SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2011

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(*) Case Correction

  Citation & Summary
Delivered
249

Selebi v State (240/2011) [2011] ZASCA 249 (2 December 2011)

Criminal Law – Prevention and Combating of Corrupt Activities Act 12 of 2004 – conviction in contravention of s 4(1)(a) ─ On appeal appellant found to have received payment and provided quid pro quo for such payment as envisaged in s 4 of Act 12 of 2004.

Media Summary

02 Dec
248

Jacobus Visser v Mopani District Municipality (641/10) [2011] ZASCA 248 (1 December 2011)

Labour Relations Act 66 of 1995 – ss 145 and 193 – reinstatement after substantively and procedurally unfair dismissal – confirmed on review by the Labour Court – no warrant for the Labour Appeal Court to interfere

01 Dec
247

Diggers Development v City of Matlosana (824/10) [2011] ZASCA 247 (1 December 2011)

Property – deed of sale of municipal land subject to suspensive condition – provisions of s 79(18) of Transvaal Local Government Ordinance 17 of 1939 complied with – agreement of sale concluded on 2 October 2007 valid – appeal dismissed.

Media Summary

01 Dec
246

Erf 16 Bryntirion (Pty) Ltd v The State (914/10) [2011] ZASCA 246 (1 December 2011)

Administrative law – Promotion of Administrative Justice Act 3 of 2000 – rationality – procedural compliance. Expropriation - Expropriation Act 63 of 1975 – information required to make representations.

Media Summary

01 Dec
245

Industrial Corporation of SA Ltd v PFE International Inc. (BVI) & others (910/10) [2011] ZASCA 245 (1 December 2011)

Promotion of Access to Information Act 2 of 2000, s (7)1 – Impact of PAIA on the Rules of Court – s7(1) preserves the operation of the Rules of Court in relation to pending litigation.

Media Summary

01 Dec
244*

Rademan v Moqhaka Municipality & others (173/11) [2011] ZASCA 244 (1 December 2011)

Municipality – Powers of a municipality to discontinue supply of electricity to defaulters – Appellant refusing to pay rates and taxes – Respondent justified in disconnecting appellant’s electricity supply without a court order.

Media Summary

01 Dec
243

TEB Properties CC v The MEC, Department of Health and Social Development, North West (792/10) [2011] ZASCA 243 (1 December 2011)

Contract – legality – whether contract concluded by acting head of the Department of Health and Social Development in breach of prescribed tender procedures is valid – whether the decision of acting head
unsupported by rational reasons in concluding such contract is saved by Regulations 13.2 and 16A.6.4 of the Treasury Regulations.

Media Summary

01 Dec
242

Gusha v The Road Accident Fund (158/11) [2011] ZASCA 242 (1 December 2011)

Claim for damages based on negligence ─ RAF agreeing to concede the merits of the claim and accepting liability for the plaintiff’s damages still to be proven ─ RAF precluded from later seeking to prove that the plaintiff’s damages should be reduced by way of an apportionment of negligence.

Media Summary

01 Dec
241

Democratic Alliance v The President of the RSA & others (263/11) [2011] ZASCA 241 (1 December 2011)

Appointment of National Director of Public Prosecutions in terms of s 179 of the Constitution read with sections 9 and 10 of the National Prosecuting Authority Act 32 of 1998 ─ purpose of empowering provisions is to safeguard prosecutorial independence ─ requirement that candidate for position must be a fit and proper person with due regard to his or her experience, conscientiousness and integrity and must, having regard to the importance of the office be properly scrutinised by the President of the Republic of South Africa who has the power to make the appointment ─ qualities required of candidate are jurisdictional facts that must exist before an appointment can be made ─ have to be objectively assessed ─ importance of prosecutorial independence discussed with reference to constitutional scheme and comparable jurisdictions.

01 Dec
240

Road Accident Fund v Lechner (711/11) [2011] ZASCA 240 (1 December 2011)

German citizen injured in motor vehicle accident in South Africa – Reimbursed for medical expenses by statutory insurer in Germany – Benefits received as quid pro quo for contributions – Benefits to be treated as non-deductible collateral benefits by Road Accident Fund.

Media Summary

01 Dec
239*

The Body Corporate of Savannah Park v Brainwave Projects 1147 CC (735/10) [2011] ZASCA 239 (1 December 2011)

The developer’s right of extension in s 25(4) of the Sectional Titles Act 95 of 1986 is a right to develop a section of the common property, not to commercially exploit it. It is not a usufruct.

Media Summary

01 Dec
238*

Master of the High Court NGP v Motala NP (172/11) [2011] ZASCA 238 (1 December 2011)

Contempt of court – order giving rise to alleged contempt a nullity – effect of

Media Summary

01 Dec
237

Gauteng Province Driving School Association v Amaryllis Investments (Pty) Ltd (6/11) [2011] ZASCA 237 (1 December 2011)

Mandament van spolie – rule 49(11) of the Uniform Rules – leave to execute judgment pending appeal – contempt of order of court

Media Summary

01 Dec
236

Dube v The State (322/11) [2011] ZASCA 236 (30 November 2011)

Criminal Law – appeal against conviction and sentence – robbery with aggravating circumstances and reckless driving – whether appellant was properly identified as perpetrator – no reason for appeal court to interfere – convictions and sentences confirmed.

Media Summary

30 Nov
235

Savoi v The State (722/11) [2011] ZASCA 235 (30 November 2011)

Criminal procedure – bail – amendment of conditions – change of circumstances – absence of objectivity of officials empowered to consent to overseas travel – discretion exercised in manner defeating the purpose of the condition.

01 Dec
234

Bester NO v NDPP (198/11) [2011] ZASCA 234 (30 November 2011)

Interpretation of s 36 of the Prevention of Organised Crime Act 121 of 1998.

30 Nov
233

Commissioner, South African Revenue Services v South African Custodial Services (Pty) Ltd (131/11) [2011] ZASCA 233 (30 November 2011)

Income Tax Act 58 of 1962 – s 79A – finality of assessment – whether letter from Commissioner a revised assessment – s 22(2A) – deductibility of cost of building prison in terms of concession agreement on land owned by State – sub-contractor, not respondent incurring expenses concerning materials and equipment – cost of building prison not deductible in terms of s 11(a) – s 11(bA) – interest and related fees deductible.

Media Summary

30 Nov
232

Equity Aviation v SATAWU (478/09) [2011] ZASCA 232 (30 November 2011)

Employees who are not members of a trade union do not strike lawfully where they have not given notice to strike in terms of s 64(1)(b) of the Labour Relations Act 66 of 1995.

Media Summary

30 Nov
231*

Harold Gunase v Ramesh Anirudh (826/10) [2011] ZASCA 231 (30 November 2011)

Prescription - ss 11, 12(1) and (3) of Prescription Act 68 of 1969 – claim prescribes after a period of three years from date upon which claim arose - prescription starts to run as soon as creditor knows or ought to know identity of debtor and facts from which debt arose – duty on creditor to exercise reasonable care in this regard – respondent failed to exercise reasonable care.

30 Nov
230

Rooksana Karrim v The State (480/08) [2011] ZASCA 230 (30 November 2011)

Appeal – against conviction – weight to be given to further evidence by witness recanting earlier evidence – further evidence held to be lacking credence.

Media Summary

30 Nov
229*

Eskom Holdings v National Union of Mineworkers (840/10) [2011] ZASCA 229 (30 November 2011)

Labour – minimum services agreement under s 72 of the Labour Relations Act 66 of 1995 in an industry designated as an essential service – employer and employees unable to agree on the terms of such an agreement – their dispute capable of being determined by the Essential Services Committee under s 73 of the Act.

Media Summary

30 Nov
228

Muller NO & another v Community Medical Aid Scheme (901/10) [2011] ZASCA 228 (30 November 2011)

Medical Schemes Act 131 of 1998 – s 63 – liquidation of medical scheme – transfer of members to other medical scheme – confirmation of by Council for Medical Schemes – whether contributions falling into liquidated scheme’s estate and if so whether s 63(14) applicable.

Media Summary

30 Nov
227

City of Tshwane Metropolitan Municipality v The Mamelodi Hostel Residents Association (25/11) [2011] ZASCA 227 (30 November 2011)

Spoliation order – eviction – whether removal of the residents’ roof coverings constituted eviction – whether eviction lawful.

Media Summary

30 Nov
226

Eye of Africa v Nicola Shear (863/10) [2011] ZASCA 226 (30 November 2011)

Environmental authorisation – amendment of authorisation – no power or authority to amend, amendment ab initio invalid – s7 of the Promotion of Administrative Justice Act 3 of 2000 – section applies only to administrative action – Review not appropriate procedure, respondent should have approached court for a declaratory order

30 Nov
225*

Biddlecombe v Road Accident Fund (797/10) [2011] ZASCA 225 (30 November 2011)

Motor collision at robot controlled intersection – approach to evidence – apportionment of blame.

30 Nov
224

Premier of the Western Cape Provincial Government NO v Lakay (184/11) [2011] ZASCA 224 (30 November 2011)

Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002: definition of 'creditor' includes natural guardian acting for minor, with the result that natural guardian is obliged to give notice of minor's claim; requirements for condonation under s 3(4)(b) for failure to give notice, discussed and applied. Prescription Act 69 of 1969: provisions relating to extinctive prescription must be kept separate from notice provisions of Act 40 of 2002.

Media Summary

30 Nov
223

RAF v Zulu (50/11) [2011] ZASCA 223 (30 November 2011)

Motor vehicle collision ─ death of breadwinner ─ dependants' claim against RAF ─ quantum of damages.

Media Summary

30 Nov
222

Kouga Municipality v Bellingan (121/11) [2011] ZASCA 222 (30 November 2011)

Administrative law: distinction between direct and defensive challenge to legislation, discussed; person
charged for contravening allegedly invalid legislation can bring application for declaratory order that legislation is invalid. The provisions of s 160(4)(b) of the Constitution of the Republic of South Africa Act, 1996, and s 12(3)(b) of The Local Government: Municipal Systems Act, 32 of 2000, discussed and applied. Kouga Municipality Liquor (Trading Hours) By-law published in the Eastern Cape Provincial Gazette Extraordinary of 27 December 2006 and relating to registrations under the Eastern Cape Liquor Act 10 of 2003, declared invalid for purposes of prosecution of respondents.

Media Summary

30 Nov
221

Democratic Alliance v Ethekwini Municipality (887/10) [2011] ZASCA 221 (30 November 2011)

Applications to review decisions by local authority to change names of streets under its control – not ‘administrative action’ reviewable under Promotion of Administrative Justice Act 3 of 2000 – legality and rationality of decisions considered

Media Summary

30 Nov
220

Giesecke & Devrient v Minister of Safety and Security (749/10) [2011] ZASCA 220 (30 November 2011)

Robbery – allegations of police involvement – vicarious liability of the respondent – admissibility of hearsay statements in terms of s 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988.

Media Summary

30 Nov
219

Kruger v S (506/11) [2011] ZASCA 219 (29 November 2011)

Sentence – multiple charges – cumulative effect of the sentences – harsh and disproportionate – appeal court entitled to interfere – period spent by accused person awaiting trial also to be taken into account.

Media Summary

29 Nov
218

Ruslyn Mining & Plant Hire v Alexkor (917/10) [2011] ZASCA 218 (29 November 2011)

Contract – misrepresentation – sufficiency of evidence. Practice – absolution from instance – at end of plaintiff’s case – when granted. Practice – uniform rule 21 – further particulars for trial – not pleadings –
departure from in evidence – amendment – when necessary.

29 Nov
217

Liviero v Sundowner Property Development (49/11) [2011] ZASCA 217 (29 November 2011)

Res judicata – issue estoppel – no commonality of issues between those necessary to decide present proceedings and those part of ratio decidendi of judgment in earlier proceedings.

29 Nov
216

Naidoo v Sunker (126/11) [2011] ZASCA 216 (29 November 2011)

Practice – application – special defence – sufficiency of averments – whether case for referral to evidence made out.

29 Nov
215

AD v The State (334/2011) [2011] ZASCA 215 (29 November 2011)

Criminal Procedure Act 51 of 1977 – s 309C – appeal against refusal of petition – issue to be determined is whether appellant enjoys reasonable prospects of success, not the merits of the appeal.

Media Summary

29 Nov
214

S v The State (423/11) [2011] ZASCA 214 (29 November 2011)

Criminal procedure ─ delay in appeal process ─ failure of Legal Aid Board to prosecute appeal ─ evidence ─ inadmissible opinion evidence on credibility ─ recall of witness ─ failure to recall resulting in failure of justice.

Media Summary

29 Nov
213

Honey & Partners Inc v Quince Property Finance (Pty) Ltd (345/11) [2011] ZASCA 213 (29 November 2011)

Contract – defence of rectification – witness – adverse credibility findings of trial court not challenged on appeal - appeal failing.

Media Summary

29 Nov
212

White v City of Cape Town (918/10) [2011] ZASCA 212 (29 November 2011)

Appeal - s 21A of the Supreme Court Act – power of court to dismiss appeal where judgment or order sought will have no practical effect or result.

Media Summary

29 Nov
211

Stander v The State (547/11) [2011] ZASCA 211 (29 November 2011)

Criminal procedure – sentence – s 276B Criminal Procedure Act 51 of 1977 - non-parole period of sentence – only to be imposed in exceptional circumstances

Media Summary

29 Nov
210

FAWU v Pioneer Foods (Pty) Ltd t/a Sasko Milling& others (827/10) [2011] ZASCA 210 (29 November 2011)

Application for leave to appeal a decision of the Labour Court ─ test in National Union of Metalworkers of SA v Fry’s Metals (Pty) Ltd 2005 (5) SA 433 (SCA) to be rigorously applied ─ even where there has only been a refusal by the LAC of an application for leave to appeal ─ alleged misapplication of the test in Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC) not sufficient in itself to justify an
appeal to the SCA ─ consequences of contrary approach discussed.

29 Nov
209

Bula & others v Minister of Home Affairs & others (589/11) [2011] ZASCA 209 (29 November 2011)

Applications for asylum ─ structure and purpose of Refugees Act 130 of 1998 ─ South Africa’s obligations under international law ─ Refugee Reception Officer obliged to accept an application for asylum ─ for Refugee Status Determination Officer not court to decide whether applicant entitled to asylum ─ including whether application is unfounded ─ meaning of ‘encountered’ in Regulation 2(2) ─ once intention
to apply for asylum is indicated asylum seeker entitled to protective provisions ─ manner in which
proceedings in high court conducted criticised ─ unwarranted statements by judicial officer ─ warning
against preconceived ideas ─ militating against rule of law and proper administration of justice.

29 Nov
208

Park 2000 v Page (905/2010) [2011] ZASCA 208 (29 November 2011)

Agreement of purchase and sale – suspensive condition that purchaser obtain bond – construction of agreement – condition for sole benefit of purchaser – no waiver of condition – agreement lapsed on nonfulfilment.

Media Summary

29 Nov
207*

Council for Medical Schemes v Bester (561/2010) [2011] ZASCA 207 (25 November 2011)

Defamation – whether words complained of referred to corporate entity as such – whether words complained of defamatory – test of reasonable reader restated

Media Summary

25 Nov
206

Nazier Kolia v First Rand Bank (357/08) [2011] ZASCA 206 (25 November 2011)

Actio ad exhibendum ─ tacit conferral of ius disponendi ─ estoppel.

25 Nov
205

Van Oudtshoorn v Investec Bank Ltd (588/10) [2011] ZASCA 205 ( 25 November 2011)

Interpretation of power of attorney and partnership agreement – authority of managing partner to conclude instalment sale agreement – need for rectification of that agreement – authority of agent of
undisclosed partner to execute deed of suretyship in respect of partnership obligations – scope of that authority.

Media Summary

25 Nov
204

Law Society v Sonntag (189/2011) [2011] ZASCA 204 (25 November 2011)

Attorney – removal from roll – attorney employing touts in third party work – sharing both office and fees with tout – ‘purchasing’ third party claims from touts – conduct of attorney in defending application dishonest – attorney struck off – no exceptional circumstances shown to justify lesser penalty.

Media Summary

25 Nov
203* Rosenberg v Nuco Chrome Bophuthatswana (Pty) Ltd (81/11) [2011] ZASCA 203 (25 November 2011) 25 Nov
202

Chairman, State Tender Board v Digital Voice Processing (Pty) Ltd; Chairman, State Tender Board v Sneller Digital (Pty) Ltd (764/2010) [2011] ZASCA 202 (24 November 2011)

Administrative law – Promotion of Administrative Justice Act 3 of 2000 – ripeness of application to review and set aside administrative action – grounds of review – error of fact and irrationality.

Media Summary

24 Nov
201

Van Aardt v Galway (923/10) [2011] ZASCA 201 (24 November 2011)

Sale of land – compliance with Alienation of Land Act 68 of 1981

Media Summary

24 Nov
200

Law Society of the Cape of Good Hope v Nel (054/11) [2011] ZASCA 200 (23 November 2011)

Attorney – misconduct – alleged contravention of Rule 14.3.14, promulgated under the Attorneys’ Act 53 of 1979 – bringing attorneys’ profession into disrepute – formulation of charge sheet crucial – evidence not sustaining the charge as formulated – disciplinary proceedings not civil proceedings but sui generis.

Media Summary

23 Nov
199

Gazit Properties v Botha N.O. (873/10) [2011] ZASCA 199 (23 November 2011)

Insolvency – interpretation and application of s 29(1) of Insolvency Act 24 of 1936 – meaning of the phrase ‘in the ordinary course of business’ – payment made in terms of valid underlying contract by due date unaffected by illegality of the insolvent’s business.

Media Summary

23 Nov
198

Notito v The State (123/11) [2011] ZASCA 198 (23 November 2011)

Criminal Law ─ rape ─ indecent assault ─ theft ─ appeal against conviction ─ assessment of evidence ─ whether all elements proved ─ guilt of appellant established beyond a reasonable doubt ─ no reason for appeal court to interfere ─ conviction confirmed.

Media Summary

23 Nov
197

Claasen v Bester (872/10) [2011] ZASCA 197 (23November 2011)

Extinctive prescription – knowledge of legal conclusion not a fact for purpose of s 12(3) of the Prescription Act 68 of 1969.

23 Nov
196*

Bogaards v The State (864/10) [2011] ZASCA 196 (21 November 2011)

Criminal Law – s 115(e) of the Correctional Services Act 111 of 1998 – whether State proved that appellants harboured or concealed escaped prisoners.

Media Summary

21 Nov
195

Magadla v The State (80/11) [2011] ZASCA 195 (16 November 2011)

Criminal Law ─ Rape ─ appeal against conviction ─ appellant raising alibi defence ─ truthfulness of which was cast in doubt on appeal ─ appellant correctly identified as perpetrator ─ conviction confirmed.

Media Summary

16 Nov
194

Le Roux v Burger (249/11) [2011] ZASCA 194 (15 November 2011)

Serwituut ─ uitleg

15 Nov
193*

Executive Officer: Financial Services Board v Dynamic Wealth Ltd & others (888/10) [2011] ZASCA 193 (15 November 2011)

Appointment of curators in terms of s 5(1) of Financial Institutions (Protection of Funds) Act 28 of 2001 – test for grant of order – admissibility of inspectors’ report prepared under s 3 of the Inspection of Financial Institutions Act 80 of 1998 – whether application for curatorship should have been granted on the evidence – change of circumstances since application commenced – further evidence on appeal
– whether curatorship should be ordered at time appeal heard – whether change in circumstances rendering the appeal moot.

Media Summary

15 Nov
192

The Director of Public Prosecutions v Larry Burt Phillips (271/2011) [2011] ZASCA 192 (14 November 2011)

Sentence – imposition of – factors to be taken into account – murder of wife – kidnapping – assault – contravention of s 17(a) of the Domestic Violence Act 116 of 1998 – globular sentence – undesirability of such practice – sentence set aside and increased on appeal.

Media Summary

14 Nov
191

PPS Insurance Company v Mkhabela (159/2011) [2011] ZASCA 191 (14 November 2011)

Third party nominated as beneficiary of life insurance policy – Policy reserving insured’s right of cancellation or change of nomination of beneficiary – Nominated beneficiary predeceasing policy holder – Executor of beneficiary estate has no claim to proceeds of the policy.

Media Summary

14 Nov
190

Municipality of Stellenbosch v Shelf-Line 104 (615/10) [2011] ZASCA 190 (8 November 2011)

Township – conditions of approval – rezoning and subdivision under secs 16 and 25 of the Land Use Planning Ordinance 15 of 1985 – whether municipality may unilaterally amend such conditions after acceptance by developer.

08 Nov
189

Rademeyer v Viljoen (69/11) [2011] ZASCA 189 (3 November 2011)

No Summary
08 Nov
188

Body Corporate Croftdene Mall v Ethekwini Municipality (603/2010) [2011] ZASCA 188 (10 October 2011)

Local authority – s 102 of the Local Government: Municipal Systems Act 32 of 2000 – whether a local authority may disconnect a ratepayer’s water and electricity services because of an outstanding debt for municipal property rates.

Media Summary

10 Oct
187*

Gavin Cecil Gainsford NO v Tiffski Property Investments (Pty) Ltd (874/10) [2011] ZASCA 187 & the additional/supplementary judgment (30 September 2011)
Insolvency – Insolvency Act 24 of 1924 – s 34(1) – void disposition of assets of business otherwise than in the ordinary course of that business or for securing the payment of a debt – non-compliance with requirements – consequences thereof.
Media Summary

30 Sep
186 DPP v Thabethe (619/10) [2011] ZASCA 186 (30 September 2011)
Appeal by the State – Sentence – respondent convicted of rape and sentenced to ten years’ imprisonment which was wholly suspended for five years on certain conditions – appropriateness of sentence based on restorative justice – sentence found to be inappropriate – set aside and replaced with an effective term of imprisonment of ten years.
Media Summary
30 Sep
185 Shane Gilbert v The State (65/11) [2011] ZASCA 185 (30 September 2011)
Evidence – assessment and evaluation thereof – proper approach to adopt
Media Summary
30 Sep
184 Mkhize v Umvoti Municipality (628/10) [2011] ZASCA 184 (30 September 2011)
Right to adequate housing in terms of s 26(1) of Constitution – interpretation of judgment and order in Jaftha v Schoeman& others; Van Rooyen v Scholtz & others 2005 (2) SA 140 (CC)
Media Summary
30 Sep
183 Fakude v The State (852/10) [2011] ZASCA 183 (30 September 2011)
Appeal – sentence - conviction in the Regional Court of robbery with aggravating circumstances – Trial court misdirecting itself by imposing sentences in excess of its jurisdiction.
Media Summary
30 Sep
182 Exploitatie- en Beleggingsmaatschappij v Honig (649/10) [2011] ZASCA 182 (30 September 2011)
Practice ─ security for costs ─ respondent seeking additional security after appellants had furnished security at the outset of proceedings ─ appellants’ prospects of success in the main application somewhat bleak ─ that a factor to be taken into account in considering whether to order a peregrinus to furnish security.
Media Summary
30 Sep
181 Potgieter v Potgieter (629/10) [2011] ZASCA 181 (30 September 2011)
Trust – variation of trust deed by agreement between founder and trustees – invalid for want of consent by beneficiaries who had previously accepted benefits conferred upon them by original trust deed – effect of invalid variation agreement – trust deed enforceable in unamended form.
Media Summary
30 Sep
180* Votani Majola v Nitro Securitisation (567/10)[2011] ZASCA 180 (30 September 2011)
Dismissal of appeal for non-appearance – rule 13(3) of SCA rules – Default position is that appeal will be dismissed for non-appearance unless grounds exist for striking it from the roll or postponing it – factors to be considered in exercise of this discretion.
Media Summary
30 Sep
179

Mthembu v The State (206/11) [2011] ZASCA 179 (29 September 2011)
Criminal Law Amendment Act 105 of 1997 – s 51 – prescribed sentences – failure to apprise defence that court contemplating sentence higher than prescribed minimum not constituting defect in the proceedings.

Media Summary

29 Sep
178

Mthimkhulu v S (210/11) [2011] ZASCA 178 (29 September 2011)
Criminal Law Amendment Act 105 of 1997 – appellant charged with and convicted of a single count of rape – applicable minimum sentence 10 years’ imprisonment – regional court applied incorrect section of Act in sentencing appellant to 15 years’ imprisonment – high court on appeal compounded error by replacing sentence imposed by regional court with sentence of life imprisonment – material misdirections entitling this court to interfere.

Media Summary

29 Sep
177

Fredericks v S (208/11) [2011] ZASCA 177 (29 September 2011)
Sentencing of a juvenile under the age of 16 years – Robbery with aggravating circumstances and rape – s 28 (1)(g) of the Constitution – trial court having misdirected itself materially – appeal court is at large to interfere with sentence.

Media Summary

29 Sep
176

DPP v Thusi (769/10) [2011] ZASCA 176 (29 September 2011)
Sentencing – appeal by DPP in terms of Section 316B of the Criminal Procedure Act 51 of 1977 – rape and murder – substantial and compelling circumstances in terms of s 51(3) of the Criminal Law Amendment Act 105 of 1997 not present – sentences imposed by trial court set aside and replaced with minimum sentences of life imprisonment.

Media Summary

29 Sep
175

Maemu v The State (147/11) [2011] ZASCA 175 (29 September 2011)
Criminal Procedure – Evidence – cautionary rule in respect of young child – proof beyond reasonable doubt required having considered the totality of evidence – each case to be decided on its own merit – Corroboration is not a sine qua non. In casu the medical evidence is inconclusive – it does not establish that there was penetration.

Media Summary

29 Sep
174

Laeveld Trust 2001 v Blue Fire Properties 115 (797/10) [2011] ZASCA 174 (29 September 2011)
Contract – Interpretation – period within which the purchaser is entitled to request documents relevant for due diligence investigation – purchaser thereafter entitled to decide which properties are not viable and exclude from the sale– completion of due diligence period postponed because of the seller’s breach - purchaser not limited to documents in existence at time of agreement.

Media Summary

29 Sep
173

Registrar of Medical Schemes & another v Suremed Medical Scheme (201/11) [2011] ZASCA 173 (29 September 2011)
Medical Schemes - Amalgamation of medical schemes - Medical Schemes Act 131 of 1998, s 63 - Purpose of s 63 is to regulate transactions relating to amalgamations or transfer of business of medical schemes - No amalgamation or transfer without agreement between parties concerned - Registrar of Medical Schemes has no power to confirm an exposition not underpinned by agreement to merge.

Media Summary

29 Sep
172

Fanie Masenye Moswathupa v The State (168/11) 2011] ZASCA 172 (29 September 2011)
Sentence – imposition of – appellant sentenced to 25 years’ imprisonment for two counts of housebreaking – seriousness of the offence and the interests of society overemphasized – trial court failing to balance the mitigating factors against the aggravating factors also failing to have regard to the cumulative effect of the sentences – on appeal - sentence reduced to 16 years’ imprisonment.

Media Summary

29 Sep
171

Simphiwe Raymond Shusha v The State (609/10) [2011] ZASCA 171 (29 September 2011)
Criminal law – Assessment of Evidence – Accused’s version should not be rejected merely because it is improbable – Accused’s version should only be rejected on the basis of inherent improbabilities if it is so improbable that it could not reasonably be true.

Media Summary

29 Sep
170

South African Rail Commuter Corporation Ltd v Thwala (661/10) [2011] ZASCA 170 (29 September 2011)
Damages – appellant falling on train station platform and sustaining bodily injuries when jostled by fellow commuters alighting from a stationary train – claim based on negligent omission – negligence not proved.

Media Summary

29 Sep
169

Zietsman v Electronic Media Network (771/10) [2011] ZASCA 169 (29 September 2011)
Application for security for costs ─ s 17(2) of Patents Act 57 of 1978 ─ Earlier application dismissed on appeal to the SCA ─ Whether second application precluded by the operation of doctrine of res judicata or issue estoppel.

Media Summary

29 Sep
168*

Thabo Mofutsanyana District Municipality v Steyn-Enslin (639/10) [2011] ZASCA 168 (29 September 2011)
Regional Services Levy in terms of Act 109 of 1985 ─ Whether municipality entitled to demand a statement of account, debatement or other substantiating documents from a defaulting levy payer ─ if not, whether common law should be developed under s 39(2) of the Constitution to vest it with such right.

Media Summary

29 Sep
167*

Ponelat v Schrepfer (802/10) [2011] ZASCA 167 (29 September 2011)
Contract – whether tacit contract of universal partnership can be inferred from proven facts – existence of tacit universal partnership confirmed.

Media Summary

29 Sep
166

DW Mokela v The State (135/11) [2011] ZASCA 166 (29 September 2011)
Appeal – Sentence – Appellant convicted of robbery with aggravating circumstances and attempted murder – appellant sentenced to imprisonment for 25 years in respect of count 1 and 5 years in respect of count 2 – whether the appeal court erred in interfering with the magistrate’s order that the sentences imposed in respect of the two counts should run concurrently.

Media Summary

29 Sep
165

Mathebula v The State (45/11) [2011] ZASCA 165 (29 September 2011)
Appeals – sentences – appellants convicted of robbery with aggravating circumstances – court sentencing them to imprisonment for 20 years without giving any reasons – s 52(1)(a)(i) of the Criminal Law Amendment Act 105 of 1997 (as amended) – sentences set aside and replaced with a sentence of 15 years’ imprisonment.

Media Summary

29 Sep
164

Clear Enterprises (Pty) Ltd v CSARS (757/10) [2011] ZASCA 164 (29 September 2011)
Appeal – s 21A(1) of the Supreme Court Act – power of court to dismiss appeal where judgment or order sought would have no practical effect or result.

Media Summary

29 Sep
163

Phodiclinics (Pty) Ltd v Pinehaven Private Hospital (Pty) Ltd (594/10) [2011] ZASCA 163 (28 September 2011)

Proper construction of regulations 7 and 55 of the Regulations Governing Private Hospitals and Unattached Operating Theatres promulgated in terms of the Health Act 63 of 1977 ─ Review ─ Orders of substitution and remittal discussed.

Media Summary

28 Sep
162*

De Vries v The State (130/11) [2011] ZASCA 162 (28 September 2011)

Criminal law and procedure ─ cigarettes stolen in series of hijackings sold to appellant for distribution ─ appellant guilty of theft of cigarettes as well as of money laundering under POCA ─ those offenses also predicate offences justifying racketeering conviction under s 2(1)(e) of POCA ─ State entitled to prosecute all such offences in a single prosecution ─ such not an improper splitting of charges nor leading to a duplication of convictions

Media Summary

28 Sep
161

Grey Global v Khumalo (725/10) [2011] ZASCA 161 (28 September 2011)

Whether estate agent who introduces a purchaser to a property, where sale is concluded through another agent, is effective cause of the sale and entitled to commission.

28 Sep
160

Wakefields Real Estate v Attree (666/10) [2011] ZASCA 160 (28 September 2011)

Where option to sell shares is exercised, binding agreement of sale comes into existence and prescribed modes of performance of obligations do not make sale conditional.

Media Summary

28 Sep
159

Lynn NO v Coreejes (687/10) [2011] ZASCA 159 (28 September 2011)

Civil proceedings ─ s 382(1) of Companies Act 61 of 1973 ─ institution of action by two of three liquidators not a nullity ─ s 382(1) not containing a prohibition ─ therefore not analogous with s 6(1) of Trust Property Control Act 57 of 1988.

Media Summary

28 Sep
158

Ashcor Secunda (Pty) Ltd v Sasol Synthetic Fuels (Pty) Ltd (624/10) [2011] ZASCA 158 (28 September 2011)

Contract – interpretation of - one party's repudiation may entitle the other party to withhold performance - distinction between implied and tacit terms – no room for importing implied or tacit terms in conflict with terms that the parties have expressly agreed upon.

Media Summary

28 Sep
157*

CSARS v Labat (669/10) [2011] ZASCA 157 (28 September 2011)

Income Tax Act 58 of 1962 – s 11(gA)(iii) – allowable deductions for the acquisition of intellectual property rights – meaning of ‘expenditure’ – shares issued as consideration not ‘expenditure’

28 Sep
156*

O’Shea NO v Van Zyl (791/10) [2011] ZASCA 156 (28 September 2011)

Insolvency – compulsory sequestration – trust – locus standi to bring application as creditor of trust – reliance on admissions made by trustee during private enquiry under s 417 of Companies Act 63 of 1971 – admissibility.
Insolvency – compulsory sequestration – act of insolvency in terms of s 8(g) of Insolvency Act 24 of 1936 – what constitutes.
Evidence – admissibility – statements made by trustee during private enquiry under s 417 of Companies Act 63 of 1971 – whether admissible in subsequent proceedings against trust.

28 Sep
155

Casino Enterprises v The Gauteng Gambling Board (653/10) [2011] ZASCA 155 (28 September 2011)

Gambling – National Gambling Act 7 of 2004 – Gauteng Gambling Act 4 of 1995 – gambling – what constitutes - internet casino – operated from Swaziland - whether interaction with players in Republic gambling in South Africa.

28 Sep
154*

National Lotteries Board v South African Education and Environment Project (788/10) [2011] ZASCA 154 (28 September 2011)

Administrative action – guidelines not to be applied rigidly and inflexibly – duty to give reasons – not ordinarily open to a decision maker, who is required to give reasons, to respond to a challenge by offering new reasons in its answering affidavit.

Media Summary

28 Sep
153

Modiri v The Minister of Safety and Security (581/10) [2011] ZASCA 153 (28 September 2011)

Defamation – newspaper article to the effect that police officer informed journalist that appellant had been suspected by the police of serious criminal conduct – gist of article found to be substantially true and its publication for public benefit – fact that policeman did not actually convey this information to journalist and that some of the peripheral statements published were also untrue – found not to preclude reliance on the defence of truth and public benefit.

Media Summary

28 Sep
152

South African Transport & Allied Workers Union v Garvis & others (7/11) [2011] ZASCA 152 (27 September 2011)

Constitutional validity of s 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 ─ protest march
organised by Trade Union degenerating into riot ─ damage caused to property ─ persons affected sued Trade Union in terms of s 11 of the Act ─ high court called upon to decide the separated question of the constitutional validity of s 11(2)(b) ─ Trade Union contending that right to freedom of assembly and protest entrenched in s 17 of the Constitution infringed by the creation of statutory liability without providing a viable defence ─ submitted that holding organisations that organised assemblies and marches liable would have a chilling effect ─ high court correct in concluding that s 17 of the
Constitution not implicated ─ assemblies that were peaceful and in which participants were unarmed were protected ─ held that s 11(2)(b) was not internally contradictory and provided viable defences to organisers ─ organising a march preceded by many deaths and increasing animosities might in itself lead to liability ─ Evidence presented in the court below indicated that notwithstanding the existence of s 11 gatherings continuing to be a feature of South African life and that there was no chilling effect ─ warning by court about being subjected to mob rule.

Media Summary

27 Sep
151

Muller v The State (855/10) [2011] ZASCA 151 (27 September 2011)

Criminal procedure ─ appellants convicted on three counts of robbery with aggravating circumstances ─ effective sentence of 30 years’ imprisonment imposed by trial court ─ such a sentence reserved for particularly heinous crimes which these were not ─ effective sentence reduced to 18 years’ imprisonment.

Media Summary

27 Sep
150*

ABSA v SACCAWU (697/10) [2011] ZASCA 150 (27 September 2011)

Rental agreements in respect of office equipment signed only by principal officer of Provident Fund invalid: rules of Fund required meeting of trustees and contracts to be signed by three trustees.

27 Sep
149*

Compass Insurance v Hospitality Hotel (756/10) [2011] ZASCA 149 (26 September 2011)

Where construction guarantee requires that court order of liquidation of contractor be attached to demand for payment, in absence of order, demand non-compliant and guarantor not liable to pay.

26 Sep
148

Transnet Limited v Erf 152927 Cape Town (Pty) Ltd & others (798/10) [2011] ZASCA 148 (26 September 2011)

Eviction sought by way of motion proceedings – foreseeable bona fide dispute of fact raised – high court
correctly refusing to refer to oral evidence and dismissing application.

Media Summary

26 Sep
147

Pick ‘n Pay v Eayrs & others NNO (809/10) [2011] ZASCA 147 (26 September 2011)

Pre-emptive right in franchise agreement – subsequent sale of shares agreement – extension of pre-emptive right – operation of maxim qui prior est tempore potior est iure

Media Summary

26 Sep
146

Mbuyisa v The State (183/11) [2011] ZASCA 146 (26 September 2011)

Application for leave to appeal ─ applicant having pleaded guilty but seeking to appeal against both conviction and sentence ─ no prospects of success on appeal.

Media Summary

26 Sep
145*

Mda v The Law Society of the Cape of Good Hope (534/10) [2011] ZASCA 145 (26 September 2011)

The authority of council of the Law Society to inspect, under s 70(1) of the Attorneys Act 53 of 1979, ‘any book, document, record or thing’ pertaining to a practice, or to inspect the ‘accounting records’ under s 78(6) framed widely – not limited only to documentary material pertaining to specific complaint against practitioner.

Media Summary

26 Sep
144

Eldacc (Pty) Ltd v Bidvest Properties (Pty) Ltd (682/10) [2011] ZASCA 144 (26 September 2011)

Contract: stipulatio alteri: legal relationship between parties, discussed.

Media Summary

26 Sep
143* Cassim v Voyager Property Management (Pty) Ltd (574/10) [2011] ZASCA 143 (23 September 2011)

Sectional title scheme – locus standi of unit owner to institute proceedings on behalf of body corporate – s 41(1) of the Sectional Titles Act 95 of 1986 – owner obliged to apply for a curator ad litem to investigate grounds and desirability of instituting proceedings.

Media Summary

23 Sep
142* Louw NO v Swartland Municipality (650/100) [2011] ZASCA 142 (23 September 2011)

Mining and municipal planning – whether holder of mining right in terms of Minerals and Petroleum Resources Development Act 28 of 2002 also requires land use planning authorisation in terms of Land Use Planning Ordinance 15 of 1985 (C)

Media Summary

23 Sep
141 Maccsand v City of Cape Town (709/10; 746/10) [2011] ZASCA 141 (23 September 2011)
Mining, municipal planning and environmental management – whether holder of mining right or mining permit in terms of Minerals and Petroleum Resources Development Act 28 of 2002 also requires land use planning authorisation in terms of Land Use Planning Ordinance 15 of 1985 (C) – whether holder of mining right or mining permit also obliged to apply for environmental authorisation to conduct activities listed in terms of National Environmental Management Act 107 of 1998

Media Summary

23 Sep
140

Van der Watt v Jonker (837/10) [2011] ZASCA 140 (23 September 2011)

Contract – Sale of business including goodwill – effect of – locus standi in enforcing contract

Media Summary

23 Sep
139 Emfuleni Resorts v Mazizini Community (655/10) [2011] ZASCA 139 (23 September 2011)

Application for postponement of an Appeal ─ Governing principles discussed and application refused.
Competing land claim not brought to attention of the Land Claims Court ─ Order granted by it rescinded and matter remitted for consideration of competing claim. Regional Land Claims Commissioner ordered to pay costs.

Media Summary

23 Sep
138

Moruleng and District Taxi Association v North West Provincial Department of Transport & 27 others (254/10) [2011] ZASCA 138 (23 September 2011)

National Land Transport Transition Act 22 of 2000 – conversion of radius-based permits into operating licences – requirements – granting of operating licences reviewed and set aside

Media Summary

23 Sep
137 International Trade Administration Commission v SA Tyre Manufacturers Conference (738/10) [2011] ZASCA 137 (23 September 2011)
Dumping ─ application to impose anti-dumping duties ─ refusal ─ review
23 Sep
136

Burger & Wallace Construction (Pty) Ltd v Ballprop Ten (Pty) Ltd (406/10) [2011] ZASCA 136 (23 September 2011)

Contract: whether joint venture agreement, breach and entitlement to claim damages established on the facts.

Media Summary

23 Sep
135

Roux v Health Professions Council of SA (786/10) [2011] ZASCA 135 (21 September 2011)

Health Professions Act 56 of 1974 and regulations ─ interpretation and application of provisions dealing with disciplinary inquiries ─ principle of legality ─ council obliged to act in accordance with its statutory powers ─ decision of pro forma complainant to add additional charge not sanctioned by Health Professions Council and not sourced in law ─ additional charge set aside.

Media Summary

21 Sep
134

Minister of Safety and Security v Mohamed (598/10) [2011] ZASCA 134 (21 September 2011)

Validity of warrant – ss 20 and 21 of Criminal Procedure Act 51 of 1977 – grounds of appeal not extended.

21 Sep
133

Attorneys Fidelity Fund v Mettle Property Finance (499/2010) [2011] ZASCA 133 (16 September 2011)

Claim against Fidelity Fund in terms of s 26(a) of the Attorneys Act 53 of 1979 – pecuniary loss suffered
allegedly as a result of attorney’s theft of money entrusted to him – entrustment not proved.

Media Summary

16 Sep
132

Charlton v Parliament of the Republic of South Africa (680/2010) [2011] ZASCA 132 (16 September 2011)

Dismissal of exception — principles governing appealability restated — same principles apply in Labour Court and Labour Appeal Court.

Media Summary

16 Sep
131

Imperial Marine Company v Pasquale della Gatta; Imperial Marine Company v Filippo Lembo (638/10) [2011] ZASCA 131 (15 September 2011)

Arrest of vessels as security for claims being pursued in arbitration proceedings in London – requirement of a prima facie case – application of established principles to the drawing of inferences and the evidence of experts – allegations of breach by charterer – supply of bunkers not in accordance with specification –breach of safe port, safe berth warranty – alleged breach of implied warranty under NYPE charter party form – alleged failure to redeliver vessel in the same good order and condition, fair wear and tear excepted – claim for counter-security – charterer alleging a failure by owner to deliver and maintain vessel in an efficient state causing it loss – basis for assessing – reasonably arguable best case.

Media Summary

15 Sep
130*

Morar NO v Akoo (498/10) [2011] ZASCA 130 (15 September 2011)

Partnership – liquidator appointed by the court – powers to be conferred on liquidator – whether court may amplify powers originally given to liquidator.

Media Summary

15 Sep
129*

Transnet Ltd v The Owner of the Alina II (898/10) [2011] ZASCA 129 (15 September 2011)

Vessel arrested in actions in rem – thereafter plaintiff seeking an attachment ad fundandam et confirmandam jurisdictionem of vessel in respect of same claims – whether permissible – whether owner of vessel had submitted to jurisdiction of the South African court for purposes of an action in personam in respect of claims.

Media Summary

15 Sep
128

Venfin Investments v KZN Resins (642/10) [2011] ZASCA 128 (15 September 2011)

Appellant’s claim in convention based on cession of rights by third party in terms of alleged oral agreement – factual issue whether agreement entered into decided against appellant – counterclaim based on the debts owing to respondent by same third party – proposition that appellant liable for these debts in terms of s 156 of Insolvency Act 24 of 1936, alternatively, pursuant to the terms of the cession – both issues decided against respondent.

Media Summary

15 Sep
127

S v Meje (248/11) [2011] ZASCA 127 (13 September 2011)

Criminal Procedure – territorial jurisdiction of court to be determined at date of commencement of proceedings – s 110 of Criminal Procedure Act 51 of 1977 vests territorial jurisdiction in a court in the
absence of objection to jurisdiction.

Media Summary

13 Sep
126 Emergency Care Training Association v Health Professions Council of SA (664/10) [2011] ZASCA 126 (9 September 2011)

No summary

09 Sep
125* Atkin v Botes (566/10) [2011] ZASCA 125 (9 September 2011)

An interdict restraining the respondent from disposing of part of its assets pending an action for damages is not appealable.

Media Summary

09 Sep
124

Van As v Road Accident Fund (346/10) [2011] ZASCA 124 (7 September 2011)

Negligence – motor vehicle collision – whether the appellant’s conduct prior to the collision constituted a potentially dangerous situation and whether the insured driver ought in the circumstances to have taken steps to avoid a collision – no grounds for interference with trial court’s findings

Media Summary

07 Sep
123

Ausplow v Northpark Trading (742/10) [2011] ZASCA 123 (7 September 2011)

Patents – application to amend to cure invalidity - obviousness

07 Sep
122*

Law Society of the Northern Provinces v Mabando (736/10) [2011] ZASCA 122 (2 September 2011)

Regulatory jurisdictional conflict between appellant and second respondent becoming a spectacle to the detriment of attorneys’ profession ─ second respondent repeatedly engaging in unnecessary and unbecoming litigation challenges to appellant’s statutory right to regulate attorneys’ conduct within former Bophuthatswana ─ second respondent failing in its own regulatory function ─ time for Minister to inquire whether second respondent serves any useful purpose ─ whatever the source of the complaint the court on whose roll name of attorney appears has the ultimate disciplinary power ─ three-stage inquiry by court considering complaints of unprofessional, dishonourable or unworthy conduct restated and applied.

02 Sep
121

Scott v The State (473/10) [2011] ZASCA 121 (31 August 2011)

Criminal law – doctrine of common purpose – whether appellants’ guilt proved beyond reasonable doubt.

Media Summary

31 Aug
120*

Netshituka v Netshituka (426/10) [2011] ZASCA 120 (20 July 2011)

Customary Law ─ whether a civil marriage contracted between a partner to a customary union and another man or woman during the subsistence of that union is valid. Succession ─ validity of will ─
whether last will and testament of testator valid.

Media Summary

20 Jul
119*

Masoanganye v The State (252/11) [2011] ZASCA 119 (7 July 2011)

Media Summary

07 Jul
118*

Oosthuizen v Road Accident Fund (258/10) [2011] ZASCA 118 (6 July 2011)

Road Accident Fund – Claim for damages – Plaintiff issued summons in the magistrates’ court – Claim found to exceed the monetary jurisdiction of the magistrates’ court – Plaintiff unable to withdraw case from the magistrates’ court and issue fresh summons in the high court as claim had prescribed – Plaintiff applied to have case transferred from the magistrates’ court to the high court having jurisdiction – No statutory provision authorising such transfer – Section 173 of the Constitution of the Republic of
South Africa, 1996 not applicable.
06 Jul
117*

Media 24 v SA Taxi Securitisation (437/10) [2011] ZASCA 117 (5 July 2011)

Defamation action by corporation – claim for general damages considered – claim for special damages to be brought under the actio legis Aquiliae.

Media Summary

05 Jul
116

Combrinck v The State (471/10) [2011] ZASCA 116 (23 June 2011)

Criminal law – whether the appellant’s guilt proved beyond reasonable doubt – appellant’s defence not put to state’s eye witness – effect thereof – Sentence – appeal court’s power to increase sentence

Media Summary

23 Jun
115

MSC Depots (Pty) Ltd v WK Construction (Pty) Ltd & another (157/10) [2011] ZASCA 115 (08 June 2011)

Contract – breach of – contractor entitled to cancel where no opportunity afforded to remedy defects in construction works.

08 Jun
114

Levin v Levin (644/09) [2011] ZASCA 114 (03 June 2011)

Will – validity thereof – whether provisions of s 2(1)(a) of the Wills Act 7 of 1953 complied with.

Media Summary

03 Jun
113

Kriel v The State (483/10) [2011] ZASCA 113 (1 June 2011)

Criminal Procedure − Leave to appeal − Appeal against refusal of − Where an accused obtains leave to
appeal against the refusal in a high court of a petition seeking leave to appeal against a conviction or
sentence in the regional court, the issue is whether leave to appeal should have been granted by the high court and not the merits of the appeal itself − The test is whether there is a reasonable prospect of success in the envisaged appeal against sentence, rather than whether the appeal ought to succeed or not.

Media Summary

01 Jun
112

Pienaar v Master of the Free State High Court (579/10) [2011] ZASCA 112 (1 June 2011)

Will ─ Revocation by later testamentary instrument ─ Both wills dealing with entire estate ─ Later will different from earlier ─ Later will impliedly revoked the earlier will in so far as inconsistent with it.

Media Summary

01 Jun
111

J Pillay v The State (739/10) [2011] ZASCA 111 (1 June 2011)

Sentence ─ Conviction on 34 counts of fraud ─ magistrates’ court imposed sentence of five years’ imprisonment in terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1077 ─ accused 32 year-old mother ─ first offender with six children ─ insufficient information before trial court to enable trial court to make a decision about a custodial sentence or its impact on children of the accused ─ matter remitted to trial court for sentence to be dealt with afresh.

Media Summary

01 Jun
110

Truyens v The State (454/10) [2011] ZASCA 110 (1 June 2011)

Foreman on a farm convicted of theft of 48 cattle in terms of s 11 of the Stock Theft Act, 57 of 1959. The motive for the theft was to sell the cattle for money to pay for medical expenses related to the terminal
illness of the appellant’s children. A magistrate imposed a sentence of four years’ imprisonment under s 276(1)(i) of the Criminal Procedure Act 51 of 1977, which was increased on appeal to an effective sentence of eight years’ imprisonment by a provisional division. The Supreme Court of Appeal set aside the sentence imposed by the high court and reinstated the sentence originally imposed by the magistrate.

Media Summary

01 Jun
109

SA Soutwerke v Saamwerk Soutwerke (491/10) [2011] ZASCA 109 (1 June 2011)

A person who relies on an illegally issued permit to occupy land has no right to be consulted by an applicant for a mining right as contemplated by s 22(4) of the Mineral and Petroleum Resources Development Act 28 of 2002.

Media Summary

01 Jun
108

The Public Protector v Mail & Guardian Ltd (422/10) [2011] ZASCA 108 (1 June 2011)

Public Protector – investigation and report – whether properly conducted – set aside on review

Media Summary

01 Jun
107

Pakule and Tafeni v Minister of Safety and Security (440/10 & 439/10) [2011] ZASCA 107 (1 June 2011)

Search and seizure under ss 20 and 22 of the Criminal Procedure Act 51 of 1977 - police may lawfully seize items even where when first seized there was no ground for reasonable belief that item concerned in commission of offence - police may not return a vehicle to person from whom seized if that would be contrary to s 68(6)(b) of the National Road Traffic Act 93 of 1996.

Media Summary

01 Jun
106

Standard Bank v The Swartland Municipality (562/10) [2011] ZASCA 106 (1 June 2011)

Mortgagee should be joined in proceedings that affect property in which it has a real right: where there is no defence to claim for demolition mortgagee cannot interdict municipality from proceeding with demolition.

Media Summary

01 Jun
105*

Stand 242 Hendrik Potgieter Road Ruimsig (Pty) Ltd v Göbel (246/10) [2011] ZASCA 105 (1 June 2011) The Turquand rule does not apply to s 228 of the Companies Act 61 of 1973.

Media Summary

01 Jun
104

Shilakwe v The State (614/10) [2011] ZASCA 104 (1 June 2011)

Appeal – no live issue – court should avoid giving advisory opinion; evidence – mosaic of proof – useful aid to break down evidence into its component parts – evidence ultimately to be assessed holistically.

Media Summary

01 Jun
103

Furlong v The State (64/11) [2011] ZASCA 103 (1 June 2011)

Criminal Law ─ sentence ─ accused charged with a contravention of section 36 of the General Law Amendment Act 62 of 1955 ─ magistrate equating offence with more serious offences ─ sentence set
aside and substituted with a lesser sentence.

Media Summary

01 Jun
102

Saidex v The Minister of Minerals and Energy (49/10) [2011] ZASCA 102 (1 June 2011)

Interim interdict – requirements – nature of business permitted by Diamonds Act 56 of 1986.

Media Summary

01 Jun
101

Klub Lekkerrus/Libertas v Troye Villa (Pty) Ltd (260/10) [2011] ZASCA 101 (1 June 2011) Contract ─ sale of shares ─ new tacit agreement ─ not affected by non-variation clause ─ voluntary associations ─ dissolution of ─ legal effect of amalgamation.

Media Summary

01 Jun
100

Maphango v Aengus Lifestyle Properties (611/10) [2011] ZASCA 100 (1 June 2011) Termination of lease agreements ─ tacit term contended for that landlord will not employ termination clause in order to renegotiate new leases at higher rental ─ found not to have been established ─ reliance on s 26(1) of the Constitution and other considerations of public policy ─ unsuccessful

Media Summary

01 Jun
99

Senwes v Competition Commission of South Africa (118/10) [2011] ZASCA 99 (1 June 2011) Competition Act 89 of 1998 ─ finding of Tribunal that appellant contravened s 8(c) of the Act by conduct constituting a margin squeeze ─ held that this conduct not covered by the referral to the Tribunal and the finding therefore not competent.

Media Summary

01 Jun
98 Mohammed v The State (605/10) [2011] ZASCA 98 (31 May 2011)

Criminal law ─ robbery with aggravating circumstances ─ identification ─ proof of beyond reasonable doubt ─ requirements restated ─ alibi defence ─ effect of late disclosure ─ sentence ─ 15 years’ imprisonment ─ no appellate interference warranted.

Media Summary

31 May
97 Absa Bank v Kernsig 17 (386/810) [2011] ZASCA 97 (31 May 2011)

Company Law ─ Section 38 ─ Allegation that the loan agreement contravenes s 38 of the Companies Act 61/1973 – Section 38 enquiry is fact based ─ Generally allegation must be pleaded or all facts must be before court for the court to make a determination.

Media Summary

31 May
96 Eskom Pension and Provident Fund v Krugel (689/10) [2011] ZASCA 96 (31 May 2011)

Pension – divorce proceedings – ss 7(7) and 7(8) of the Divorce Act 70 of 1979 – order in respect of ‘pension interest’ – whether applicable to a member of a pension fund who resigns from his employment before his divorce.

Media Summary

31 May
95 Putco (Pty ) Ltd v W M Mosholi (577/10) [2011] ZASCA 95 (31 May 2011)

Damages ─ collision ─ mutually destructive versions ─ probabilities and improbabilities even ─ no grounds for interference with trial court's credibility findings.

Media Summary

31 May
94 Senkhane v S (300/10) [2011] ZASCA 94 (31 May 2011)

Refusal of application for condonation by high court sitting as a court of appeal ─ practice of allowing an automatic right of appeal abandoned ─ now requiring an application to the high court for leave to appeal ─ prior practice tending to bring administration of justice into disrepute ─ principles relating to appeals discussed.

31 May
93 Minister of Safety & Security v Moodley (429/10) [2011] ZASCA 93 (31 May 2011)

Fair procedure prescripts of s 3 of The Promotion of Administrative Justice Act 3 of 2000 not complied with in terminating occupancy of official police quarters ─ high court erred in determining the matter on the basis that the notice provisions of the Prevention of Illegal Evictions and Occupation from Land Act 19 of 1998 (PIE) were not complied with without determining whether occupation unlawful ─ doubt expressed about the applicability of PIE to housing accommodation in official police quarters ─ in determining whether notice provisions of PIE complied with court below elevating form above substance.

31 May
92 Eedenprop v Kouga Municipality (541/10) [2011] ZASCA 92 (31 May 2011)

Land Use Planning Ordinance 15 of 1985(C) ─ whether the conditions of sub-division and re-zoning were waived ─ whether a contract for reimbursement to developer of cost of provision of essential
services for a development, by a municipality from rates generated by that development, constitutes a sharing of rates which is unlawful and impermissible ─ whether there has been non-compliance with the
provisions of ss 172 and 173 of the Municipal Ordinance 20 of 1974(C).

Media Summary

31 May
91 The South African Police Service Medical Scheme (‘Polmed’) v Lamana (542/10)  [2011] ZASCA 91 (31 May 2011)

Section 21A of the Supreme Court Act 59 of 1959: if facts relevant to the exercise of a court of appeal's discretion under s 21A of the Supreme Court Act do not appear from the record, they should be placed
before the court by way of affidavit by the party seeking to rely upon them and in sufficient time to enable the other party to deal therewith. The same applies in an application for leave to appeal.

Media Summary

31 May
90 Ukwanda Leisure Holdings v Street Spirit Trading (414/10) [2011] ZASCA 90 (30 May 2011)

Company – liquidation – application for – locus standi – ‘member’ – what must be alleged and proved; ‘creditor’ – applicant relying on tacit term of shareholders’ agreement – not proved to be necessary to conclusion of the agreement.

Media Summary

30 May
89 Charter Hi v Minister of Transport (155/10) [2011] ZASCA 89 (30 May 2011)

Aircraft accident – whether accident caused by negligence of flight examiner during course of competency test of pilot for instrument rating – whether Minister of Transport vicariously liable.

Media Summary

30 May
88 Staggie v The State (38/10) [2011] ZASCA 88 (27 May 2011)

Criminal appeal ─ failure to prosecute ─ effect ─ failure of criminal process – special entries.

Media Summary

27 May
87 SA Mohair Brokers v Louw (602/10) [2011] ZASCA 87 (27 May 2011)

Company law – limitation on sale of shares contained in Articles – effect.

Media Summary

27 May
86*

Xabendlini v The State (608/10) [2011] ZASCA 86 (27 May 2011)

Arms and Ammunition – Pointing a firearm in contravention of s 39(1)(i) of the Arms and Ammunition
Act 75 of 1969 – Pointing - What constitutes – Wider interpretation that offence not only committed when
firearm is pointing directly at person concerned is preferred as it accords with the intention of the legislature.

Media Summary

27 May
85

CIM v Foschini (456/10) [2011] ZASCA 85 (27 May 2011)

Termination of agreement – accrued rights – term implied by law.

Media Summary

27 May
84

The MEC for the Department of Health v Denise Franks (329/10) [2011] ZASCA 84 (27 May 2011)

Delict - factual causation not established – inferences from facts in civil matters.

Media Summary

27 May
83

James Nkosi v The State (411/10) [2011] ZASCA 83 (27 May 2011)

Appeal against convictions and sentences – whether appellants ought to have been discharged at close of state case in terms of s 174 of the Criminal Procedure Act 51 of 1977 – whether convictions and sentences imposed appropriate.

Media Summary

27 May
82

Bidoli v Bidoli (436/10) [2011] ZASCA 82 (27 May 2011)

Arbitration - arbitrator – power of - to record a settlement reached by the parties in the form of an award on agreed terms.

Media Summary

27 May
81

Sim Road Investments CC v Morgan Air Cargo (Pty) Ltd (24/10) [2011] ZASCA 81 (27 May 2011)

Sale of land – induced by fraudulent misrepresentation – effect thereof.

Media Summary

27 May
80

Kruger v Property Lawyer (420/10) [2011] ZASCA 80 (27 May 2011)

Bridging finance – undertaking by transferring attorney to pay against registration of transfer – construction of undertaking – undertaking to pay from proceeds of sale.

Media Summary

27 May
79

Similaniev Kuswayo (631/10) [2011] ZASCA 79 (27 May 2011)

Sale of land – effect of restraint against alienation registered against title deeds – waiver of registered condition.

Media Summary

27 May
78*

Collett v Firstrand Bank (766/10) [2011] ZASCA 78 (27 May 2011)

Debt review in terms of s 86 of National Credit Act 34 of 2005 – right of credit provider to terminate review under s 86(10) – reading in ‘or High Court’ in s 86(11)

Media Summary

27 May
77 Ramokolo v The State (251/10) [2011] ZASCA 77 (26 May 2011)

Criminal law – extortion – s 156 of the Transkei Penal Code, Act 9 of 1983 – consulting engineer responsible for facilitating payment to building contractor in a state road construction project coercing the
contractor to give him monies not legally due from proceeds thereof – held to have committed extortion – sentence – seriousness of offence discussed – appropriate sentence custodial sentence.

Media Summary

26 May
76 Anglorand Securities Ltd v Mudau & another (125/10) [2011] ZASCA 76 (26 May 2011)

Prescription Act 68 of 1969 – prescription – commencement of running of – whether interrupted.

Media Summary

26 May
75 Neil Harvey & Associates (Pty) Ltd v Medscheme Holdings (Pty) Ltd (621/10) [2011] ZASCA 75 (26 May 2011)

Arbitration Act 42 of 1965: removal of arbitrator in terms of s 13(2)(a): proceedings in the absence of a party; reasonable perception of bias on the part of the arbitrator.

Media Summary

26 May
74

National Union of Mineworkers v Samancor Ltd (625/10) [2011] ZASCA 74 (25 May 2011)

Labour law – arbitrator – review – standard for interference on review.

25 May
73

Presidency Property Investments v Patel (407/10) [2011] ZASCA 73 (25 May 2011)

Practice – pleading – reliance on cause of action not pleaded and not apparent to defendant – prejudice resulting – plaintiff held to claim as pleaded.
Contract – Fraudulent misrepresentation – sale off plan – statements as to anticipated view from property to be built no more than bona fide opinion – absence of reliance.

Media Summary

25 May
72

Janse van Rensburg v Botha (758/10)[2011] ZASCA 72 (25 May 2011)

Company – liquidation – corporate entities consolidated into one estate for purposes of liquidation of pyramid scheme – voidable preferences – s 29 of Insolvency Act 24 of 1936 – debtor – who is – effect of illegality of contract giving rise to ‘debt’.

Media Summary

25 May
71

Janse van Rensburg v Steyn (66/10) [2011] ZASCA 71 (25 May 2011)

Practice – default judgment – validity of order appointing plaintiffs as liquidators – order preceded by published rule nisi – order res judicata between liquidators and investors of estate administered by them. Insolvency – voidable preference – application to set aside under s 29 of Insolvency Act 24 of 1936 and to recover amount of disposition – ‘debtor’ – who is – consolidated estate in which liquidators unable to identify entity making the disposition – interpretation of consolidation order.

Media Summary

25 May
70

Zwarts v Janse van Rensburg (590/10) [2011] ZASCA 70 (25 May 2011)

Company – liquidation – consolidation of corporate entities for purpose of liquidating pyramid scheme – voidable disposition – s 29 of Insolvency Act 24 of 1936 – identification of debtor.

Media Summary

25 May
69*

Maimela v Makhado Municipality (269/10) [2011] ZASCA 69 (20 May 2011)

Delict – action for damages – personal injury sustained in shooting incident – defence of necessity – conduct of firing shots to avert murderous attack justified and thus not wrongful.

Delict – action for damages – dependants’ claim – death of breadwinner from injury sustained in shooting incident – defence of necessity – elements of wrongfulness and fault part of ingredients of
cause of action – conduct of firing shots to avert murderous attack justified and thus not wrongful.

20 May
68*

Engelbrecht v The State (446/10) [2011] ZASCA 068 (17 May 2011)

Criminal law – Appeal against conviction on 157 counts of fraud and the sentence imposed on all the counts of fraud and one of corruption – Conviction – accomplices’ evidence found to be satisfactory – Sentence – Disparity in the sentences imposed on different accused convicted of the same offences by two different courts – sentencing discretionary – no misdirection.

Media Summary

17 May
67

First South African Holdings v CSARS (372/10) [2011] ZASCA 67 (11 May 2011)

Income Tax Act 58 of 1962 ─ section 79A ─ interpretation ─ date of commencement.

11 May
66*

CSARS v Founders Hill (509/10) [2011] ZASCA 66 (10 May 2011)

Proceeds of sale of land sold by realization company taxable as income: realization company that acquires land in order to sell it trades in that land.

Media Summary

10 May
65 The Government of the Republic of SA v Von Abo (283/10) [2011] ZASCA 65 (4 April 2011)
Peremption of appeal – appealability – court obliged not to enforce order contrary to law - Diplomatic protection – nature of – appropriate order when violated
Media Summary
04 Apr
64 Mahlangu v The State (497/10) [2011] ZASCA 64 (1 April 2011)
Corruption – Interpretation of section 1(1)(b) of the Corruption Act 94 of 1992 – Interference by presiding officer during trial – different versions put by legal representative – Competence or the lack thereof of counsel – fairness of trial
Media Summary
01 Apr
63 Dormac Marine and Engineering (Pty) Ltd v C A Henneberry (305/10) [2011] ZASCA 63 (01 April 2011)
Damages – claim based on negligent omission – claimant alleging defendant failed to provide proper and safe equipment – chain block breaking on job resulting in injury – defendant contracting with independent contractor to inspect and test equipment – negligence not proved.
01 Apr
62

Molema v The State (555/10) [2011] ZASCA 62 (1 April 2011)
Appeal ─ Against the order of the high court refusing leave to appeal in terms of s 309C(7)(c) of the Criminal Procedure Act 51 of 1977 ─ whether there are reasonable prospects of success of an appeal to the high court against the appellant’s conviction and sentence in the regional court on charges of rape.

01 Apr
61 Outward Investments v Park Road Trading 7 (51/10) [2011] ZASCA 61 (31 March 2011)
Contract of sale of land – (a) Interpretation of warranty. (b) Applicability s 67 of Town-planning and Townships Ord 15 of 1986 (Gauteng) – application for extension of boundaries not equivalent to one for establishment of a township.
Media Summary
31 Mar
60 Mpungose v The State (460/10) [2011] ZASCA 60 (31 March 2011)
Criminal procedure – admissibility of hearsay evidence in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 – hearsay evidence of identification by deceased rape complainant found admissible by trial court unreliable – conviction and sentence set aside.
Media Summary
31 Mar
59* Freedom Under Law v JSC (52/11) [2011] ZASCA 59 (31 March 2011)
Judicial Service Commission – constitutional duty to properly investigate allegations of gross misconduct on part of judge – cross-examination required to resolve disputes of fact – company whose mission to strengthen independence of judiciary has standing in respect of alleged failure of JSC to properly investigate.
Media Summary
31 Mar
58 AB Ventures v Siemens (294/10) [2011] ZASCA 58 (31 March 2011)
Delict – pure economic loss – negligence of an associated contractor – plaintiff capable of having avoided the loss contractually – no grounds to extend Aquilian liability.
31 Mar
57 CONSAWU v Nedlac (289/10) [2011] ZASCA 57 (31 March 2011)
Labour Law – National Economic Development and Labour Council – validity of clauses 9.3 to 9.6 of its constitution – meaning of ‘to provide for’ in section 4(d) of the National Economic Development and Labour Council Act, 35 of 1994.
Media Summary
31 Mar
56 Johannesburg City Parks v Mphahlani NO & others (344/10) [2011] ZASCA 56 (31 March 2011)
Labour Law – Dismissal – Interpretation – s 62(3A)(a) and (b) – whether the arbitrator had jurisdiction to hear the arbitration whilst there was a demarcation dispute pending before the CCMA
Media Summary
31 Mar
55

JM Grove v The Road Accident Fund (74/10) [2011] ZASCA 55 (31 March 2011)
Causation – Section 17(1) of the Road Accident Fund Act 56 of 1996 No causal nexus established.

31 Mar
54*

Blom v Brown (345/10) [2011] ZASCA 54 (31 March 2011)
Wills Act 7 of 1953 – section 4A – interpretation of.

Media Summary

31 Mar
53

Judicial Service Commission v Premier, Western Cape (537/10) [2011] ZASCA 53 (31 March 2011) Constitution s 178: Composition and functioning of the Judicial Service Commission: Premier of province forms part of JSC in terms of subsection (1)(k) when complaints against high court judges of the province are considered; majority of members in terms of subsection (6) means majority of members entitled to be present, not majority of members present and voting; proper order when decision taken by improperly constituted JSC, or by invalid vote, is to set the decision aside.

Media Summary

31 Mar
52

AS v The State (349/10) [2011] ZASCA 52 (30 March 2011)

Conviction of indecent assault based on evidence of single, child witness: evidence reliable and consistent: appeal dismissed.

30 Mar
51

Hyprop Investments v Shoprite Checkers (315/10) [2011] ZASCA 51 (30 March 2011)

Agreement of lease – interpretation – phrase ‘the initial valuation date’ for purposes of determining tenant’s pro rata liability for increases in rates to be determined with reference to date of first valuation of completed building.

Media Summary

30 Mar
50

Kwanda v The State (592/10) [2011] ZASCA 50 (30 March 2011)

Arms and ammunition ─ Unlawful possession of firearms and ammunition in contravention of s 32 of Arms and Ammunition Act 75 of 1969 ─ Joint possession ─ The state must establish facts from which it can be inferred that the group had intention (animus) to exercise possession of firearms through actual
detentor and actual detentor had the intention to hold on behalf of the group.

Media Summary

30 Mar
49

Norgold v The Minister of Minerals and Energy of the Republic of South Africa (278/10) [2011] ZASCA 49 (30 March 2011)

Conversion of prospecting right in terms of Mineral and Petroleum Resources Development Act 28 of 2002 ─ application lodged at wrong Regional Office ─ reached ultimate decision-maker ─ not fatal ─ served statutory purpose ─ renewal of prior permit in terms of the Minerals Act 50 of 1991 not formally done within prescribed period ─ held not to preclude subsequent conversion ─ implementation of decision by subordinate not impinging on its validity.

Media Summary

30 Mar
48

S v Boekhoud (522/10) [2011] ZASCA 48 (30 March 2011)

Application for leave to appeal following on refusal by high court to reserve questions of law in terms of s 319 of the Criminal Procedure Act 51 of 1977 ─ uncertainty about facts to which questions relate ─ confusion and contradictions in indictment, summary of substantial facts and further particulars supplied by State ─ questions concerning the application of doctrine of common purpose unrelated to specific charges ─ State still considering redrafting of indictment ─ application for leave to appeal refused.

Media Summary

30 Mar
47

City of Johannesburg Metropolitan Municipality v Blue Moonlight (338/10) [2011] ZASCA 47 (30 March 2011)

Eviction of desperately poor from privately owned building ─ constitutional duty of municipality to provide emergency temporary shelter ─ municipality held to have resources to provide emergency temporary shelter ─ fulfils important role in the progressive realisation of right of access to adequate housing ─ no bar to using ratepayer contributions to provide emergency temporary shelter to longstanding residents who otherwise would be forced onto public spaces.

Media Summary

30 Mar
46

The State v Romer (412/10) [2011] ZASCA 46 (30 March 2011)

Sentence ─ Murder and attempted murder committed when respondent in a state of diminished responsibility ─ Sentence of ten years’ imprisonment wholly suspended, coupled with a sentence of
correctional supervision ─ appeal by state.

Media Summary

30 Mar
45*

African Dawn Property Finance 2 (Pty) Ltd v Dreams Travel and Tours CC (234/10) [2011] ZASCA 45 (30 March 2011)

Interest – rate of - in terms of the common law must amount to extortion or oppression or something akin to fraud to constitute usury – common law rule not inconsistent with the spirit, purport and objects of the Constitution.

Media Summary

30 Mar
44

Transnet Ltd v Newlyn Investments (Pty) Ltd (553/09) [2011] ZASCA 44 (29 March 2011)

Evidence:
(1) Technical objections to the admissibility of documentary evidence not taken in the court below and which might have been met by the calling of further evidence, should not be entertained on appeal;
(2) Where the nature of the proceedings is such as to inform the opposite party, by necessary implication, that production of a document in its possession will be required, secondary evidence of the document is admissible;
(3) There are no degrees of secondary evidence and although production of a photocopy would be more reliable than oral evidence, and failure to produce a photocopy may be cause for comment, this goes to weight and not admissibility;
(4) Putting argument to a witness in cross-examination can be improper.

Media Summary

29 Mar
43

Bongi Biyela v The State (859/10) [2011] ZASCA 43 (29 March 2011)

Rape – Sexual intercourse with a girl under the age of 16 – Apparent age pleaded – Actual age not proven by the state – Injuries also not conclusive – Court faced with two mutually destructive versions – No basis to reject accused’s version.

29 Mar
42

Minister of Safety and Security v Venter (570/09) [2011] ZASCA 42 (29 March 2011)

Delict ─ action for damages ─ failure of police to inform complainants of the provisions in the Domestic Violence Act ─ constituting negligence which caused complainants harm when they suffered an unlawful attack on them ─ complainants found to be contributorily negligent.

Media Summary

29 Mar
41

CSARS v MultiChoice Africa (218/10) [2011] ZASCA 41 (29 March 2011)

Revenue – customs and excise – classification of articles for customs duty – interpretation of statutes ─ ordinary meaning of enactment leading to repugnance ─ interpretation of enactment so as to give effect to the legislature's intention.

Media Summary

29 Mar
40

Absa Bank v Eksteen (81/10) [2011] ZASCA 40 (29 March 2011)

Sale – warranty against eviction – seizure of vehicle by police – s 86(6) National Road Traffic Act
prohibiting buyer from being in possession – seller liable for repayment.

29 Mar
39

Legal Aid Board in re Four Children (512/10) [2011] ZASCA 39 (29 March 2011)

Jurisdiction of Supreme Court of Appeal – confined to appeals – case before it not an appeal – no order made.

29 Mar
38

MEC for Transport, KwaZulu-Natal v Eastman (680/09) [2011] ZASCA 38 (28 March 2011)

Claim for damages flowing from motor vehicle landing in culvert ─ against driver for being negligent ─ driving at an excessive speed in wet weather on rural road ─ against Member of Executive Council for Transport for Province of KwaZulu-Natal on basis that badly maintained roads caused or contributed to accident ─ evidence showed speed to be sole cause of accident ─ apportionment by court below between two defendants set aside.

28 Mar
37

Bedford Square Properties v Erf 179 Bedfordview (291/10) [2011] ZASCA 37 (28 March 2011)

Servitude – in restraint of trade – invalidity of

28 Mar
36

Van der Westhuizen v S (266/10) [2011] ZASCA 36 (28 March 2011)

Criminal Procedure: the requirement (in s 32 of the National Prosecuting Authority Act) that a prosecutor must act impartially, explained; held that an accused can waive the prohibition (contained in s 105A(10) of the Criminal Procedure Act, 51 of 1977) on disclosure of plea-bargain negotiations where no agreement is reached; held that where a special entry in terms of s 317(1) of the Criminal Procedure Act is sought on the basis that cross-examination of a State witness was unjustifiably curtailed, the court can
avoid making a special entry by recalling the witness for further crossexamination; the effect of a formal admission made under s 220 of the Criminal Procedure Act decided and the circumstances when such an admission may be withdrawn, discussed. Sentence: Deterrence and retribution do not recede into the background as purposes of sentencing where an accused has not acted with substantial diminished responsibility.

Media Summary

28 Mar
35*

Nedbank v The National Credit Regulator (662/09 & 500/10) [2011] ZASCA 35 (28 March 2011)

National Credit Act 34 of 2005 – interpretation of ss 86(2), 86(7) and (8), 87, 129 and 103(5).

Media Summary

28 Mar
34

Slip Knot v Du Toit (176/10) [2011] ZASCA 34 (28 March 2011)

Suretyship – fraud or misrepresentation by third party – whether surety bound

Media Summary

28 Mar
33

Zwelibanzi Utilities v TP Electrical Contractors (160/10) [2011] ZASCA 33 (25 March 2011)

Magistrates’ courts – practice – jurisdiction – objection to – cannot be raised after litis contestatio.

25 Mar
32

The Premier of the Western Cape Province v Loots NO (214/10) [2011] ZASCA 32 (25 March 2011)

Medical negligence – unsuccessful sterilisation operation – unforeseen complications during birth process leaving mother severely disabled – liability of medical doctor and his employer – issues relating to negligence and remoteness of damage.

Media Summary

25 Mar
31

McDonald v Young (292/10) [2011] ZASCA 31 (24 March 2011)

Contract ─ Standard of proof necessary ─ Uncontradicted evidence is not necessarily acceptable or sufficient to discharge an onus. Maintenance ─ There is no legal duty of support on unmarried
cohabitants. Formation of a tacit contract regarding maintenance ─ A tacit contract cannot be inferred where its terms would conflict with an express contract ─ Evidence and conduct of the parties must justify
an inference that there was consensus between them.

Media Summary

24 Mar
30

Meridian Bay Restaurant v Mitchell (686/09) [2011] ZASCA 30 (23 March 2011)

Sectional title scheme – developer – fraudulently creating additional units out of common property- insolvency intervening – double sales – doctrine of notice – first purchaser allowed to claim directly from second purchaser who acquired with knowledge of first sale.

Media Summary

23 Mar
29

Oilwell v Protec (295/10) [2011] ZASCA 29 (18 March 2011)

Exchange Control Regulations – export of capital – trade marks not ‘capital’ – effect of non-compliance with regulations

18 Mar
28

Ruben Fry v Huletts Aluminium (241/10) [2011] ZASCA 28 (18 March 2011)

Factual causation - probabilities

18 Mar
27

Croxford Trading 7 v The Body Corporate of the Inyoni Rocks Cabanas Scheme no ss1/1978 (174/10) [2011] ZASCA 27 (18 March 2011)

A developer who owned an interest in the common property of a sectional title scheme under the Sectional Titles Act 66 of 1971, and subsequently disposes of the interest, has no ‘right of extension’ that is transferable. The 1993 Amendment to the Sectional Titles Act 95 of 1986, which repealed the 1971 Act, but dispensed with the requirement for the developer to retain an interest in the common property did not remove this requirement in respect of the 1971 Act.

Media Summary

18 Mar
26

Polonyfis v The Minister of Police (64/10) [2011] ZASCA 26 (18 March 2011)

Search and seizure under ss 20 and 21 of the Criminal Procedure Act 51 of 1977 discussed – The execution of a warrant will only be set aside if there is an abuse of power or a ‘gross violation’ of a person’s rights.

Media Summary

18 Mar
25

NDPP v Gardener (582/09) [2011] ZASCA 25 (18 March 2011)

Confiscation orders under s 18(1) of the Prevention of Organised Crime Act 121 of 1998 – A court exercises a discretion when considering whether to confiscate the value of a benefit that was derived from an offence. When it does so, it must bear in mind that the purpose of the Act is to confiscate the proceeds of unlawful activity, even if this consequence appears harsh.

Media Summary

18 Mar
24

Gardener v The State (253/07) [2011] ZASCA 24 (18 March 2011)

Criminal law – fraud – prejudice – intention to prejudice – company director intentionally and without acceptable explanation withholding disclosure of facts relevant to transaction in which company interested – a priori case of fraud. Criminal law – sentence – role of public interest in balance of factors.

Media Summary

18 Mar
23 The Premier of the Western Cape v Overberg District Municipality (801/10) [2011] ZASCA 23 (18 March 2011)

Council of first respondent dissolved by provincial executive in terms of s 139(4) of the Constitution of the Republic of South Africa, 1996 – decision based on erroneous interpretation of section – exercise of executive power reviewable for illegality.

Media Summary

18 Mar
22*

Freddy Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd (20/10) [2011] ZASCA 22 (17 March 2011)

Purchase and sale – delivery of prohibited foodstuff – claim ex contractu – whether loss too remote – claim ex delicto – pure economic loss – wrongfulness – policy considerations determining liability considered.

Media Summary

17 Mar
21

Aeronexus v Firstrand Bank Limited (249/10) [2011] ZASCA 21 (17 March 2011)

Prescription – Extinctive prescription – meaning of ‘debt’ in s 15(1) of the Prescription Act 68 of 1969 – whether debt recognisable from original summons.

Media Summary

17 Mar
20

Pangbourne Properties v Basinview Properties (381/10) [2011] ZASCA 20 (17 March 2011)

Sale of land subject to suspensive condition: condition not fulfilled: sale not revived by subsequent addendum that assumed sale to be valid: purchaser not estopped from relying on non-fulfilment since none of requirements of estoppel established.

Media Summary

17 Mar
19

Bonheur v Caribbean (27/10) [2011] ZASCA 19 (17 March 2011)

Right of pre-emption to share in immovable property not created through unsigned agreement: party with no right to share cannot prevent its alienation.

Media Summary

17 Mar
18

Hibbert v S (580/10) [2011] ZASCA 18 (15 March 2011)

Application for leave to appeal against a High Court order refusing a petition for leave to appeal.

15 Mar
17*

Group Five v Minister of Water Affairs (379/10) [2011] ZASCA 17 (14 March 2011)

Building Contract – claims for additional payment or compensation – special plea of prescription

Media Summary

14 Mar
16

EDS v Nationwide Airlines (Pty) Ltd (237/10) [2011] ZASCA 16 (14 March 2011)

Funds held in attorney’s trust account – whether attorney stakeholder – control of funds.

Media Summary

14 Mar
15

Smith v S (475/10) [2011] ZASCA 15 (15 March 2011)

Criminal Procedure – Appeal against a refusal to grant leave to appeal on petition – Issue to be decided is whether the appellant has reasonable prospects of success on appeal, and not the merits of the appeal – Reasonable prospects of success present if a sound, rational basis exists for the conclusion that the appellant has prospects of success on appeal.

Media Summary

15 Mar
14

Alliance Property Group v Alliance Group (252/10) [2011] ZASCA 14 (14 March 2011)

Practice – Whether appeal having any practical effect or result – section 21A of the Supreme Court Act 59 of 1959 – Passing-off – proof of reputation – proof of misrepresentation.

Media Summary

14 Mar
13*

The Chief Executive of the South African Social Security Agency N.O. v Cash Paymaster Services (Pty) Ltd (90/10) [2011] ZASCA 13 (11 March 2011)

S 217(1) of Constitution – Procurement of goods or services – Competitive process – Non-compliance –
Public Finance Management Act 1 of 1999 and the Treasury Regulations applicable once a system is in
place – Accounting officer permitted to deviate – Reasons for deviation – Non – compliance not fatal

11 Mar
12

Transnet v The MV Cleopatra Dream (163/10) [2011] ZASCA 12 (11 March 2011)

Merchant Shipping – maritime law – salvage – by public authority within limits of its own port – whether acting under statutory and common law duties – claim for reward under Salvage Convention – interpretation of arts 5 and 17 of Convention.

Media Summary

11 Mar
11

Grobbelaar v Shoprite Checkers (710/08) [2011] ZASCA 11 (11 March 2011)

Agreement in restraint of trade – breach of – sale of business as going concern – cession of rights – claim for damages - causation

Media Summary

11 Mar
10

Minister of Transport and Public Works, Western Cape v Zanbuild Construction (68/10) [2011] ZASCA 10 (11 March 2011)

Interpretation of construction guarantee – whether liability of guarantor is limited to the contractor’s liability under the construction contract – or whether it is for the full amount of the guarantee on demand by the employer.

Media Summary

11 Mar
9

Ivaura Estates (Pty) Ltd v The Member of the Executive Council, Department of Roads & Transport, Mpumalanga (240/10) [2011] ZASCA 9 (10 March 2011)

Delict: negligence: fire

10 Mar
8

Socratous v Grindstone Investments (149/10) [2011] ZASCA 8 (10 March 2011)

Cancellation of lease agreement ─ proliferation of litigation concerning cancellation on alternative bases ─ defence of lis alibi pendens wrongly rejected by court below ─ courts are a public resource under severe pressure ─ congested court rolls prejudiced by repeated litigation involving the same parties, based on the same cause of action and related to the same subject matter ─ court ought not to have decided the merits.

Media Summary

10 Mar
7

Minister of Safety and Security v Kruger (183/10) [2011] ZASCA 7 (8 MARCH 2011)

Unlawful arrest and detention – s 55(1) of the South African Police Service Act 68 of 1995 – whether exempts state from liability – defamation and injuria – damages award.

Media Summary

08 Mar
6*

Premier of the Province of KwaZulu-Natal v Sonny (47/10) [2011] ZASCA 6 (4 March 2011)

Damages claim based on medical negligence ─ cost of maintaining child suffering from Down’s syndrome ─ hospital failing to inform patient that fetus she was carrying might be afflicted with Down’s syndrome ─ failure to inform of risks attendant upon the pregnancy and to ensure timeous conclusive chromosomal testing to enable a termination of pregnancy in terms of the Choice on Termination of Pregnancy Act 92 of 1996 ─ held that doctors ought to have involved patient fully in her treatment and the diagnosis of the condition of the fetus ─ medical staff held to be negligent and liable for damages that might be proved to have been sustained.

Media Summary

04 Mar
5*

Smith v Van den Heever (136/10) [2011] ZASCA 5 (4 March 2011)

Contract – exceptio non adimpleti contractus – breach – calculation of damages

04 Mar
4

Groupe LFE v Swartland Winery (467/09) [2011] ZASCA 4 (4 March 2011)

Trade marks – infringement – revocation – use of geographical indications – savings provision – trade marks contrary to law

04 Mar
3*

The Minister of Safety and Security v F (592/09) [2011] ZASCA 3 (22 February 2011)

Vicarious liability – police officer – crime committed while not on duty but on "call" – whether state liable

22 Feb
2

Abdi v Minister of Home Affairs (734/10) [2011] ZASCA 2 (15 February 2011)

Appellants granted refugee and asylum seeker status in South Africa prior to departing for Namibia without informing authorities – deported from that country to their country of origin via South African airport – held in Inadmissible Facility and refused entry by first and second respondents – entitled to be re-admitted to South Africa with retention of their former status – failure to allow appellants entry criticised.

15 Feb
1* SAA v Aviation Union of South Africa (123/10) [2011] ZASCA 1 (11 January 2011)

Labour Law – s 197 of the Labour Relations Act 66 of 1995 – interpretation – termination of outsourcing agreements and ‘second generation’ transfers.

11 Jan