SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2018

back

All documents are in pdf PDF format and require Acrobat Reader to open.

(*) Case Correction

  Citation & Summary
Delivered
098 Netshimbupfe and another v Mulaudzi and others (563/17) [2018] ZASCA 98 (4 June 2018)
Customary law – s 12(2) of the Limpopo Traditional Leadership and Institutions Act 6 of 2005 – review of the identification of traditional leader – dispute over traditional leadership succession – premier seized with request for recognition – whether appeal is not premature – dispute should be referred to premier – appeal dismissed with costs.
Media Summary
04 Jun
097 Minister of Police and another v Zweni (842/2017) [2018] ZASCA 97 (1 June 2018)
Delictual claim – unlawful arrest and detention – whether detention after lawful arrest but before first court appearance unlawful – whether further detention after first court appearance unlawful.
Media Summary
01 Jun
096 Flanagan v Minister of Safety and Security (497/2017) [2018] ZASCA 96 (1 June 2018)
Delict : liability of the Minister of Safety and Security: appellant sodomised while in police custody for drunken driving and related charges: appellant entitled to be released on bail in terms of section 59(1) of the Criminal Procedure Act 51 of 1977: failure to grant bail in the circumstances, cumulatively considered with the failure of the police to detain the appellant separately from persons who had been arrested for violent crimes, gives rise to delictual liability on the part of the Minister for the police’s conduct.
Media Summary
01 Jun
095 Mantis Investment Holdings (Pty) Ltd v Eastern Cape Development Corporation & others (857/2017) [2018] ZASCA 95 (1 June 2018)
Company in liquidation – issue of subpoenas by Master – set aside.
Media Summary
01 Jun
094 Road Accident Fund v Masindi (586/2017) [2018] ZASCA 94 (1 June 2018)
Road Accident Fund Act 56 of 1996 as amended by the Road Accident Fund Amendment Act 19 of 2005 – s 23(3) of the RAF Act – statutory interpretation – s 4 of the Interpretation Act 33 of 1957 – regulation 1 under the RAF Act – whether a claim that was due to be served on the last day of the five year prescription period which last day fell on a public holiday had prescribed – application of s 34 and s 39 of the Constitution – consideration of foreign law.
Media Summary
01 Jun
093 Madibeng Local Municipality v Public Investment Corporation Ltd (603/2017) [2018] ZASCA 93 (1 June 2018)
Local government – defence that loans raised by a municipality unenforceable for want of prior written consent of Administrator of province – raising of loans to repay other loans not requiring consent – procedure – rule 38(2) – too late for appellant to object to agreement to determine separate issue on affidavit.
Media Summary
01 Jun
092 Oosthuizen & another v S (144/2018) [2018] ZASCA 92 (1 June 2018)
Bail pending appeal – leave to appeal having been granted does not, per se, entitle a person to be released on bail - there has to be a real prospect that a non-custodial sentence will be imposed – provocation as a defence discussed.
Media Summary
01 Jun
091 Executor of the Estate of the Late Josephine Terblanche Gouws (Charmaine Celliers N.O.) v Magnificent Mile Trading 30 (Pty) Ltd & others (594/17) [2018] ZASCA 91 (1 June 2018)
Mineral and Petroleum Resources Development Act 28 of 2002 – application for conversion of unused old order mineral right to new order prospecting right – effect of death of applicant after application made but before decision taken – setting aside of grant of prospecting right in respect of a property other than property applied for – effect of setting aside is that original application still pending – application for mining right by another party not permissible.
01 Jun
090 Bouttell v RAF (324/2017) [2018] ZASCA 90 (31 May 2018)
Delict - Road Accident Fund - damages – claim for loss of earnings – prior to accident appellant contributed towards a retirement annuity fund – whether voluntary contributions towards such retirement annuity fund can be claimed as loss of earnings.
Media Summary
01 Jun
089 CSARS v Char-Trade (776/2017) ZASCA 89 (31 May 2018)
Assessment issued for secondary tax on companies (STC) – S 64B and 64C of the Income Tax Act – Commencement of prescription – S 99 of the Tax Administration Act Prescription commences to run against CSARS when return for STC is submitted by the taxpayer - Return for STC never submitted by taxpayer – Prescription never commenced to run against CSARS – Assessment confirmed.
01 Jun
088 Naidoo v Discovery Life Limited & others (202/2017) ZASCA 88 (31 May 2018)
Contract law – risk-only policy containing beneficiary clause – stipulatio alteri – such policy cannot be an asset in the estate of the policyholder and of joint estate from marriage in community of property – such a policy not an insurance policy in terms of s 15(2)(c) of the Matrimonial Property Act 88 of 1984.
01 Jun
087 Gongqose & others v Minister of Agriculture, Forestry & Fisheries and others; Gongqose & others v State & others (1340/16 & 287/17) [2018] ZASCA 87 (01 June 2018)
Section 211(3) of the Constitution – customary law – fishing in marine protected area in contravention of Marine Living Resources Act 18 of 1998 (MLRA) – exercise of a customary right of access to and use of marine resources – a defence to unlawfulness – MLRA not legislation dealing specifically with customary law – customary right not extinguished – appeal upheld.
Media Summary
01 Jun
086 The National Director of Public Prosecution (Ex Parte Application), (905/2017) [2018] ZASCA 86 (31 May 2018)
Prevention of Organised Crime Act 121 of 1998 (the POCA) - ex parte application in terms of section 38 for a preservation order in respect of a Toyota Prado station wagon motor vehicle - proceedings in respect of chapter 6 of the POCA constitute civil proceedings – section 38 ex parte application to be set down as provided for in Uniform rule 6 (4)(a).
31 May
085 Standard Bank v July (525/2017) [2018] ZASCA 85 (31 May 2018)
A beneficiary of a deceased estate may, under the Beningfield exception, claim assets from the person in possession where the executor of the estate has died and where the executor had previously sold the assets unlawfully before his death.
31 May
084 Stoltz v Steenkamp (127/17) [2018] ZASCA 84 (31 May 2018)
Contract – purchase and sale – approach to mutually destructive versions restated – purchase price not proved
31 May
083*

Moor v Tongaat-Hulett Pension Fund (518/17) [2018] ZASCA 83 (31 May 2018)
Pension Funds Act – allocation and distribution of actuarial surplus – proper interpretation of section 15C – amended rules of pension fund to effect decision to allocate surplus not contrary to section 15C(1) – no proof of alleged bias on part of board of pension fund – Biowatch principle not applicable in respect of costs in cases of private interest litigation.

Media Summary

31 May
082 Louis Pasteur Hospital Holdings (Pty) Ltd v Bonitas Medical Fund (281/2017) [2018] ZASCA 82 (31 May 2018)
Cession – whether in securitatem debiti or out-and-out cession – in circumstances of case punitive costs order justified.
Media Summary
31 May
081 CSARS v KWJ Investment (142/2017) [2018] ZASCA 81 (31 May 2018)
Gross income – whether a cession of a dividend right constitutes a receipt or accrual for the purposes of gross income – if so, does a practice generally prevailing in terms of provision (iii) to s 79 (1) of the Income Tax Act 58 of 1962 apply.
Media Summary
31 May
080 De Villiers v GJN Trust (756/2017) [2018] ZASCA 80 (31 May 2018)
Practice – order avoiding the dissolution of a company in terms of s 420 of the Companies Act 61 of 1973 – order granted in the absence of the appellants – whether the appellants were affected parties within the meaning of rule 42(1)(a) – ambit of s 420 and effect of order thereunder – appellants not affected parties and had no locus standi to challenge section 420 order.
Media Summary
31 May
079 The President of the RSA v DA & others (664/17) [2018] ZASCA 79 (31 May 2018)
Section 16(2)(a)(i) Superior Courts Act 10 of 2013 – Appeal against an interlocutory order in a review application – review application withdrawn – judgment would have no practical effect or result – Appeal found moot and dismissed.
31 May
078 Magnum Simplex v The MEC Provincial Treasury (556/17) [2018] ZASCA 78 (31 May 2018)
Application to amend counterclaim in terms of Rule 28(1) of the Uniform Rules – claims for damages and not specific performance – amendment of counterclaim did not introduce a new cause of action – no prejudice.
31 May
077 City of Tshwane Metropolitan Municipality v Lombardy Development (Pty) Ltd & others (724/2017) [2018] ZASCA 77 (31 May 2018)
Local Government: Municipal Property Rates Act 6 of 2004 – failure by Municipality to comply with s 49 in compiling supplementary valuation roll – such roll invalid – subsequent valuation rolls relying on re-categorisation of properties in earlier invalid supplementary roll also invalid to the extent of such reliance.
31 May
076 Ekurhuleni Metropolitan Municipality & others v Thupetji Alexander Thubakgale & 134 others (125/2018) [2018] ZASCA 76 (31 May 2018)
Municipality – right to housing – dates fixed by court for delivery of houses incapable of fulfilment.
31 May
075 Kekana v Road Accident Fund (206/17) [2018] ZASCA 75 (31 May 2018)
Interpretation – s 12(3) of the Prescription Act 68 of 1969 – whether knowledge of a duty of care constitutes a factual or legal conclusion – whether acceptance of offer by a claimant with hindsight and new information constitute facts from which the debt arose – appeal dismissed.
31 May
074 Mogale City Local Municipality v Black Tad Investments CC (889/17) [2018] ZASCA 74 (31 May 2018)
Eviction – whether the municipality owed alleged unlawful occupiers on privately owned land statutory and constitutional obligation to provide temporary emergency accommodation – question answered positively – court found that municipality failed to comply with such obligation.
31 May
073 ST v CT (1224/16) [2018] ZASCA 73 (30 May 2018)
Divorce – waiver of right to claim maintenance upon dissolution of marriage in antenuptial agreement invalid and unenforceable – accrual – party required to make disclosure of assets in terms of section 7 of Matrimonial Property Act 88 of 1984 must establish proper compliance – party who avers assets excluded from estate for accrual calculation bears burden of proof to establish exclusion and also the nexus between excluded assets and current assets – living annuity not forming part of party’s estate for purposes of accrual calculation.
Media Summary
30 May
072 WDR Earthmoving Enterprises & another v The Joe Gqabi District Municipality & others (392/2017) [2018] ZASCA 72 (30 May 2018)
Municipal Supply Chain Management Regulations – regulation 21(d) – obligation on tenderer to submit three years of audited annual financial statements – tenderers declaring legally obliged to do so – failure by tenderers to comply – peremptory statutory requirement – tenders including a competing one declared non-responsive in accordance with tender conditions.
Media Summary
30 May
071 SARS v Encarnacao N.O. (543/2017) [2018] ZASCA 71 (29 May 2018)
Rebate item 412.09 in Schedule 4/Part 1 of the Customs and Excise Act 91 of 1964 – what occurrences fall within vis major – the meaning of ‘such goods did not enter into consumption’.
Media Summary
29 May
070 Louw & others v Davids & others (783/2017) [2018] ZASCA 70 (29 May 2018)
Breach of contract – agreement to sell members’ interests in close corporation – whether cancellation justified when large proportion of purchase price paid and restitution unlikely – cancellation not justified.
29 May
069 Premier Attraction 300 CC t/a Premier Security v City Of Cape Town, (592/2017) [2018] ZASCA 69 (29 May 2018)
Contract – interpretation – application to recover claims for security services – appellant electing to abide – invoicing on respondent’s calculations of price escalations¬– not communicating objection to alleged short payment – defences of waiver and prescription upheld.
29 May
068 Douglasdale Dairy & others v Bragge & another (731/2017) [2018] ZASCA 68 (25 May 2018)
Rights of fideicommisaries upon death of fiduciary – right of executor of fiduciary’s estate to enforce eviction order granted to fiduciary – scope of res judicata where appeal does not deal with court a quo’s factual findings.
25 May
067 Morris Material Handling Ltd v Morris Material Handling (Pty) Ltd (829/2017) [2018] ZASCA 67 (25 May 2018)
Trade mark – expungement from the register for non-use – s 27(1)(b) of Trade Marks Act 194 of 1993 – whether mark used by proprietor thereof.
25 May
066 CSARS v Daikin Air Conditioning (185/2017) [2018] ZASCA 66 (25 May 2018)
Customs and Excise Act 91 of 1964 – classification of articles for customs duty – correct tariff to be applied in respect of ‘window or wall types, self-contained or “split-system”’ air conditioning machines and parts thereof.
25 May
065 Minister of Defence v Xulu (337/2017) [2018] ZASCA 65 (24 May 2018)
Defence Act 42 of 2002 – soldier enrolled as member of the South African National Defence Force on fixed term contract – contract renewed on three occasions – renewal considered when due to expire but refused – refusal constituting administrative action in terms of Promotion of Administrative Justice Act 3 of 2000 – decision reviewed and set aside – appropriate relief.
Media Summary
24 May
064 Novartis v Cipla Medpro (Pty) Ltd (728/17) [2018] ZASCA 64 (24 May 2018)
Trade mark – application for registration of a mark – opposition by holder of previously registered mark under s 10(14) of Trade Marks Act 194 of 1993 – onus on applicant to show no likelihood of confusion or deception between its mark and mark already registered – likelihood of confusion between the marks CURIDA and CURITAZ.
24 May
063 Zitonix v K201250042 (290/2017) [2018] ZASCA 63 (21 May 2018)
Where a claim for the cancellation of lease agreements, and the eviction of the tenants, is based only on the terms of the agreements, and not on the title of the lessor, the court of the tenants’ domicile, and of the place where the contracts were concluded, has concurrent jurisdiction with that of the forum rei sitae. Ignorance of a term of the leases entitling the lessor to cancel in the event of a surety’s sequestration not a justus error on the facts.
21 May
062 Mostert and Others v Nash and Another (604/2017 and 597/2017) [2018] ZASCA 62 (21 May 2018)
Pension fund – curatorship in terms of s 5(2) of Financial Institutions (Protection of Funds) Act 28 of 2001 – trustee’s remuneration – court order that it be agreed with Executive Office of the Financial Services Board in accordance with the norms of attorneys’ profession – whether fee as a percentage of amounts recovered on behalf of fund in accordance with those norms – whether contrary to public policy or an infringement of Contingency Fees Act 66 of 1997.
Whether conclusion of fee agreement administrative action in terms of PAJA – whether application to set aside fee agreement a review in terms of principle of legality – applicability of delay rule – locus standi of applicants – abuse of process and doctrine of unclean hands.
Media Summary
21 May
061 DPP: Gauteng v Hamisi (895/17) [2018] ZASCA 61 (21 May 2018)
Criminal law - plea of guilty under s 112(2) of the Criminal Procedure Act 51 of 1977 - where all the elements of an offence are admitted in a written plea of guilty an accused may be convicted accordingly on the basis of the plea - respondent admitted having had sexual intercourse with the 12 year old complainant - sentence of life imprisonment improperly set aside by the high court on appeal on the basis of lack of evidence of complainant’s age - appeal by the National Director of Prosecutions on a point of law upheld.
Media Summary
21 May
060* DPP, Free State v Mashune (675/17) [2018] ZASCA 60 (18 May 2018)
Criminal law – appeal by State against sentences for two counts of housebreaking with intent to rape and rape – misdirections by trial court in respect of supposed remorse, youthfulness and absence of physical injury – no substantial and compelling circumstances – heavier sentences than those prescribed justified for two rape convictions.
18 May
059 South African National Parks v MTO Forestry (Pty) Ltd & another (446/2017) [2018] ZASCA 59 (17 May 2018)
Administrative law – whether management framework and totality of relevant evidence including previous public participation concluded in anticipation of implementation of statutory park management plan was proper basis for legitimate expectation – document to be interpreted comprehensively – legitimate expectation established.
Media Summary
17 May
058 Osborne v Cockin NO & Others (549/2017) [2018] ZASCA 58 (17 May 2018)
Where no contractual or other claim lies against a trust, and the creditor alleges that the trust is the alter ego of the debtor, it cannot claim the sequestration of the trust unless it can show that the trust is its debtor and is insolvent. An unliquidated claim for damages cannot found a claim for sequestration and sequestration is not the appropriate remedy for resolving a dispute about a debt.
17 May
057 Rajah v Balduzzi (076/2017) [2018] ZASCA 57 (16 May 2018)
Immovable property purchased by disqualified person in contravention of the Group Areas Act 36 of 1966 – registered owner seeking eviction of testamentary heir of purchaser – defence that registered owner holding property as nominee on behalf of purchaser – such a claim in terms of s 3 of Restitution of Land Rights Act 22 of 1994 – exclusive jurisdiction of Land Claims Court – eviction action stayed in terms of s 19(d) of Superior Courts Act 10 of 2013 pending action before Land Claims Court.
Media Summary
16 May
056 PG Group & others v NERSA (150/2017) [2018] ZASCA 56 (10 May 2018)
Administrative action – whether the determination of a methodology used to regulate gas prices under s 21(1)(p) of the Gas Act 48 of 2001 is administrative action – whether a determination by the regulator under that section which resulted in an increase in permissible maximum gas prices was rational.
Media Summary
10 May
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