Case CCT 359/22
[2024] ZACC 17
Hearing Date: 06 February 2024
Judgement Date: 21 August 2024
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 Tomorrow, the 21st of August 2024 the Constitutional Court will hand down its judgment in an application for leave to appeal that relates to a dispute that has been dragging on for over ten years between Mr Molefi Jonas Mamasedi and the South African National Defence Force. Mr Molefi Jonas Mamasedi applied to the Constitutional Court for leave to appeal against a judgment and order of the Gauteng Division of the High Court in terms of which the High Court refused to order his reinstatement in the Regular Force of the South African National Defence Force. After the SANDF regarded him as having been dismissed or discharged as contemplated in section 59(3) of the Defence Act, 2002 under the circumstances set out below.
Mr Mamasedi was a member of the Regular Force of the SANDF in 2011. Section 59(3) of the National Defence Act, 2002, which applied to all members of the Regular Force including Mr Mamasedi, provided that, if a member of the Regular Force absented himself from official duty without his or her commanding officer’s permission for a period exceeding 30 days he or she must be regarded as having been dismissed if he or she is an officer, or, discharged if he or she is of any other rank. Such a dismissal or discharge would be with effect from the date immediately following the member’s last day of attendance at his or her place of duty or the last day of his or her official leave.
On 29 November 2011 Mr Mamasedi did not turn up for duty. He did not have the permission of his commanding officer to absent himself from duty. He never returned to duty until 3 January 2012. That was a period of more than 30 calendar days. A Board of Inquiry was established in terms of the Defence Act to establish the circumstances surrounding Mr Mamasedi’s absence from work. This was the first Board of Inquiry. The applicant’s explanation for his absence from duty was that he was kidnapped and taken to initiation school and kept there against his will. However, his father’s version did not support or corroborate the applicant’s version that he had been taken to the initiation school against his will.
The first Board of Inquiry supported the discharge of Mr Mamasedi and said that the discharge should remain in place with effect from 29 November 2011. It recommended that Mr Mamasedi was to be paid all his pension contributions plus investment growth due to him.
The Chief of Defence Force and, the Chief of Army accepted the recommendations of the first Board of Inquiry. That meant that they maintained that Mr Mamasedi had to be regarded as discharged in terms of section 59(3). Mr Mamasedi challenged the findings and recommendations of the first Board in a review application in the Gauteng Division of the High Court. That review application was successful. Wenzel AJ found that the Board had failed to afford Mr Mamasedi procedural fairness and ordered his reinstatement. The SANDF appealed to the Supreme Court of Appeal which upheld the appeal against the order of reinstatement but dismissed the appeal in respect of the finding that the first Board of Inquiry had failed to afford Mr Mamasedi procedural fairness.
Subsequent to the Supreme Court of Appeal’s judgment, the SANDF set up a second Board of Inquiry in 2018. That Board made certain findings against Mr Mamasedi including that he had been absent from official duty without leave. The second Board of Inquiry made the same recommendations that the first Board had made. Effectively those were that the discharge from duty in terms of section 59(3) should continue and he should be paid all his pension contributions.
After the second Board of Inquiry, Mr Mamasedi approached the High Court again to challenge his being regarded as having been dismissed or discharged and to seek his reinstatement. In his application Mr Mamasedi pointed out that he only worked five days in a week, namely, Monday to Friday and did not work on Saturdays, Sundays and on public holidays. He said that, if those days on which he was not obliged to work were excluded from the 30 days contemplated by section 59(3) of the Defence Act, he had not absented himself from official duty for more than 30 days. If this contention was correct, then section 59(3) had not been triggered and, therefore, Mr Mamasedi should not have been regarded as discharged.
The High Court once again found that the second Board had treated Mr Mamasedi procedurally unfairly but the High Court, per Kollapen J, refused to order his reinstatement. Mr Mamasedi applied to the Supreme Court of Appeal for leave to appeal against the judgment and order of the High Court. The Supreme Court of Appeal refused leave. He applied to the President of the Supreme Court of Appeal for the reconsideration of the matter but that application, too, was refused.
After the adverse outcome in the Supreme Court of Appeal, Mr Mamasedi applied to the Constitutional Court for leave to appeal against effectively the decision of the High Court not to order his reinstatement.
In the Constitutional Court the issue between the parties was simply whether the 30 days referred to in section 59(3) refers to calendar days irrespective of whether Mr Mamasedi was obliged to work on all those days or whether the 30 days referred only to working days. SANDF maintained that the 30 days was a reference to 30 calendar days irrespective of whether the member was or was not obliged to be on official duty. Mr Mamasedi contends that the 30 days can only refer to 30 days on which a member was obliged to work. If the contention advanced by Mr Mamasedi is upheld, it will probably mean that he was never discharged in the first place and the Court may require that he be paid backpay for the period 3 January 2012 to date. If the SANDF’s contention is upheld, it will mean that Mr Mamasedi was correctly regarded as having been dismissed or discharged. In that case the Court may have to consider whether the decision of the SANDF not to reinstate Mr Mamasedi is reviewable.
The Full judgment here
Case CCT304/20
[2021] ZACC 46
Hearing Date: 11 May 2021
Judgement Date: 08 December 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 Wednesday, 8 December 2021 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Supreme Court of Appeal, hearing an appeal from the High Court of South Africa, KwaZulu Natal Division, Pietermaritzburg. The matter related to the validity of the appointments of two Municipal Managers, which was challenged on the basis of alleged non-compliance with section 54A of the Local Government Municipal Systems Act 32 of 2000 (Systems Act).
In 2017, the third and sixth respondents, Messrs Jili and Sibiya respectively, were appointed as Municipal Managers of the first and fourth respondents, Nkandla Local Municipality and Mthonjaneni Local Municipality. Both appointments were challenged by the applicant, the Member of the Executive Council for the Department of Cooperative Governance and Traditional Affairs, KwaZulu-Natal (MEC), on the basis that Mr Jili’s experience at management level was less than the stipulated minimum period of five years and that Mr Sibiya’s qualifications were irrelevant for the position and that he did not have the required experience at management level. The applicant accordingly argued that the appointments were made in contravention of section 54A(2) of the Systems Act and were null and void as envisaged in section 54A(3) of the Systems Act. On this basis, the MEC launched two separate review applications in the High Court seeking orders reviewing, setting aside and declaring null and void the appointments of Messrs Jili and Sibiya. The High Court dealt with both matters in one judgment, in which it upheld the applications and declared both appointments null and void. However, it ordered that the setting aside of the appointments should not operate retrospectively and should rather take effect from the date of its order. The High Court subsequently granted leave to appeal to the Supreme Court of Appeal. In the majority judgment, supported through a separate concurrence, that Court upheld the appeals, whilst the dissenting judgment would have dismissed them. The MEC appealed to the Constitutional Court seeking an order reversing the Supreme Court of Appeal’s judgment and declaring the appointments of Messrs Jili and Sibiya null and void.
The first judgment, penned by Tshiqi J (with Khampepe ADCJ, Jafta J, Madlanga J, Majiedt J, Mhlantla J and Pillay AJ concurring) (majority) held that the matter was moot and that it was not in the interests of justice for the matter to be determined. The Court accordingly refused leave to appeal.
The majority held that, since the matter concerned the exercise of public power by the MEC as well as the interpretation of section 54A of the Systems Act, a constitutional issue was raised and the jurisdiction of the Court was engaged.
The majority proceeded to determine whether the interests of justice required leave to appeal to be granted. It held that the central enquiry in this regard was whether there were reasonable prospects that the Constitutional Court would reverse or materially alter the decision of the Supreme Court of Appeal. Since one of the arguments before the Court was that the matter was moot, the majority held that it was first necessary to decide whether the matter was moot because if this question were to be answered in the affirmative, no purpose would be served by granting leave to appeal.
The majority held that the principles applicable to mootness are trite: courts should not decide matters that are abstract or academic and which do not have any practical effect, either on the parties before the court or the public at large. The majority held that this question is a positive one, namely whether a judgment or order of the court will have a practical effect and not whether it will be of importance for a hypothetical future case. The majority added that a matter is also moot if it no longer presents an existing or live controversy. However, the majority emphasised that where the interests of justice so require, a court still has a discretion to determine a matter despite its mootness.
In deciding whether the matter was moot, the majority emphasised that section 54A of the Systems Act, the provision relied on by the MEC, had been declared invalid by the Constitutional Court in the matter of South African Municipal Workers’ Union v Minister of Co-operative Governance & Traditional Affairs [2017] ZACC 7 (SAMWU). In declaring section 54A invalid, the Constitutional Court had specified that the invalidity would operate prospectively and would be suspended for a period of 24 months. The period of suspension ended on 8 March 2019, after which that provision ceased to exist. The majority accordingly held that there could be no reliance by the MEC on section 54A to seek an order to declare the appointments null and void because it was invalid and therefore unenforceable. Furthermore, the majority held that since section 54A was declared to be of no force and effect after 8 March 2019, some 15 days after the High Court had delivered its judgment, this meant that the declaration of invalidity of the relevant appointments based on that section can only relate to the period before 9 March 2019. The majority emphasised, however, that the MEC sought a declaration of invalidity operating only from the date of the judgment of the Constitutional Court. Thus, the majority held that the order sought was not competent because a declaration of unlawfulness of the appointments, which is based on the non-existent section and operates from the date of delivery of the Court’s order, would effectively suggest that the invalid provision continued to operate even after the suspension period had expired. Since the order sought could not be granted, the majority held that the matter was moot.
Having found that the matter was moot, the majority then considered whether the interests of justice demanded the determination of the matter despite its mootness. The majority noted that it was troubling that a period of more than four years had passed since the allegedly invalid appointments were made, meaning that persons whose qualifications and experience were questioned by the MEC had been allowed to occupy the critical position of a Municipal Manager for the bulk of the period of their five-year contract. The majority held that the delays that led to this state of affairs were largely occasioned by the failure on the part of the MEC to comply with the timelines prescribed by the Systems Act and later on by the delay in initiating the review applications. The majority held that this failure by the MEC flies in the face of section 237 of the Constitution and the Court’s jurisprudence, both of which emphasise the importance of constitutional obligations being performed diligently and without delay. The majority held that these delays could not be ignored by the Court in deciding whether it was in the interests of justice to determine the matter, and that the undesirability of having Municipal Managers, whose credentials were questioned by the MEC, had to be weighed against the prejudice they would suffer if the application was entertained after they had occupied the positions for such a long period of time. The majority also considered the possible impact of the termination of the contracts on service delivery in the affected Municipalities, and held that the reality was that the respective contracts would come to an end on 18 December 2021 for Mthonjaneni Local Municipality and 25 January 2022 for Nkandla Local Municipality. This meant that by the time the Court handed down judgment they would be left with only a month or so before the natural expiry of their employment contracts. The majority also took into account the fact that no complaints were raised regarding the Municipal Managers’ competence and performance, and that the MEC had not identified any prejudice that it would suffer as a result of the contracts being preserved for the remainder of the fixed five-year term.
Taking all of this into consideration, the majority held that an order that Messrs Jili and Sibiya should retain their employment for the rest of the five-year period would ensure that service delivery in the Municipalities would not be compromised and that a handover to their successors would occur seamlessly. Consequently, the Constitutional Court held that the interests of justice did not favour granting leave to appeal and the application was accordingly refused, with each party being ordered to pay its own costs.
The second judgment, penned by Theron J (with Tlaletsi AJ concurring), concurred in the order proposed by the majority, albeit for different reasons. Its starting point was that a matter is moot when the order sought would have no practical effect. According to the second judgment, a matter is not moot when it would be legally incompetent to grant the order sought (this being a factor that has a bearing on prospects of success). In this case, the MEC sought orders declaring that the appointments of Mr Jili and Mr Sibiya were unlawful. Notwithstanding that there was only a short time remaining in their terms of office, the removal of either Mr Jili or Mr Sibiya would have practical consequences for them personally, the Municipalities they serve and the residents within these Municipalities. The second judgment therefore concluded that the matter was not moot.
The second judgment disagreed with the majority’s finding that an order declaring that the appointments were ultra vires section 54A of the Systems Act and setting them aside could only relate to the period before the SAMWU order of invalidity came into effect on 9 March 2019. In SAMWU, the Constitutional Court declared section 54A unconstitutional and stated that the declaration of invalidity would be suspended until 9 March 2019 to allow the Legislature to cure the defect and that the invalidity, should it come into effect upon the expiry of the two-year suspension period, would operate prospectively. The order was made prospective to avoid unsettling the legal consequences of, amongst others, appointments of municipal managers that had been made in terms of section 54A while it remained in force. The second judgment reasoned that this necessarily entailed the preservation of causes of action based on decisions and actions taken under section 54A. The prospectivity of the SAMWU order was therefore intended to preserve the legal consequences of the appointments made in this case, which were made before the order of invalidity came into effect. The second judgment concluded that it would therefore be contrary to the Court’s judgment in SAMWU if the coming into effect of the order invalidating section 54A were to render litigation based on section 54A moot and denude courts of their power to grant orders regarding the validity of appointments made while the section was in force. It would also be contrary to the well-established rule of construction that even if a new statute (or an order invalidating a statute) is intended to be retrospective in so far as it affects vested rights and obligations, it is nonetheless presumed not to affect matters that are the subject of pending legal proceedings. The second judgment also noted that in Notyawa v Makana Municipality [2019] ZACC 43, which concerned the review of an appointment of a municipal manager in terms of section 54A that was heard after 9 March 2019, the Constitutional Court implicitly accepted that even though section 54A was at that stage a dead letter, the challenge before it gave rise to a live dispute that was not rendered moot by the SAMWU order coming into effect.
The second judgment explained that the Court’s power to declare the appointments unlawful is sourced directly from section 172(1)(a) of the Constitution and not section 54A, and is therefore not contingent upon the validity of that section. Moreover, according to the doctrine of objective constitutional invalidity, law or conduct that is inconsistent with the Constitution is unlawful from the moment at which the inconsistency arises. An order declaring the appointments to be unlawful would merely describe the unlawfulness of the appointments at the moment they were made, when section 54A was in force. Upon declaring that the appointments were unlawful in terms of section 172(1)(a) of the Constitution, the Court would then have the power, in terms of section 172(1)(b), to make any order that is just and equitable, including an order setting aside the appointments prospectively from the date of its order. This remedial power is triggered by a declaration of invalidity in terms of section 172(1)(a) and does not depend on the validity or invalidity of section 54A at the time it is exercised.
This led the second judgment to conclude that the coming into effect of the SAMWU order did not render the applications moot and would not denude the Court of its power to set aside the appointments with prospective effect from the date of its order. It concluded, however, that the lawfulness of the appointments did not arise for determination because it would not be in the interests of justice to grant leave to appeal. In deciding the merits of the appeal, the Court would have to determine, first, whether the Supreme Court Appeal was correct that the MEC’s delays in launching the review applications were unreasonable and then, secondly, whether there was a basis for interfering with the exercise of its discretion to refuse to condone the delays. The second judgment agreed with the Supreme Court of Appeal’s finding that the delays in respect of both the Nkandla and Mthonjaneni review applications were unreasonable. It concluded further that the Supreme Court of Appeal exercised its discretion to refuse condonation properly and that there was no misdirection on either the facts or the law. There were therefore no reasonable prospects of the Constitutional Court interfering with the Supreme Court of Appeal’s refusal to grant condonation.
For these reasons, the second judgment concurred in the order made by the majority.
The Full judgment here
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Clerk Programme for German Trainee Lawyers
Starting in 2008, a special post will also be created for German trainee lawyers to apply to the Court to work as a law clerk for a period of three months (though recommended is a minimum period of four months), starting each year in January and July. As the Court has no funds to pay salaries or travel expenses this post is ideal for referendare students seeking to fulfill their four month practical experience requirements. The post is not, however, limited to such candidates.
Applicants will need to be available for a minimum period of four months, although any applicants seeking a longer-term post will also be considered. The Court is only able to take one legal trainee each term. Successful applicants will participate in the two week orientation programme run by the Court for law clerks in order to provide the requisite training for the post. This training will include an introduction to relevant computer research tools such as Jutastat, Lexis Nexis and Westlaw, as well as an in-depth explanation of reference materials available in the Court Library
Roles and duties
Specific responsibilities may vary between chambers but include:
- writing analytical summaries of written argument or evidence and assessing arguments in the light of academic legal literature and case law;
carrying out detailed research on particular topics; - preparing pre-hearing memoranda, media summaries and opinions as well as identifying key issues in matters to be heard;
- assisting the judge in Court;
- taking detailed notes of oral argument during hearings;
- assisting the judge in Court-related work such as committees, organisational work and international human-rights work;
- cite-checking draft judgments before delivery;
- taking part in various clerks' committees;
- administration of Court papers and case management; and
- public relations.
Trainee lawyers' workload varies during the year and will depend on the demands made by an individual judge. The working hours are flexible and chamber specific.
Skills and qualifications
Trainee lawyers are required to have the following skills:
- knowledge of, and the ability to apply legal principles, concepts and procedures;
- familiarity and experience in the use of a variety of legal research sources, including electronic sources;
- excellent English language and writing skills;
- computer proficiency;
- analytical skills;
- drafting skills, including the ability to write clearly and concisely and under pressure;
- the ability to plan work and manage conflicting priorities; and
- the capacity to work independently and in a team setting.
Some training will be provided to new trainee lawyers by the Orientation Committee during the two week orientation period. A postgraduate degree (juristisches staatsexamen) is substitutable for the LLB degree or equivalent requirement
Benefits of participating in the programme
German trainee lawyers taking part in the programme will achieve an extra qualification. Successful candidates will also have the benefit of taking part in the work of the Court and gain experience in a legal system based on human rights and democracy. It is also hoped that the programme will improve the co-operation and understanding between South Africa and Germany more broadly.
Eligibility and appointment
Applications for clerkships to this programme will be considered twice a year. Applications for the programme commencing in January, must be received by 31 July of the previous year; And for commencement in July applications must be received by 31 December of the previous year.
The application should indicate whether all judges, or a specific judge is being applied to, as well as and the period for which the applicants wish to be considered. Applicants must be in possession of an LLB (or equivalent) or in their final year of study for such degree and have an interest in subjects relating to constitutional law. Applications must also include, as a minimum:
- a motivational cover letter;
- a full curriculum vitae;
- certified copies of academic records;
- an example of written work;
- names and contact details of two references (one academic/professional and one personal); and
- references regarding working experience and/or any special qualifications (if appropriate).
Applications must be sent electronically to Mr Mosala Sello at This email address is being protected from spambots. You need JavaScript enabled to view it. and his contact number is 011 359 7444
Failure to comply with these requirements will result in the application not being considered.
In addition to the application requirements, applicants for the programme must also demonstrate the ability to cover travel to and from Johannesburg and living expenses whilst working at the Court.
In some cases a judge may request that a telephone interview be held with the applicant.