Judging – in the judicial sense – is a fine art and an imprecise science. There is rarely one “correct” answer in the resolution of a legal dispute between or among litigants. That is why a decision even of a Full Bench of three judges of the High Court can be reversed on appeal by the Appeal Court, and a unanimous decision of five judges of the Appeal Court in turn reversed by 8 to 11 judges of the Constitutional Court, the highest court in the South African court hierarchy.

It is also why 8 to 11 judges of the Constitutional Court can be split on an issue. On two occasions thus far, the Constitutional Court has even delivered a 5-5 evenly split opinion.

So imprecise is the science of judging that even a unanimous decision of 11 judges of the Constitutional Court is not necessarily the “correct” answer to a given legal question that serves before them. Thus, Ulpian – a prominent Roman jurist considered one of the great legal authorities of his time in the First Century – was probably right when he wrote (in Dig.49.1.1)

“an appeal sometimes alters a well-delivered judgment for the worse, as it is not necessarily the case that the last person to pronounce judgment judges better”

In fact, a court is not there to provide answers to difficult questions of law; there is a bevy of practising advocates and attorneys for that. The role of the courts, through the judges who preside there, is to resolve legal disputes between or among litigants.

The judges who decide legal disputes in our courts are not machines (the much-vaunted Fifth Industrial Revolution has not progressed that far). They are fallible humans with mood swings, political and religious beliefs, and personal prejudices which follow them wherever they may tread.

So, if we accept that judicial judging is an imprecise science, and that judges are fallible and carry their  personal prejudices to the bench, can it confidently be said that judges who decide cases from the prism not of the law as it is but rather from the prism of their personal prejudices (the law as they wish it to be or “Palm Tree Justice”) do so fairly, without favour or prejudice, as their Oath of Office or solemn affirmation enjoins them to do?

Enter Justice of the Constitutional Court of South Africa, Mbuyiseli R Madlanga, and offers this thesis:

“A judge’s make-up, outlook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”

This is a sentiment also expressed by Rebecca K Lee, an Associate Professor of law at the Thomas Jefferson School of Law in the United States in a paper titled, “Judging Judges: Empathy as the Litmus Test for Impartiality”, referenced by Justice Madlanga in this contribution with approval. It is available at https://www.anchoredinlaw.net/wp-content/uploads/2019/11/Judging-Judges_-Empathy-as-the-Litmus-Test-for-Impartiality.pdf.

As a sociological proposition, Justice Madlanga’s thesis raises an interesting question about human ability to self-correct. But as a jurisprudential proposition (or theoretical study of law) it raises difficult questions about ethics and the integrity of the rule of law.

For example, if a judge’s “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” is rooted in racism or sexism or religious fundamentalism or homophobia, is there a place in our judiciary – for the sake of judicial diversity – for a judge who believes that black people are inherently incompetent, lazy and dishonest; or that white men are the salt of the earth and that life in Africa without them would be unbearable; or that same-sex relationships are a sin before God; or that women counsel belong at home raising children and not in court arguing cases against men?

Jurisprudentially, the thesis also raises a vexed question that has been in the minds and mouths of many political and legal activists since the advent of the Truth and Reconciliation Commission of South Africa (the TRC) and it is this: Since the TRC seems to have elected not to investigate the role that the judiciary (or some judges) played in the enforcement of apartheid “laws” (some of which are still in the statute books almost 30 years after the formal abolition of apartheid in South Africa) or in facilitating the achievement of apartheid goals, how are we to know – short of a judge’s confession – that a judge’s decision in a case was not informed by his or her political or religious views, or by racist or sexist or homophobic prejudices that “followed her or him” to the bench?

It was President Nelson Mandela himself, addressing the then Law Society of the Transvaal in 1993, who said:

“But at the time of the worst excesses of apartheid, judges and lawyers on the whole remained silent. Judges, magistrates and prosecutors enforced apartheid laws without protest. Unwarranted sentences were called for and imposed for contravention of statutes passed to uphold apartheid.”

If judges are free to carry these prejudices to the bench for the sake of diversity, what mechanisms are there to ensure that they decide cases based on the law as it is – allowing only for differences of opinion in the forensic interpretation of the law which can, to an extent, be ironed out through the appeal and review processes – and not based on their prejudices and jaundiced perspectives about the world masquerading as law?

Is the presumption of judicial impartiality and the Oath of Office or solemn affirmation sufficient solace to a black South African litigant who feels prejudiced by a judge or magistrate who decides that apartheid was not a crime against humanity, despite a 1966 United Nations General Assembly Resolution to the contrary, a 1984 UN Security Council endorsement, and the 2002 definition of Apartheid in the Rome Statute of the International Criminal Court?

Is the Judicial Service Commission process of appointing and disciplining judges sufficiently robust to weed out candidates and serving judges who bring their toxic prejudices to the bench?

Can it be said with confidence that the integrity of the rule of law is in safe hands, and that the country’s equality jurisprudence is in fine fettle, when the outcome of a case depends entirely on the politics or personal prejudices of the judge the litigants draw?

Justice Madlanga is emphatically not advocating for a judge finding reasons in his or her “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” for a predetermined outcome. But where does that disclaimer leave judicial activism in appropriate cases? Is there a place for judicial activism in today’s South Africa? Can there be judicial activism without a predisposition to one outcome over another?

These are just some of the questions that this important contribution raises.

Read Full Analysis and Review here: Judging According to Personal Attributes – PDF

Related Documents:

SAJEI_Journal_-_Vol_1_-_Issue_1 Original article at page 48

Judging Judges_ Empathy as the Litmus Test for Impartiality

By |2019-11-07T16:06:00+02:00November 2nd, 2019|Analyses and Reviews|Comments Off on JUDGING ACCORDING TO PERSONAL ATTRIBUTES, OUTLOOK ON LIFE AND LIFE EXPERIENCE: ANY PRACTICAL VALUE? MBUYISELI R MADLANGA Justice of the Constitutional Court of South Africa

Is Land Reform a Political or Legal Question: Exploring Amendment of s 25 of the SA Constitution

Former Justice of the Constitutional Court, the late Justice Tembile Skweyiya, once wrote in a seminal judgment of the South African Constitutional Court dealing with the tussle between law and politics, “Courts deal with bad law; voters must deal with bad politics”.

Do South African courts too readily involve themselves in political questions? Is it desirable for the courts to decide political questions? Is the mooted amendment of the property clause, section 25, in the South African Constitution a political question that should be resolved by politicians in Parliament, or is it a question that must be resolved by the courts? Is the Land Question in South Africa one for the courts or one for politicians to resolve?

These are some of the questions that Professor Mtende Mhango, Professor of Law at the National University of Lesotho, teases out in this short analysis.

A more detailed analysis of this question is explored in his recent book, Justiciability of Political Questions in South Africa: A Comparative Analysis (2019) Eleven International Publishers ISBN 978-94-6236-918-4 Available athttps://www.elevenpub.com/law/catalogus/recent  or www.amazon.com

Read Full Analysis and Review Is-Land-Reform-a-Political-or-Legal-Question – PDF1

By |2019-08-29T11:21:20+02:00August 28th, 2019|Analyses and Reviews|3 Comments

Fronting: The Ugly Long Shadow Over South Africa’s Constitutional Imperative

Fronting is a criminal enterprise not only because it is fraudulent but also because it is an affront to the human dignity of black people whom the South African Constitution has targeted for an especial economic advancement and protection. The Constitutional Court has at least twice – in 1995 and in 2018 – identified the human dignity of black people as requiring an especial protection. So, why is fronting not prosecuted as the criminal offence that it is?

The state, in all its forms, seems either impotent or disinterested in the economic crimes committed against black people in South Africa. It seems caught up still in the “reconciliation” warp, refusing to address emotional and political blackmail (where black people who point out racial exploitation are accused of “playing the race card”) at the expense of the economic redress that the Constitution demands for black people.

Fronting is principally a race issue in South Africa. Uncomfortable though the implications and impact of the race question may be to some, race being a central factor is a truth from which there is no escape. It has to be confronted and dealt with decisively, not avoided in the hope that it will go away. The Constitutional Court, no less, appreciates this when it says in Bato Star

“measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities”.

There is no escaping that when the Constitutional Court refers to “those coming from the previously advantaged communities” it is making an unmistakable reference to white people, whether or not they were born during apartheid. No point in quibbling about this. The question is: how do South Africans bring about the constitutional promise of the achievement of equality despite the inevitable discomfort that white people must of necessity suffer through the process?

Read Full Analysis and Review here

By |2019-04-25T09:25:29+02:00April 24th, 2019|Analyses and Reviews|2 Comments

Land. Equality. Dignity: A Look at Land Expropriation Without Compensation

If we are to realise at least two of the Constitution’s Foundational Values – the achievement of equality and human dignity – then land expropriation without compensation is an absolute necessity in South Africa.

But is that possible under the 1996 Constitution in its current form? What does the Constitutional Court’s jurisprudence and academic treatment of the subject tell us about the possibilities?

Must section 25 of the Constitution be amended in order to enable an orderly and lawful land expropriation without compensation, or is all we need the enactment of legislation in order to give effect to its provisions?

These, and more, are the questions that are explored in this paper.

Read Full Analysis and Review here

By |2019-04-06T11:30:01+02:00April 6th, 2019|Analyses and Reviews|Comments Off on Land. Equality. Dignity: A Look at Land Expropriation Without Compensation

Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996)

F or anyone (whether a South African or a visitor, lawyer or not) who wants to understand the foundation of South Africa’s constitutional project, a reading and understanding of the Certification Judgments is an indispensable pursuit. In these two cases, the Constitutional Court convened to consider whether each of the provisions the Constitution complied with all 34 constitutional principles that had been debated and finally agreed at the Constitutional Assembly comprising all political formations in the country. The task was an onerous one. It entailed the court measuring each and every provision of the new Constitution, viewed both singly and in conjunction with one another, against the stated Constitutional Principles, irrespective of the attitude of any interested party, and then not only recording its conclusions regarding that exercise, but also making plain its reasons for each such conclusion.

In the first judgment, the Constitutional Court declined to certify the Constitution as complying with all 34 constitutional principles. It was in the second judgment that it did.

Dubbed “the solemn pact”, the 34 Constitutional Principles, which are still relevant today in the interpretation of the Constitution and development of SA’s relatively nascent constitutional jurisprudence, are listed in this document.

Of significance is the fact that everyone was invited to provide any objection s/he may have to the certification of the new Constitution and the basis for that objection. In the result, the court heard oral argument over a period of 12 days in July and November 1996. This was a particularly thorough process.

Read Certification here:

Related Documents

Certification 1

34 Constitutional Principles

By |2019-02-08T16:27:03+02:00February 8th, 2019|Cases of Interest, Constitutional Court, Judgements, South Africa|Comments Off on Certification of the Amended Text of the Constitution of The Republic Of South Africa, 1996 (CCT37/96) [1996] ZACC 24; 1997 (1) BCLR 1; 1997 (2) SA 97 (4 December 1996)

Public Protector v South African Reserve Bank [2019] ZACC 29

This case is the first of its kind.

Never before has the Head of an Institution that has been established in terms of Chapter 9 of the Constitution of the Republic of South Africa, 1996, “to strengthen constitutional democracy in the Republic”, been ordered by any Court to pay personally, and from her own pocket, the costs of litigation initiated by another institution also established in terms of the Constitution primarily “to protect the value of the currency”, in circumstances where the latter institution prevailed in the setting aside a decision of that Chapter 9 Institution.

In a majority decision, the Constitutional Court of South Africa confirmed a decision of the Pretoria High Court in ordering the Public Protector personally and on a punitive scale to pay 15% of the costs of the South African central bank in a case where the central bank had successfully challenged the Public Protector’s decision in which she had directed that it recover a debt of over a Billion Rand of public money that it had granted to a bank before the dawn of constitutional democracy in South Africa, and which debt had been found by two judges, acting independently of each other in two separate investigations, to have been unlawful.

The High Court decision for this far-reaching order was anchored in the finding that the Public Protector had persisted in opposing the SA Reserve Bank’s application (and two others seeking to set aside her remedial action or ruling) to the end and in the manner in which the Public Protector allegedly conducted the litigation in the high court.

The majority in the Constitutional Court seems to found its decision on what it terms generally “falsehoods” and “bad faith” by the Public Protector in the high court. It said

“The Public Protector’s conduct in the High Court warranted a de bonis propriis (personal) costs order against her because she acted in bad faith and in a grossly unreasonable manner.”

Like the high court, the majority refused to entertain the SA Reserve Bank’s cross-appeal to declare that the Public Protector had abused her powers in her investigation of the Bankorp lifeboat loan. It took the view that the Public Protector had not been afforded an opportunity to deal with this issue in the high court.

Read Full Judgment here 

Related Documents

High Court Judgment

Respondent’s Head of Argument

Respondent’s Practice Note

Applicant’s Heads of Argument

Applicant’s Practice Note

Applicant’s Notice of Motion

Public Protector’s Founding Affidavit

SA Reserve Bank’s Answering Affidavit

SA Reserve Bank’s Conditional Cross-Appeal

SA Reserve Bank’s Founding Affidavit in Conditional Cross-Appeal

By |2019-07-30T15:02:11+02:00February 8th, 2019|Cases of Interest, Constitutional Court, Judgements, South Africa|Comments Off on Public Protector v South African Reserve Bank [2019] ZACC 29

#StateCaptureInquiry vs Criminal Proceedings: What’s At Play Here?

W hy exactly have the Directorate for Priority Crime Investigation (also known as the Hawks) pounced so suddenly on whistleblowers who are giving evidence at the State Capture Commission of Inquiry, and on those who have yet to give evidence at that Commission on, among other things, corruption involving senior government officials, business executives in the private sector, Cabinet Ministers, and other members of Parliament?

Lest we forget, the Terms of Reference of the State Capture Commission of Inquiry include to

“inquire into, make findings, report on and make recommendations concerning whether the President or any members of the present or previous members of his National Executive (including Deputy Ministers) or public official or employee of any state owned entities (SOEs) breached or violated the Constitution or any relevant ethical code or legislation by facilitating the unlawful awarding of tenders by SOEs or any organ of state to benefit the Gupta family or any other family, individual or corporate entity doing business with government or any organ of state.”

This goes much wider than many had hoped, and covers much of what we have thus far heard from numerous witnesses at the State Capture Commission of Inquiry about the Bosasa exploits and the family that owns that corporate entity. The ruling party and Cabinet are well and truly on trial at the State Capture Commission of Inquiry. It must be more than unsettling to them.

Many have been quick to say that these arrests have nothing to do with the State Capture Commission of Inquiry and that they arise from a report of the Special Investigating Unit (SIU). But that SIU Report came out almost ten years ago! So why act on it now? What exactly have the Hawks been waiting for all these years? It’s not as if they had more to investigate as the SIU had done that work for them. Even if they had more leads to follow, what could possibly have taken them ten years to bed down? But more importantly, why now when allegations of corruption implicating Cabinet Ministers are emerging in full glare of live television coverage?

Is it because the heat that has come out of the evidence thus far presented at the State Capture Commission of Inquiry is getting increasingly unbearably too close for the comfort of the political and corporate big wigs? Or is it a matter of the government finally acting on graft?

Many will argue (and some have already argued) that evidence given at the State Capture Commission of Inquiry is not admissible at a subsequent criminal trial. So, the argument goes, Angelo Agrizzi’s evidence at the Commission will not be admissible as evidence against him or those he has implicated if he and they were charged and prosecuted for the crimes to which he has admitted in his evidence at the State Capture Commission of Inquiry. Therefore, says the argument, these arrests will have no effect on the State Capture Commission of Inquiry.

Well, it is true that evidence given at a Commission of Inquiry is generally not admissible in any subsequent criminal trial on the issues covered by that evidence. This is a standard provision in commissions of inquiry regulations around the world. The State Capture Commission of Inquiry is no exception. Regulation 8(2) prohibits the admissibility of such evidence in any subsequent criminal trial, except where the charge is perjury or other numerous infractions of a disreputable sort. The idea is to encourage even those who may incriminate themselves to give evidence at a Commission of Inquiry which, unlike a criminal trial, is less about finding guilt but more about unearthing the truth in all its unpleasant detail.

But there is a catch. It is the evidence already given at the Commission of Inquiry that is not admissible in any subsequent criminal trial. It does not follow that such evidence may not be led or extracted from the same witness afresh in criminal proceedings either against himself or against others that he may have implicated. If his evidence at the criminal trial should be materially different from the evidence he gave at the Commission of Inquiry on the same issue, then he opens himself up to a charge of perjury because either the version he gave at the Commission was false or the version he gives at the criminal trial is false. They cannot both be true.

But the admissibility at a subsequent criminal trial of evidence given at the State Capture Commission of Inquiry is not even the issue here. The issue is this: the moment Agrizzi and his gang of State corruptors become accused persons in a criminal case involving corruption, the Constitution protects each of them against incriminating themselves.

Section 35(3)(j) of the Constitution says:

“Every accused person has a right to a fair trial, which includes the right . . . not to be compelled to give self-incriminating evidence”

In order to spill the beans at the State Capture Commission of Inquiry against those Cabinet Ministers that they have allegedly corrupted, the Bosasa gang have to tell Deputy Chief Justice Zondo, under oath or affirmation, that they did the corrupting and how they did it. Those who have been named as having been on Bosasa’s bribery payroll may wish to cut a deal with the prosecuting authorities by offering bigger fish, incriminating themselves in the process. Section 35(3)(j) of the Constitution protects them from doing that and the evidence leaders at the State Capture Commission of Inquiry may have a tough time trying to compel them under regulation 8(1) to give evidence against those Cabinet Ministers.

A related defence that the arrestees may raise is the much-abused sub-judice principle. They may say that because the matters about which the evidence leaders want them to give evidence at the State Capture Commission of Inquiry are now the subject of a criminal case, they cannot give evidence and so either the Commission must await the conclusion of the criminal trial or the criminal case must be quashed so that they can be free to give evidence at the Commission.

Therein lies the rub. The Cabinet Ministers – perhaps even arguably the one at whose pleasure they all serve – are likely to get away with alleged corrupt activities on a technicality brought about by a series of arrests and threatened prosecutions curiously timed. But if the evidence leaders are imaginative, there is a neat way around this which I suspect those who contrived the idea of these curiously timed arrests may have missed.

Anyway, there is a risk that no serious prosecution will come from these arrests anytime soon. With the elections barely three months away, the arrests by themselves have done the trick and may effectively close the whistleblowing tap until both those implicated and those who have yet to be implicated devise another plan to make these allegations go away – for good.

Let us see how the evidence leaders respond to these developments.

By |2019-02-08T16:26:38+02:00February 8th, 2019|News|2 Comments

The Essence of the Transformation of the Judiciary in South Africa

O ver 54% of our judges are black in the generic sense. Leadership of the judiciary – at least on the face of it – is firmly in African hands. The Chief Justice is African.  So is his deputy.  The President of the Supreme Court of Appeal is African.  All the Heads of the High Courts are African. If transformation of the judiciary were a simple matter of packing the courts with black judges, then we might as well pat ourselves on the back for a job well-done, and move on.

But in my view transformation of the judiciary is not simply a numbers game as regards racial representation. It is, more importantly, a matter of attitude. That attitude was captured by the ANC in its Polokwane conference when it adopted the resolution that: “Appropriate mechanisms must be urgently established to pursue the priority of establishing an adequate pool of judicial officers who are steeped in and reflect the progressive values of our constitution”.

This is the single most important and truly transformational resolution that has been taken since the dawn of our constitutional revolution. Strikingly, since 1994 the ANC has never once taken a resolution at its national conferences that makes race the central theme in the endeavours to transform our judiciary. That is not to say race is not relevant. In the bigger scheme of things, it is.

But what are the “progressive values of our constitution” in which the new breed of judges must be steeped? The answer lies ineluctably in our national constitution. The progressive values of our constitution are human dignity, equality and freedom.  They are not what politicians say they are from time to time, which may change according to the agenda sought to be achieved at a given time.

For example, the constitution says South Africa is founded on “human dignity, the achievement of equality and the advancement of human rights and freedoms”.

These three constitutional values are the foundation of the Bill of Rights Chapter in our national constitution. They are also the measure by which the reasonableness and justifiability of the limitation of other rights in the Bill of Rights Chapter must be gauged. In other words, in order to determine whether or not the limitation of, say, freedom of expression is reasonable and justifiable, a judge must have regard to the effect that such limitation has on human dignity, equality and freedom.

What is more, these three values are also a central feature in the interpretation of the Bill of Rights Chapter. In this regard, the Constitution enjoins the courts when interpreting the Bill of Rights to “promote the values that underlie an open and democratic society based on human dignity, equality and freedom”.

So, these three values are not only in themselves fundamental rights under the Bill of Rights Chapter. They are also the values on which the country called South Africa is founded. And they are the essence with regard to which the Bill of Rights Chapter must be interpreted. In short, without human dignity, without equality, and without freedom there is no country and the rights in Bill of Rights Chapter are meaningless.

These constitutional values in which all judicial officers must be steeped are not the sole preserve of any one racial or gender group. I am not aware of any empirical evidence that a black judge is more likely to espouse and apply these values than a white judge.

In fact, if one considers at face value some of the things done in recent times by the constitutional court, which is 72% black, one finds that these things may not be consistent with these values.

These values are not the sole preserve of white persons either. There is no empirical evidence that a white judge is better equipped to apply these constitutional values than a black judge. In fact, in October last year the Supreme Court of Appeal, which is 60% white, issued a ruling that where an employee had been found guilty of misconduct the determination of a sanction is the sole preserve of the employer and that the CCMA cannot interfere with the employer’s decision in that regard – however unfair. The author of that judgment was the very judge now being championed by a lobby group for appointment to the constitutional court.

Now, equality includes equal protection and benefit of the law, and equality is one of the values on which South Africa is founded. If only the employer has a say as regards whether or not an employee must be fired (under the guise of a reasonable employer test), then how on earth can the employee enjoy equal protection of the law when he cannot challenge the employer’s decision to fire him at the CCMA without reference to what a “reasonable employer” would have done in the circumstances? Thankfully, the constitutional court has corrected that abomination of our constitutional jurisprudence.

Before that, the Supreme Court of Appeal had attributed to the trial court the phrase “generally corrupt relationship” to describe the relationship between Mr Schabir Shaik and the president of the ANC. It later emerged that the trial court judge apparently never made that remark in his judgment in the Schabir Shaik asset forfeiture case. But the way had been paved, on wrong facts, by the Supreme Court of Appeal for an inference that the ANC president is corrupt. This was an affront on his human dignity – and human dignity is one of the values on which our constitution is founded. This demonstrates that a white judge (or a group of white judges) is not necessarily better equipped than a black judge to reflect the progressive values of our constitution.

So, if racial considerations are either inadequate for the establishment of an adequate pool of judicial officers who are steeped in the progressive values of our constitution, then how does an ANC-led government hope to achieve this without being accused of packing the judiciary with people considered to be sympathetic to it? The answer lies in the “appropriate mechanisms” that the ANC establishes in pursuit of that very important goal.

In my view, it is relatively easier to gauge the progressiveness of candidates coming up for appointment to the constitutional court, the Supreme Court of Appeal and the High Court where those candidates have previously acted as judges or held judicial office in the lower courts. From their written judgments one can determine whether or not, and the extent to which, they are “steeped in and reflect the progressive values of our constitution”.

The difficulty arises where the candidates are academics, attorneys or advocates who have never before acted as judges or magistrates. I believe that such people should never be considered for permanent judicial office. A clever academic does not a wise judge make. Instead you tend to get long judgments with elusive rationes.

When considering the appointment of a candidate the President will do well to bear in mind that appointing a judge is like giving birth; once done, it cannot be undone. Firing a judge is not a matter of labour relations (no pun intended). It is considerably more serious than that and so, fittingly, considerably difficult to do.

So if the President should make a mistake in appointing a judge who does not reflect the “progressive values of our constitution” but simply says he does, we shall be stuck with that judge until he or she reaches retirement age. That is eminently undesirable.

In conclusion then, the essence of judicial transformation lies not in packing the courts with black judges. It lies rather in packing the courts with judges who are genuinely beholden to the constitution and the fundamental values thereof. It is not difficult to ascertain whether candidates are so beholden or not. It is time we, the citizens, helped the JSC and the President make appropriate appointments.

By |2019-02-08T12:02:32+02:00February 7th, 2019|News|1 Comment

Scheme Data Services (Pty) Ltd v Myhill NO and Others (JR1456/06) [2008] ZALC 149; [2009] 4 BLLR 381 (LC) ; (2009) 30 ILJ 399 (LC) (5 December 2008)

T he case deals with the proper meaning of s 191(12) of the Labour Relations Act (before amendment) in the context of the jurisdiction of the Labour Court and/or the CCMA where one employee is retrenched. The case parts ways with an earlier judgment of the Labour Court which held that the CCMA has no jurisdiction to consider a case where a single employee is retrenched procedurally unfairly.

The approach in Scheme Data Services was subsequently endorsed by the Labour Appeal Court.

Read Full Judgement here

By |2019-02-08T12:13:11+02:00February 5th, 2019|Judgements, Labour, Ngalwana judgements|Comments Off on Scheme Data Services (Pty) Ltd v Myhill NO and Others (JR1456/06) [2008] ZALC 149; [2009] 4 BLLR 381 (LC) ; (2009) 30 ILJ 399 (LC) (5 December 2008)

Roselli v Derek’s Boerewors and Pie Mecca CC and Others (84979/2014) [2016] ZAGPPHC 1160 (7 December 2016)

T his case considers what a court’s options are when confronted with disputes of fact in motion proceedings.
It also highlights the mischief of launching motion proceedings in the hope that the matter will be referred to trial thereby stealing a march on other deserving cases instituted by way of action proceedings at the outset.
Read Full Judgement here

By |2019-02-08T12:13:23+02:00February 5th, 2019|High Court, Judgements, Ngalwana judgements|Comments Off on Roselli v Derek’s Boerewors and Pie Mecca CC and Others (84979/2014) [2016] ZAGPPHC 1160 (7 December 2016)
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