SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2017

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(*) Case Correction

  Citation & Summary
Delivered
097* The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others (425/2017) [2017] ZASCA 97 (21 June 2017)
Constitutional law – application by media to broadcast criminal proceedings – tension between the right to freedom of expression and the open justice principle, on the one hand and the right to a fair trial, on the other – those rights should as far as possible be harmonised with one another – court must exercise a proper discretion under s 173 of the Constitution in each case by balancing the degree of risk involved in allowing the cameras into the court room against the degree of risk that a fair trial might not ensue – courts ought not to restrict the nature and scope of the broadcast unless prejudice is demonstrable and there is a real risk that such prejudice will occur – mere conjecture or speculation that prejudice might occur ought not to be enough.
Media Summary
21 Jun
095 Transalloys v Mineral-Loy (781/2016) [2017] ZASCA 95 (15 June 2017)
Requirements for res judicata and issue estoppel: When appropriate to separate issues.
15 Jun
094 NMB Bank Ltd v Capsopoulos (505/2016) [2017] ZASCA 94 (15 June 2017)
Exchange control; illegal payments of US dollars made by a bank by reason of a fraud: recipient aware that payments made due to a false misrepresentation and would not otherwise have been made: recipients resultantly complicit in the fraud: amounts paid to be refunded to the bank.
Media Summary
15 Jun
093* Ntlemeza v Helen Suzman Foundation [2017] ZASCA 93 (9 June 2017)
Application in terms of s 18 of the Superior Courts Act 10 of 2013 for execution order pending finalisation of an appeal process: whether refusal of an application for leave to appeal stultifies application for leave to execute notwithstanding that a further application for leave to appeal to next highest court envisaged: whether applicant for execution order proved existence of exceptional circumstances as contemplated in s 18(1): whether respondent, in terms of s 18(3), proved on balance of probabilities that it will suffer irreparable harm in the event of the execution order not being granted and that the appellant would not: provisions of s 18(4) discussed: requirement that court must ‘immediately record’ its reasons for granting execution order: meaning of ‘next highest court’ not entirely clear: whether two parallel appeal processes in the same appeal court in the same case desirable.
Media Summary
09 Jun
092 Gcaza v The State (1400/16) [2017] ZASCA 92 (9 June 2017)
Evidence: what constitutes sufficiency of circumstantial evidence: conviction based on circumstantial evidence well-founded: cross-appeal: finding of substantial and compelling circumstances justifying sentences lesser than the minimum sentences prescribed by statute not constituting misdirection.
09 Jun
091 Fourie v Ronald Bobroff & Partners Inc (653/2016) [2017] ZASCA 91 (7 June 2017)
Attorney: duty of an attorney to client: breach of mandate in respect of claim for damages for loss of earning capacity: damages not proved: absolution from the instance should have been ordered: appeal dismissed.
07 Jun
090 Mahaeeane v Anglogold (85/2016) [2017] ZASCA 090 (07 June 2017)
Promotion of Access to Information Act 2 of 2000 : section 50 : meaning of ‘documents required’ : right relied upon to claim damages : in the context of litigation, documents must be reasonably required to formulate a claim : test not met in present matter : records requested not reasonably required to exercise or protect right relied upon.
Media Summary
07 Jun
089 Goosen v The Mont Chevaux Trust (148/2015) [2017] ZASCA 89 (6 June 2017)
Land: eviction under Extension of Security of Tenure Act 62 of 1997: appeal against an order of the Land Claims Court confirming the eviction order of a magistrate’s court on automatic review to it: nature of automatic review by the Land Claims Court: test on appeal: eviction order correctly confirmed by the Land Claims Court: constitutional obligation on municipality to provide emergency housing upon eviction: execution of the eviction order postponed and municipality ordered to provide emergency accommodation prior to execution of the order.
Media Summary
06 Jun
088 Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited (95/2016) [2017] ZASCA 88 (6 June 2017)
First appeal – appeal lapsing on account of failure to timeously prosecute it – application for condonation. Second appeal – discharge of provisional restraint order – failure on the part of presiding judge to bring an open and impartial mind to bear – proceedings before the high court on the return day set aside – provisional restraint order revived. Both appeals – sequestration - substitution of insolvent by trustees on appeal – leave to intervene by insolvent.
06 Jun
087 NERSA v Borbet SA (Pty) Ltd [2017] ZASCA 87 (1288/2016 & 1309/2016) (6 June 2017)
Adjudication by the National Energy Regulator of South Africa (NERSA), a statutory regulator, of tariff adjustment application by Eskom, a licensee with a license, inter alia, to distribute as principal supplier electricity in South Africa : nature of adjudication process and decision: administrative action: subject to review in terms of the Promotion of Access to Justice Act 3 of 2000: not, as suggested by NERSA and Eskom, immune from judicial scrutiny because it involved application of policy.
Price adjustment methodology discussed, interpreted and applied: whether decision by NERSA rational and whether adjudication process and decision unfair.
Discussion of deference to specialised administrative body.
Media Summary
06 Jun
086 Politis v MEC for Health, Limpopo [2017] ZASCA 86 (792/2016) (2 June 2017)
Delict : premature discharge by doctor of patient from hospital due to unlawful strike : patient had sustained multiple fractures and was due for orthopaedic surgery : died shortly after discharge : cause of death not determined by pathologist : no reliable expert evidence on which negligence could be attributed to the hospital : inadequate preparation of action for loss of support : no thought given to holding hospital liable on the basis of failure to have in place emergency plans to deal with strikes : organisers of strike not joined as parties to litigation : in any event primary problem of lack of evidence relating to cause of death not overcome.
02 Jun
085 The Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi (959/15) [2017] ZASCA 85 (2 June 2017)
Appeal in terms of s 311 of the Criminal Procedure Act 51 of 1977: s 311 provides for an appeal as of right, without leave: question of law upheld: ‘intent to do grievous bodily harm’ not an element in a rape contemplated in Part I(c) of the Criminal Law Amendment Act 105 of 1997: conviction and sentence imposed by the regional court reinstated and matter remitted to the high court for appeal to proceed on sentence.
Media Summary
02 Jun
084 Van Huyssteen N.O. and another v Milla Investment and Holding Company (593/16) [2017] ZASCA 84 (2 June 2017)
Contract: Lease: divergent factual versions on terms: doctrine of quasi-mutual assent wrongly applied by the high court: appeal upheld.
02 Jun
083 The Director of Public Prosecutions: Gauteng Division, Pretoria v Portia Thulisile Tsotetsi (170/2017) [2017] ZASCA 083 (02 June 2017)
Sentence: premeditated murder: prescribed minimum sentence: in terms of the Criminal Law Amendment Act, 105 of 1997: what constitutes substantial and compelling circumstances: effect of failing to take into account certain aggravating factors: prescribed sentence not to be lightly deviated from: to be imposed if it is not disproportionate to the crime, the criminal and the needs of society.
Media Summary
02 Jun
082 Director of Public Prosecutions, Gauteng v Grobler (6/2017) [2017] ZASCA 82 (2 June 2017)
Appeal by Director of Public Prosecutions: s 311 of the Criminal Procedure Act 51 of 1977: appeal against the decision of a Provincial or Local Division on appeal to it competent before this court only on a question of law: the High Court’s finding that a complainant below the age of 12 years acquiesced in a sexual act defined as rape and then considered this as a mitigating factor in sentencing, is a question of law: appeal upheld and matter remitted.
Media Summary
02 Jun
081 Mahlangu v Mahlangu (341/2016) [2017] ZASCA 81 (2 June 2017)
Appeal: Power of court of appeal: Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013: Appellate Court empowered to dismiss an appeal where judgment or order sought would have no practical effect or result: Discretion of court: Not an appropriate case for court to exercise its discretion in favour of determining merits of the appeal: Appeal dismissed.
02 Jun
080 Sigcau v Minister of Cooperative Governance and Traditional Affairs (612/2016) [2017] ZASCA 80 (7 June 2017)
Customary law: decision of the Commission on Traditional Leadership Disputes: whether implementation of the decision in terms of s 26(2) of the Traditional Leadership and Governance Framework Act 41 of 2003 (Old Act) required prior consultation with Royal Family under s 9 of the Old Act: whether implementation of the decision required compliance with provisions of s 10(1)(c) of the Old Act: implementation of the decision of the Commission did not require consultation in terms of s 9 of the Old Act: deeming provision under s 28 of the Old Act and s 26 of the New Act did not bestow status of king where the Commission did not uphold claim to kingship: provisions of s 10(1)(c) were not applicable.
Media Summary
07 Jun
079 Serengeti Rise Industries (Pty) Ltd & another v Aboobaker NO & others (845/2015) [2017] ZASCA 79 (2 June 2017)
Administrative law: validity of a demolition order granted as just and equitable remedy: order granted pursuant to a finding that Municipality decisions approving rezoning of property and approving building plans were unlawful: order vitiated by failure to set the approval decisions aside, failure to specify portion(s) of the building to be demolished, and failure to exercise discretion in determining just and equitable remedy: court order found to lack clarity and certainty.
02 Jun
078

DPP v Moloi (1101/2015) [2017] ZASCA 78 (2 June 2017)
Appeal in terms of s 311 of the Criminal Procedure Act 51 of 1977: Section 311 provides for an appeal as of right, without leave: failure to have regard to all the evidence in determining the guilt or otherwise of an accused constitutes an error of law: question of law upheld: order of the high court set aside: conviction and sentence imposed by the regional court reinstated and matter remitted to the high court for the appeal to proceed on the merits.
Media Summary

02 Jun
077 Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality (225/2016) [2017] ZASCA 77 (2 June 2017)
Law of Delict: pure economic loss: whether Municipality liable in delict for pure economic loss arising out of the alleged failure by the Municipal Manager to issue a s 82 certificate in terms of the Town-Planning and Township Ordinance 15 of 1986.
Media Summary
02 Jun
076 Mpahla v RAF (698/16) [2017] ZASCA 76 (1 June 2017)
Road Accident Fund 56 of 1996 – Interpretation of regulation 3(3)(dA) of the Road Accident Fund Regulations – failure of the Fund to take a decision within prescribed period does not create a deeming provision – remedy of claimant lies in s 6(2)(g) of PAJA.
Media Summary
01 Jun
075 Nkabinde v The State (115/17) [2016] ZASCA 75 (01 June 2017)
Criminal Law and Procedure: acting in concert with common purpose: murder and robbery with aggravating circumstances: purported special entries in terms of s 317 of the Criminal Procedure Act 51 of 1977: to be strictly complied with and resorted to only if the irregularity does not appear on the record: appeal dismissed.
Media Summary
01 Jun
074 Ramoba v The State (1301/2016) ZASCA 74 (1 June 2017)
Criminal Law and Procedure: appeal against conviction and sentence: principles of joint possession of firearms applied: appeal against conviction for unlawful possession of firearms upheld in part: cumulative effect of sentence appropriate.
Media Summary
01 Jun
073 Primat Construction v Nelson Mandela Bay Metropolitan Municipality (1075/2016) [2017] ZASCA 73 (1 June 2017)
Where a party to a contract repudiates it, the aggrieved party has an election to abide by the contract and enforce its performance: if that election is exercised, but the defaulting party nonetheless persists in the breach by evincing an unequivocal intention not to remedy the breach, the aggrieved party, after affording the defaulting party the oportunity to repent of the repudiation, may change the election and cancel the contract and claim damages.
Media Summary
01 Jun
072 Principal of Mbilwi High School v RM (633/2016) [2017] ZASCA 72 (1 June 2017)
Appeal: mootness: the court should exercise its discretion to hear an appeal where it relates to the proper construction and application of important provisions in the National Education Policy that will impact on the future conduct of education officials and learners.
Interpretation: the high court misinterpreted the National Policy Pertaining to the Programme and Promotion Requirements of the National Curriculum Statement Grade R-12.
Media Summary
01 Jun
071 The State v Pilane (559/16) [2017] ZASCA 71 (1 June 2017)
Witnesses in criminal trial: administration of the oath: may be administered by interpreter: s 165 of Criminal Procedure Act 51 of 1977.
Media Summary
01 Jun
070 Machete v S (167/17) 2017 ZASCA 70 (31May 2017)
Robbery – prosecution submitting that evidence of identification of accused unsatisfactory and that accused should be acquitted on appeal to full bench – appeal nonetheless dismissed – appeal upheld – function of appeal court where prosecution does not seek to uphold conviction.
31 May
069 Wilkinson v The Law Society of the Northern Provinces (783/2016) [2017] ZASCA 69 (31 May 2017)
Striking off is an appropriate sanction for an attorney guilty of misappropriation of trust moneys and failure to account for funds entrusted to him: No reason to interfere with the exercise of discretion.
31 May
068 Carlswald & another v Brews (245/2016) [2017] ZASCA 68 (31 May 2017)
Contract: cession: may be oral: where parties agree to reduce contract to writing there will be no contract until terms have been reduced to writing: once cession reduced to writing parties bound by the terms of the deed of cession and cannot rely on oral negotiations.
Media Summary
31 May
067 Lazarus Mbethe v United Manganese of Kalahari (503/2016) [2017] ZASCA 67 (30 May 2017)
Derivative action: Section 165(5)(b) of the Companies Act 71 of 2008: requirement of ‘good faith’: proof by applicant on a balance of probabilities: test subjective with objective control: state of mind of applicant determined by drawing inferences from objective facts: absence of collateral purpose not a self-standing requirement of good faith: relevant to determine whether issue ‘of material consequence to the company’: all of requirements of subsec to be satisfied: court retains controlling discretion whether to grant relief: alternative means to obtain the same relief: relevant to determine whether action in best interests of company.
Media Summary
30 May
066 AON South Africa (Pty) Ltd v Van den Heever NO (615/2016) 2017 ZASCA 66 (30 May 2017)
Res judicata – requirements – issue estoppel – identity of interest between plaintiffs in the two actions sufficient to satisfy requirement of same party – identity of issues and claims in both actions.
Media Summary
30 May
065 Magubane & another v Twin City Developers (Pty) Ltd & others (981/16) [2017] ZASCA 65 (30 May 2017)
Extension of Security of Tenure Act 62 of 1997: Land Claims Court erred in failing to consider probation officer’s report submitted in terms of s 9(3) of the Act prior to granting eviction order: considerations of convenience and interests of justice require that Supreme Court of Appeal considers the content of report and not remit matter to the Land Claims Court for reconsideration: content of the report not warranting interference with the eviction order.
30 May
064 Patekile Holomisa v Nolizwe Holomisa (564/2016) [2017] ZASCA 64 (29 May 2017)
Civil marriage solemnized in December 1995 in the erstwhile Transkei: the Marriage Extension Act 50 of 1997 did not alter the matrimonial property regime of parties who married without an ante-nuptial contract after 27 April 1994: marriage out of community of property.
29 May
063 Pearson v eThekwini Municipality (241/2016) [2017] ZASCA 63 (29 May 2017)
Municipal Systems Act 32 of 2000: Sections 102(1)(b) and 118(3): right of municipality to transfer credits between accounts: single account holder: properties with different owners: amounts outstanding on both properties by account holder for services supplied by municipality: transfer of credits by municipality from first account to second account: resultant liability of owner of first property increased and that of owner of second property decreased: municipality entitled to claim from owner of first property increased balance owed.
Media Summary
29 May
062 Broodryk v The State (959/2016) [2017] ZASCA 62 (29 May 2017)
Sentence - imposition of - factors to be taken into account: appellant convicted on a charge of theft: previous conviction one of the factors taken into account: sentence of five years’ imprisonment not shockingly inappropriate: sentence confirmed.
29 May
061 Ndubu v First Rand Bank (1113/2016) [2017] ZASCA 61 (26 May 2017)
Suretyship: release of surety due to alleged prejudicial conduct of creditor in not accepting offers that would eliminate or reduce surety’s liability: onus on surety to prove defences: surety failed to discharge onus: appeal dismissed.
26 May
060 Lourens v Premier of the Free State Province & another (526/16) [2017] ZASCA 60 (25 May 2017)
Contempt of court: failure to comply with court order: no proof of non-compliance, wilfulness or mala fides: s 16(2)(a)(i) of the Superior Courts Act 10 of 2013: issues on appeal having no practical effect: appeal dismissed with costs.
25 May
059 Minister of Safety and Security v Augustine (811/2016) [2017] ZASCA 59 (24 May 2017)
General damages: appeal against quantum: test: damages awarded not disproportionate: appeal against punitive costs order: order warranted: appeal dismissed.
Media Summary
24 May
058 Klassen v The State (57/2017) [2017] ZASCA 58 (24 May 2017)
Criminal Procedure: sentence: effect of convicted accused not testifying when considering whether substantial and compelling circumstances exist justifying a sentence less than a prescribed minimum: failure to hold an inquiry before imposing non-parole period under s 276B of the Criminal Procedure Act 51 of 1977: effect thereof.
Media Summary
24 May
057 MTO Forestry v Swart (420/2016) [2017] ZASCA 57 (22 May 2017)
Delict: wrongfulness and fault separate elements: regard not to be had to foreseeability of harm in determining wrongfulness: whether reasonably adequate steps taken by landowner to prevent fire spreading to neighbour’s property. Presumption of negligence in s 34 of the National Veld and Forest Fire Act 101 of 1998: effect thereof when facts known.
Media Summary
22 May
056 Saamwerk Soutwerke (Pty) Ltd v Minister of Mineral Resources (1098/2015 & 206/2016) [2017] ZASCA 56 (19 May 2017)
Delict: claim for damages consisting of pure economic loss: claim against first respondent based on negligent administrative omissions: omissions not wrongful: claim correctly dismissed: claim against second respondent based on fraud: circumstances justified overturning of trial court’s findings of credibility: fraud established on balance of probabilities: second respondent declared liable.
Practice: test for receiving further evidence on appeal: no reasonably sufficient explanation for failure to present evidence in trial court: proposed evidence disputed on substantial grounds and not weighty or material.
Prescription: previous proceedings not a step in the enforcement of payment of the same debt: part of claim for payment of damages arising from continuous wrong prescribed.
Media Summary
19 May
055 Zimila v S (1179/16) [2017] ZASCA 55 (18 May 2017)
Criminal Law and Procedure : Sentence : cumulative effect thereof where appellant convicted of similar multiple offences : circumstances in which an appellate court will interfere : interference warranted.
18 May
054 Moraitis Investments (Pty) Ltd v Montic Dairy (Pty) Ltd (799/2016) [2017] ZASCA 54 (18 May 2017)
Settlement agreement – order of court – grounds for rescinding order – lack of authority to conclude settlement agreement – failure to prove lack of authority – ss 75, 112 and 115 of the Companies Act 71 of 2008 – principle of unanimous assent.
Media Summary
18 May
053 Khumalo v The State (62/17) [2017] ZASCA 53 (18 May 2017)
Criminal Procedure : appeal against refusal of petition by the court a quo : robbery with aggravating circumstances contemplated in s 51 of the Criminal Law Amendment Act 105 of 1997 : no reasonable prospect of success on appeal : appeal dismissed.
18 May
052 DPP, Pretoria v Benbelkacem (831/16) [2017] ZASCA 52 (8 May 2017)
Criminal Law : application for condonation for late filing of the notice of appeal and reinstatement of appeal : no good cause shown for delay: prospects of success not shown : state bound by its acceptance of the statement tendered in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 : application for condonation and reinstatement of appeal dismissed.
08 May
051 Shange v S (613/2016) [2017] ZASCA 51 (2 May 2017)
No Summary
02 May
050* FirstRand Bank Ltd v KJ Foods CC (In business rescue) (734/2015) [2015] ZASCA 50 (26 April 2017)
Companies Act 71 of 2008 : proposed business rescue plan : proper interpretation of section 153(1)(a)(ii) and 153(7) : the determination whether a vote by a creditor against the adoption of a proposed business rescue plan was inappropriate and ought to be set aside entails a single enquiry : a court will set aside a vote on the ground that its result was inappropriate if it is reasonable and just to do so : thus entails a value judgment : effect of the court setting aside vote : once vote is set aside, proposed business plan considered to have been adopted ex lege : no further vote envisaged by the Act.
Media Summary
26 Apr
049 Llale v S (663/2016) [2017] ZASCA 049 (25 April 2017)
Conviction and Sentence – special leave to appeal – reasonable prospects of success on appeal against conviction to the high court, and special circumstances present which would justify the grant of special leave to appeal to the high court – failure by the trial court to take account of inconsistencies in written statement and oral testimony of single witness – failure to consider elements of charge of attempt to steal a motor vehicle – leave to appeal to high court granted.
25 Apr
048 Orica Mining Services v Elbroc Mining Products (233/2016) [2017] ZASCA 48 (31 March 2017)
Intellectual property: claim for patent infringement: s 45 Patents Act 57 of 1978: extent of protection determined by wording of claims: claims to be read in the context of the patented specification: interpretation of ‘between’ in claim to mean "linearly between" unjustified in context of specification as well as claims: purposive interpretation: "linearly between" not essential for functionality of invention.
Media Summary
31 Mar
047 Neotel (Pty) Ltd v Telkom SOC & others (605/2016) [2017] ZASCA 47 (31 March 2017)
Appeal : Appealability : appeal against reasons for substantive order and not the order itself: appeal struck from the roll for lack of jurisdiction: confirmed that an appeal does not lie against reasons for an order or decision, but against the substantive decision itself : application to intervene to support appellant dismissed.
31 Mar
046 Marais & others v Varicor Nineteen (Pty) Ltd (843/16) [2017] ZASCA 46 (30 March 2017)
Contract: whether agreement to establish a diesel depot constituted extension of an existing supply agreement between the respondent and a trust or a new agreement with trustee of the trust in personal capacity : respondent satisfied onus to prove the former : appeal dismissed.
30 Mar
045 Factaprops v The Land Bank (353/2016) [2017] ZASCA 45 (30 March 2017)
The phrase ‘mortgage bond’ in s 11(a)(i) of the Prescription Act 68 of 1969 has a wide meaning and includes a special notarial bond in terms of the Security by Means of Movable Property Act, 57 of 1993: therefore the period of prescription applicable to a debt secured by such special notarial bonds is thirty years.
Media Summary
30 Mar
044 Polokwane Taxi Association v Limpopo Permissions Board and others (490/2016) ZASCA 44 (30 March 2017)
Court Practice: locus standi: whether appellant could bring the application: whether appellant had direct and substantial interest in the subject matter.
Media Summary
30 Mar
043 Mashamaite & others v Mogalakwena Local Municipality & others (523 /2016) and MEC, Limpopo & another v Kekana & others (548/2016) [2017] ZASCA 43 (30 March 2017)
Res Judicata : the same cause, between the same parties for the same relief : the court a quo was precluded from granting a substantive order of reinstatement.
Motion proceedings : an applicant must, in the founding papers, disclose facts that would make out a case for the relief sought : the relief granted by the court a quo was inconsistent with the facts and averments contained in the papers : relief improperly granted.
Employee on suspension : an employee who is suspended does not have authority to act on behalf of an employer during the period of suspension, unless called upon to perform duties during that period.
Section 16(1)(a)(i) of the Superior Courts Act 10 of 2013 : mootness : circumstances have altered to such an extent that part of the judgment has become moot : order will have no practical effect.
Contempt of court : respondents failing to establish that the MEC acted wilfully and mala fide in failing to comply with a court order : not entitled to a declarator.
Costs order : discretionary and not lightly interfered with on appeal : absence of grounds on which a court, acting reasonably, could have made the order : appeal court entitled to interfere.
Media Summary
30 Mar
042 Brooks v NDPP (855/16) [2017] ZASCA 42 (30 March 2017)
Application for forfeiture order in terms of s 48(1) of the Prevention of Organised Crime Act 121 of 1998 : whether residential property is instrumentality of an offence : property used in contravention of ss 82(a) and 83(b) of the Diamonds Act 56 of 1986 : whether forfeiture constitutionally disproportionate.
Media Summary
30 Mar
041 The Premier of the Western Cape Provincial Government N.O. v Rochelle Madalyn Kiewitz obo Jaydin Kiewitz (158/2016) [2017] ZASCA 41 (30 March 2017)
Delict: damages: compensation for future medical expenses: impermissible to tender services in lieu of payment of a monetary award.
Media Summary
30 Mar
040 Minister of Home Affairs v Saidi (294/2016) [2017] ZASCA 40 (30 March 2017)
Refugees Act 130 of 1998 : section 21(1) : refusal of application for asylum : Chapter 4 rights of review and appeal : unsuccessful : section 22(1) : grant of asylum seeker permit : section 22(3) : Refugee Reception Officer empowered to extend permit pending outcome of judicial review : no substantive legitimate expectation that permits would be extended : no grounds for court to assume decision makers discretion to extend permits.
Media Summary
30 Mar
039 Griesel v Haasbroek (538/2016) [2017] ZASCA 39 (30 March 2017)
Sale : action for purchase price : express term as to risk passing to purchaser : ambit of risk : risk event causing loss : purchase price payable.
30 Mar
038 Mount Amanzi Share Block Limited v The Body Corporate of Windsor Heights Sectional Title Scheme & others (537/2016) [2017] ZASCA 38 (29 March 2017)
Deed of servitude : right to supply services to other party to deed : right to determine levies payable for services : bare denial of correctness of determination : real, genuine and bona fide dispute of fact not established : discretion to determine levies exercised reasonably and honestly : claim valid and enforceable.
29 Mar
037 Adendorffs Boerderye v Shabalala & others (997/15) [2017] ZASCA 37 (29 March 2017)
Conservation of Agricultural Resources Act 43 of 1983 (CARA) : Regulation 9 : land users as defined in CARA responsible for ensuring that grazing land is protected from overgrazing and deterioration : CARA not explicitly prohibiting a land owner from pursuing remedy in the form of a restraining order : land users not exercising grazing rights in terms of the provisions of the Extension of Security of Tenure Act 629 of 1997 but in terms of an agreement with landowner.
Court practice : Court orders :overbroad court orders not sought by parties and not supported by pleadings : such orders not sustainable, especially where parties were not afforded opportunity to make prior representations : orders set aside both in appeal and cross appeal.
Costs : de bonis propriis : where attorneys flagrantly disregard court rules by late delivery of heads of arguments without proper explanation : additionally, attempting to obtain postponement without proper basis : such conduct prejudicing opponent : appropriate to mulct attorney with costs.
29 Mar
036 Nelson Mandela Bay Municipality v Amber Mountain Investments (576/2016)[2017] ZASCA 36 (29 March 2017)
Local authority : Rates : Property rates levied for a financial year : levying of rates an integral part of budget process.
Interpretation : Acts to be read together as they form part of current system of local government : Local Government: Municipal Property Rates Act 32 of 2000 : s 13(1) : words and phrases : ‘as from’ : interpreted to mean that the rate is payable within the period of the financial year : s 13(1) read with ss 12, 26, 27 and 28 : obligation to pay property rates arises at the start of the financial year : obligation to make payment arises once the municipality has determined the date of payment and amount due : Local Government: Municipal Finance Management Act 56 of 2003 : ss 15 to 19 : municipality’s duties to approve annual budget for each financial year, budget including projected revenue for current year based on collection levels to date : budget to be finalised before start of financial year : Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) : certificate is issued in terms of s 118(1) in respect of municipal debts which have become due, not future debts : municipality’s rates policy to the contrary is ultra vires the Act and invalid.
Media Summary
29 Mar
035 Cathay Pacific Airways & another v Lin & another (260/2016) [2017] ZASCA 35 (29 March 2017)
Practice – urgent application – whether court order issued orally only was effective – whether there was proper notice and service to affected parties – contempt of court – whether the requirements for contempt of court were proved beyond reasonable doubt.
Media Summary
29 Mar
034 Mudau v The State (1148/2016) ZASCA 34 (29 March 2017)
Appeal against convictions and sentence: admissibility of confessions: misdirections by trial court, right to a fair trial infringed: appeal upheld.
29 Mar
033 Media 24 Limited v Du Plessis (127/2016) [2017] ZASCA 33 (29 March 2017)
Defamation: liability of the media: test of: words complained of to be considered from the point of view of the reasonable reader: defence of justification: truth and public benefit: only the material allegations or sting of the article required to be substantially true: publication of defamatory statement found not to have been reasonable: damages: assessment: award of R80 000 excessive justifying interference on appeal.
29 Mar
032 University of the Free State v Afriforum (1027/2016) [2017] ZASCA 32 (28 March 2017)
Review : whether decision of University to adopt language policy administrative action under Promotion of Administrative Justice Act 3 of 2000 : whether University misconstrued its power under principle of legality : test for legality review restated : whether language policy ‘reasonably practicable’ as contemplated in s 29(2) of the Constitution : whether in the exercise of its power to decide language policy University constrained by requirement that policy ‘subject to’ Higher Education Language Policy in terms of s 27(2) of the Higher Education Act 101 of 1997.
Media Summary
28 Mar
031 Kitshoff v Fedsure Staff Pension Fund & others (597/16) [2017] ZASCA 31 (28 March 2017)
Pension Fund,: termination of membership: s14(1) Pension Funds Act 24 of 1956: transfer of benefits to new pension fund approved by Registrar: employee retrenched before approval: approval retrospective to date when membership of former fund terminated: no vested right to claim enhanced pension benefits as a result of retrenchment in terms of rules of former fund: right ceased on termination of membership of former fund: no enforceable right effected by retrospective operation of approval
28 Mar
030 Head of Department, Mpumalanga Department of Education v Valozone 268 CC (837/2015) [2017] ZASCA 30 (29 March 2017)
Administrative law: review of decision to cancel and re-advertise public tender: decision not authorised by regulation 8(4) of the Preferential Procurement Regulations, 2011 and irrational: decision correctly set aside.
28 Mar
029 New Adventure Shelf 122 v Commissioner : SARS (310/2016) [2017] ZASCA 29 (28 March 2017)
Revenue: capital gains tax arising from the sale of immovable property: sale cancelled more than three years after assessment of capital gains tax but before purchase price paid in full: seller not entitled to have assessment reconsidered in the light of the subsequent cancellation: regard to be had to the cancellation in assessing a capital gain or capital loss in year of cancellation.
Media Summary
28 Mar
028* Body Corporate v Sithole & another (240/2016) [2017] ZASCA 28 (27 March 2017)
Application for compulsory sequestration : advantage to creditors as contemplated in s 10 (c) of the Insolvency Act, 24 of 1936 not proven : no basis to find that a body corporate of a sectional title development need not prove pecuniary benefit to the general body of creditors.
27 Mar
027* Kotze v The State (776/16) [2017] ZASCA 27 (27 March 2017)
Criminal Law ─ conviction on housebreaking with intent to commit indecent assault and indecent assault ─ whether the State proved the identity of the appellant and all the elements of housebreaking with intent to commit indecent assault and indecent assault beyond reasonable doubt.
27 Mar
026 Ndlovu v S (925/2016) [2017] ZASCA 26 (27 March 2017)
Imposition of non-parole period in terms of s 276B of the Criminal Procedure Act 51 of 1977 : sentence : misdirection by trial court in imposing a non-parole period : appeal upheld.
27 Mar
025 Harrielall v University of KwaZulu-Natal (493/2016) [2017] ZASCA 25 (27 March 2017)
Promotion of Administrative Justice Act 3 of 2000 : refusal of application for admission to course of study leading to MBChB degree : application for review of decision : new challenge on appeal : not raised in founding affidavit : appeal dismissed.
Media Summary
27 Mar
024 Afgri Operations Ltd v Hamba Fleet Management (Pty) Ltd (542/16) [2017] ZASCA 24 (24 March 2017)
Company law : application for a final order of liquidation : underlying debt admitted by the respondent : no allegation that respondent solvent : respondent not trading or conducting any business : respondent’s indebtedness prima facie established : onus on respondent to show that indebtedness disputed on bona fide and reasonable grounds : a counterclaim not in itself a reason for refusing an order for the winding up of the respondent : final order winding-up the respondent granted.
24 Mar
023 Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality (894/2016) [2017] ZASCA 23 (24 March 2017)
Promotion of Administrative Justice Act 3 of 2000 : ss 6, 7 and 9 : application in terms of s 9 for extension of statutory period in terms of s 7 : substantive application required : no explanation for entire duration of delay : failure to properly consider prejudice to appellant and members of public affected by decision : impugned decision validated by unreasonable delay : unlawfulness of decision not proved by admissible evidence.
Media Summary
24 Mar
022 Mazina v The State (494/2016) [2017] ZASCA 22 (24 March 2017)
Evidence: sufficiency of: statement in terms of s 115 of the Criminal Procedure Act 51 of 1977.
24 Mar
021 Manukha v Road Accident Fund (285/2016) [2017] ZASCA 21 (24 March 2017)
Road Accident Fund Act 56 of 1996: ss 17(1); 23 and 24 read with regulation 3(3)(b)(ii): Damages: motor vehicle accident: claim for compensation against Road Accident Fund: non-pecuniary loss forming part of a unitary claim for compensation and not constituting a separate and discrete claim: prescription: late filing of RAF4 form thus not constituting separate claim, and consequently, claim for damages for non-pecuniary loss not prescribed.
Media Summary
24 Mar
020 ZNK Investments CC v Luckytso Transport and Construction CC (328/2016) [2017] ZASCA 20 (24 March 2017)
Company law: sale in execution of property of close corporation whilst deregistered: reinstatement in terms of s 82(4) of the Companies Act 71 of 2008: automatic retrospective validation of the sale in execution.
24 Mar
019* Van Rooyen Friedrich & others v Louw Smit NO & others 1028/2015 [2017] ZASCA 19 (23 March 2017)
Maintenance of surviving spouse – ss 2 and 3 of the Maintenance of Surviving Spouses Act 27 of 1990 – requisites of Act not satisfied – Special leave to appeal in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 – appeal upheld.
23 Mar
018 Steyn Lyell Maeyane Attorneys v Oelofse (271/2016) [2017] ZASCA 18 (23 March 2017)
Written undertaking given by a firm of practising attorneys : whether it constituted an unconditional guarantee to make payment itself : having regard to the factual matrix providing the context in which it was given, the undertaking did not constitute a personal guarantee : evidence pertaining to the parties’ intentions regarding the undertaking inadmissible.
23 Mar
017 Mothuloe Incorporated Attorneys v The Law Society of the Northern Provinces & another (213/16) [2017] ZASCA 17 (22 March 2017)
Attorneys Act 53 of 1979: complaints having been lodged with the Law Society against a practitioner for failing to account to trust creditors: practitioner admitting having received the money but imposing conditions before releasing it to trust creditors: Law Society directing the practitioner to produce for inspection records and books in his possession and under his control in terms of s 70(1) of the Act: practitioner refusing to comply and challenged the decision of the Law Society: sought to review and set aside decision as irrational: practitioner blatantly disregarding the law and rules: such conduct cannot be countenanced: conduct unprofessional.
22 Mar
016 Sentrachem v Terreblanche (237/2016) [2017] ZASCA 16 (22 March 2017)
Prescription – pension funds – erroneous double payment – substitution of a party after litis contestatio as a result of a cession of the debt does not give rise to a valid plea of prescription – cessionary attains all the rights of cedent – has full locus standi – impoverishment proved on the facts.
22 Mar
015 Moila v City of Tshwane Metropolitan Municipality (249/16) [2017] ZASCA 15 (22 March 2017)
Claim for the rendering of a statement of account by a municipality for the supply of utility services and a debate thereof : ex facie the pleadings, no fiduciary relationship existed between the parties, no contractual agreement between them to this effect, no statutory provision creating this obligation : point in limine upheld : appeal dismissed with costs.
22 Mar
014 SA Metal Group (Pty) Ltd v The International Trade Administration Commission (267/2016) [2017] ZASCA 14 (17 March 2017)
Appeal – s 16(2)(a)(i) Superior Courts Act 10 of 2013 – dismissal of appeal where judgment or order sought would have no practical effect or result
Media Summary
17 Mar
013 Cilliers & others v Ellis & another (200/2016) [2017] ZASCA 13 (17 March 2017)
Appeal : non-appealability of order : appellants not having locus standi to pursue the appeal : appeal dismissed.
Media Summary
17 Mar
012 Panayiotou v Shoprite (248/2016) [2017] ZASCA 12 (17 March 2017)
Refusal to grant liquor licence by Liquor Board : decision reviewed, set aside and licence granted by high court along with order that Liquor Board must issue licence after certain requirements met : appeal against review of refusal : liquor licence subsequently issued : no challenge to issue of licence : appeal, if successful, could not set aside the issue of the licence : section 16(2)(a) of Superior Courts Act 10 of 2013 : decision sought would have no practical effect or result : appeal dismissed.
17 Mar
011 Richard Du Plessis Barry v Clearwater Estates NPC & others (187/2016) [2017] ZASCA 11 (16 March 2017)
Companies Act 71 of 2008 : s 58(1) : appointment of proxy ‘at any time’ : s 58(3)(c) : instrument evidencing proxy to be deposited ‘before’ shareholders meeting : Memorandum of Incorporation of company requiring proxy to be deposited ‘not less than 48 hours before’ meeting : article inconsistent with unalterable provisions of s 58(1) : article void in terms of s 15(1).
Media Summary
16 Mar
010 Westminster Tobacco Co v Philip Morris Products SA (925/2015) [2017] ZASCA 10 (16 March 2017)
Expungement of trade mark for non-use in terms of s 27(1(b) of the Trade Marks Act 194 of 1993 – test for bona fide use of a trade mark – factual enquiry
Media Summary
16 Mar
009 Mpumalanga Tourism & Parks Agency v Barberton Mines (Pty) Ltd (216/2016) [2017] ZASCA 9 (14 March 2017)
Mining and Environmental Law: grant of a prospecting right in terms of s 17(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA): whether prospecting area part of a protected area as contemplated by s 12 of the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA): whether prospecting prohibited by s 48(1) of NEMPAA.
Media Summary
14 Mar
008 Herbal Zone v Infitech Technologies (204/2016) [2017] ZASCA 8 (10 March 2017)
Passing off – requirement of reputation – failure to prove source of goods and that the reputation vested in the applicant – claim for interdict dismissed.
Defamation – trading corporation – interdict against future publication of defamatory matter – such not lightly granted – dispute of fact on the papers whether statements were justified – such a genuine dispute – applicant failing to show a clear right – interdict refused.
Media Summary
10 Mar
007 Riversdale Mining Ltd v Du Plessis (536/2016) [2017] ZASCA 007 (10 March 2017)
Review of arbitrator’s award in terms of s 33(1)(b) of the Arbitration Act 42 of 1965: whether arbitrator exceeded his jurisdiction and committed gross irregularity: whether the words ‘existing dispute’ in an arbitration clause to be given broad meaning: presumption in favour of ‘one stop arbitration’.
(10 Mar
006 Phasha v Minister of Police (70/2016) [2017] ZASCA 6 (10 March 2017)
Appeal: special leave to appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013: intended appeal raises only factual issues in respect of which the prospects of success are poor: no special circumstances to merit further appeal: special leave refused.
10 Mar
005 M v M (332/2015) [2016] ZASCA 5 (9 March 2017)
Matrimonial Property Act 88 of 1984 – Marriage out of community of property with accrual – Antenuptual contract – Exclusion of defined assets from accrual – Proof of assets ‘acquired by such party by virtue of the possession or former possession of such asset’ – Particular asset, its proceeds and assets which replace the excluded asset, or acquired with its proceeds excluded – Trust Property Control Act 57 of 1988 – Unconscionable abuse of trust through fraud, dishonesty or improper purpose with object of avoiding accrual claim – piercing of trust veneer - spouse having standing to advance claim against husband as trustee – evidence not establishing such conduct
Media Summary
09 Mar
004 De Villiers v Elspiek Boerdery (Pty) Ltd [2017] ZASCA 4 (1196/2015) (9 March 2017)
Validity of a notarially executed 99 year lease : whether agent had the necessary authority to bind her principal : held that power of attorney with draft lease attached thereto duly authorised the agent to execute the lease on behalf of her principal : whether the provisions of s 3(d) or 3(e)(ii) of the Subdivision of Agricultural Land Act 70 of 1970 prohibited the conclusion of the lease : held that these provisions of Act did not find application : lease held to be valid.
09 Mar
003 Joubert v S (642/2016) [2017] ZASCA 3 (3 March 2017)
Criminal Procedure – fatally irregular to increase sentence on appeal absent prior notice by court to appellant of an intention to do so – infringement of fair trial rights – remittal to court of appeal.
Media Summary
03 Mar
002 Langa v The State (640/16) [2017] ZASCA 2 (23 February 2017)
Criminal Law: Appeal against convictions of murder and attempted murder: whether contradictions in State witnesses’ evidence were material: whether denial of s 174 application was a fatal irregularity: whether s 309B of the Criminal Procedure Act 51 of 1977 was complied with: appeal against sentence: whether sentences should have been made to run concurrently
23 Feb
001 Minister of Rural Development and Land Reform v Phillips (52/2016) [2017] ZASCA 1 (22 February 2017)
Award of financial compensation made to redress a dispossession of a right in land under the Restitution of Land Rights Act 22 of 1994 : principles applicable to the determination of redress : no reasonable prospect of another court finding the Land Claims Court had erred in its determination.
Media Summary
22 Feb