SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2017

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(*) Case Correction

  Citation & Summary
Delivered
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