Occupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Limited and Others (CCT 25/11) [2011] ZACC 35 (7 December 2011)

Summary

In this case, if evicted, approximately 170 families would be made homeless. The South African Constitutional Court unanimously held that, before making eviction orders, the High Court should have considered whether the local authority – the City of Tshwane Metropolitan Municipality – was able to provide alternative land or accommodation to the occupiers.

The Constitutional Court found that the High Court’s failure to require the City to present information about alternative land was a failure to properly assess whether the eviction was ‘just and equitable’. The eviction order was therefore not in accordance with South African legislation that protects against arbitrary evictions. The Constitutional Court remitted the matter to the High Court and ordered the City to provide information about the circumstances of the occupiers and steps it could take to provide alternative land or accommodation if the eviction were to proceed.

Facts

The applicants were approximately 170 families who had occupied land within the City since December 2009. The land is owned by Golden Thread Limited (Golden Thread). Eviction proceedings commenced on 21 January 2010, and on 2 March 2010 the North Gauteng High Court, Pretoria, ordered the occupiers’ removal from the land. The occupiers subsequently sought leave to appeal to the Constitutional Court.

Under section 4 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (PIE Act), if an unlawful occupier has occupied land for less than six months when proceedings commence, a court can grant an order for eviction – if it is ‘just and equitable to do so’ after considering “all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women”. If the land has been occupied for more than six months, the PIE Act requires the court to also investigate whether the municipality in question can reasonably make other land available for the relocation of the unlawful occupier.

The PIE Act was enacted to give effect to the South African Constitution, which protects the right to adequate housing. Section 26 of the Constitution provides that:

• Everyone has the right to have access to adequate housing.
• The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.
• No one may be evicted from their home, or have their home demolished, without an order from the court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

Although joined as a party, the City did not take part in the High Court proceedings and did not present any information about the steps that could be taken to avoid the families being made homeless by the eviction.

Decision

The Constitutional Court granted leave to appeal because the matter raised constitutional issues and, as homelessness was at stake for a large number of families, it was in the interests of justice to do so. The Constitutional Court considered whether the High Court was correct to decide that to evict the families would be just and equitable.

The Constitutional Court found that since “[c]lose to 200 families would have been evicted and in all probability rendered homeless” the High Court should have directed the City to provide details of the applicants’ housing situation and whether the City could provide emergency housing. Although not expressly required by the PIE Act (because the applicants had occupied the land for less than six months), the Constitutional Court held that this information forms part of ‘the relevant circumstances’ that the court is required to consider when determining whether an eviction is just and equitable.

The Constitutional Court affirmed the decision in Blue Moonlight (discussed above) which held that the City has the power and the responsibility to make reasonable provision for emergency housing from its own resources.

The Constitutional Court handed down its judgement upholding the appeal on 7 December 2011 and remitted the matter to the High Court for reconsideration. The Constitutional Court ordered the City to provide further information by 28 February 2012, including information about:

• the circumstances of the applicants, including the number of families that would be made homeless if the eviction proceeds, and the consequences of eviction for the applicants if no alternative land or emergency accommodation is made available;
• steps that the City could take to provide alternative land or emergency accommodation if the applicants were evicted and the timeframes in which it could do this; and
• steps that could be taken to minimise the impact on Golden Thread if the eviction of the applicants were delayed to give the City time to make available alternative land or accommodation.

Relevance to the Victorian Charter

Section 13(a) of the Charter protects individuals against unlawful or arbitrary interferences with their privacy, family or home. Section 17 of the Charter protects the rights of children and families.

Although the Charter does not expressly protect the right to adequate housing, these sections can be relied on to help prevent the unlawful eviction of people from social housing into homelessness. In negotiating alternatives to eviction, advocates can point to these sections and to section 38, which obliges public authorities (such as local councils, government departments and social landlords) to act compatibly with, and give proper consideration to, human rights in decision-making processes.

Public authorities must balance their priorities and competing objectives – including fiscal concerns, the acute shortage of public housing and the need to manage properties – with the vulnerabilities of the individual or family and the severity of the consequences of eviction for them. Under section 7(2) of the Charter, a limitation on rights is permissible if it is reasonable and justifiable.

This case highlights how crucial this balancing exercise is for fair, accountable decision-making. The Constitutional Court did not compel the City to provide land or housing to the applicants; it simply found that the opaque manner in which the City approached the eviction proceedings was inconsistent with South Africa’s protection against arbitrary evictions. This case reminds us that the protection of economic and social rights is not an absolute protection: there is not a blanket obligation to provide housing, but the city was required to properly consider viable alternatives to rendering 170 families homeless.

Legislation that expressly requires the City to contemplate alternatives to eviction and confers on courts the power to refuse to make an eviction order unless such alternatives have been considered provides strong and necessary protection against arbitrary evictions. In this way, the case provides an example of how Victoria’s Charter could be strengthened to encourage better decision-making by public bodies and fairer outcomes for vulnerable citizens.

The decision is available at: http://www.saflii.org/za/cases/ZACC/2011/35.html

Lauren Hodes is a lawyer seconded to the PILCH Homeless Persons’ Legal Clinic from Victoria Legal Aid and Lucy Adams is a Senior Lawyer at the PILCH Homeless Persons’ Legal Clinic

City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) Case No: CCT 37/11 [2011] ZACC 33 (1 December 2011)

Summary

The South African Constitutional Court has held that the City of Johannesburg had a constitutional obligation to provide emergency accommodation to vulnerable persons evicted by a private landlord.

Facts

This case concerned the attempt to evict 86 people from a property called Saratoga Avenue in the City of Johannesberg. The premises are an old and rundown commercial building with office space, a factory building and garages.

The facts revealed that the Occupiers lived on an extremely low income and what little money they had was earned by working in the ‘informal sector’ of the central business district. The group included children and people with disability. All of the Occupiers had lived in the premises for more than 6 months and some of the group had resided there for many years. Some of the group had lived at the property during the 1990s and for a period paid rent with consent of a company, which controlled the premises.

In 2004, Blue Moonlight Properties purchased the property with an intention to redevelop.

In 2005, Blue Moonlight issued a notice to vacate the premises based on the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

In May 2006, Blue Moonlight issued eviction proceedings in the South African High Court. The Occupiers opposed the eviction on the basis that it would leave them homeless and they applied to join the City to proceedings.

In February 2010 the High Court ordered the eviction of the Occupiers. In addition, the Court found that the City’s housing policy was unconstitutional and ordered this to be rectified by providing the Occupiers with temporary accommodation.

The City appealed to the Supreme Court and successfully applied to admit new evidence on the basis of an updated housing policy. In this proceeding, the Court upheld the eviction order and found again that the City’s housing policy was unconstitutional. Again, the City was required to provide the Occupiers with temporary emergency accommodation. The City appealed against this finding to the Constitutional Court of South Africa.

Issues

The Constitutional Court considered the entitlement of Blue Moonlight to evict the Occupiers.

Section 4 of PIE establishes that unlawful occupiers of land may only be evicted if it is just and equitable to do so, after consideration of all relevant circumstances. The Constitutional Court noted that relevant considerations included:

• the rights of the owner in light of the constitution and PIE obligations;
• the obligation of the City to provide accommodation;
• the sufficiency of City resources;
• the constitutionality of the City emergency housing policy; and
• the appropriateness of an order in light of previous conclusions on the issues.

The Court noted that the Occupiers had occupied the premises for more than 6 months, the occupation had once been lawful, the landlord had been aware of the Occupiers when they purchased the property and eviction would result in homelessness. It was held that Blue Moonlight would have been aware that the occupation may continue for some time and need to be ‘somewhat patient’ [at 40]. In light of such consideration, the Court considered the housing options of the Occupiers in the event of eviction.

The City’s obligation and ability to provide emergency housing for the Occupiers was held to be relevant to the ability of Blue Moonlight to evict. In considering this issue, the Court reviewed the constitutional and legal framework governing the City’s obligations.

The right to have access to adequate housing is set out in section 26 of the South African Constitution that states:

• Everyone has the right to have access to adequate housing.
• The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.
• No one maybe evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

The Court also considered the obligations created by Chapter 12 of the National Housing Code which addresses emergency housing for people in emergency for reasons beyond their control (including evictions from unsafe buildings).

In responding to this legislative framework, the City relied on its Housing Report for implementation of its obligations under Chapter 12 of the Housing Code. It is worth noting that while the Housing Report provides for the provision of temporary emergency housing for people being relocated from dangerous buildings, this document does not provide an obligation on the City in respect of people relocated from premises by private property owners.

The City relied on the Grootboom decision and its Housing Report to argue that local government is a point of service delivery and was entirely dependent on national and provincial government for funding.

Held

The Constitutional Court rejected the argument that local government was unable to fund emergency housing and held that the City had failed to demonstrate that it lacked the resources to provide emergency housing for the Occupiers. Further, the Court found there was no justification for the distinction between people being relocated from premises owned by public authorities and those owned by private property owners. Such a distinction was held to offend section 9(1) of the Constitution which provides everyone is equal before the law.

As a result of these findings, Blue Moonlight was held to be entitled to possession and the City’s housing policy was declared unconstitutional. Further, the City was obliged to provide the Occupiers with temporary accommodation.

Relevance to the Victorian Charter

The considerable legislative housing protections available in South Africa must be considered in light of the massive scale of homelessness that these provisions were designed to address. The Constitutional Court in Blue Moonlight noted that in 2001 South Africa had 1.8 million households (each consisting of approximately 3 people) without adequate housing and that the City of Johannesburg has an estimated 423,249 households in this situation.

Leaving aside issues of jurisdiction, the ability to raise Charter arguments in defense of a tenant’s home depends to a significant extent on their landlord. For people at risk of eviction from social housing it is possible to rely on section 38 of the Charter, while those in private premises are excluded from access. In such circumstances it is worth repeating the comments of the Constitutional Court that for those faced with eviction, “it matters little to the evicted who the evictor is” [at 92].

On a general level, this decision demonstrates the centrality of rights in addressing homelessness and weighing government responses to this issue. In Blue Moonlight, the Constitutional Court grappled with the issues of legislative and constitutional interpretation in order to balance resource considerations, reasonableness and hardship of vulnerable people. Such considerations gave rise to the identification of the unjustifiable discrimination in government policy and also to muddled arguments relating to the availability of resources. In order to address and prevent homelessness, such high level judicial engagement is extremely valuable.

The decision can be found online at: http://www.saflii.org/za/cases/ZACC/2011/33.html

Chris Povey is the Manager / Principal Lawyer of the PILCH Homeless Persons’ Legal Clinic

Qhinga and Others v S (CCT 50/10) [2011] ZACC 18 (25 May 2011)

Summary

The Constitutional Court in South Africa recently considered an application for leave to appeal against a dismissal by the Supreme Court of Appeal of a petition filed by the applicants on the basis that relevant portions of the record of the proceeding in the High Court were not properly considered in the applicants’ petition. It was held that the applicants did not have the benefit of a right of appeal or review by a higher court as envisioned in s 35(3)(o) of the Constitution and thus the order made by the Supreme Court of Appeal was dismissed, the petition was set aside and the matter remitted to the Supreme Court of Appeal for reconsideration.

Facts

Seven applicants were convicted in the Eastern Cape High Court (trial court) on two counts of attempted murder and for four counts of robbery with aggravating circumstances. Each was sentenced to long terms of imprisonment. The applicants were implicated in the commission of the crimes solely by statements or pointing-outs they had made to the police or to a magistrate.

The trial court held that “the State relies on statements and some pointings-out the accused made in which they implicated themselves. Trials-within-a-trial in respect of the seven accused were held. Rulings were that the statements and the pointings-out were admissible in evidence. The rulings form part of the record. The Court rules finally that the statements and the pointings-out in respect of the accused are admissible in evidence.“

In April 2009, the applicants applied to the trial court for leave to appeal to a full court of the High Court against their convictions and sentences on the basis that their incriminating statements and pointings-out were incorrectly admitted as evidence. The applicants argued that they had not made their statements and pointings-out freely, voluntarily and without undue influence. At the time of making them, they had not been told of their right to legal representation and they had been threatened, tortured and assaulted by police. The trial court rejected their application for leave to appeal on the ground that the applicants had no reasonable prospects of success.

In May 2009, the applicants petitioned the President of the Supreme Court of Appeal for leave to appeal against the judgement of the trial court again on the grounds that their statements and pointings-out were wrongly admitted as evidence. The Constitutional Court has held that where no constitutional issues are raised the Supreme Court of Appeal can refuse leave to appeal without hearing oral argument or providing reasons. In July 2009 the applicants’ petition was summarily dismissed.

Decision

In May 2010, the applicants applied to the Constitutional Court for leave to appeal against the order of the Supreme Court of Appeal on the grounds that their right to a fair trial, including “appeal to, or review by, a higher court”, under s 35(3)(o) of the Constitution was infringed. The applicants argued that the petition procedure of the Supreme Court of Appeal was unfair and that their submissions were not properly considered. The applicants suggested that this was because the Supreme Court of Appeal did not have regard to relevant portions of the trial court’s record regarding the admission of the applicants’ statements and pointings-out, which required consideration in order for the Supreme Court of Appeal to conduct a fair reappraisal.

The Constitutional Court noted that the trial court did not discuss or describe or publish its reasons for its rulings in the trials-within-the-trial in which it admitted statements and pointings-out, it merely referred to the reasons set out in an earlier record. The Supreme Court of Appeal did not provide any reasons for its order and therefore the Constitutional Court could not comment on whether the relevant records of the trial court were considered by the Supreme Court of Appeal before it dismissed the applicants’ petition.

The Constitutional Court concluded that “the applicants did not have the benefit of an adequate reappraisal of their case or an informed decision on it… [and] were not afforded a fair procedure in terms of their right ‘of appeal to, or review by, a higher court’, as contemplated by section 35(3)(o) of the Constitution.” The order of the Supreme Court of Appeal was therefore set aside and the applicants’ petition remitted to the Supreme Court of Appeal for reconsideration.

Relevance to the Victorian Charter

Section 24 of the Charter  states that “A person charged with a criminal offence or party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing”. This is distinct from s 35(3)(o) of the South African Constitution, as it does not specifically mention of the right to appeal or review by a higher court. The case of Qhinga highlights the importance of the right to appeal or review a decision from a judicial court or tribunal in order to ensure the judiciary is held accountable and the integrity of the legal system is maintained.  For these reasons, s 24 of the Charter arguably does not go far enough and should be amended to include a right to appeal to higher courts for review of decisions.

The decision is at http://www.saflii.org/za/cases/ZACC/2011/18.html.

Bridie Murray is a graduate and Daniel Creasey is a Senior Associate with DLA Piper.

Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13 (11 April 2011)

Summary

In this significant decision, the Constitutional Court of South Africa considered the nature and scope of the rights to education and children’s rights when considering the rights of a private property owner to evict a school which was operating on its premises.

Facts

The Juma Musjid Trust (Trust) owned the land on which the state-run public Juma Musjid Primary School was operating.  The Trust made an application to the KwaZulu-Natal High Court (High Court) to evict the school as the Member of the Executive Council for Education for KwaZulu-Natal (MEC), which was responsible for operating the school, had not paid the Trust for rent or out-of-pocket expenses to run the school dating back to 1998.

The High Court, hearing the matter at first instance, made an order which effectively authorised the eviction of the public school from the private property. In granting the eviction order, the High Court held that:

• the Trust was not performing a public function that required it to observe fair process towards the school;
• the Trust owed no constitutional obligations to the MEC or to the learners at the school; and
• the Trust’s rights under s 25 of the South African Constitution (rights to property) must be respected.

The High Court further held that the obligation to respect the learners’ right to a basic education lay with the MEC, and not with the Trust.

The School Governing Body (SGB) of the Juma Musjid Primary School and the parents and guardians of the learners enrolled at the school (Applicants) appealed the High Court’s order to the Constitutional Court. Specifically, the Applicants challenged the conduct of:

• the Trust in enforcing its rights under s 25 of the Constitution (property rights) as a private owner of land;
• the High Court in its failure to exercise its constitutional obligation to develop the common law to protect the learners; and
• the High Court’s failure to craft an appropriate order.

Finally, the Applicants contended that in making its decision, the High Court failed to take into account the paramountcy of the best interests of the children.

Decision

First hearing

The Constitutional Court first heard the matter in August 2010, following which it provisionally set aside the eviction order made by the High Court. It held the High Court’s order had an impact on the learners’ rights under ss 28(2) (best interests of the child) and 29(1) (rights to basic education) of the Constitution. The Court ruled:

• the Trustees had a constitutional duty to respect the learners’ right to a basic education under s 29 of the Constitution;
• having regard to all the circumstances of the case, including that obligation, the Trustees had acted reasonably in approaching the High Court for an eviction order but that that was not sufficient reason for the High Court to grant the eviction order; and
• in considering the eviction application, the High Court had failed to consider properly the best interests of the learners and their right to a basic education.

The Court held the MEC had a primary positive obligation to provide access to schools in respecting the learners’ right to a basic education, but the Trustees had a negative obligation in terms of s 8 of the Constitution (which provides the South African Bill of Rights applies to all persons in South Africa) not to infringe that right. Although the Trust may have rights to evict the school as a property owner, such protection was subject to the right to education and the paramountcy of the best interests of the child.

Because of the fast-approaching end of the 2010 school-year, the provisional order directed the MEC to enter into negotiations with the Trustees and the SGB in an effort to resolve the payment dispute to allow for the continued operation of the school. If these discussions failed, the Court ordered the MEC to take steps to secure alternative placements for the learners. The MEC was required to file a report setting out, among other things, the steps taken to ensure that the learners’ right to a basic education was respected. The Trustees were granted leave to apply directly to the Court for an eviction order if the dispute was not resolved.

Second hearing

The parties were heard for a second time in November 2010. The Court received the first report submitted by the MEC and it became clear to the Court the closure of the school had become inevitable as the MEC and the Trustees could not reach agreement on the payment dispute. As a result, the Court ordered the MEC submit a further report to demonstrate its compliance with the obligation to provide alternative schooling.

A second report was subsequently filed by the MEC which set out sufficient information about the schools where the learners would continue their schooling. The Court was satisfied that alternative arrangements for the placement of the children for the 2011 school-year had been made and that the learners’ right to a basic education would be protected.

The Court then considered the eviction application by the Trust and was satisfied a case for eviction had been established and the learners’ rights had been given effect to.

The final eviction order was granted on 11 December 2010.

Relevance to the Victorian Charter

This case turns on its unusual fact scenario and the vagaries of state education in South Africa. Unlike the South African Constitution, the Victorian Charter does not provide for a right to education. However, the Victorian Charter does protect the rights of children (s 17) and protect property rights (s 20) and this decision indicates how the best interests of the child may influence decision-making and justify the limitation of other protected rights in certain circumstances.

The decision is at http://www.saflii.org/za/cases/ZACC/2011/13.html.

Zara Durnan is on secondment to the Human Rights Law Centre from Lander & Rogers

S v S (CCT 63/10) [2011] ZACC 7 (29 March 2011)

Summary

This case considered the degree to which a court is required to take into consideration the best interests of the child when determining the appropriate sentence to impose upon a primary caregiver. In particular, it considered the circumstances when a person will be considered to be the primary caregiver of a child, and the impact the person’s imprisonment will have on the child.

Facts

The applicant in this case, Mrs S, is a married mother of two young children. She was convicted and sentenced in the Regional Court on charges of forgery, uttering and fraud and sentenced to five years’ imprisonment with conditional correctional supervision.

Her application for leave to appeal were unsuccessful. In this application, with the support of the Centre for Child Law as amicus curiae, Mrs S contended that the sentencing court and the Supreme Court of Appeal failed to adequately consider the best interests of the children during the sentencing process.

She claimed that the sentencing court and Supreme Court of Appeal failed to follow the correct approach to sentencing the mother of young children as set out by the Constitutional Court in S v M, where the Court described the duties of a court considering a sentence for a primary caregiver. This case found that it was important to consider the best interests of the child when sentencing a person who was the child’s primary caregiver. In these circumstances consideration needs to be given to the availability of appropriate care for the children during the caregiver’s imprisonment. If there is not adequate care available and there are multiple sentencing options available in relation to the crime, then the punishment which takes into account the child’s best interest should be imposed.

Mrs S’s children were four years old and one year old at the time of her sentencing. The four year old has a dysfunctional heart valve and needs constant medication. The one year old has chronic chest infections and requires constant attention. Mrs S argued that if the approach in S v M had been followed the sentencing court would not have imposed a custodial sentence.

The State, however, argued that this case was different to S v M because Mrs S’s husband was available to take care of the children while she was in prison. Mrs S argued that Mr S would not be able to take care of the children because of his working hours, and he could not afford the necessary medical care and child care for the children on his wage alone.

Decision

The court issued a split judgment with nine judges dismissing the appeal and one judge dissenting.

The majority dismissed the application holding that the sentencing court had properly balanced the constitutional interests at stake. The Court found that S v M had revolutionised the sentencing process by re-asserting the central role of the interests of young children of someone being sentenced as an independent consideration and confirmed that the correct test to be adopted by sentencing courts where a custodial sentence of a primary caregiver is as specified in S v M.

However, the Court found that the applicant’s situation was markedly different from the mother in S v M as her husband was available to care for the children. The mother in S v M, on the other hand, had almost full responsibility for the care of her children.

In order to ensure that appropriate care was available, the Court directed the National Commissioner for Correctional Services to appoint a social worker to visit Mrs S’s children at least once a month during Mrs S’s incarceration.

Justice Khampepe, in a minority judgment, held that the sentencing court and Supreme Court of Appeal failed to fully investigate the quality of alternative care the children would receive if Mrs S was to be incarcerated.  Khampepe J concluded that:

• the children would be adversely affected by Mrs S’s incarceration;
• there were a range of possible options;
• Mr S would not be a suitable alternative caregiver; and
• the matter was indistinguishable from S v M,
• and, therefore, Mrs S should be placed under correctional supervision.

Relevance to the Victorian Charter

Section 17 of the Charter provides that families are entitled to be protected by society and the State, and that every child has the right to such protection as is in his or her best interests and needed by reason of being a child.

Accordingly, this case signifies that there are circumstances where the best interests of a child should be considered when a court is imposing a sentence on the child’s primary caregiver. The court should take into account the impact of the sentence on the child and, if appropriate, impose a sentence that enables the child to continue to receive appropriate care. However, this decision indicates that this will not be extended so far as to prevent a custodial sentence being imposed on the primary caregiver where this is considered appropriate for the crime committed and there are adequate alternative care arrangements available for the child.

The decision is at http://www.saflii.org/za/cases/ZACC/2011/7.html.

Mandy Lister is a volunteer lawyer with the Human Rights Law Centre

Hugh Glenister v President of the Republic of South Africa & Ors (CCT 48/10) [2011] ZACC 6 (17 March 2011)

Summary

The Constitutional Court of South Africa declared legislation which disbanded and replaced an anti-corruption body constitutionally invalid. Through a joint judgment by Moseneke DCJ and Cameron J, the majority of the Court gave Parliament 18 months to amend the legislation.

The applicant, South African businessman Hugh Glenister, successfully argued that the South African Constitution imposes an obligation on the state to establish and maintain an independent anti-corruption body, and that a recently-formed body lacks sufficient independence.

Facts

In 2009, the President signed into law the National Prosecuting Authority Amendment Act 2008 and the South African Police Service Amendment Act 2008 (“the Acts”). The Acts disbanded the Directorate of Special Operations (“DSO”), an anti-corruption body located within the prosecuting authority, and replaced it with the Directorate of Priority Crime Investigation (“DPCI”), located within the police service.

The former DSO was markedly different to the DPCI in terms of its employment conditions and political oversight. The DPCI’s members are subject to the same conditions of tenure as ordinary members of the police force, and no longer enjoy statutorily secured remuneration levels.  A Ministerial Committee, comprising the Ministers for Finance, Home Affairs, Intelligence, Justice and Police, as well as any other Minister designated by the President, was established to determine policy guidelines for the DPCI and to direct the selection of “national priority offences”.  To offset these changes, one of the Acts contains an interpretive provision emphasising the need for DPCI to have necessary independence.

The applicant unsuccessfully challenged the Acts in the High Court. On appeal to the Constitutional Court, the applicant maintained that corruption undermines the enjoyment of human rights and that therefore the state is obliged to maintain an independent anti-corruption body.

Decision

A majority of the Court granted the application for leave to appeal, suspending the declaration of constitutional invalidity for 18 months in order to give Parliament the opportunity to remedy the Acts’ defects. The majority’s reasoning proceeded in three steps.

First, it impressed the need to combat corruption, a force which “threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order”. Corruption was said to undermine human dignity and the advancement of human rights, disproportionately hurting the poor.

Second, the majority found that the state is constitutionally obliged to establish and maintain an independent anti-corruption body. Although the Constitution does not expressly command it, “its scheme taken as a whole” was said to require such a body. Section 7(2) of the Constitution obliges the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, implicitly requiring that it do so reasonably and effectively. As corruption undermines those rights, this obligation extends to anti-corruption measures. In determining what are “reasonable” and “effective” measures, the majority turned to s 39(1)(b), which directs that when interpreting the Bill of Rights (including s 7(2)) a court “must consider international law”. The Court also turned to s 231(2), which provides that an international agreement approved by Parliament “binds the Republic”. Relevant international law included an “inter-locking grid of conventions, agreements and protocols” which variously require independent anti-corruption bodies, and as a result “reasonable” and “effective” measures under s 7(2) required the same.

Third, the DPCI was found not to be sufficiently independent. The majority accepted that relevant international law requires independence within a state’s own legal conceptions, and that South Africa’s constitutional structure necessitates political accountability. However, the DPCI’s lack of specially secured employment conditions and its oversight by political executives were said to be inimical to the independence required. Further, the interpretive provision emphasising the need for necessary independence was judged ineffectual.

To summarise, the state is obliged to protect human rights and thus to combat corruption.  Understood in the context of international law, this obligation includes establishing anti-corruption bodies with greater independence than the DPCI.

Relevance to the Victorian Charter

The Court’s restatement in Glenister of the relationship between corruption and human rights is a reminder of the potential reach of rights charters. Section 38(1) of the Victorian Charter requires that the conduct of public authorities be compatible with human rights, and advocates would do well to keep in mind the potential of this requirement to oblige anti-corruption measures.

The decision is at http://www.saflii.org/za/cases/ZACC/2011/6.html.

Daniel Allman, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group

Mvumvu v Minister for Transport [2011] ZACC 1 (17 January 2011)

Summary

The South African Constitutional Court struck down road accident compensation legislation because it is indirectly discriminatory on the ground of race. However, due to evidence of serious budgetary implications, the Court suspended the order of invalidity for 18 months to enable Parliament to cure the defect.

Facts

The case was brought by three victims of motor vehicle accidents. Two had been travelling in minibus taxis, while the other was being driven in her employer’s car. Each suffered significant injuries and loss of earning potential.

The claimants sought compensation under the Road Accident Fund Act (the Act). The Act distinguished between “innocent” victims and those travelling in the “offending vehicle”. The former could receive full compensation, whereas the latter’s compensation was capped at R 25,000 (about 3,500 AUD). This cap applied to anyone travelling in an offending vehicle, even if the victim was (like the claimants) using public transport or being conveyed for work purposes. Consequently, once medical costs had been deducted, the claimants received no or little compensation.

Subsequent to the claimants’ accidents, Parliament removed the distinction from the Act. However, the new provisions only applied prospectively, meaning the claimants were still subject to the compensation cap.

The claimants argued that the distinction breached their right to be free from discrimination, guaranteed by s 9(3) of the Bill of Rights. They sought a declaration of constitutional invalidity and full compensation as if the cap had never been enacted. The State argued that as Parliament had already amended the Act for future claims, the Court should defer to Parliament’s solution by suspending the retrospective effect of any order of invalidity.

Decision

The Court held that the provisions indirectly discriminated on the ground of race:

It will be observed that the applicants do not assert that the impugned provisions discriminate against black people in a manner that is direct. Indeed they could not make the assertion because the provisions do not expressly place a cap on claims by black people. Instead it applies to claims of the categories of victims mentioned … above. What is established by the applicants’ evidence though is the fact that at a practical level, the majority of the victims affected by the cap are black people. This in turn shows that indirectly the provisions discriminate against black people in a manner that is disproportionate to other races.

The Court went on to find that this discrimination was not justified. The only reason that the State advanced for the distinction was to ensure that compensation levels reflected claimants’ responsibility for the accident – passengers in offending vehicles could be said to have made a poor choice of driver or vehicle, and therefore their compensation was capped. The Court rejected this argument, finding that it was unrealistic to say that users of public transport could choose their driver, or had knowledge of the roadworthiness of their vehicle. Ultimately it found:

While it may be legitimate for the State to limit compensation accruing to victims of motor vehicle accidents, it has failed to show why the applicants ought to be singled out for this purpose.

As to remedy, the Court made an order of invalidity, which would normally have immediate retrospective effect, dating back to when the Constitution came into force (or the relevant legislation, if enacted after the Constitution). However, the Court decided to suspend the retrospective effect of the order for 18 months to enable Parliament to cure the rights breach. It did so based on evidence led by the State that an order of immediate retrospective effect would have a crippling financial impact on the Road Accident Fund. In light of this evidence the Court deferred to Parliament, which it said was best placed to determine the level of compensation to which the applicants should be entitled, balanced against the need to ensure the financial viability of the Fund.

Relevance to the Victorian Charter

This decision provides a good (and relatively rare) example of a final court holding that legislation is indirectly discriminatory on the ground of race. The relatively nontechnical methodology adopted, (including the absence of a reference to a comparator group) is of interest, and may be particularly relevant in Victoria when the new definitions of discrimination come into force via the Equal Opportunity Act 2010. Further, the reasoning adopted – that the cap affected poor people and that because poverty is racially distributed, the cap adversely affected black people – could be of assistance to advocates and should be of guidance to policy makers.

Also of interest is the Court’s approach to justification. The Court does not methodically apply the Oakes test, as is mandated by s 7(2) of the Charter. However, translated into the language of s 7(2), the Court essentially says that there was no rational connection between the provision and the State’s stated purpose of ensuring that responsibility for accidents was reflected in compensation levels, as, in reality, public transport passengers cannot select the competence of the driver or the roadworthiness of their vehicle.

Finally, although the Charter does not provide for the striking down of legislation, the decision as to remedy has some relevance. This is because the Court confirmed that the general position is that an order of invalidity is of immediate, unlimited retrospective effect. This could be relevant in cases where the Court uses the Charter to arrive at a new interpretation of a provision, as this interpretation should apply to all factual situations arising after the Charter came into force or (if later in time) the passage of the legislation in question. The decision also confirms the Court’s reluctance to engage in normally legislative functions, especially involving the allocation of scarce public resources – preferring, by postponing the effect of the order, to defer to Parliament to craft an appropriate remedy. It should also be noted that while the Court did consider and was persuaded by evidence regarding financial considerations in regard to the remedy, it did not consider budgetary concerns as a possible justification for limiting the non-discrimination right.

The decision is at www.saflii.org/za/cases/ZACC/2011/1.html.

Hamish McLachlan is a lawyer in the Social Inclusion Unit at Victoria Legal Aid

Road Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010)

The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the right to access courts, which is protected by s 34 of the South African Bill of Rights.

Facts

Mr Mdeyide, a blind, illiterate and innumerate man, was struck by a car on 8 March 1999 whilst a pedestrian.  He was rendered unconscious and left without independent memory of the circumstances surrounding the accident.

On 17 September 1999 he received legal advice from a solicitor about the 3-year time limit in which he could bring a claim against the Road Accident Fund (RAF).  His solicitor agreed to act on his behalf in relation to the claim, however Mr Mdeyide failed to attend numerous appointments with his solicitor.  Mr Mdeyide finally attended his solicitor on 11 March 2002.  An affidavit was drafted but Mr Mdeyide failed to sign the affidavit.  His solicitor therefore lodged the claim with the unsigned affidavit on 11 March 2002, which was 3 years and 3 days after the accident.

The Eastern Cape High Court declared s 23(1) of the RAF Act, which fixes the 3-year time limit, to be unconstitutional because it imposes a complete bar on claims outside 3 years, without any avenue for consideration of a claimant’s awareness of his or her rights or exceptional circumstances.

Mr Mdeyide argued that the time for bringing a claim only commenced once he gained knowledge of his rights after consulting a solicitor.  He also claimed that consideration of exceptional circumstances ought to be required.  The focus of Mr Mdeyide’s attack was therefore on the lack of flexibility rather than the 3-year period itself.

Decision

Majority

The majority (8:3) acknowledged that the 3-year time limit for bringing claims under the RAF Act did burden the right to access courts, which is enshrined in s 34 of the South African Bill of Rights.  This is in fact a possibility in any case where a time limit exists.  It was however, considered to be a reasonable and justifiable limitation pursuant to s 36 of the Bill of Rights.

In forming this decision, Van Der Westhuizen J, for the majority, noted that the right to access courts is essential in a constitutional democracy under the rule of law.  He then observed that there is ‘no hard-and-fast rule for determining whether a limitation is consistent with the Constitution’, rather a claimant must be afforded ‘an adequate and fair opportunity to seek judicial redress’.  Justice Van Der Westhuizen J stated:

Adequate time must be given to institute a claim and the practical possibility and genuine opportunity to do so is important.

The central issue was one of proportionality, requiring consideration of the following factors:

• the devastatingly final impact of the expiration of a time limit;
• inflexibility in relation to when time begins to run;
• absence of a requirement for the claimant to have knowledge;
• absence of consideration of exceptional circumstances ; and
• difficulties faced by claimants, particularly in light of levels of poverty and illiteracy in South Africa;

These factors were then weighed up against other factors, such as:

• the generosity of a time period of three years;
• the importance of the proper administration of public funds; and
• potential detrimental consequences of a more flexile time limit.

The RAF led evidence that serious adverse financial and operational effects would follow from a more flexible time limit.  The majority accepted that the practical consequences for the RAF would be ‘potentially costly at best and calamitous at worst’.  The majority observed that the right to human dignity held by the victims of road accidents, many of whom are among the more disadvantage and marginalized in society, requires that they be compensated through a properly administered and efficient public fund.  The limitation could therefore be seen to serve a legitimate purpose of significant public importance.  This purpose would potentially be undermined by a more flexible time limit.

Where the time limit is shorter, greater flexibility and scope for exceptions would be expected.  The majority were of the view that 3 years was very generous itself and involved considerable flexibility.

Dissenting Judgment

Justice Froneman, for the minority, placed a greater emphasis on the requirement of the court to consider less restrictive means when determining whether a limitation on a right is reasonable and justifiable.  Justice Froneman formed the view that the time limit prescribed by the RAF Act was unduly inflexible; ultimately to the greatest detriment to those most disadvantaged in South African society.  He found it difficult to justify on non-discriminatory grounds why Mr Mdeyide should have 6 months less time to lodge his claim after acquiring knowledge of his rights, than a person with greater means to access to education and knowledge.  The lack of a knowledge requirement, coupled with the absence of any exceptional circumstances provision, meant that the limitation imposed by s 23(1) of the RAF Act could not be considered justifiable.

Relevance to the Victorian Charter

Time limits are common beasts in Victorian statute and common law.  Some of these time limits are of greater length or flexibility than others.  Section 24(1) of the Victorian Charter provides the right to have proceedings decided by a competent, independent and impartial court or tribunal.  As was noted in this case, there is no hard-fast-rule, however the factors considered, and weight given to each by the majority and minority judgments in this case, provide some guidance as to whether a time limit could be seen to unreasonably or unjustifiably burden s 24(1) read in conjunction with the limitations provision at s 7(2).

The decision is at www.constitutionalcourt.org.za/site/RAF.htm.

Adrianne Walters is a solicitor with the Top End Women’s Legal Service in Darwin

Poverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5 (24 February 2010)

In Poverty Alleviation Network (‘Matatiele 3’) the Constitutional Court of South Africa effectively held that constitutional obligations owed by South African legislatures to facilitate public involvement are obligations of process rather than outcome.  Thus, so long as the public has been given a reasonable opportunity to give its views or opinions to the legislature in relation to its legislative or other processes, and the legislature has given them due consideration, there is no requirement that the legislature follows or gives effect to such views in performing its functions. 

Facts 

Matatiele 3 is the final part of a series of South African cases in relation to the transfer of the Matatiele Municipality from the KwaZulu-Natal Province to the Eastern Cape Province.  In brief, the establishment of the post-Apartheid Republic of South Africa involved the establishment of provinces (as principal sub-federal units) and municipalities (local government).  The boundaries of provinces were drawn up on a different basis to those of municipalities, leading to certain cross-boundary jurisdictional issues.  The Matatiele Municipality was not strictly a cross-boundary municipality but suffered similar issues as what the South African government termed a ‘cross-boundary jurisdictional enclave’. 

In 2005, the Twelfth Amendment Act was passed to amend the South African Constitution, altering provincial boundaries so as to rectify the issues that had arisen in relation to cross-boundary municipalities and the Matatiele Municipality.  Under the South African Constitution, such a constitutional amendment requires a special majority vote in each of the National Assembly (the lower house) and National Council of Provinces (‘NCOP’ – the upper house) and, where the amendment only concerns certain provinces, the Legislatures of those provinces must each approve the amendment.  The required votes in favour of the amendment were obtained including the approval of the KwaZulu-Natal and Eastern Cape Legislatures.

In Matatiele Municipality & Ors v President of the Republic of South Africa & Ors [2006] ZACC 2 and Matatiele & Ors v President of the Republic of South Africa & Ors (No 2) [2006] ZACC 12 the Matatiele Municipality and other organisations and groups contested the validity of the constitutional amendment (insofar as it applied to the Matatiele Municipality).  It was contended that the KwaZulu-Natal Legislature, prior to its approval of the Twelfth Amendment Bill, had not facilitated adequate public involvement in the legislative process in accordance with the South African Constitution.  It was common ground that the KwaZulu-Natal Legislature had not held any public hearings in relation to the Twelfth Amendment Act.  Therefore, the Constitutional Court held in 2006 that the Twelfth Amendment Act, insofar as it applied to the Matatiele Municipality, was invalid. 

In mid-May 2007, the federal government announced that it intended to bring a constitutional amendment in order to effect the alterations to provincial boundaries which had been struck down in 2006.  At the federal level, the Minister for Justice and the relevant parliamentary committees each separately invited written submissions in relation to the proposed amendment.  At the provincial level, a number of town-hall meetings and hearings at the KwaZulu-Natal Legislature were held in October 2007.  The Thirteenth Amendment Bill was subsequently passed in December 2007.  In 2008, Matatiele 3 (the present case) was brought, to contest the validity of the Thirteenth Amendment Act. 

Decision

Sections 59(1)(a), 72(1)(a) and 118(1)(a) of the South African Constitution require the National Assembly, the NCOP and each Provincial Legislature, respectively, to ‘facilitate public involvement in the legislative and other processes of the legislature and its committees’.

The applicants’ principal contention was that, whilst the Parliament and the KwaZulu-Natal Legislature had ostensibly facilitated public involvement in relation to the Thirteenth Amendment Bill, they did not properly consider the submissions made by residents of the Matatiele Municipality and their representatives ‘but merely went through the motions in inviting submissions and arranging public meetings so as to secure constitutional compliance of the outcome of the process’.

Nakbinde J, with whom the other Justices concurred, noted that in determining whether the facilitation of public involvement was adequate for the purposes of the South African Constitution:

[T]his court’s role is to embark on a reasonableness enquiry so as to determine whether ‘there has been the degree of public participation required by the Constitution.’  Striking a balance between the need to respect parliamentary autonomy on one hand, and the right of the public to participate in the legislative process on the other, is crucial.

Nakbinde J then quoted Doctors for Life International v Speaker of the National Assembly & Ors [2006] ZACC 11 where it was held that ‘in determining whether what Parliament has done is reasonable, this Court will pay respect to what Parliament has assessed as being … appropriate…’

Nkabinde J, held, as a matter of fact, that representations made in relation to the proposed constitutional amendments by residents of the Matatiele Municipality were duly considered by the relevant legislatures and did not comment further as to the lack of good faith that the applicants had alleged.  Having made this finding, she continued:

[T]he applicants’ argument suggests that compliance with the Constitution depends on the outcome of the participation, which must have an impact on the final decision.  Although due cognisance should be taken of the views of the populace, it does not mean that Parliament should necessarily be swayed by public opinion in its ultimate decision.  Differently put, public involvement and what it advocates do not necessarily have to determine the ultimate legislation itself. 

The fact that the process of engagement is not reflected in a change to the legislation, or in the accommodation of the representations submitted to Parliament, does not necessarily mean that reasonable public participation did not take place or that the views of the public were not considered.

For these reasons, Nkabinde J held that the Thirteenth Amendment Act had been passed in accordance with the Constitution. 

Relevance to the Victorian Charter

This decision provides useful guidance for the interpretation of s 18 of the Victorian Charter – the right to take part in public life. 

Section 18 of the Charter is itself modelled on art 25 of the ICCPR, which enshrines the right of persons to participate in public affairs, including in decision making processes that affect them.  In a General Comment on art 25, the Human Rights Committee has highlighted that special strategies and measures may need to be developed to facilitate the meaningful participation of people who are disadvantaged or have special needs (such as people who are homeless or people with disability): General Comment No 25, [9]-[21]. 

The present decision highlights the difficulty for courts in enforcing the right to public participation in terms of substantive legislative outcomes rather than in terms of due process and procedure.  It must be noted that the South African Constitution enshrines this concept as a positive obligation upon the legislature to facilitate public involvement in the legislative process rather than a general right of the individual to take part in public life. 

The decision is available at www.constitutionalcourt.org.za/site/PovertAlleviation.htm. 

John Leung is a lawyer with Allens Arthur Robinson

Joseph v City of Johanesburg [2009] ZACC 30 (9 October 2009)

The Constitutional Court of South Africa has held that government-owned electricity service providers have an obligation to accord procedural fairness to tenants receiving electricity before disconnecting supply.

Facts

The applicants were tenants in a block of apartments.  City Power, the relevant government-owned service provider, entered into a contract with the landlord to supply electricity to this block.  Over time, the tenants paid their electricity bills to the landlord, but he failed to pass on the payments to City Power.  Accordingly, on 8 July 2008, City Power disconnected the electricity supply to the block without giving the tenants any prior notice of its intention to do so.  The applicants challenged City Power’s actions on the basis that City Power had a duty to accord the tenants procedural fairness in the form of notice and an opportunity to make representations before disconnection.

Decision

Background

The Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) gives effect to the right to ‘lawful, reasonable and procedurally fair’ administrative action under s 33 of the South African Bill of Rights.  Section 3(1) of the PAJA provides that ‘[a]dministrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.’  The High Court found that s 3(1) was not engaged because terminating supply had not affected any right of the applicants.  In particular, it was the landlord and not the tenants that had entered into the supply agreement with City Power.

Skweyiya J, writing for the unanimous Constitutional Court, disagreed.  His Honour held that the termination of supply was an (i) administrative action that (ii) materially and adversely affected (iii) rights of the applicants.  Accordingly, City Power was obliged to accord the applicants procedural fairness.  Since no notice was given to the tenants, the decision to disconnect supply was held to be unlawful, and City Power was ordered to reconnect the supply of electricity.

This case note focuses on two issues: whether any rights of the applicants were affected by the decision to terminate supply for the purposes of s 3(1) PAJA, and the content of procedural fairness if s 3(1) is engaged.

Right to receive electricity

The key issue was whether disconnecting the electricity supply affected any rights of the applicants, as no legitimate expectation was claimed.  This turned on ‘whether the broad constitutional relationship that exists between a public service provider and the members of the local community gives rise to rights’ for the purpose of PAJA s 3.  Skweyiya J found that the applicants could be said to have a ‘right’ to receive electricity for the purpose of the PAJA.

His Honour noted that the ‘provision of basic municipal services is a cardinal function, if not the most important function, of every municipal government.’  Constitutional and statutory provisions impose a duty on local governments to provide services including electricity.  There is thus a ‘correlative public law right’ to receive those services.  Such ‘legal entitlements that have their basis in the constitutional and statutory obligations of government’ constitute ‘rights’ for the purpose of s 3 PAJA.  His Honour observed: ‘In depriving [the applicants] of a service which they were already receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right.’

Content of procedural fairness

Skweyiya J held that procedural fairness required adequate pre-termination notice, containing ‘all relevant information, including the date and time of the proposed disconnection, and the place at which the affected parties can challenge the basis of the proposed disconnection.  Moreover, it must afford the applicants sufficient time to make any necessary enquiries and investigations, to seek legal advice and to organise themselves collectively if they so wish.  At a minimum, it seems to me that 14 days’ pre-termination notice is fair’.  Procedural fairness did not require City Power to process representations in every case.  Rather, tenants must be able to challenge a proposed termination and tender payment of arrears.  Where a valid ground of challenge has been raised, City Power would be expected not to disconnect the supply of electricity.

Relevance to the Victorian Charter

This decision has potentially significant implications for the obligations of essential service providers in Victoria. 

Although the electricity sector in Victoria is privatised (in contrast to the State-owned supplier in Joseph), it is likely that Victorian electricity service providers would nevertheless be bound by the Victorian Charter as ‘functional public authorities’ under s 4(1)(c).  As such, they are likely to be legally required to act compatibly with human rights and give proper consideration to human rights in decision making processes (s 38(1)). 

Moreover, although the Victorian Charter does not directly enshrine social or economic rights (in contrast to the South African Bill of Rights), there are a number of civil and political rights with social and economic dimensions that may engage the supply of electricity, including the right to privacy, family and the home (s 13). 

The decision is available at http://www.constitutionalcourt.org.za/site/Joseph.htm.

Chris Tran, Summer Clerk, Mallesons Stephen Jaques Human Rights Law Group