SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2018

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(*) Case Correction

  Citation & Summary
Delivered
055 Kelbrick & others v Nelson Attorneys & another (307/2017) [2018] ZASCA 55 (16 April 2018)
Prescription : attorney sued for negligence : Prescription begins to run as soon as the creditor acquires knowledge of the facts necessary to institute action: whether knowledge of delay in constructing a sectional title scheme constituted knowledge of facts constituting a complete cause of action.
16 Apr
054

Mostert v Firstrand Bank t/a RMB Private Bank (198/2017) [2018] ZASCA 54 (11 April 2018)
Debtor and creditor – remedying of default in a credit agreement in terms of s 129(3) of the National Credit Act 34 of 2005 – s 129(3) requires payment by or on behalf of the consumer – consumer relied on payments during 2013 and 2015 – not established that 2013 payment settled the arrears – 2015 payments did settle the arrears but were not made by or on behalf of the consumer.
Media Summary

11 Apr
053

Shaw & another v Mackintosh & another (267/17) [2018] ZASCA 53 (29 March 2018)
National Credit Act 34 of 2005 (the NCA) – co-principal debtors – whether transaction is a credit guarantee in terms of s 8(5) of the NCA – whether credit provider required to register in terms of s 40 of the NCA.
Media Summary

29 Mar
052 Glenn Marc Bee v The Road Accident Fund (093/2017) [2018] ZASCA 52 (29 March 2018)
Delict – claim for damage to earning capacity – plaintiff and his brother each owned 50 per cent of close corporation – present case distinguishable from Rudman – plaintiff’s claim permissibly quantified with reference to corporation’s diminished profits.
Delict – collateral source rule – plaintiff’s post-injury earnings, to extent they exceeded a market related salary for his reduced role, the result of benevolence – correctly disregarded.
29 Mar
051

Pietermaritzburg and District Council for the Care of the Aged (PADCA) v Redlands Development Projects (Pty) Ltd (184/17) [2018] ZASCA 51 (29 March 2018)
Actio aquae pluviae arcendae – interdict – stormwater from higher property discharging into municipal stormwater drainage system – combined with water from road and other properties – increasing flow in watercourse on lower property – discharging in accordance with approved plans – discharge lawful – alternative claim based on neighbour law unjustified.
Media Summary

29 Mar
050 Overstrand Municipality v Water and Sanitation Services South Africa (Pty) Ltd (143/2017) [2018] ZASCA 50 (29 March 2018)
Tender evaluation and adjudication : challenges based, inter alia, on s 6(2)(b) of the Promotion of Administrative Justice Act 3 of 2000 : whether acceptable tender in terms of s 7 of the Preferential Procurement Policy Framework Act 5 of 2000 read with applicable regulation : whether regulation dealing with minimum staffing of water works endures despite repeal of a number of statutes regulating the provision of water to the public : savings provisions examined and applied.
Media Summary
29 Mar
049 Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49 (29 March 2018)
Road Accident Fund Act 56 of 1996 : section 17: whether a driver in a single motor vehicle accident is entitled to claim under the provisions of section 17 of the Road Accident Fund Act.
Media Summary
29 Mar
048 The Director-General, Department of Home Affairs and another v Islam and others (459/2017) [2018] ZASCA 48 (28 March 2018)
Immigration Act 13 of 2002 – foreigner issued with a valid spousal visa subsequently found in possession of a fraudulent visa in breach of s 29(1)(f) of the Act – deemed a prohibited person and not entitled to a port of entry visa or admission into the Republic – high court has no authority to order the Department of Home Affairs to allow him entry into the Republic and to re-issue his spousal visa – such order violates separation of powers – requisites for the grant of an interim interdict against the exercise of statutory powers restated.
28 Mar
047 Thakeli v S (231/2017) [2018] ZASCA 47 (28 March 2018)
Criminal Law: appellants indicted for murder – charge sheet referred to s 51(2) of the Criminal Law Amendment Act 105 of 1997 (the Act) – trial court amended charge sheet, after appellants testified in their defence, by deleting subsection (2), in terms of s 86 of the Criminal Procedure Act 51 of 1977 – no opportunity afforded to appellants to address the court in respect of amendment – appellants convicted and sentenced by the trial court in terms of s 51(1) of the Act – sentence set aside – appellants ultimately sentenced to 15 years' imprisonment in terms of s 51(2) of the Act.
Media Summary
28 Mar
046 Minister of Home Affairs & another v Fireblade Aviation Ltd & others (13/2016) [2018] ZASCA 46 (28 March 2018)
Application for leave to appeal against judgment in High Court in application proceedings – such to be dealt with under s 16(1)(a)(i) of the Superior Courts Act 10 of 2013 (the Act)– the fact that the High Court had granted an enforcement order in terms of s 18(1) of the Act and that order has been upheld by the Full Court in an appeal under s 18(4) does not make the application one for special leave to appeal in terms of s 16(1)(b) of the Act – no reasonable prospects of success on appeal – application for leave to appeal dismissed.
Media Summary
28 Mar
045 De Klerk v Minister of Police (329/17) [2018] ZASCA 45 (28 March 2018)
Delictual claim – Unlawful arrest and detention – what constitutes unlawful arrest – whether the Minister of Police is liable for the further detention after the suspect has been remanded to custody by the court is fact-based – the purpose of arrest is to bring the arrested person to court.
Media Summary
28 Mar
044 The National Consumer Commission v Univision Services Association NPC (618/2017) [2018] ZASCA 44 (28 March 2018)
Complaint to the National Consumer Commission under the Consumer Protection Act 68 of 2008 – complaint referred to the National consumer Tribunal under s 73(2)(b) of that Act – s 147 of the National Credit Act 34 of 2005 precluded the Tribunal from granting a costs order against the Commission on it withdrawing the referral.
Media Summary
28 Mar
043 Dinnermates (Tvl) CC v Piquante Brands International & another (401/17) [2018] ZASCA 43 (28 March 2018)
Trade mark – opposition in terms of s 10(14) of the Trade Marks Act 194 of 1993 – whether mark likely to deceive or confuse – PEPPADEW and PEPPAMATES relating to pepper products.
28 Mar
042 Adv A J du Toit N O obo Ntsikelelo Mafanya v Road Accident Fund (140/2017) [2018] ZASCA 42 (28 March 2018)
Road Accident Fund: liability to claimant settled by agreement: curator ad litem appointed to claimant: application by curator ad litem to set aside agreement of settlement: claimant allegedly lacking mental capacity at the time of the conclusion of the agreement: failure by curator ad litem to discharge onus: appeal dismissed.
Media Summary
28 Mar
041 Tiekiedraai Eiendomme v Shell South Africa Marketing & others (1206/2016) ZASCA 41 (28 March 2018)
Lease agreement –lessee - right of pre-emption – interpretation - lessor obliged to inform lessee of identical terms and conditions in all respects upon which prepared to sell property to third party – failure by lessor to do so – sale agreement with third party invalid - right of pre-emption validly exercised by lessee - appeal dismissed.
28 Mar
040 Director of Public Prosecutions, Grahamstown v Mzukisi Peli (533/2017) [2018] ZASCA 40 (28 March 2018)
Criminal Procedure Act 51 of 1977 - Section 316B - appeal by State – rape of 6 year old boy – sentence imposed of 10 years imprisonment of which 4 years suspended – shockingly and disturbingly lenient – no substantial and compelling circumstances present – sentence of life imprisonment substituted.
28 Mar
039 CSARS v The Executors of Estate Late Sidney Ellerine (142/2017) [2018] ZASCA 39 (28 March 2018)
Eighth Schedule to the Income Tax Act 58 of 1962 – valuation of preference shares for the purposes of determination of a capital gain.
Media Summary
28 Mar
038 CSARS v Danwet (399/2017) [2018] ZASCA 38 (28 March 2018)
Condonation for late filing of an appeal against an assessment – section 104(3) of the Tax Administration Act 28 of 2011 mandates a taxpayer to object to a refusal by SARS to extend the period for lodgment – failure by taxpayer to file an objection.
Media Summary
28 Mar
037* BS v PS (291/2017) [2018] ZASCA 37 (28 March 2018)
Divorce Act 70 of 1979 – s 7(8)(a)(i) – 50 per cent of respondent’s pension interest in Government Employees Pension Fund assigned to appellant – Matrimonial Property Act 88 of 1984 – s 10 – deferral of payment of pension interest – precluded in terms of s 24A of Government Employees Pension Law, 1966.
Media Summary
28 Mar
036 Lion Match Company (Pty) Ltd v Commissioner for the South African Revenue Service (301/2017) [2018] ZASCA 36 (27 March 2018)
Income tax – Tax Administration Act 28 of 2011 – dismissal of an application by taxpayer to set aside rule 31 statement – not appealable.
Media Summary
27 Mar
035 Vincorp (Pty) Ltd v Trust Hungary ZRT (061/2017) [2018] ZASCA 35 (27 March 2018)
Contract – formation of – absence of animus contrahendi – whether pleadings and evidence tendered sufficient to justify reliance on quasi mutual assent.
Media Summary
27 Mar
034 Eastern Cape Parks and Tourism Agency v Medbury (Pty) Ltd (816/2016) [2018] ZASCA 34 (27 March 2018)
Interpretation of s 2 of the Game Theft Act 105 of 1991 (the GTA) : whether ownership of animals which escape from land on which they have been contained is lost in the absence of a certificate provided for in s 2(2)(a) of the GTA stating that land sufficiently enclosed to contain species of game : deeming provision interpreted in context and with regard to legislative purpose : deeming provision not precluding owner in absence of certificate from proving that land sufficiently enclosed to contain species.
Media Summary
27 Mar
033 Fesi v Ndabeni Communal Property Trust (411/2017 & 412/2017) [2018] ZASCA 33 (27 March 2018)
Trust : whether persons elected as trustees of a trust established to administer and develop property received as a result of a land restitution claim properly appointed in terms of the trust deed : whether Master correct in refusing to issue letters of authority : provisions of Trust Property Control Act 57 of 1988 and Master’s supervisory role discussed : discussion of concerns by Master, the responsible Minister and the Land Claims Commissioner, regarding disposal of the trust property and the need to meet constitutional objectives in relation to land restitution : Master, Minister and Land Claims Commissioner commended for being rightly concerned about propriety of election of trustees and disposal of trust property : whether persons elected acted in fiduciary manner : conduct of attorney criticised : importance of land restitution reiterated.
Media Summary
27 Mar
032 Macinezela v The State (550/2017) [2018] ZASCA 32 (26 March 2018)
Criminal Procedure – before a witness testifies in a criminal trial in appropriate circumstances an inquiry must be held into whether he or she understands the nature and import of the oath or affirmation as provided in ss 162(1) and 163 of the Criminal Procedure Act 51 of 1977 – where a witness is found not to understand the nature and import of the oath or affirmation due to intellectual incapacity an inquiry must be held in terms of s 164 of that Act into whether he or she understands the difference between truth and falsehood ─ failure of trial court to hold an inquiry into whether a mentally ill witness understands the difference between truth and falsehood renders the evidence of that witness inadmissible.
Media Summary
26 Mar
031 Automated Office Technology (Pty) Ltd t/a AOT Finance v International Colleges Group (Pty) Ltd (385/2017) [2018] ZASCA 31 (26 March 2018)
Master rental agreement – written cession – interpretation of cession in context – subsequent rental agreements validly ceded.
26 Mar
030 Tete v State (663/2017) [2018] ZASCA 30 (9 April 2018)
Rape – version of the complainant not corroborated – complainant’s evidence riddled with improbabilities – single witness – duty of prosecutors to act with objectivity and to protect public interest.
09 Apr
029 Nkola v Argent Steel (406/2017) [2018] ZASCA 29 (26 March 2018)
A judgment debtor who claims that he has sufficient movable assets to satisfy the debt cannot avert execution against his immovable property unless he makes the movables, including incorporeals, available for execution.
26 Mar
028 Auction Alliance v Wade Park (342/16) [2018] ZASCA 28 (23 March 2018)
Contract – principles of interpretation restated – not sufficient to merely outline well established principles – proper application thereof must be evident from the process of interpretation – appeal upheld.
23 Mar
027 Brompton Court Body Corporate v Khumalo (398/2017) [2018] ZASCA 27 (23 March 2018)
Prescription – an arbitration award generally does not create a new debt for purposes of the Prescription Act 68 of 1969 (the Act) – a claim to make an arbitration award an order of court in terms of s 31 of the Arbitration Act 42 of 1965 is not a ‘debt’ in terms of the Act.
Media Summary
23 Mar
026 Stu Davidson v Eastern Cape Motors (260/2017) [2018] ZASCA 26 (23 March 2018)
Damages for breach of warranty – ‘substantial/major’ accident affecting resale of motor vehicle. Terms of warranty clear.
Special leave – test for – requires something more than reasonable prospects of success on appeal. Ultimately court hearing appeal decides whether special circumstances exist. No special circumstances found – appeal struck from the roll with costs.
23 Mar
025 BMW Financial Services (SA) (Pty) Ltd v Tabata (445/2017) [2018] ZASCA 25 (23 March 2018)
Estoppel – surety seeking release from suretyship told that no suretyship had been executed – accepting information and acting on it – creditor estopped from relying on suretyship – factual appeal.
Media Summary
23 Mar
024 Loggenberg N O & others v Maree (286/2017) [2018] ZASCA 24 (23 March 2018)
Practice – pleadings – exception – non-compliance with s 2(1) of the Alienation of Land Act 68 of 1981 – alleged sale of land not reduced to writing – appellants orally agreed with respondent that he purchase a farm for the benefit of a trust to be formed and that trust would be entitled to transfer of the farm upon reimbursement of respondent’s costs – trustees seeking to enforce oral agreement – vagueness – agreement not a contract of sale – not invalid in terms of s 2(1) of Act 68 of 1981 – appellants’ pleadings disclosing a cause of action and not vague – case remitted for trial.
Media Summary
23 Mar
023 Palabora Copper (Pty) Ltd v Motlokwa Transport & Construction (Pty) Ltd (298/2017) [2018] ZASCA 23 (22 March 2018)
Arbitration award – application to set aside – s 33(1)(b) of the Arbitration Act 42 of 1965 – grounds for – gross irregularity – severability of award – permissible if the bad part is clearly severable from good – award may then be enforceable for the residue after severance.
Media Summary
22 Mar
022 Van den Heever v Taljaard (289/2017) [2018] ZASCA 22 (20 March 2018)
Company law : sale of property when close corporation deemed to be under winding-up under previous Companies Act 61 of 1973 : whether sale a void disposition under s 341 of that Act : whether transfer of property in compliance with a court order as envisaged by s 2 of Insolvency Act 24 of 1936 : sale held to be void.
Media Summary
20 Mar
021 DPP Eastern Cape v Yoyo (581/17) [2018] ZASCA 21 (20 March 2018)
Attempted rape of 4 year old – sentence of six years imprisonment imposed – half suspended for 3 years – sentence disproportionate and shocking - replaced by 10 years imprisonment.
20 Mar
020 Phetoe v State (1361/2016) [2018] ZASCA 20 (16 March 2018)
Criminal law and Procedure – conviction of rape as an accomplice not correct – all elements of the crime including mens rea to be satisfied - association or mere presence at the scene of the commission of the crime, not necessarily proof of assistance or encouragement.
Media Summary
16 Mar
019 Patmar Explorations (Pty) Ltd v Limpopo Development Tribunal (1250/2016) [2018] ZASCA 19 (16 March 2018)
Stare decisis – SCA does not depart from its own previous judgments unless satisfied clearly wrong – High Court – judges in same division bound by judgments of that division unless satisfied clearly wrong – costs
Media Summary
16 Mar
018 Budge & others v Glyn-Cuthbert & others (1046/16) [2018] ZASCA 18 (16 March 2018)
Claims arising from an agreement to dissolve a business relationship between two parties – repudiation not established – enrichment claims and ancillary relief – appeal dismissed – cross-appeal partially successful.
16 Mar
017 Bannister’s Print v D & A Calendars (1078/2016) [2018] ZASCA 17 (15 March 2018)
An agreement of settlement of litigation, forged by a lawyer for one of the parties, cannot be relied on by the other party. It is a nullity.
15 Mar
016 Mobile Telephone Networks (Pty) Ltd & another v Spilhaus Property Holdings (Pty) Ltd & others (208/2017) [2018] ZASCA 16 (15 March 2018)
Sectional title scheme – locus standi of unit owners to institute proceedings – matter falling within s 41(1) of the Sectional Titles Act 95 of 1986 – owners obliged to apply for the appointment of a curator ad litem.
Media Summary
15 Mar
015 Minister of Home Affairs v The Public Protector (308/2017) [2018] ZASCA 15 (15 March 2018)
Constitutional and administrative law – review of investigative, reporting and remedial powers of the Public Protector – such powers not of an administrative nature – may not be reviewed in terms of s 6 of the Promotion of Administrative Justice Act 3 of 2000 – may be reviewed in terms of the principle of legality – no ground of review established.
Media Summary
15 Mar
014 National Police Commissioner v Ngobeni (327/2017) [2018] ZASCA 14 (15 March 2018)
Institution of a board of inquiry into alleged misconduct, unfitness for office or incapacity of a provincial commissioner of police – powers of national commissioner of police in terms of ss 8 and 9 of South African Police Service Act 68 of 1995 – s 207 of Constitution.
Media Summary
15 Mar
013*

NK obo ZK v MEC for Health, Gauteng (216/17) [2018] ZASCA 13 (15 March 2018)
Medical negligence – quantum of damages – court a quo erred in this regard – award for general damages increased – contingency deduction for future loss of earnings reduced – appeal upheld.

Media Summary

15 Mar
012 John Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in liquidation) & another (245/2017) [2018] ZASCA 012 (8 March 2018)
Application for leave to appeal – whether proposed appeal would have any practical effect or result – such to be determined without reference to costs, save under exceptional circumstances – appeal in this case would have no practical effect because applicant’s alleged right of occupation in ejectment proceedings expired in September 2017 – no exceptional circumstances justifying appeal on costs.
Media Summary
08 Mar
011

Waymark Infotech v Road Traffic Management Corporation (440/2017) [2018] ZASCA 11 (6 March 2018)
Interpretation of ss 66 and 68 of the Public Finance Management Act 1 of 1999: contract for the procurement of professional services did not constitute a future financial commitment.

Media Summary

06 Mar
010 Maqebhula v The State (284/17) [2018] ZASCA 010 (5 March 2018)
Application for leave to appeal against dismissal by high court of petition for leave to appeal against conviction and sentence by regional court – relevant test whether applicant has reasonable prospects of success – no such prospects in present case.
05 Mar
009 Ocean Echo Properties 327 CC v Old Mutual Life Assurance Company (South Africa) Limited (288/2017) [2018] ZASCA 09 (01 March 2018)
Exception to plea – upholding an exception disposes of the pleading, not the action or defence – ordinarily therefore the court should grant leave to amend and not dispose of the matter – an excipient has a duty to persuade the court that upon every interpretation which the plea can bear no defence is disclosed - tacit agreement pleaded constitutes a termination of the written agreement, not a variation thereof.
Media Statement
01 Mar
008 Maphaha v The State (174/2017) [2018] ZASCA 08 (1 March 2018)
Appeal against refusal of petition for leave to appeal against conviction and sentence for robbery with aggravating circumstances – no reasonable prospects of success concerning conviction – concerning sentence, trial court appeared not to have taken into account period of about three and a half years spent by appellants awaiting trial – reasonable prospects of success on appeal against sentence.
01 Mar
007 DPP v Booysen (580/2017) [2018] ZASCA 07 (23 February 2018)
Criminal law and procedure – minimum sentence legislation - respondent convicted on two counts of murder and one count of robbery with aggravating circumstances – court a quo finding no substantial and compelling circumstances but failing to impose prescribed minimum sentences on second count of murder and robbery with aggravating circumstances - minimum sentences of life imprisonment and 15 years’ imprisonment imposed.
23 Feb
006 Ngcobo v S (1344/2016) 2018 ZASCA 06 (23 February 2018)
Rape – sentence – life imprisonment - appellant and complainant aged 23 and 16 years respectively – period awaiting trial one of several factors to be considered cumulatively in determining whether substantial and compelling circumstances exist and proportionality of sentence – interference only if misdirection or trial court’s sentence grossly disproportionate.
23 Feb
005 Fortuin v S (838/2017) [2018] ZASCA 5 (13 February 2018)
Appeal – whether the high court should have granted leave to appeal to it against a conviction of attempted rape – reasonable prospect of a finding that the intention to penetrate was not established beyond reasonable doubt – appropriate to dispose of appeal without oral hearing – appeal upheld and leave granted to appeal to high court.
13 Feb
004 Hendrik Petrus Hough v Mzubanzi Sisilana and others (1121/2017) [2018] ZASCA 04 (2 February 2018)
Procedure – s 17(2)(f) of the Superior Courts Act 10 of 2013 – exceptional circumstances warranting an order for the reconsideration and variation of the dismissal of the application for leave to appeal not established – application dismissed.
02 Feb
003 Frieslaar NO v Ackerman (1242/2016) [2017] ZASCA 03 (02 February 2018)
Prescription: extinctive prescription: Prescription Act 68 of 1969, ss 10, 11 and 12: obligation to pay transfer costs and to transfer property sold constituting a debt which is susceptible to prescription: date of commencement of the running of prescription: running of prescription commences once the creditor has acquired right to claim the debt.
02 Feb
002 Mandela v The Executors, Estate Late Nelson Rolihlahla Mandela & others (131/17) [2017] ZASCA02 (19 January 2018)
Administrative law – common law review – unreasonable delay – assumption of prospects of success on merits – outweighed by potential for severe resultant prejudice – refusal of condonation – whether court justified in mulcting appellant with costs.
Media Summary
19 Jan
001

Basson v Hugo & others (968/16) [2017] ZASCA 01 (17 January 2018)
Promotion of Administrative Justice Act 3 of 2000, s 7(2) – failure to exhaust internal remedy prior to instituting judicial review proceedings – whether this is an appropriate case to grant exemption in terms of s 7(2)(c) where administrator alleged to be biased or reasonably suspected of bias – court finding that internal remedy ineffective and inadequate.

Media Summary

17 Jan