SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2012

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(*) Case Correction

  Citation & Summary
Delivered
208* Margalit v Standard Bank of SA Ltd (883/2011) [2012] ZASCA 208 (3 December 2012)
Conveyancing attorney ─ transfer delayed due to conveyancer’s negligence ─ conveyancer liable for damages suffered by seller of property due to the delay.
Media Summary
03 Dec
207 Dlamini & another v The State (553/12) [2012] ZASCA 207 (30 November 2012)
Sentence – Appellants convicted of robbery with aggravating circumstances, unlawful possession of firearms and ammunition and escaping from lawful custody – effective sentence of 36 years’ imprisonment inappropriate –sentence reduced to 20 years’ imprisonment.
30 Nov
206

Saldanha Bay Municipality v Britannia Beach Estate (Pty) Ltd (796/11) [2012] ZASCA 206

(30 November 2012)
Municipal law – local government – the enforceability of conditions in respect of ‘capital contributions’ imposed in terms of s 42 of the Land Use Planning Ordinance 15 of 1985 and the various tariffs underlying such conditions.
Media Summary

30 Nov
205*

Makhanya v Goede Wellington Boerdery (Pty) Ltd (230/12) [2012] ZASCA 205 (30 November

2012)
Administrative Law – whether the decision taken by the Water Tribunal in refusing an appeal against a decision of the Chief Director rejecting an application for a water licence constitutes administrative action reviewable under the Promotion of Administrative Justice Act 3 of 2000 – whether it was appropriate for the court below when setting aside the decision of the Tribunal, to substitute its own decision, rather than remitting the matter to the Tribunal – whether the court below was entitled to make a costs order against a presiding officer (the First Appellant) performing an adjudicative function in the event of the review against his findings being successful.
Media Summary

30 Nov
204 Basson v The State (442/12) [2012] ZASCA 204 (30 November 2012)
Criminal Procedure – sentence – multiple convictions – sentences ordered to run concurrently – portion of effective cumulative period of imprisonment ordered to run concurrently with previous sentence.
30 Nov
203 Basson v Niemann (150/12) [2012] ZASCA 203 (30 November 2012)
Prescription ─ knowledge of the facts ─ respondents having acquired knowledge of all facts material to their claim more than three years before the service of their summons ─ respondents’ claim prescribed.
Media Summary
30 Nov
202 Ramulifho v The State (413/12) [2012] ZASCA 202 (30 November 2012)
Appellant convicted of rape in the regional court and referred to the High Court for sentence – sentence of life imprisonment imposed- appellant unrepresented in the regional court and court failing to assist him in presenting his defence – appellant not receiving a fair trial - regional court not considering the evidence as a whole, but in compartments – when considered as a whole, including the appellant’s admission during argument that he had had intercourse, the appellant’s defence that he did not have intercourse with the complainant reasonably possibly true – entitled to acquittal on the merits
30 Nov
201 Guca v The State (420/12) [2012] ZASCA 201 (30 November 2012)
Criminal Law – effective sentence shockingly inappropriate.
30 Nov
200 Tshimbudzi v The State (137/12) [2012] ZASCA 200 (30 November 2012)
Criminal – appeal against both conviction and sentence – appellant convicted of rape of a 13 year old female by regional magistrate – matter referred to high court for sentencing in terms of s 52 of the Criminal Law Amendment Act 105 of 1997 – charge sheet silent on whether the rape is covered by the provisions of the Criminal Law Amendment Act – appellant sentenced to imprisonment for life – high court not having confirmed the conviction of the appellant by the regional magistrate as being in accordance with justice – effect of failure by the magistrate to enquire into the complainant’s ability to distinguish between the truth and lies and the ability to understand the import of the oath – cumulative effect of irregularities – the difference between truth and untruth and the consequences of telling a lie – the record marred by a series of inaudibles.
30 Nov
199 Kolea v The State (157/12) [2012] ZASCA 199 (30 November 2012)
Criminal Procedure – appeal – conviction and sentence – charge of rape with reference to the Criminal Law Amendment Act 105 of 1997 – s 51(2) erroneously referred to instead of s 51(1) – whether this was an irregularity which vitiated the sentence proceedings.
Media Summary
30 Nov
198 Musiker v The State (272/12) [2012] ZASCA 198 (30 November 2012)
Assault with intent to do grievous bodily harm – the assault not placed in dispute – identity of the assailant placed in dispute – appellant identified as assailant – his alibi defence not challenged – versions of the State and defence mutually destructive – onus resting on the State not discharged – conviction not sustainable.
30 Nov
197 Transnet Limited v Tebeka & others (35/12) [2012] ZASCA 197 (30 November 2012)
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) – whether first and third respondents unlawful occupiers of house – house occupied in terms of agreement of sale between appellant and first respondent – first respondent in default – appellant failed to establish that notice of rescission communicated to him – agreement not cancelled – first and third respondents not unlawful occupiers.
Media Summary
30 Nov
196 Dumani v Nair & another (144/12) [2012] ZASCA 196 (30 November 2012)
Review – Grounds for - Promotion of Administrative Justice Act 3 of 2000 - decision of presiding officer in disciplinary enquiry.
Material mistake of fact – misdirection of the presiding officer in evaluating the evidence does not render the decision reviewable on ground of material error of fact.
Decision so unreasonable that no reasonable person could have reached it – this ground not established on the evidence.
Media Summary
30 Nov
195

Glenrand MIB Financial Services (Pty) Ltd v Willem van den Heever NO & others (199/12) [2012] ZASCA 195 (30 November 2012)
Company Directors – misappropriation of company funds – dishonesty and subjective intention to steal not proved.
Breach of fiduciary duty – insufficient evidence to prove dishonesty and collusive dealings
Company - Insolvency - Disposition without value in terms of s 26 of the Insolvency Act 24 of 1936 – after disposition the assets of the company exceeded its liabilities.
Contract – written sale of shares agreement – purchaser signed as agent for non-existent principal – agreement not valid.
Enrichment – General enrichment action – claimant’s funds transferred without legal ground to B – B transferred the funds to C without legal ground – claimant has a claim against C – chain of causation linking C’s enrichment with claimant’s impoverishment not broken.
Media Summary

30 Nov
194

The Governing Body of the Rivonia Primary School v MEC for Education: Gauteng Province (161/12) [2012] ZASCA 194 (30 November 2012)
In terms of s 5(5) read with s 5A of the South African Schools Act 84 of 1996 the governing body of a public school has authority to determine the capacity of a school as an incident of its admission policy. Provincial education authorities may not ‘override’ the policy.
Media Summary

30 Nov
193 Tshopo v The State (29/12) [2012] ZASCA 193 (30 November 2012)
Criminal law – fraud – failure to disclose in tender declaration that person connected with the tenderer was employed by the Free State province, the invitor for the tender – fraudulent misrepresentation established. Criminal procedure – sentence – fraud in tender process – custodial sentence required.
30 Nov
192 Senwes Limited v Van der Merwe (241/12) [2012] ZASCA 192 (30 November 2012)
Contract: Interpretation - clauses offering alternative remedies to non-defaulting party – whether such party retains claim for damages – whether the provisions of ss 83 and 84 of the Insolvency Act 24 of 1936 invalidated the agreement.
Media Summary
30 Nov
191 Itani Thomas Mudau v The State (419/12) [2012] ZASCA 191 (30 November 2012)
Criminal law – sentence - effective sentence of 49 years‟ imprisonment for housebreaking with intent to murder and attempted murder – trial court misdirecting itself – sentence set aside.
30 Nov
190

Justice Alliance of SA & another v National Minister of Safety and Security & others (646/11) [2012] ZASCA 190 (30 November 2012)
Firearms Control Act 60 of 2000 – whether guidelines published by the Minister pursuant to s 137(5) ultra vires.
Media Summary

30 Nov
189 Minister of Safety & Security v N Ndlovu (788/11) [2012] ZASCA 189 (30 November 2012)
Claim for damages for unlawful detention following upon unlawful arrest ─ unlawfulness not ceasing when accused is brought before a reception court which remands him in custody without enquiring whether it is in the interests of justice to detain him further.
Media Summary
30 Nov
188 Geallal Raghubar v The State (148/12) [2012] ZASCA 188 (30 November 2012)
Indecent assault – complainant 14 years old – failure to comply with s 164 read with sections 162 and 163 of the Criminal Procedure Act 51 of 1977 – failure to comply with – effect of.
30 Nov
187* Strydom v Engen Petroleum Limited (184/12) [2012] ZASCA 187 (30 November 2012)
Suretyship – validity – ss 15(2)(h) and 15(6) of the Matrimonial Property Act 88 of 1984.
30 Nov
186 JDJ Properties v Umngeni Local Municipality (873/11) [2012] ZASCA 186 (29 November 2012)
Promotion of Administrative Justice Act 3 of 2000 –whether decision to approve building plans administrative action – standing of near-by landowner and lessee of property to review decisions taken by municipality in terms of town planning scheme – whether internal appeal available in terms of s 62 of Local Government: Municipal Systems Act 32 of 2000 or s 9 of National Building Regulations and Building Standards Act 103 of 1977 – review of decisions taken in terms of town planning scheme and to approve building plans.
Media Summary
29 Nov
185 Myers v National Commissioner of the SAPS (425/12) [2012] ZASCA 185 (29 November 2012)
Policeman ─ holding rank of Superintendent ─ with 28 years unbroken service with the South African Police Service ─ dismissed from employ for misconduct relating to issuing a media statement in breach of a Standing Order ─ whether dismissal reasonable in the circumstances.
Media Summary
29 Nov
184* Steyn v Ronald Bobroff & Partners (25/12) [2012] ZASCA 184 (29 November 2012)
Attorney – duty of an attorney to client – breach of mandate – claim for damages for loss of interest on the amount of damages awarded to the appellant’s minor son in consequence of a delay in prosecuting and finalising the claim against the Road Accident Fund (RAF) – whether the respondents acted in breach of the written mandates – whether a delay of 14½ months in finalising the claim falls short of the standard of diligence, care and skill which can reasonably be expected of a practising attorney – whether the appellant can legitimately claim mora interest as damages when the respondents did not owe her any debt.
29 Nov
183* Mukaddam v Pioneer Food (49/12) [2012] ZASCA 183 (29 November 2012)
Class action – whether ‘opt in’ action allowed – whether ‘legally tenable’ cause of action shown.
29 Nov
182* Children's Resource Centre Trust v Pioneer Food (50/12) [2012] ZASCA 182 (29 November 2012)
Class action – when permissible – requirements for commencement of class action – cartel in bread industry fixing bread price – entitlement of non-governmental community organisations and individual consumers to institute action on behalf of all consumers – requirements in regard to cause of action and representation – definition of class – cause of action raising a triable issue – common issue – representation.
Media Summary
29 Nov
181 Emilel Investments v Silvestri & others (80/12) [2012] ZASCA 181 (29 November 2012)
Interdict – zoning scheme regulations – promulgated in terms of Land Use Planning Ordinance 15 of 1985 – school property zoned general residential – place of instruction – soccer centre – five-a-side soccer pitches with club house constructed on school property – commercial use of centre – not permissible.
29 Nov
180* Communicare v Khan (12/12) [2012] ZASCA 180 (29 November 2012)
Rights of members of company to enforce articles of association against company challenged – rights of respondents to vote at annual general meetings of first and second appellants, in respect of election of directors classified as personal rights, as opposed to corporate rights and consequently not susceptible to control by majority of members – rights enforceable against first and second appellants.
Media Summary
29 Nov
179 Rhoode v De Kock (45/12) [2012] ZASCA 179 (29 November 2012)
Enrichment ─ whether lien for necessary or useful expenses should be enforced where failure to quantify the amount of the claim ─ whether rei vindicatio maintainable without a tender to repay what has been paid under a void contract ─ whether ejectment should be made subject to such repayment.
Media Summary
29 Nov
178 Computek v The Commissioner, SARS (830/11) [2012] ZASCA 178 (29 November 2012)
Value-Added Tax Act 89 of 1991 – value-added tax – assessment of − objection to − appeal against disallowance of objection – taxpayer limited to the grounds stated in notice of objection.
Media Summary
29 Nov
177* Emalahleni Local Municipality & another v Propark Association & another (89/12) [2012] ZASCA 177 (29 November 2012)
Constitutional law – review in terms of Promotion of Administrative Justice Act 3 of 2000 – whether the first appellant complied with s 79(18) of the Local Government Ordinance 17 of 1939 (Transvaal) and s 14 of the Local Government: Municipal Finance Management Act 56 of 2003 before it alienated a public open space (a park) to the second appellant and whether the first appellant complied with s 68 read with s 67 of the Ordinance before it decided to close the public open space permanently.
29 Nov
176 The National Credit Regulator v Standard Bank of SA Ltd (231/12) [2012] ZASCA 176 (29 November 2012)
National Credit Act 34 of 2005 – administration fees restricted under former Usury Act 73 of 1968 – whether survived the transition.
29 Nov
175

The General Council of the Bar of SA v Geach & others (277/12; 273/12; 274/12; 275/12; 278/12; 280/12; 281/12 ) [2012] ZASCA 175 (29 November 2012)
Admission of Advocates Act 74 of 1964 – Section 7(1)(d) – applications for striking off – appeal from high court.

29 Nov
174 Buthelezi & another v Minister of Home Affairs & others (242/12) [2012] ZASCA 174 (29 November 2012)
Immigration Act 13 of 2002 – visas – whether Minister obliged to grant – whether unreasonable delay in this case.
29 Nov
173 Farjas (Pty) Ltd v Minister of Agriculture and Land Affairs of the RSA (753/11) [2012] ZASCA 173 (29 November 2012)
Restitution of Land Rights Act 22 of 1994 – land claims – determination of proper compensation for expropriation of properties – application of the Consumer Price Index – adequate indicator of the change in value of money over time.
Media Summary
29 Nov
172 Meintjes v The Government of the Republic of South Africa (305/11) [2012] ZASCA 172 (28 November 2012)
Restitution of Land Rights Act 22 of 1994 – s 2(1) – right in land – dispossession of.
Media Summary
28 Nov
171 NDPP v Van Staden (730/11) ZASCA 171 (28 November 2012)
Application for confirmation of a provisional restraint order granted in terms of s 26(1) of the Prevention of Organized Crime Act 121 of 1998 refused by high court on ground that NDPP had not acted in good faith when it sought the order: decision reversed on appeal: no ground for finding bad faith and no reason for refusing confirmation.
28 Nov
170 Chetty v Italtile (668/11) [2012] ZASCA 170 (28 November 2012)
Delictual liability for furtum usus – whether defendant used missing stock when stock rolled over – whether defendant used stock when selling it in breach of contract – causation.
Media Summary
28 Nov
169 Road Accident Fund v Duma (202/12) and three related cases (Health Professions Council of South Africa as Amicus Curiae) [2012] ZASCA 169 (27 November 2012)
Road Accident Fund Act 56 of 1996 read with Regulations promulgated under the Act – ‘serious injury’ to be determined in accordance with procedure prescribed in the Regulations – until third party had complied with prescribed procedure – claim for general damages premature – not for court to decide whether injury ‘serious’.
27 Nov
168 Kwanape v The State (422/12) [2012] ZASCA 168 (26 November 2012)
Sentence ─ prescribed sentences ─ minimum sentence ─ imposition of in terms of Criminal Law Amendment Act 105 of 1997 read with Part 1 of Schedule 2 ─ whether ‘substantial and compelling circumstances’ as contemplated in s 51(3)(a) existed. Life imprisonment on a charge of rape ─ complainant 12 years of age.
Media Summary
26 Nov
167* Firstrand Bank Ltd v Owens (16/12) [2012] ZASCA 167 (23 November 2012)
Where a credit provider terminates a debt review in respect of a particular credit agreement through a notice given in terms of s 86(10) of the National Credit Act 34 of 2005, it may proceed to enforce the agreement under ss 129 and 130 of the Act. No further notice need be served under s 129(1)(a) of the
Act.
26 Nov
166 Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd (864/2011) [2012] ZASCA 166 (21 November 2012)
Promotion of Access to Information Act 2 of 2000 (PAIA) – report obtained by MEC into maladministration in a municipality in terms of s 106(1)(b) of the Local Government: Municipal Systems Act 32 of 2000 – request for access by newspaper group – refusal – ss 44 and 46 of (PAIA) – report delivered in terms of order of high court – peremption of appeal – mootness – s 21A(1) of Supreme Court Act 59 of 1959.
Media Summary
21 Nov
165* Khula Enterprise Finance Ltd v Geldenhuys (745/11) [2012] ZASCA 165 (21 November 2012)
Principal and surety ─ discharge of surety from obligations undertaken under suretyship ─ prejudice to surety ─ not established that the prejudice complained of caused by conduct of creditor. Contract ─ breach ─ interpretation of contract ─ requirement to afford principal debtor opportunity to remedy breach overridden by cross-default acceleration clause which operates in respect of multiple agreements.
Media Summary
21 Nov
164 Adlem v Arlow (782/11) [2012] ZASCA 164 (19 November 2012)
Land ─ Subdivision of Agricultural Land Act 70 of 1970 ─ the word ‘portion’ in inter alia s 3(d) must be interpreted as meaning a part of property (as opposed to the whole property) registered in the Deeds Registry, and not as having the meaning used in the Deeds Registry to describe the whole property.
Media Summary
19 Nov
163 Adlem v Arlow (782/11) [2012] ZASCA 163 (19 November 2012)
Costs: opposition to application for condonation
19 Nov
162 Ramafamba v Score Supermarkets (Pty) Ltd (517/2012) [2012] ZASCA 162 (19 November 2012)
Where a plaintiff does not prove the cause of her injury she cannot succeed in an action against the defendants for negligently causing her loss. High court should have granted absolution from the instance.
19 Nov
161 National Commissioner of Police v Coetzee (649/11) [2012] ZASCA 161 (16 November 2012)
Criminal procedure – arrest – legality – refusal of bail does not render otherwise lawful arrest unlawful – no place for interdictum de homine libero exhibendo in those circumstances.
16 Nov
160 Command Protection Services (Gauteng)(Pty) Ltd v South African Post Office Limited (214/12) [2012] ZASCA 160 (16 November 2012)
Acceptance of tender not unconditional ─ hence it did not bring about a valid and binding contract between the parties.
16 Nov
159 Road Accident Fund v Oupa William Leboko (802/11) [2012] ZASCA 159 (15 November 2012)
General damages – Road Accident Fund Act 56 of 1996 – Claim for nonpecuniary damages flowing from injuries sustained in a motor vehicle collision – Limited to ‘serious injury’ – Reg 3 sets out prescribed procedure for determination of ‘serious injury’ – Plaintiff failed to comply with regulation 3 – Claim for general damages postponed pending compliance with regulation 3.
Media Summary
15 Nov
158 Minister of Defence v Von Benecke (115/12) [2012] ZASCA 158 (15 November 2012)
Employment law – vicarious liability – South African Defence Force – theft of armaments by employee employed to care for them – policy considerations – closeness of connection between conduct of employee and the duties of his employment – employer liable.
15 Nov
157 South African Property Owners Association v The Council of the City of Johannesburg (648/11) [2012] ZASCA 157 (8 November 2012)
Constitutional law – municipal budget and imposition of rates – imposition of rates part of budget process - constitutional review based on principle of legality – failure to consult with community - application of Local Government: Municipal Systems Act 32 of 2000, Local Government: Municipal Finance Management Act 56 of 2003 and Local Government: Municipal Property Rates Act 6 of 2004 - interpretation of section 19(1)(b) of Local Government: Municipal Property Rates Act 6 of 2004 – section 172 of the Constitution.
Media Summary
08 Nov
156* Corpclo 2290 cc t/a U-Care v The Registrar of Banks (755/11) [2012] ZASCA 156 (2 November 2012)
Banks Act 94 of 1990 – contravention of s 11 – appellants conducting ‘the business of a bank’ as defined in notice issued in terms of paragraph (e) of the definition of ‘the business of a bank’ in s 1 –
interdict granted against the appellants in terms of s 81 of the Act prohibiting them from conducting their business in contravention of the Act – appellants appeal against the order on the grounds that the provisions of the Act and the notice itself not properly interpreted in the light of the Constitution and the Act – such grounds not part of the defence in the court a quo and raised for the first time in the appellants’ heads of argument – whether the court should consider the new defences where they were not raised in the court a quo.
02 Nov
155

Sheryl Cwele & another The State (671/11) [2012] ZASCA 155 (1 October 2012)
Drug offences – cocaine – dealing in in contravention of s 5 (b) of Act 140 of 1992 – appeals against convictions dismissed – sentence – appellants engaging services of courier or ‘mule’ – sentence of 12 years’ imprisonment increased to 20 years’ imprisonment.

01 Oct
154 Bailey v The State (454/11) [2012] ZASCA 154 (1 October 2012)
Criminal Law – appeal against a sentence of imprisonment for life on a charge of rape under the provisions of ss 51(1) read with Part 1 of Schedule 2 and 51(3)(a) of the Criminal Law Amendment Act 105 of 1997 – whether substantial and compelling circumstances exist justifying a deviation from the
minimum sentence of imprisonment for life prescribed by the Act.
Media Summary
01 Oct
153 JJ Liebenberg NO v Bergrivier Municipality (737/11) [2012] ZASCA 153 (1 October 2012)
Rates imposed on rural landowners by the Municipality in the years from 2002 to 2009 were lawfully imposed under s 10G(7) of the Local Government Transition Act 209 of 1993 and under the Local
Government: Municipal Finance Management Act 56 of 2003.
Media Summary
01 Oct
152 Armgold/Harmony Freegold Joint Venture v CSARS (703/11) [2012] ZASCA 152 (1 October 2012)
Income tax – deductions of mining capital expenditure under subsections 36(7F) and 36(7E) of the Income Tax Act 58 of 1962 – method of calculation to be adopted where a mine of a taxpayer operates at a loss.
Media Summary
01 Oct
151 Brossy v Brossy (602/11) [2012] ZASCA 151 (28 September 2012)
Maintenance of minor children – variation order refused – appeal to high court – record incomplete – matter postponed sine die for completion and reconstruction of the record.
Media Summary
28 Sep
150* The Head of Department of Education, Free State Province v Welkom High School & another and Harmony High School and another (766 &767/11)[2012] ZASCA 150 (28 September 2012)
School and school governing body - School governing body – In terms of South African Schools Act 84 of 1996, governance of public school vested in governing body, including right to determine school's code of conduct – the provincial head of department not empowered to instruct a school principal to ignore a pregnancy policy even if school governing body not empowered to adopt such a policy and even if the policy is unconstitutional.
Administrative law – administrative act – consequences of invalidity – Until invalid administrative action set aside by court in proceedings for judicial review, it exists in fact and it has legal consequences that cannot be disregarded.
Administrative law – distinction between direct and collateral challenge – only a person threatened with coercive action by a public authority may mount a collateral challenge – HOD’s challenge not collateral.
Media Summary
28 Sep
149 Daffy v Daffy (659/11) [2012] ZASCA 149 (28 September 2012)
Domestic violence ─ definition of domestic relationship under the Domestic Violence Act 116 of 1998 ─ whether two middle-aged brothers who did not share a common household shared a domestic relationship ─ whether the conduct of one brother constituted domestic violence as envisaged by the
Act.
Media Summary
28 Sep
148 Ndou v S (93/12) [2012] ZASCA 148 (28 September 2012)
Sentence – rape of girl under the age of 16 years – imposition of life imprisonment in terms of s 51(1) of the Criminal Law Amendment Act 105 of 1997 – whether misdirection exists – no substantial and
compelling circumstances found by high court – whether appeal court can interfere.
Media Summary
28 Sep
147 BoE Trust Ltd and another (846/11) [2012] ZASCA 147 (28 September 2012)
Will – interpretation of - freedom of the testation – racially exclusive provision in trust.
Media Summary
28 Sep
146 Mashilo v Prinsloo (576/11) [2012] ZASCA 146 (28 September 2012)
Interpretation of s 50 (1) (b) (c) (d) and (6) of the Criminal Procedure Act 51 of 1977 – 48 hours – maximum period stipulated - police not always entitled to detain a person until that period expires – an arrested person has the right to be brought before court to enable a bail application as soon as is reasonably possible – that is the standard to be applied – s 50(1)(d) does extend the period of 48 hours if it expires outside normal court hours or on a day when the court does not normally sit – even then the standard is that an arrested person is to be brought before court as soon as is reasonably possible.
28 Sep
145 Transman (Pty) Ltd v South African Post Office Ltd and another (778/11) [2012] ZASCA 145 (28 September 2012)
Contract to render a service – part of remuneration provision vague but sought to be enforced – whether can be implied that reasonable allowance payable – evidence not establishing that the claim was calculated according to an industry norm or method – or otherwise reasonable – procedure – parties re-defining (at the pre-trial conference and elsewhere), the issues to be decided – acceptable procedure in the circumstance.
28 Sep
144 Seyisi v The State (117/12) [2012] ZASCA 144 (28 September 2012)
Expert evidence – once accepted as credible, constitutes prima facie proof – onus of rebuttal on the defence.
28 Sep
143 Chauke v The State (70/12) [2012] ZASCA 143 (28 September 2012)
Criminal law ─ murder ─ liability ─ no admissible evidence placing accused at the scene of crime ─ no basis upon which accused could be convicted. Extra-curial statement ─ admissibility ─ when contested ─ must be established by trial-within-a-trial.
Media Summary
28 Sep
142 Azwihangwisi Mmboi v The State (167/12) [2012] ZASCA 142 (28 September 2012)
Murder ─ common purpose ─ absence of proof of prior agreement ─ appellant a passive bystander ─ held, in the absence of conduct manifesting active association in killing, not liable for murder. Sentence ─ cumulative effect of sentences ─ concurrence of sentences ─ when appropriate ─ two sentences ordered to run concurrently.
Media Summary
28 Sep
141 Njemla v KSD Local Municipality (583/11) [2012] ZASCA 141 (28 September 2012)
Interdict and allied costs order obtained in the Land Claims Court on the basis of misleading information – interdict rendered academic by subsequent events – application for rescission of costs order justified on the basis of the court having been misled.
Media Summary
28 Sep
140 The DPP and Minister of Justice and Constitutional Development v Phillips (803/11) [2012]
ZASCA 140 (28 September 2012)

Permanent stay of prosecution – Criminal Procedure Act 51 of 1977 – Constitution – assertion of fair trial rights – right to have trial begin and conclude without unreasonable delay – undue delay by the Director of Public Prosecutions in prosecuting appeal – trial having endured for many years – factors to be taken into account and weighed in determining whether permanent stay of prosecution warranted.
Media Summary
28 Sep
139 Absa and Firstrand v Lombard Insurance (629/11 & 684/11)) [2012] ZASCA 139 (28 September 2012)
Recovery of stolen money – stolen money paid into thief’s account – whether debts on overdraft, credit card account and home loan extinguished – whether banks holding the accounts enriched – suum recipit.
Media Summary
28 Sep
138 MTN v SMI (603/11) [2012] ZASCA 138 (28 September 2012)
Section 22 of the Electronic Communications Act 36 of 2006 – s 25 of the Constitution – power of licensee to enter upon land, construct and maintain base station – whether powers exercised ‘arbitrarily’ – administrative action – ‘decision’.
Media Summary
28 Sep
137 Law Society of the Northern Provinces v Siphiwe Dube (874/11) [2012] ZASCA 137 (27 September 2012)
Attorneys Act 53 of 1979 – misconduct – appropriate order – suspension or removal from roll – whether court a quo misdirected itself in the exercise of its discretion in relation to an appropriate sanction – whether the general rule relating to costs in matters involving the law society should have been applied – acts of dishonesty not so serious to warrant removal from roll – attorney conditionally suspended from
practice – costs order altered.
Media Summary
27 Sep
136 Roos v Roos en 'n Ander (412/11) [2012] ZASCA 136 (27 September 2012)
Egskeiding – skikkingooreenkoms – dwaling in die beweegrede – invloed op afdwingbaarheid.
27 Sep
135 Robert Du Plooy v Ntombi Du Plooy (417/11) [2012] ZASCA 135 (27 September 2012)
Ownership of immovable property – whether first appellant owning property in personal capacity or as nominee of siblings (the respondents) – nomination of first appellant established – transfer of property – whether second appellant had knowledge of challenge to first appellant’s right to alienate property prior to transfer.
Media Summary
27 Sep
134 Agri Wire (Pty) Ltd v The Competition Commissioner [2012] ZASCA 134 (27 September 2012)
Cartel – reference to Competition Tribunal in terms of s 4(1) of the Competition Act 89 of 1998 – reference arising from evidence obtained by the Competition Commission under its corporate leniency
policy – application to set aside reference on the basis that the Competition Act provides no lawful basis for the adoption of the corporate leniency policy – claim that evidence obtained by means of the
corporate leniency policy obtained unlawfully – claim that this rendered reference unlawful.
Media Summary
27 Sep
133 Toubie v S (635/11) [2012] ZASCA 133 (27 September 2012)
Criminal law – interpretation of Section 22 of the Supreme Court Act 59 of 1959 and s 322 of the Criminal Procedure Act 51 of 1977 – the effect of a trial court failing to inform an accused person of the applicability of the Criminal Law Amendment Act 105 of 1997.
Media Summary
27 Sep
132 Roux v Hattingh (636/11) [2012] ZASCA 132 (27 September 2012)
Delict – plaintiff injured during a game of rugby – factual findings of trial court assumed to be correct where no misdirection on part of trial court – intentional infliction of injury by defendant on plaintiff established – such conduct wrongful – element of wrongfulness in context of sport discussed.
Media Summary
27 Sep
131 Theart v Scheibert (630/11) [2012] ZASCA 131 (27 September 2012)
Wills ─ mutual will ─ interpretation ─ massing ─ presumption of destruction where original will cannot be found.
Media Summary
27 Sep
130* Paixão v Road Accident Fund (640/11) [2012] ZASCA 130 (26 September 2012)
Dependants’ action – Permanent heterosexual life partnership – reciprocal duty of support established by tacit agreement – Common law extended to afford protection to dependants.
Media Summary
26 Sep
129 Thekiso v S (73/12) [2012] ZASCA 129 (25 September 2012)
Criminal Procedure – leave to appeal – appeal against refusal of petition – issue to be determined is whether leave to appeal should have been granted by the High Court and not the appeal itself – the
test is whether appellant enjoys reasonable prospects of success in the envisaged appeal, not the merits of the appeal.
25 Sep
128 Crookes Brothers Ltd v Regional Land Claims Commission for the Province of Mpumalanga & others (590/2011) [2012] ZASCA 128 (21 September 2012)
Contract – interpretation of - sale of immovable properties – claim for mora interest on purchase price.
Media Summary
21 Sep
127

Hano Trading CC v JR 209 Investments (Pty) Ltd (650/11) [2012] ZASCA 127 (21 September 2012)
Rules of court – rule 6 – non-compliance – filing of further affidavits – test to be applied – Indulgence – factors to be presented in application for court to exercise discretion to allow further affidavits. Contract – breach – notice of – requirements in terms of contract.
Media Summary

21 Sep
126 Comwezi Security Services (Pty) Ltd v Cape Empowerment Trust Ltd (759/11) [2012] ZASCA 126 (21 September 2012)
Contract – resolutive condition – interpretation – power of relaxation vested in one party – exercise of power – evidence of conduct of parties in implementing contract – admissibility.
21 Sep
125 Bester and others NNO v Schmidt Bou Ontwikkelings CC (696/11) [2012] ZASCA 125 (21 September 2012)
Claim for rectification of deed of transfer – not a ‘debt’ as contemplated by the Prescription Act 68 of 1969 – first to fourth appellants’ defence of prescription accordingly dismissed – fifth appellant’s defence of estoppel dismissed because of its failure to establish that it had relied on the misrepresentation in the deed of transfer to its detriment.
21 Sep
124 Sentinel Mining Industry Retirement Fund v Waz Props (Pty) Ltd (779/11) [2012] ZASCA 124 (21 September 2012)
Contract: use of heading in interpretation; incorporation of tacit term.
Media Summary
21 Sep
123 Foize Africa v Foize Beheer (752/11) [2012] ZASCA 123 (20 September 2012)
Interdict against peregini ─ effectiveness thereof ─ effect of a contractual provision that parties to a dispute would proceed to arbitration in Holland and that Dutch law would apply to their dispute ─ such clauses not ousting the jurisdiction of a South African court ─ discretion whether to stay South African litigation by reason of such a clause ─ factors to be taken into account.
Media Summary
20 Sep
122* Government of the Republic of Zimbabwe v Fick & others (657/11) [2012] ZASCA 122 (20 September 2012)
Tribunal of Southern African Development Community – enforcement – whether competent – whether binding on Zimbabwe.
20 Sep
121 City of Johannesburg v Cantina Tequila (775/11) [2012] ZASCA 121 (20 September 2012)
Where a Town Planning Scheme includes among its primary rights the conduct of a hotel business, the scheme cannot be interpreted to permit a stand alone restaurant and bar.
Media Summary
20 Sep
120 Ngqula v South African Airways (701/11) [2012] ZASCA 120 (19 September 2012)
Practice – removal of proceedings – Interim Rationalisation of High Courts Act 41 of 2002, s 3 – non-appealability of order authorising removal – such order simple interlocutory order.
19 Sep
119* Fourie v FirstRand Bank Ltd (578/11) [2012] ZASCA 119 (18 September 2012)
Claim against appellant in terms of s 424 of the Companies Act 61 of 1973 based on fraudulent conduct – causal link between fraudulent conduct and company’s inability to pay not required – second respondent held vicariously liable in delict, jointly and severally with appellant for the same damages suffered by the first respondent.
Media Summary
18 Sep
118 Royal Hotel v Nachley Simon NO (713/11) [2012] ZASCA 118 (18 September 2012)
Servitude – praedial – interpretation – entitlement to park on servient tenement – erection of building on substantial portion of servitude area – breach of entitlement
18 Sep
117

Firstrand Bank v Venter (829/11) [2012] ZASCA 117 (14 September 2012)
Bank – overdrawn current account – proof of – application of s 15 of the Electronic Communications and Transactions Act 25 of 2002. Evidence – admission of fact in claim in convention – same denied in plea to claim in reconvention – effect – proper approach of court – s 15 of Civil Proceedings Evidence Act 1965. Defamation – injuria – dishonour of cheques – liability of bank.

14 Sep
116* City of Johannesburg v Changing Tides 74 (Pty) Ltd and 97 others (The Socio-Economic Rights Institute of South Africa intervening as amicus curiae) (735/11) [2012] ZASCA 116 (14 September 2012)
Eviction in terms of Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) – relationship between ss 4(6) and (7) – joinder of local authority – whether required or permissible – power of court to make an order that is just and equitable – enquiry to be undertaken by court – obligations of applicant, local authority and respondents discussed
Media Summary
14 Sep
115* Judicial Service Commission v Cape Bar Council (Centre for Constitutional Rights as amicus curiae) (818/11) [2012] ZASCA 115 (14 September 2012)
Absence of President of the SCA from meeting of the JSC – his deputy not invited – JSC not properly constituted – decisions at meeting consequently invalid – failure by the JSC to observe obligation to give reasons for decision not to recommend any candidate for appointment to existing vacancies – prima facie inference that decision was irrational not rebutted.
Media Summary
14 Sep
114* Donald & Richard Currie (Pty) Ltd v Growthpoint Properties Ltd (572/11) [2012] ZASCA 114 (13 September 2012)
Where offer to convert equities in a company is made to holders by another entity, and offeree completes acceptance form in required manner, he cannot rely on his own errors in completing the form to avoid the contract that is concluded on the ground of reasonable mistake
13 Sep
113 The Wilds Home Owners Association v Van Eeden (780/11) [2012] ZASCA 113 (13 September 2012)
Company law ─ s 252 of the Companies Act 61 of 1973.
13 Sep
112 Hanuscke v Kungwini (512/11) [2012] ZASCA 112 (12 September 2012)
Agreement for purchase of land – suspensive conditions – non-fulfilment within a reasonable time – agreement lapsing
12 Sep
111 Tulip Diamonds Fze v Minister of Justice and Constitutional Development (810/2011) [2012]
ZASCA 111 (7 September 2012)

Standing ─ International Co-operation in Criminal Matters Act 75 of 1996 ─ request by Belgian examining magistrate for assistance of South African authorities to obtain documents ─ foreign based company claiming confidential information in documents in possession of local company ─ appellant
seeking to challenge decision by South African authorities to provide assistance and issue of subpoena to South African company to produce documents ─ failure to establish that information in documents confidential ─ failure to show that it has substantial interest in the subject matter of the litigation.
Media Summary
07 Sep
110 The Minister of Defence v SA National Defence Force (161/11) [2012] ZASCA 110 (30 August 2012)
Interdict – whether right established – peremption of appeal – desirability of leaving intact order that ought not to have been granted – costs – duties of government in litigation
30 Aug
109 Minister of Public Service and Administration v Ngwenya (645/11) [2012] ZASCA 109 (29 August 2012)
Resolution of the Public Service Bargaining Council and Public Service Dispensation Determination – interpretation – jurisdiction of high court – power of court to order amendment of collective bargaining agreement and consequent determination
29 Aug
108 Cipla Medpro v Aventis Pharma (139/12); Aventis Pharma SA v Cipla Life Sciences (138/12) [2012] ZASCA 108 (26 July 2012)
Patent – validity – whether claim vague or otherwise revocable – contributory infringement – interim interdict – relevance of public interest.
26 Jul
107 BATSA v Minister of Health (463/11) [2012] ZASCA 107 (20 June 2012)
Proper interpretation of s 3(1)(a) of the Tobacco Products Control Act 83 of 1993 as amended, read with the definitions of ‘advertise’ and ‘promotion’.
Media Summary
20 Jun
106* DPP v Prins (Minister of Justice and Constitutional Development & two amici curiae intervening) (369/12) [2012] 106 ZASCA (15 June 2012)
Criminal law – s 5(1) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 – failure to specify in same statute penalty on conviction – in light of the provisions of s 276 of the Criminal Procedure Act 51 of 1977 does failure mean that the section does not create a criminal offence – application of maxim nulla poena sine lege and principle of legality.
Media Summary
15 Jun
105 Body Corporate of the Pinewood Park Scheme no 202 v Dellis (Pty) Ltd (498/11) [2012] ZASCA 105 (1 June 2012)
Sectional Title – Status and nature of rules governing control and management of body corporate – management rules – resolution of dispute as to payment of levies – whether provisions of s 6 of Arbitration Act 42 of 1965 excluded by arbitration procedure provided for in rule 71.
No media summary
01 Jun
104 Ingonyama Trust v Ethekwini Municipality (149/11) [2012] ZASCA 104 (1 June 2012)
Rating of State Property Act 79 of 1984 - whether property vesting in Ingonyama Trust in the Ethekwini Municipality exempt from rates in terms of s 3(3)(a).
No media summary
01 Jun
103* CSARS v De Beers (503/11) [2012] ZASCA 103 (1 June 2012)
Value-Added Tax Act 89 of 1991 – meaning of ‘enterprise’ – meaning of ‘imported services’ – whether foreign advisory services utilized or consumed in the Republic for ‘the purpose of making taxable supplies’ – whether tax on local advisory services qualifies for deduction as ‘input tax’.
Media summary
01 Jun
102* Minnies v The State (881/11) [2012] ZASCA 102 (1 June 2012)
Criminal law – contravention of s 34(1)(b) of the South African Reserve Bank Act 90 of 1989 – offering counterfeit money for sale (not as legal tender) to a buyer who knew it to be counterfeit, not constituting tendering in contravention of s 34(1)(b).
Media summary
01 Jun
101* Mohammed Cassimjee v Minister of Finance (455/11) [2012] ZASCA 101 (1 June 2012)
Procedure – inordinate delay in prosecuting claim – inherent power of the court to prevent abuse of its process – whether discretion properly exercised to dismiss action for want of prosecution.
Media summary
01 Jun
100 Corporate Money Managers (Pty) Ltd & others v Kufa Trading Enterprise CC (457/11) [2012]
ZASCA 100 (1 June 2012)
Close Corporation – winding up by court – whether grounds for winding up established by applicants.
No media summary
01 Jun
99 Investec Employee Benefits Ltd v Marais & others (580/11) [2012] ZASCA 99 (1 June 2012)
Pension Funds – Pension Funds Adjudicator not empowered to extend time limits laid down in Prescription Act 68 of 1969 – Prescription Act applies to claims forming subject matter of complaints to Adjudicator – First respondent’s claim prescribed before his complaint lodged with the Adjudicator.
No media summary
01 Jun
98 The MEC for Education, KZN v Shange (529/11) [2012] ZASCA 98 (1 June 2012)
Condonation – Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 – knowledge of the identity of the joint debtor.
Media summary
01 Jun
97* Raubenheimer v Raubenheimer (560/11) [2012] ZASCA 97 (1 June 2012)
Will – construction – bequest of immovable property subject to a usufruct without identifying a beneficiary – properly construed the testator intended to create a fideicommissum, the fideicommissary being identified by necessary implication – failure to attach list of specific bequests referred to in the will not rendering the will void for vagueness – the will intended by the testator to be his final will and should be accepted by the Master under s 2(3) of the Wills Act 7 of 1953 despite a failure to comply with statutory formalities.
Media summary
01 Jun
96* King Sabata Dalindyebo Municipality v KwaLindile Community (537/11) [2012] ZASCA 96 (1 June 2012)
Restitution of Land Rights Act 22 of 1994 – order by Land Claims Court in terms of s 34(5) that certain land within a municipality not be restored to any claimant or prospective claimant – order qualified by further directions – revision of orders on appeal – review of publication in terms of s 11 by regional land claims commissioner of claim to municipal land lodged in terms of the Act – costs on appeal.
Media summary
01 Jun
95 Grigor v The State (607/11) [2012] ZASCA 95 (1 June 2012)
Attempted murder – self defence – must be a balance between the attack and the defence – bounds of self defence exceeded – sentence not shockingly inappropriate.
No media summary
01 Jun
94* Ngwenyama v Mayelane & another (474/11) [2012] ZASCA 94 (1 June 2012)
Customary marriages – polygamy- Interpretation- s 7(6) of the Recognition of Customary Marriages Act 120 of 1998- whether failure by the husband to enter into a contract regulating matrimonial property renders subsequent customary marriage invalid – provisions of s 7(6) not intended to invalidate subsequent customary marriage.
Media summary
01 Jun
* An additional/supplementary judgment  to the one below was delivered on 31 May 2012:
Gainsford NO v Tiffski Property Investment (Pty) Ltd (874/2010) [2011] ZASCA 187 (30 September 2011)
31 May
93* Minister of Minerals and Energy v Agri SA (CALS amicus curiae) (458/11) [2012] ZASCA 93 (31 May 2012)
Expropriation of mineral rights – Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) – expropriation of common law mining rights – are such rights expropriated under the provisions of the MPRDA – entitlement to compensation in terms of item 12(1) of Schedule II to the MPRDA.
Media Summary
31 May
92 Ivanov v North West Gambling Board (312/11) [2012] ZASCA 92 (31 May 2012)
Search warrant - search and seizure - declaration of invalidity of search warrant - operates retrospectively - search and seizure invalid ex tunc - application for a mandament van spolie appropriate − appellant entitled to restoration of machines even though his possession without a licence would be illegal.
Media Summary
31 May
91

South Africa Congo Oil Company (Pty) Ltd v Identiguard International (Pty) Ltd (710/11) [2012] ZASCA 91 (31 May 2012)
Execution – garnishee proceedings – rule of court 45(12)(a) – whether attachment of debt in terms of
rule 45(8) necessary to render garnishee proceedings effective.
Media Summary

31 May
90

City of Cape Town v Hendricks (633/11) [2012] ZASCA 90 (31 May 2012)
Warning/compliance notice of contravention of By-Law and demand that recipient comply to avoid legal action not ‘administrative action’ for purposes of Promotion of Administrative Justice Act 3 of 2000.
Media Summary

31 May
89

Mangangeni Emmaus Westmead Returners Community Trust v The Minister of Rural Development and Land Reform (361/11) [2012] ZASCA 89 (31 May 2012)
Settlement of land claim in terms of Restitution of Land Rights Act 22 of 1994 – agreements to regulate holding and control of funds paid pursuant to settlement – claimants’ trust’s entitlement to payment of funds not unqualified.
Media Summary

31 May
88*

Distell Ltd v CSARS (526/11) [2012] ZASCA 88 (31 May 2012)
Excise and customs duty – Custom and Excise Act 91 of 1964 - classification of beverages under tariff headings – fermented or distilled (spirituous) beverages - International Convention on the Harmonised Commodity Description and Coding System.
Media Summary

31 May
87 Chamber of Mines of SA v The Compensation Commissioner for Occupational Diseases (448/11) [2012] ZASCA 87 (31 May 2012)
Mines and Works Compensation Fund – deficit in fund – whether owners of mines and works may be
levied for recovery of deficit.
No Media Summary
31 May
86

Raath v Nel (473/11) [2012] ZASCA 86 (31 May 2012)
Damages – loss of income and earning capacity – proof of actual patrimonial loss in personal capacity – trust sole shareholder in company suffering loss – trust separate legal entity and not axiomatic that its
loss is necessarily that of the plaintiff .
Media Summary

31 May
85 Sithole v S (868/11) [2012] ZASCA 85 (31 May 2012)
In deciding whether to convict or acquit the court must take all the evidence into account – if accused’s version improbable court cannot convict unless it can find that it is so improbable that it cannot be reasonably possibly true.
Media Summary
31 May
84 Hattingh v Juta (440/11) [2012] ZASCA 84 (30 May 2012)
Family’s cultural rights under s 6(2)(d) of ESTA – what constitutes – section envisages rights of an associative nature.
Media summary
30 May
83* Gungudoo v Hannover Reinsurance Group Africa (585/11) [2012] ZASCA 83 (30 May 2012)
Sequestration – debtor failing to dispute claims on reasonable and bona fide grounds – Sections 9(4A), 11(2A) and 11(4) requiring service of sequestration application on employees of debtor – Service required only on employees of business, not all employees.
Media summary
30 May
82* Bridon International GMBH v International Trade Administration Commission (538/11) [2012]
ZASCA 82 (30 May 2012)

Confidential information submitted to Commission during investigation in terms of International Trade Administration Act 71 of 2002 – Commission relying on that information for its decision – disclosure claimed by third party for purposes of reviewing that decision - weighing-up of competing interests.
No media summary
30 May
81* Seyffert & Seyffert v Firstrand Bank Ltd (577/11) [2012] ZASCA 81 (30 May 2012)
Section 85 of National Credit Act 34 of 2005 – termination of debt review under s 86(10) – summary judgment – discretion of court – unrealistic proposals for restructuring repayment of debt
Media summary
30 May
80 Phithela Mapule v The State (817/11) [2012] ZASCA 80 (30 May 2012)
Sentence – imposition of minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 – sentenced for a crime not convicted of – right to a fair trial.
Media summary
30 May
79 Mooi v The State (162/11) [2012] ZASCA 79 (30 May 2012)
Bail – Criminal Procedure Act 51 of 1977 s 60(11)(a) – delay by State in concluding its case taken together with deduced weakness of State’s case constituting exceptional circumstances which in the
interests of justice permit the release of accused.
Media summary
30 May
78

Botha v Iveco SA (Pty) Ltd (430/11) [2012] ZASCA 78 (28 May 2012)
Prescription ─ Sale of shares agreement ─ Claim arising from breach of warranty ─ Relief in terms of indemnity clause ─ Debt due and payable not on date of breach of warranty but on date of payment in terms of indemnity clause.
No media summary

28 May
77* Sterklewies (Pty) Ltd v Msimanga & others [2012] ZASCA 77 (25 May 2012)
Eviction – Extension of Security of Tenure Act 62 of 1997 – whether appellant succeeded in proving that the respondents were only allowed to stay on the farm as long as they were employed by the appellant.
No media summary
25 May
76 Kgantsi v The State (732/11) [2012] ZASCA 76 (25 May 2012)
Criminal law – sentence – leave to appeal – reasonable prospects of success – clear misdirection regarding applicability of minimum sentence.
No media summary
25 May
75 Kekana v The State (581/11) [2012] ZASCA 75 (25 May 2012)
Evidence – assessment of - court's powers to interfere on appeal with the findings of fact of a trial court limited in the absence of demonstrable and material misdirection.
Media summary
25 May
74 Mkhize v The State (741/11) [2012] ZASCA 74 (25 May 2012)
Criminal Procedure – Appeal against a refusal by a high court to grant leave to appeal on petition seeking leave to appeal against a sentence imposed by a regional court – the issue is whether leave to appeal should have been granted by the high court and not the merits of the appeal.
No media summary
25 May
73 Visser v Kotze (519/11) [2012] ZASCA 73 (25 May 2012)
Application for summary judgment – defence of duress raised – requirements for summary judgment and for defence of duress – bona fide defence of duress not disclosed – summary judgment granted
Media summary
25 May
72* Stellenbosch Farmers’ Winery v CSARS (511/11 & 504/11) [2012] ZASCA 72 (25 May 2012)
Revenue – whether receipt by taxpayer of a sum of money of a capital or a revenue nature - whether interest on alleged underpayment of provisional tax in respect of the receipt should have been levied in terms of s 89quat(3) of the Income Tax Act 58 of 1962 – whether receipt attracted value added tax in terms of s 7 of the Valued-Added Tax Act 89 of 1991 or zero rate applicable in terms of s 11(2)(l)(ii).
Media summary
25 May
71 Daniels v The State (125/11) [2012] ZASCA 71 (25 May 2012)
Criminal Procedure – appeal charges referring to unconstitutional presumptions – charges not per se a nullity – necessary to examine whole of trial record to determine whether a failure of justice or unfairness in the conduct of the trial has resulted.
No media summary
25 May
70 Keyser v The State (634/11) [2012] ZASCA 70 (25 May 2012)
Criminal Procedure – appeal – charges referring to unconstitutional presumptions – necessary to examine whole of the trial record to determine whether a failure of justice or unfairness in the conduct of
the trial has resulted. Criminal procedure – Drugs and Drug Trafficking Act 140 of 1992 –
dealing – courier importing 6.5 kg of cocaine – sentence.
No media summary
25 May
69 MacDonald v Road Accident Fund (453/11) [2012] ZASCA 69 (24 May 2012)
Dependants’ claim for loss of support – application of Assessment of Damages Act 9 of 1969 – calculations based on assumptions and contingencies not appropriate where actual figures available.
24 May
68* The Gap Inc v Salt of the Earth Creations (Pty) Ltd and others (695/11) [2012] ZASCA 68 (23 May 2012)
Trade mark – Trade Marks Act 194 of 1993, s 27 – application for expungement of on the grounds of lack of bona fide use.
Media Summary
23 May
67 Lekup Prop Co No 4 (Pty) Ltd v Wright (286/11) [2012] ZASCA 67 (23 May 2012)
Contract: doctrine of fictional fulfilment: state of mind of party against whom doctrine invoked, discussed.
Practice and procedure: difference between status of affidavits where matter referred to trial, as opposed to evidence on specific defined issues.
Media Summary
23 May
66* Northern Metropolitan Local Council v Company Unique Finance (36/11) [2012] ZASCA 66 (21 May 2012)
Estoppel – by conduct – whether council estopped from denying authority of one of its many employees – authority of one employee to tell the world that his subordinate had authority to bind council – employees lowly ranked in overall structure of council – no evidence of trappings of positions held – impression gained by third party on seniority of employees during visits to council premises not one created by employees’ appointments – no liability attaching to council.
Media summary
21 May
65 Midstream Home Owners Association v Shoprite Checkers (424/11); Heritage Hill Home Owners Association v Shoprite Checkers (435/11) [2012] ZASCA 65 (21 May 2012)
Tswane Town Planning Scheme 2008 – line of no access – revocation by Municipality
Media summary
21 May
64 Tecmed Africa v The Minister of Health (495/11) [2012] ZASCA 64 (21 May 2012)
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
21 May
63

MEC for Education: Mpumalanga v Skhosana (523/11) [2012] ZASCA 63 (17 May 2012)
Negligence – child learner injured after device with protruding copper wires exploded in his hands – whether teacher ought to have foreseen harm.
Media Summary

17 May
62 Carstens NO v Carstens (409/11) [2012] ZASCA 62 (10 May 2012)
No media summary available
10 May
61

CSARS v Tradehold Ltd (132/11) [2012] ZASCA 61 (8 May 2012)
1962 – deemed disposal of assets – Double Tax Agreement between the Republic of South Africa
and Luxembourg – meaning of and effect – Article 13(4) – includes within its ambit capital gains
derived from the alienation of all property including a deemed disposal of assets.
Media Summary

08 May
60 Pienaar v S (564/11) [2012] ZASCA 60 (2 April 2012)
Sentence – fraud – lengthy custodial sentence imposed disturbingly inappropriate – misdirection – sentence reduced from five years to four months imprisonment.
Media Summary
02 Apr
59 Motsisi v The State (513/11) [2012] ZASCA 59 (2 April 2012)
Rape – complainant allegedly mentally retarded – competence to testify – sections 192, 193 and 194 of the Criminal Procedure Act 51 of 1977 – admonition - section 164 read with s165 of the Criminal Procedure Act.
02 Apr
58 Long & another v Jacobs (145/11) [2012] ZASCA 58 (2 April 2012)
Negligence – what constitutes – educator assaulted by learner in class – whether conduct of the first appellant in failing to prevent assault on becoming aware of death threats made by learner against educator negligent. Damages – apportionment – when appeal court may interfere with the narrow exercise of judicial discretion by trial court in assessing apportionment.
Media Summary
02 Apr
57* The owners of the MV ‘Banglar Mookh’ v Transnet Ltd (842/11) [2012] ZASCA 57 (30 March 2012)
Vessel colliding with harbour wall while entering harbour – alleged negligence of the pilot – approach to evidence – unsafe to rely unduly on demeanour instead of the inherent probabilities – expert evidence
reconstructing the incident only reliable where the underlying facts on which it is based are established – negligence not shown – negligent failure to retain records – does not warrant striking out defence.
Media Summary
30 Mar
56 Hentiq 1320 (Pty) Ltd v Mediterranean Shipping Company (166/11) [2012] ZASCA 56 (30 March 2012)
Damages – whether appellant entitled to recover damages from respondent in respect of liability incurred by appellant to a third party in circumstances where the appellant was morally but not legally
liable.
Media Summary
30 Mar
55 City of Johannesburg Metropolitan Council v Ngobeni (314/11) [2012] ZASCA 55 (30 March 2012) Wrongful shooting – conduct of trial judge – irregular – approach to be followed and principles to be applied when dealing with two mutually destructive versions – trial court misdirected itself.

Media Summary

30 Mar
54* City of Cape Town v Strümpher (104/11) [2012] ZASCA 54 (30 March 2012)
Right to water ─ access to water supply cut off by water service authority ─ whether service founded solely on contract ─ whether spoliation order available to water user.
Media Summary
30 Mar
53 La Lucia Sands Share Block Ltd v Flexi Holiday Club (171/11) [2012] ZASCA 53 (30 March 2012) Voluntary association – club operating time-share scheme – whether club illegal association having regard to sections 30 and 31 of Companies Act 61 of 1973 – whether club formed or permits the carrying on of business that has for its object acquisition of gain.

Media Summary

30 Mar
52 Gaffoor NO v Vangates Investments (Pty) Ltd (330/11) [2012] ZASCA 52 (30 March 2012)
Section 115 of Companies Act 61 of 1973 – rectification of register of members – purported transfers of shares unlawful and invalid – court’s discretion in terms of s 115 a discretion in the broad sense – exercise of discretion to order rectification.

Media Summary

30 Mar
51 Rathumbu v S (369/11) [2012] ZASCA 51 (30 March 2012)
Murder charge – admissibility and probative value of a statement made by a witness to the police and later disavowed in evidence – s 3(1) of the Law of Evidence Amendment Act 45 of 1988 - trial court correctly relied on the disavowed statement.
Media Summary
30 Mar
50 Gert Thomas van der Merwe v Simon Molefe Pitje (232/11) [2012] ZASCA 50 (30 March 2012)
Practice and procedure – interlocutory orders – execution order suspended pending finalisation of application to rescind it – suspension order lapses on abandonment of rescission application.
Media Summary
30 Mar
49* Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa (363/11) [2012] ZASCA 49 (30 March 2012)
Practice – Interpretation of court order – when application is initiated – whether interdict had lapsed.

Media Summary

30 Mar
48* Bonugli v Standard Bank of South Africa Ltd (266/11) [2012] ZASCA 48 (30 March 2012)
Jurisdiction – submission to – peregrine defendant opposing summary judgment on the merits without contesting competence of court – effect thereof – mistake – rectification of contract – party seeking rectification failing to establish requirements therefor – calculation of quantum – whether certain charges
recoverable.
30 Mar
47* National Scrap Metal v Murray & Roberts (809/11) [2012] ZASCA 47 (29 March 2012)
Motion proceedings – whether disputed allegations of fact capable of being rejected on the papers – factors relevant thereto.
Media Summary
29 Mar
46 T D Thwala v The State (679/11) [2012] ZASCA 46 (29 March 2012)
Sentence – imposition of – factors to be taken into account – appellant convicted of robbery with aggravating circumstances involving use of a knife – minimum sentencing provisions of the Criminal Law Amendment Act 105 of 1997 not applicable – complainant robbed of a sum of R320 and wrist watch valued at R780 – no bodily harm caused to complainant – whilst brandishing a knife accused’s action limited to threats only

Media Summary

29 Mar
45 Beweging vir Christelik-Volkseie Onderwys v Minister of Education (308/11) [2012] ZASCA 45 (29 March 2012)
Practice and procedure – application for condonation for late filing of replying affidavit refused – Sections 7(1) and 9 of Promotion of Administrative Justice Act 3 of 2000 – application for extension of 180-day period for launching review proceedings refused – undue delay in launching application for declaratory orders – condonation refused.
Media Summary
29 Mar
44 Pitzer v Eskom (336/11) [2012] ZASCA 44 (29 March 2012)
Negligence – failure to take reasonable precautions against foreseeable risk – action for damages against undertaker, as defined in Electricity Act 41 of 1987 – qualified electrician injured in a live chamber of an electrical substation – undertaker failing to rebut presumption of negligence

Media Summary

29 Mar
43 Pillay v The State (570/11) [2012] ZASCA 43 (29 March 2012)
Appeal – conviction against charges of rape and indecent assault on two complainants – reliability of the evidence of state witnesses – whether the court a quo applied the necessary caution.
29 Mar
42 Minister of Home Affairs v Maboho (233/11) [2012] ZASCA 42 (29 March 2012)
Identity document: order of court a quo directing that identity documents be issued to applicants, replaced with an order that their applications be considered, together with a structural interdict to facilitate the process. The problem of numerous applications for the same relief being brought by the same attorneys on virtually the same papers, discussed.
Media Summary
29 Mar
41* Enviroserv Waste Management v Wasteman Group (378/11) [2012] ZASCA 41 (29 March 2012)
Arbitration – Act 42 of 1965 s 33(1)(b) – arbitration appeal tribunal exceeding its powers or committing gross irregularity – finding of (unpleaded) tacit agreement proper step in deciding issues before it on appeal.
29 Mar
40 City of Johannesburg v Ad Post (55/11) [2012] ZASCA 40 (29 March 2012)
Applicant applying under by-laws for permission to advertise alongside highways ─ application wrongly refused but by-laws repealed and fresh by-laws promulgated ─ application to be reconsidered under new by-laws
Media Summary
29 Mar
39 Adcock Ingram v Cipla Medpro (265/11) [2012] ZASCA 39 (29 March 2012)
Trade mark – removal of – s 10(14) of Trade Marks Act 194 of 1993 – marks ‘likely to deceive or cause confusion’ – prescription medication – whether patient part of enquiry as to notional consumer – generic substitute – s 22F of Medicines and Related Substances Act 101 of 1965.
Media Summary
29 Mar
38 Phillips v South African Reserve Bank (221/11) [2012] ZASCA 38 (29 March 2012)
Costs – Uniform Rules of Court – Interpretation of Rule 16A – Whether the findings and order for the appellant to pay the respondents’ wasted costs are appealable – whether presumption of regularity applies where no evidence that Rule 16A notice was dealt with by registrar under Rule 16(A)(1)(c) and (d) - practice to be followed where Rule 16A applies – whether general rule as to costs in constitutional matters applies to ancillary orders in such cases.
Media Summary
29 Mar
37 Sagren Perumal & 8 others v NDPP (356/11) [2012] ZASCA 37 (29 March 2012)
Forfeiture of assets – proceeds of unlawful activities – the Prevention of Organised Crime Act 121 of 1998.
Media Summary
29 Mar
36 Eveready v CSARS (195/11) [2012] ZASCA 36 (29 March 2012)
Tax – Income Tax Act 58 of 1962 – s 22(4) – trading stock – whether acquired for ‘no consideration’.
29 Mar
35 Oceana Group Ltd v Minister of Water & Environmental Affairs (507/11) [2012] ZASCA 35 (29 March 2012)
Challenge to policy to be applied in the assessment of applications for the transfer of commercial fishing rights in terms of s 21 of the Marine Living Resources Act 18 of 1998 (MLRA) – contention that the policy was unlawful because it failed strictly to apply the Broad-Based Black Economic Empowerment Act 53 of 2003 (BBBEE) rejected – held that there was no relevant code of good practice issued in terms of the BBBEE Act to be applied – held further that policy not in conflict with objectives of the MLRA – held that impugned parts of policy not ultra vires the MLRA.
Media Summary
29 Mar
34 Rinaldo Investments (Pty) Ltd v Giant Concerts CC (311/11) [2012] ZASCA 34 (29 March 2012)
Local Authorities Ordinance 25 of 1974 (KZN) – sale by municipality of land by private bargain – standing of objector.
Media Summary
29 Mar
33 BBS Empangeni CC v Phoenix Industrial Park (Pty) Ltd (203/11) [2012] ZASCA 33 (29 March 2012)
Extinctive Prescription – claim prescribed – contractual obligations underlying claim no longer enforceable – contract not capable of being repudiated.
Media Summary
29 Mar
32 Primedia v Radio Retail (354/11) [2012] ZASCA 32 (29 March 2012)
Unlawful competition – appellant enforcing rights in terms of pre-existing contracts – no unlawful competition proved.
Media Summary
29 Mar
31 Ersumo v Minister of Home Affairs (69/12) [2012] ZASCA 31 (28 March 2012)
Foreigner seeking asylum in South Africa – arrested when not in possession of an asylum transit permit or an asylum seeker permit – arrested as an illegal foreigner in terms of s 34(1), read with s 23(2) of the Immigration Act 13 of 2002 – claiming asylum and release from detention in terms of ss 2 and 21(4) of the Refugees Act 130 of 1998 – relationship between Immigration Act and Refugees Act – foreigner can rely on Refugees Act at any stage – delay in indicating a wish to apply for asylum not a ground for preventing such an application.
Media Summary
28 Mar
30 New Foodcorp Holdings (Pty) Ltd v Minister of Agriculture, Forestry & Fisheries (82/11) [2012]
ZASCA 30 (28 March 2012)

Challenge to policy which requires ministerial approval when a sale of shares results in change of control of a company – policy regarding transformation of the fishing industry consonant with objectives of the Marine Living Resources Act 18 of 1998 - provisions of policy not ultra vires the Minister’s powers in terms of the Act – re-emphasised that transformation is a constitutional and statutory imperative - policy not vague or irrational.
Media Summary
28 Mar
29 Butters v Mncora (181/11) [2012] ZASCA 29 (28 March 2012)
Unmarried couple living together as husband and wife for almost 20 years – claim based on tacit universal partnership – whether established.
Media Summary
28 Mar
28 Prinsloo NO v Goldex 15 (243/11) [2012] ZASCA 28 (28 March 2012)
Plea of exceptio rei iudicata in the form of issue estoppel ─ not allowed where prospect that it would deprive defendant of fair hearing in subsequent proceedings.
Media Summary
28 Mar
27 S Zondo v The State (541/11) [2012] ZASCA 27 (28 March 2012)
Sentence – Trial court failing to balance mitigating factors against aggravating factors – Effective sentence reduced to 12 years’ imprisonment.
28 Mar
26 Dlamini v S (362/11) [2012] ZASCA 26 (27 March 2012)
Duplication of convictions – armed robbery involving three robbers acting with a common purpose to rob three people on a single occasion. Accused charged with three offences – correctly convicted as evidence established three separate robberies – no duplication of convictions.
Media Summary
27 Mar
25 Kogana v SBV Services (384/11) [2012] ZASCA 25 (23 March 2012)
Breach of duties by security employees – robbery – whether causal link established between breach and the loss.
23 Mar
24 Roestorf v Johannesburg Municipal Pension Fund (235/11) [2012] ZASCA 24 (23 March 2012)
Pensions – Pension Funds Act 24 of 1956 – Adjudicator – application to review decision in terms of s 30P – whether further complaints against pension fund can competently be raised by counter application. Pension Fund rules – interpretation. Prescription – pension paid monthly – claim that pension entitlement wrongly calculated – whether claim prescribes or is time-barred by s 30I of Act.
Costs – whether party substantially successful should be deprived of costs.
23 Mar
23 The Minister of Correctional Services v Lee (316/11) [2012] ZASCA 23 (23 March 2012)
Delict – prison authorities failing to take reasonable measures to prevent contagion by tuberculosis – whether state liable – causation – not established that infection would have been avoided but for negligent omission.
23 Mar
22 Zeeman v De Wet (325/11) [2012] ZASCA 22 (23 March 2012)
Serwituut van waterleiding – bevoegdheid om toegang tot dienende eiendom te verkry – instandhouding van serwituutwerke – kontraktuele verpligting op eienaar van dienende eiendom om werke in stand te hou – invloed op bevoegheid tot toegang.
23 Mar
21 Mokala Beleggings (Pty) Ltd and another v Minister of Rural Development and Land Reform and others (276/11) [2012] ZASCA 21 (23 March 2012)
Mora interest – interpretation of clauses in contract affecting mora interest – mora ex re and mora ex persona.
Media Summary
23 Mar
20* Xstrata & others v SFF Association (326/11) [2012] ZASCA 20 (23 March 2012)
Mineral and Petroleum Resources Development Act 28 of 2002 – interpretation of a notarial exchange agreement between the respondent and second and third appellants and a notarial mineral lease between the respondent and the second appellant concluded prior to the Act coming into force – effect of the Act on such agreements – whether obligation to pay a royalty in terms of the notarial mineral lease extinguished by the new system of mining rights in the Act.
Media Summary
23 Mar
19 Harlech-Jones v Harlech-Jones (188/11) [2012] ZASCA 19 (22 March 2012)
Divorce ─ maintenance ─ wife cohabiting with and being fully maintained by another man ─ this state of affairs lasting for years before the divorce and intended to be permanent ─ wife failing to show she was entitled to maintenance from her husband on divorce.
Media Summary
22 Mar
18 Standard Bank v Echo Petroleum (192/11) [2012] ZASCA 18 (22 March 2012)
Bank – funds transferred to customer’s account by third party contracting with customer – bank setting off credit thus arising against debit balance in second account – no right of vindication from bank by third party.
22 Mar
17 KG v CB & others (748/11) [2012] ZASCA 17 (22 March 2012)
Hague Convention on the Civil Aspects of International Child Abduction 1980 – child wrongfully
removed to South Africa from the United Kingdom – application for return of child – meaning of ‘rights of
custody’ in articles 3 and 5 of Convention – defence of consent to or acquiescence in removal of child in terms of art 13(1)(a) of Convention – ‘safe harbour’ defence in terms of art 13(1)(b) of Convention – terms of return order
Media Summary
22 Mar
16 Minister of Safety and Security & another v Swart (194/11) [2012] ZASCA 16 (22 March 2012)
Unlawful arrest – s 40(1)(b) of the Criminal Procedure Act 51 of 1977– respondent arrested without a warrant – whether the arresting officer had reasonable grounds for suspecting the respondent of having committed an offence of having driven a vehicle while under the influence of intoxicating liquor – quantum – whether there is an basis to interfere with the award made by the court below.
Media Summary
22 Mar
15* Democratic Alliance v The Acting National Director of Public Prosecutions (288/11) [2012] ZASCA 15 (20 March 2012)

Decision by the office of the National Director of Public Prosecutions to
discontinue prosecution subject to constitutional review – the Democratic Alliance, a
registered political party, has locus standi to bring application to review – record of decision
is compellable.

Media Summary

20 Mar
14 S v Matome (565/11) [2012] ZASCA 14 (16 March 2012)
Criminal law – conviction - rape of a minor – complainant’s testimony as a single witness regarding the alleged rape not satisfactory in all material respects – other evidence wrongly disregarded by trial
court – accused’s version reasonably possibly true.
16 Mar
13* Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13 (15 March
2012)

Pension Fund for municipal employees – payment of adjusted contribution by municipality – whether such contribution recoverable in terms of the proviso to regulation 1(xxi)(h) of the regulations governing the fund – proper approach to interpretation of documents – whether the proviso was valid in terms of s 12(1) of the Pension Funds Act 24 of 1956 – whether the requirements for invoking the proviso were satisfied.
Media Summary
16 Mar
12 Mathewson & another v Van Niekerk & others (260/11) [2012] ZASCA 12 (16 March 2012)
Sale of land: tacit term: not excluded by ‘sole contract’ clause; motion proceedings: dispute of fact: rejection of respondents’ version as farfetched or clearly untenable: test stringent and not easily satisfied.
Media Summary
16 Mar
11 Nelson Mandela Municipality v Ngonyama Okpanum Hewitt-Coleman (765/10) [2012] ZASCA 11 (14 March 2012)

Condictio indebiti – mistake – excusability – overpayments made by Municipality to professional
consultants – reasonableness of mistake

14 Mar
10 Douglas Barrows v Ian Benning (67/11) [2012] ZASCA 10 (14 March 2012)

Jurisdiction – nature of claim

14 Mar
9 Scholtz v Scholtz (209/11) [2012] ZASCA 9 (14 March 2012)

Donation – s 5 of the General Law Amendment Act 50 of 1956 – donated property encumbered by mortgage bond – no term pertinently governing liability for bond debt after transfer in written agreement – does not inevitably result in invalidity of donation for non-compliance with s 5.

14 Mar
8 Demetriades v Perivoliotis (231/11) [2012] ZASCA 8 (14 March 2012)

Interpretation of an agreement of sale of shares ─ whether it created reciprocity of obligations ─ party seeking to argue new case on appeal.
Media Summary

14 Mar
7 Counter Point Furnishers CC v S M Fraser t/a Salica (896/10) [2012] ZASCA 7 (2 March 2012)

Appealability - provisional sentence

09 Mar
6 Joubert Scholtz Inc v Elandsfontein Beverage Marketing (307/11 & 765/11) [2012] ZASCA 6 (9 March 2012)

Principal and agent – attorney receiving funds into trust account – terms and scope of mandate – probabilities.
Enrichment – condictio sine causa – attorney authorised to distribute funds in trust account in accordance with directions of G – payments made with lawful cause – misuse by G – no condictio available.
Enrichment - impoverishment – defendant holding credit loan account in plaintiff – account reduced by amount of misappropriated funds – no impoverishmen

09 Mar
5 MM v S (542/11) [2012] ZASCA 5 (8 March 2012)

Criminal law – rape on a seven year old girl– whether rape proved – failure to call the doctor who examined the complainant to explain contents of medical report – conviction altered to one of indecent assault – appropriate sentence.

Media Summary

08 Mar
4 Gutsche Family Investments v Mettle Equity Group (115/2011) [2012] ZASCA 4 (8 March 2011)

Review of award by arbitration appeal tribunal in terms of s 33(1)(a) and (b) of the Arbitration Act 42 of 1965 – no ‘misconduct’ on part of tribunal as contemplated in s 33(1)(a) – not established that the tribunal committed any ‘gross irregularity’ or ‘exceeded its powers’ in terms of s 33(1)(b).

Media Summary

08 Mar
3 New Balance Athletic Shoe Inc v Dajee NO (251/11) [2012] ZASCA 3 (2 MARCH 2012)
Trade mark – removal from register – non-use under s 27(1)(b) of the Trade Marks Act 194 of 1993 – bona fide proprietor under s 10(3) – deceptive or confusing use under s 10(13).
02 Mar
2 Cloete v The State (317/11) [2012] ZASCA 2 (2 March 2012)

Murder – what constitutes – whether appellant under legal duty to prevent death – cause of death and common purpose not proved – Appellant’s actions amounting to assault with intent to do grievous bodily harm – sentence – imposition of – factors to be taken into account – appellant dragging the deceased on the road for 50 to 70 metres causing him severe injuries – wanton disregard of the victim’s rights to physical integrity and privacy a relevant factor.
Media Summary

02 Mar
1 Mashinini v The State (502/11) [2012] ZASCA 1 (21 February 2012)
Appeal – sentence – Criminal Law Amendment Act 105 of 1997 – s 51 – appellants convicted of rape read with the provisions of s 51(2) – applicable minimum sentence – 10 years' imprisonment – high court imposed sentence of life imprisonment in terms of s 51(1) –  material misdirection entitling this court to interfere.
Media Summary
21 Feb