Provinces have final say on admissions – ruling

A provincial government has the final say on the number of pupils that can be admitted to a school, the Constitutional Court ruled yesterday, according to a BDlive report. ‘While the school governing body determines admission policy, individual decisions on admission are taken only provisionally at school level by the principal acting under the authority of the head of department,’ the court said in what the report says is seen as landmark judgment.

‘Where the need arises, section 5(9) provides a safety valve, which allows the MEC to consider admission refusals and overturn an admission decision taken at school level,’ the court ruled. The report notes the matter came to the Constitutional Court after Rivonia Primary School refused to admit a child to grade 1 when the parents applied in 2010 because the school was full. The Gauteng government instructed the school to admit the pupil, contrary to the school’s admission policy. The SCA found last year that the Gauteng government’s instruction to the school was unlawful, and that a school’s governing body had the authority to determine the school’s capacity. The judgment overturned a High Court decision, which held that the overall authority to determine school capacity rested with provincial education departments. The matter subsequently went to the Constitutional Court.

Acting Constitutional Court Judge Nonkosi Mhlantla wrote the majority judgment. She said: ‘The power of the governing body must also be understood within the broader constitutional scheme to make education progressively available and accessible to everyone.’

A report in The Times notes the court found against the Education Department head, saying he had not acted in a procedurally fair way by physically forcing the child into the class. Both parties were criticised for not working together in a spirit of ‘co-operative governance’. ‘Trouble starts when we become more absorbed in staking out the power to have the final say rather than in fostering partnerships to meet the education needs of children,’ the judge said. The chairman of Rivonia Primary’s governing body, Rickson Mboweni, said he was ‘disappointed’ by the ruling but pleased that all further actions of the department, when intervening in an admission dispute, had to be ‘procedurally fair’.

MEC for Education in Gauteng Province and Others v Governing Body of the Rivonia Primary School & Others for a full report.

SANDF asks ConCourt to set aside liability finding

Published in: Legalbrief
Date: Thu 04 July 2013
Category: Litigation Issue No: 3309

The SA National Defence Force is asking the Constitutional Court to set aside the findings of the SCA and High Court that it can be held liable for an attack by a man using a weapon built from military gun parts, notes a Beeld reports. The basic parts of an R4 rifle were stolen from an army base outside Pretoria in 2001.

The gun was later ‘built’ with more parts stolen by a military chaplain, Jacob Motaung, from a military base in Middelburg, Mpumalanga. He passed on the parts to Vusi Mahlangu, who used them to rob and injure Leon von Benecke, from Bronkhorstspruit.

Von Benecke successfully sued the Minister of Defence for damages as Motaung was in the SANDF when the parts and ammunition were stolen. But SANDF head Solly Shoke now says in court papers addressed to Chief Justice Mogoeng Mogoeng that Von Benecke’s damages are too far removed from the theft committed by Motaung. The court, he says, should not accept a causal link between the thefts and Von Benecke’s injuries. Mogoeng is considering the application.

OHCHR 2012 Report

The 2012 Report of the United Nations Office of the High Commissioner on Human Rights has been released. The thematic issues dealt with include impunity and the rule of law and violence and security. It also contains a number of case studies on African countries in relation to torture and arbitrary detention.

The report is available at

Minister defends Legal Practice Bill Published in: Legalbrief Today

Category: Policy
Issue No: 3283

Justice and Constitutional Development Deputy Minister Andries Nel has refuted allegations that provisions in the Legal Practice Bill that seek to empower the Minister to appoint three members of the proposed Legal Practice Council out of a total of 21 are a deliberate move by government to control it, reports Legalbrief Policy Watch.

Reiterating government’s commitment to strengthening the independence, dignity, accessibility and effectiveness of the courts as part of the process of transforming the legal profession as a whole, Nel told the annual meeting of the Black Lawyers Association that ‘the untransformed state of the legal profession’ not only constitutes a ‘stumbling block’ to greater access to legal services and justice: it also impedes the further transformation of the judiciary.

While it will be the role of the Minister’s appointees to assist the council in its efforts to address this, they will not be in a position to drive the process. According to the Deputy Minister, ‘elites … who have done well under the current rules’ consider government attempts at transformation as ‘akin to … tyranny’, projecting themselves as victims. SA ‘s Constitution does not give an elite the right to carry out decisions ‘in an opaque way for their own benefit’, or to ‘permanently engage in … vices’ that prevent others from ‘ascending the ladders of the legal profession’, Nel said.
Full Legalbrief Policy Watch report

Immigration: SA still not dealing effectively with asylum seekers

SA attracts the largest number of asylum seekers in the world, but grants refugee status to very few, ranking only 36th in the world for the size of its refugee population, which the UN Refugee Agency (UNHCR) puts at about 58 000, notes an Irin report.

The Department of Home Affairs approved just 15.5% of the applications it processed in 2011, less than half the global average recognition rate of 38%, according to UNHCR.

Researchers and activists have repeatedly pointed to serious flaws in the country’s refugee status determination process, including the lack of individualised assessments, misapplications of both local and international refugee law, and high levels of corruption among Home Affairs officials. The government’s routine response has been that its asylum system is simply overwhelmed by the sheer number of applications it receives.

Source: LegalBrief

HRC Bill introduced in Parliament

The HRC introduced a Bill in Parliament that seeks to provide for the composition, powers, functions and functioning of the South African Human Rights Commission; and to provide for matters connected therewith.

Read the full Bill: South African Human Rights Commission Bill 2013

HRW Report on forced marriages of children

A recently published 95-page Human Rights Watch report documents the consequences of child marriage, the near total lack of protection for victims who try to resist marriage or leave abusive marriages, and the many obstacles they face in accessing mechanisms of redress.

It is based on interviews with 87 girls and women in Central Equatoria, Western Equatoria, and Jonglei states, as well as with government officials, traditional leaders, health care workers, legal and women’s rights experts, teachers, prison officials, and representatives of nongovernmental organizations, the United Nations, and donor organizations.

Read the full report:  Human Rights Watch report This old man can feed us, and you will marry him

News updates

Human Rights Watch World Report: Human Rights Watch has released its 2013 World Report. It raises a number of concerns, including torture, lengthy pre-trial detention and the abuse of civilians by military officials, in respect of a number of African countries. The report is available at,0,251

International Juvenile Justice Observatory (IJJO): The IJJO has released its January 2013 Newletter. It contains an editorial piece on the International Detention Coalition’s research based on children’s experiences in immigration detention, covering a range of countries, including Somalia and Ethiopia. The newsletter is available at

Access to justice for women: The International Development Law Organisation has released a manual entitled “Accessing Justice: models, strategies and best practices on women’s empowerment.” The manual contains a number of examples and case studies from women in African countries. The manual is available at

Domestic Violence Act to be amended

As published in: Legalbrief Today (27/02/2013)
Category: Policy Watch
Issue No: 3223

Justice and Constitutional Development Deputy Minister Andries Nel has confirmed that the South African Law Reform Commission is in the process of reviewing provisions in the Domestic Violence Act 116/1998, writes Pam Saxby for Legalbrief Policy watch.

When questioned about possible amendments to the Act during an eNews Channel Africa interview last Thursday – having earlier described it as ‘one of the best and most progressive pieces of legislation in the world’ and ‘absolutely groundbreaking’ in its provisions for the protection of women – Nel conceded that, while ‘basically sound’, certain provisions in the Act had resulted in ‘serious implementation problems’. A transcript of the interview was published yesterday on the Department of Justice and Constitutional Development website.

During public hearings on the Dangerous Weapons Bill recently held by the National Assembly’s committee on police, a call was made for a re-evaluation of the statute’s impact on the abuse of women – particularly in view of the burgeoning number of cases of domestic violence across SA.

According to committee chair Annalize van Wyk, who was quoted in a media statement issued at the time, it is ‘clear’ that the Act is not adequately protecting women. With this in mind, she has invited the SA Police Service to identify areas of the Act needing to be amended. Van Wyk also questioned the reasoning behind allowing the perpetrators of domestic violence to own firearms. Civilian Secretariat for Police Act 2/2011 made monitoring and compliance with the Domestic Violence Act one of the Secretariat’s functions.