Case  CCT124/20
[2021] ZACC 06

Judgement Date: 01 April 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Thursday, 1 April 2021 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Supreme Court of Appeal. That Court upheld an appeal against a decision of the High Court of South Africa, Gauteng Local Division, Johannesburg. The application concerned whether an order determining only the question of liability pursuant to a separation in terms of rule 33(4) of the Uniform Rules of Court and which is to the effect that the defendant must pay to the plaintiff 100% of the agreed or proven damages means that (a) the manner of compensation is res judicata (i.e. has been finally determined) and (b) compensation can only be in one lump sum sounding in money.

The respondent, Ms PN, is the mother of a minor child who is afflicted with cerebral palsy as a result of injuries sustained at birth at a state healthcare facility in Johannesburg. The respondent instituted a claim for damages in excess of R32 million against the applicant, the Member of the Executive Council for Health, Gauteng. When the matter came before the High Court, Moshidi J gave an order in accordance with a draft agreed to by the parties. The order separated the questions of liability and quantum, with quantum to be determined at a later stage. It also declared that the applicant is obliged to “pay to” the respondent “100% . . . of her agreed or proven damages”.

After that order had been granted, this Court handed down judgment in MEC for Health and Social Development, Gauteng v DZ obo WZ. In that matter this Court considered the need for the development of two common law rules, the “once and for all” rule and the rule that damages for medical negligence must be paid in money. Such development would allow compensation by provision of physical items or medical services in the public healthcare sector instead of money (the public healthcare defence), or allow for the making of an undertaking according to which medical services or supplies that cannot be provided in the public healthcare sector are paid for when they arise in the future (the undertaking to pay defence). Although in DZ a case was not made out for the development of these common law rules, this Court held that, should a case be made out for such development in the future, it may be successful. On the authority of that judgment, the applicant in the present matter amended his plea in the High Court and sought a development of the common law so that he could raise the public healthcare and undertaking to pay defences.

When the matter came before Van der Linde J in the High Court for the determination of quantum the respondent argued that, since Moshidi J’s order stated that the applicant is obliged to “pay to” the respondent “100% . . . of her agreed or proven damages”, the manner of compensation was res judicata. According to the respondent, the stipulated manner of compensation required payment in one lump sum sounding in money and it was thus not open to the Court to consider the development of the common law. Van der Linde J rejected the respondent’s argument, finding that the respondent was unduly fixated on the words “to pay”, and that the purpose of this part of the order was not to deal with how the respondent was to be compensated, but rather whether the applicant was at all liable for compensation. On appeal, the Supreme Court of Appeal overturned this. It reasoned that the word “pay” clearly meant payment in money, and in one lump sum. According to the Supreme Court of Appeal, both the applicant’s liability and manner of compensation had been finally adjudicated.

The applicant applied to this Court for leave to appeal against that judgment of the Supreme Court of Appeal. This Court issued directions calling upon the parties to file written submissions and elected to decide this matter without an oral hearing.

In a unanimous judgment penned by Madlanga J (Mogoeng CJ, Jafta J, Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring) the Constitutional Court held that in context, there was nothing magical about the use of the word “pay”. It held that Moshidi J’s order did not dispose of the method of compensation. To hold that it did would stretch the ordinary meaning of the words read in their proper context.

The Constitutional Court noted that the interpretation preferred by the respondent has the effect that the court determining quantum may not consider a development of the common law. This is contrary to the powers of courts to develop the common law under sections 39(2) and 173 of the Constitution and to grant any just and equitable remedy when deciding constitutional matters in terms of section 172(1)(b) of the Constitution.

Additionally, the Constitutional Court held that this interpretation may infringe the applicant’s right of access to courts and potentially undermine the right of everyone to have access to healthcare services. The Constitutional Court thus held that Moshidi J’s order must be interpreted not to deal with the manner of payment and should not be read to preclude a consideration of the development of common law.

On costs, the Constitutional Court applied the Biowatch principle and determined that there was no basis for awarding costs against the respondent even though she was the losing party. Each party was ordered to pay their own costs in the Constitutional Court and the Supreme Court of Appeal..

 

The Full judgment  here 

Case  CCT48/17
[2021] ZACC 05

Judgement Date: 01 April 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 1 April 2021 at 09h00 the Constitutional Court handed down judgment in an application brought by Freedom Under Law NPC (FUL) in which it sought compliance with a court order dated 17 March 2017 that was granted in an application brought by Black Sash Trust. In that application, Black Sash Trust and FUL sought an order directing the South African Social Security Agency (SASSA) and Cash Paymaster Services (Pty) Limited (CPS) to ensure payment of social grants to grant beneficiaries from 1 April 2017, for a period of 12 months, by extending the tender contract that was awarded by SASSA to CPS for the payment of social grants, which was declared invalid.

The order imposed conditions that CPS file an audited statement of “expenses incurred, the income received and the net profit earned” and to allow Rain Chartered Accountants (RAIN), the auditors appointed by SASSA, free access to its financial statements for the purpose of verifying such statements for submission to National Treasury for approval.

In the current application, FUL sought an order compelling proper compliance with the above conditions as it alleged that CPS did not allow RAIN free access to its financial statements and further that the verification report that was produced reveals that CPS had under declared its profits by an amount of approximately R800 million. The relief sought by FUL requires that CPS, KPMG Services (Pty) Limited and Mazars Inc furnish RAIN with the outstanding documentation as identified by RAIN for the purposes of independent verification and submission to National Treasury for approval, where after the approved verified report is to be filed with the Registrar of the Constitutional Court. This relief was unopposed by all the parties cited.

The Constitutional Court granted the above unopposed relief sought by FUL and deferred the portion of the relief that was opposed by CPS which concerned the determination and repayment of profits made by CPS from the unlawful contract.

 

The Full judgment  here 

Case  CCT315/18
[2021] ZACC 04

Hearing Date: 11 February 2020

Judgement Date: 19 February 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 19, February 2021, at 09h00, the Constitutional Court handed down judgment in respect of an application for leave to appeal against an order of the Supreme Court of Appeal. The application concerned the validity of an out-and-out disinheritance clause in a private will that excluded female lineal descendants from inheriting certain fideicommissary property.

On 28 November 1902 Mr Karel Johannes Cornelius De Jager and his wife Mrs Catherine Dorothea De Jager signed a will in terms of which they gave certain farms to their children. The inheritance was subject to the condition that the farms would pass from their children to male descendants only, until the third generation. This condition applied until 1994 when the interim Constitution came into effect, according to the Constitutional Court.

In 1957 the properties in question were inherited subject to that condition by male desecndants of the testators who were the third generation of descendants. These heirs included Mr Kalvyn De Jager and his two brothers, Cornelius and John. Mr John De Jager later died without a male child and his share in the farms was divided equally between Mr Kalvyn De Jager and Mr Cornelius De Jager. Upon the death of Mr Cornelius De Jager, his half share in the farms passed to his sons Albertus, Frederick and Arnoldus, who are the first to third respondents in these proceedings.

Mr Kalvyn De Jager who held the other half share of the farms died in 2015. He did not have male children. He had five daughters, Ms Trudene Forword, Ms Annelie Jordaan, Ms Elna Slabber, Ms Kalene Roux and Ms Surina Surfontein. In terms of clause 7 of testators will, the half share of Mr Kalvyn De Jager could not pass to his daughters and yet he had left it to them under his will.

The question that arose for decision by the courts was whether clause 7 was still enforceable in view of the Constitution. This was because it was accepted by all that the clause constituted unfair discrimination against female descendants.

Before the High Court, the applicants sought an order to declare the alleged discriminatory clause invalid and to vary the will to include female heirs to the properties. This was opposed by the first to third respondents being the sons of the deceased’s brother. The High Court dismissed the application on the basis that the clause was contained in a private will that did not have a public character; that as the clause was only intended to operate until the third generation in the De Jager family, it was not indefinite and lastly that because the clause was only discriminatory against certain descendants and not preventing all women from inheriting, section 8 of the Promotion of Equality Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) did not apply.

Aggrieved by the decision, the applicants appealed to the Supreme Court of Appeal, which appeal was dismissed, regrettably with no reasons.

Before this Court the applicants argued that the High Court erred in its determination and sought relief to amend the clause to meet the dictates of public policy by substituting the word “sons” in the clause with “children”.

The first judgment penned by Mhlantla J (Khampepe J, Madlanga J and Theron J concurring), held that leave to appeal be granted as the matter raises constitutional issues, namely, that public policy is determinable only through reference to the founding values of the Constitution and that the matter involves the development of the common law in line with the Constitution. Further, the novelty of the issue for determination, prospects of success and public interest weighed in favour of leave to appeal being granted.

The first judgment characterised the issues for determination as whether a discriminatory out-and-out disinheritance provision in a private will can be declared unenforceable based on public policy underpinned by our constitutional values rather than the direct application of section 9 of the Constitution or the Equality Act. The first judgment held that the impugned clause was inimical to the values in the Constitution and public policy. It was further held that based on the facts of this matter; it is necessary to extend the common law rule that clauses that are contrary to public policy unenforceable, to private disinheritance testamentary provisions.

The second judgment penned by Jafta J (Mogoeng CJ, Majiedt J, Mathopo AJ and Victor AJ concurring) agrees with the first judgment insofar as granting leave to appeal and declaring that the impugned clause is unenforceable. The reasoning in the second judgment is however different.

The second judgment held that there is no need to prefer the value of equality over those of freedom and dignity or to develop the common law as the law has long recognized that clauses that are contrary to public policy are unenforceable. In respect of the High Court judgment, the second judgment found that the High Court erred in distinguishing between public and private testaments as the distinction is artificial and cannot be sustained and further that the High Court’s overly narrow interpretation of section 8 of the Equality Act was wrong because the scheme and language of section 8 supports its applicability to the impugned clause. Lastly, as the impugned clause discriminates on one of the grounds listed in section 9(3) of the Constitution, the discrimination was presumed unfair and it was for the first to third respondents to show that the discrimination was fair, which they failed to do. The impugned clause was consequently declared invalid and unenforceable with the result that the deceased’s will is free from the offending condition and the properties in question would form part of his estate from which the applicants would inherit.

The third judgment penned by Victor AJ disagreed with the first judgment’s approach of developing the common law of freedom of testation to prohibit unfair discrimination. Rather, it agreed with the second judgment that the common law need not be developed and the matter should rather be resolved by applying the provisions of the Equality Act. It thus concurred with the second judgment and reached the same conclusion but from a multi-layered perspective.

The third judgment held that the proper approach was direct application as opposed to indirect application of the Bill of Rights. It reasoned that while the first judgment correctly pointed out the deficiencies of the common law freedom of testation, the option of developing the common law was not available due to the principle of constitutional subsidiarity. It held that the Equality Act is now the benchmark to evaluate the conduct of a private person which has an impact on another person’s right to equality or right to be free from unfair discrimination.

 

The Full judgment  here