa
      (pp. 592-603)

      Section 3(c) of the Social Assistance Act 59 of 1992 reserved social grants solely for aged South African citizens. Sections 4(b)(ii) and 4B(b)(ii) of the act, as amended by the Welfare Laws Amendment Act 106 of 1997, reserved child-support grants and care-dependency grants for South African citizens only. The applicants were Mozambican citizens and permanent residents of South Africa.

      The applicants in the two matters approached the Transvaal Provincial Division of the High Court for an order declaring the impugned provisions invalid. The High Court found that the provisions were indeed inconsistent with the Constitution. The High Court held that...

    • Daniels
      (pp. 604-623)

      Section 1 of the Intestate Succession Act 81 of 1987 confers certain rights of inheritance on a surviving spouse whose wife or husband died intestate. Section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 similarly confers on a surviving spouse the right to a claim against the estate of the deceased spouse for his or her reasonable maintenance until remarriage or death, insofar as the surviving spouse does not have the means to provide for him- or herself. Neither statute defines the word “spouse.” The applicant was married to her deceased husband according to Muslim rites. And...

    • Kaunda
      (pp. 624-652)

      Sixty-nine South African citizens—very likely mercenaries—were detained in Zimbabwe on various charges. Two days after the applicants were arrested in March 2004, fifteen men, the majority of whom were South African, were detained in Equatorial Guinea. They too were accused of being mercenaries and plotting a coup to overthrow the president of Equatorial Guinea. The applicants feared that they would be extradited from Zimbabwe to Equatorial Guinea and put on trial for a variety of capital offenses. The applicants contended that they would not receive a fair trial in Equatorial Guinea and would risk being sentenced to death....

    • Jaftha and Van Rooyen
      (pp. 653-665)

      The appellants in the two cases were both poor unemployed women whose houses, acquired with the help of a state subsidy, had been sold in execution to satisfy debts of R250 and R190 respectively. The sales in execution, which took place on the same day, were undertaken in terms of sections 66(1)(a) and 67 of the Magistrates’ Court Act 32 of 1944. Section 66(1)(a) provided that an order by a court for the payment of money can be enforced by execution against the moveable property of judgment debtor. Only if there is insufficient moveable property to satisfy the judgment can...

    • De Reuck
      (pp. 666-677)

      Section 27(1) of the Films and Publications Act 65 of 1996 prohibits the creation, production, importation, or possession of child pornography. The appellant, a film producer, was charged in the regional Magistrate’s Court with the offence of possession of child pornography. He challenged, in terms of breadth and vagueness, the constitutionality of section 27(1) read with the definition in section 1 on the grounds the sections infringed his rights to privacy, freedom of expression, and equality. Child pornography is defined in section 1 as follows:

      “[C]hild pornography” includes any image, real or simulated, however created, depicting a person who is...

    • Bhe
      (pp. 678-709)

      According to section 23(10) of the Black Administration Act 38 of 1927, and the regulations promulgated under that section, particularly regulation 2(e), the estates of Africans who died intestate were to be distributed according to “Black law and custom.” The Intestate Succession Act 81 of 1987 expressly excluded “African” estates from being assessed in terms of its provisions. According to the “accepted notion” of African customary law of succession, the distribution of the estates of African deceased were governed by the rule of male primogeniture: the nearest male relative of the deceased became the sole heir. InBhe, the deceased’s...

    • Volks NO
      (pp. 710-746)

      Mrs. Robinson was in a permanent life partnership with Mr. Schandling. They shared a home, a car, and many mutual friends. She was financially dependent on him and they were regarded by all who knew them as a couple. When Mr. Schandling died, Mrs. Robinson argued that she should have a claim for maintenance against his estate. However, the executor of the estate (Mr. Volks) read the Maintenance of Surviving Spouses Act, which provided the legal basis for a claim against the deceased estate of a spouse, to apply only to married couples. Mrs. Robinson—with the assistance of the...

    • K
      (pp. 747-757)

      The applicant launched an action seeking damages in delict from the minister of safety and security for the harm she suffered as a result of being raped and assaulted in the early hours of 27 March 1999. Her assailants were three uniformed and onduty police sergeants. Ms. K had had an argument with a boyfriend with whom she had been out for the evening and was looking for a telephone when she met the police officers at approximately 4 o’clock in the morning. They offered her a lift home which she accepted. They then took her to a deserted place,...

    • Minister of Home Affairs and Lesbian and Gay Equality Project
      (pp. 758-794)

      The first applicants—Ms. Fourie and Ms. Bonthuys—contended that the common law definition of marriage in South Africa as the “union of one man with one woman” excludes homosexual couples and unfairly discriminates against them in terms of section 9(3) of the Constitution. The Gay and Lesbian Equality Project—the second applicant—challenged section 30(1) of the Marriage Act. That section required that marriage officers must put to each of the parties the following question: “Do you X … call all here present to witness that you take Y as your lawful wife (or husband)?” This question, the applicants...

    • Van der Merwe
      (pp. 795-806)

      On October 24, 1999, Vanessa Van der Merwe’s husband intentionally ran her over with a car; then reversed and ran over her again. Van der Merwe claimed both patrimonial damages—primarily medical expenses—and nonpatrimonial damages for pain and suffering, from the Road Accident Fund (RAF). The RAF is a statutory body set up to compensate people injured in motor vehicle accidents. In terms of its enabling statue, the RAF is only liable if the victim would have a claim against the wrongdoer. The RAF admitted liability for Van der Merwe’s nonpatrimonial claim but, relying on subsections 18(a) and (b)...

    • Dikoko
      (pp. 807-827)

      This case concerned a claim for damages arising out of allegedly defamatory statements made by the applicant, Mr. David Dikoko, a municipal councilor. The auditor-general summoned the applicant to appear before the North West Provincial Standing Accounts Committee (the Standing Committee) to provide an explanation for certain unpaid cell-phone accounts. During the hearing, Dikoko made a statement that his indebtedness arose because the respondent, Mr. Mokhatla, who was also a municipal official, had changed the accounting procedures of the council. The accounting procedure now provided for periodic, as opposed to monthly, payments of cell-phone accounts. Dikoko stated that Mokhatla had...

    • South African Broadcasting Corp.
      (pp. 828-850)

      In 2005 Schabir Shaik was found guilty by the Durban High Court of being in a corrupt relationship with then Deputy President Jacob Zuma. Shaik appealed his conviction and sentence to the Supreme Court of Appeal. Some three weeks before the hearing, the South African Broadcasting Corporation (SABC) applied for permission to broadcast live and edited versions of the appeal on both radio and television. Both Shaik and the national director of public prosecutions opposed the application.

      The Supreme Court of Appeal refused to permit the SABC to broadcast the proceedings. It held that while the SABC and the public’s...

    • Barkhuizen
      (pp. 851-885)

      The resolution of this matter turned on a constitutional challenge to a time limitation clause in a short-term insurance contract. Clauses of this type prevent an insured claimant from instituting legal action if summons is not served within the time limit prescribed by the time limitation clause. Barkhuizen, the plaintiff, insured his new BMW with a syndicate of Lloyds Underwriters. The time limitation clause in this policy required Barkhuizen to institute legal proceedings within ninety days of the rejection of his claim by the insurance company. Barkhuizen’s vehicle was subsequently involved in an accident. Barkhuizen lodged a claim with the...

    • Mec for Education
      (pp. 886-919)

      A pupil at Durban Girls High School, Sunali Pillay, pierced her nose and inserted a gold nose stud. The school told her to remove the stud because it contravened their dress code. The code banned virtually all jewelry. Sunali, supported by her mother, refused to remove the stud, on the grounds that it was part of her South Tamil culture and Hindu religion. The school considered and rejected the cultural and religious claim, and ordered Sunali to remove the stud or face suspension or expulsion from the school. Sunali’s mother took the school to the Equality Court. She argued that...

    • Occupiers
      (pp. 920-929)

      The case arose as a challenge to an eviction order obtained by the City of Johannesburg (the City) against more than four hundred occupiers of two buildings in the inner city of Johannesburg (the occupiers). The City had found that the two buildings were “unsafe” and “unhealthy” in terms of section 12(4)(b) of the National Building Regulations and Building Standards Act 103 of 1977 (the National Building Act).

      In the High Court, which considered the ejectment applications brought by the City and counter-applications by the occupiers seeking alternative accommodation as a prerequisite to eviction, the occupiers prevailed. The High Court...

    • NM
      (pp. 930-965)

      In 2002 New Africa Books published an authorized biography of well-known politician Patricia de Lille, authored by Charlene Smith. All three—New Africa Books, De Lille and Smith (the respondents)—were sued by three women (the applicants) whose HIV-positive status had been revealed in the book. The women had participated in clinical trials for HIV medication at the University of Pretoria that went horribly wrong resulting in several deaths. De Lille was involved in an investigation into the trials. The incident took up a whole chapter of the biography. Relying on the use of full names in an internal university...

    • Masiya
      (pp. 966-984)

      Mr. Masiya was charged in the Regional Court with anally raping a nine-year-old girl. At the time, the common-law definition of rape was limited to vaginal penetration by a penis. Masiya was therefore charged with indecent assault. However, the presiding magistrate called for argument on whether the Constitution required the definition to be extended to include anal penetration.

      After hearing argument, the magistrate extended the definition of rape to include anal penetration of both women and men. He also held that the new definition should apply to Masiya, even though he committed the crime before the definition was changed. The...

  7. Index of Cases
    (pp. 985-990)
  8. General Index
    (pp. 991-996)
  9. Back Matter
    (pp. 997-997)