SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2019

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(*) Case Correction

  Citation & Summary
Delivered
098 Eskom Holdings SOC Limited v Masinda (1225/2018) [2019] ZASCA 98 (18 June 2019)
Spoliation – rights protectable by mandament van spolie – whether an electricity supply in itself an incident of possession of the property to which it is delivered or a mere personal right – whether such supply protectable by the mandament.
Media Summary
18 Jun
097 Maswanganyi obo Machimane v Road Accident Fund (1175/2017) [2019] ZASCA 97 (18 June 2019)
Delict – Settlement of damages claim against the Road Accident Fund – judge declining to make settlement agreement an order of court and requiring the trial to continue on the merits – application to declare trial a nullity – irregular procedure – Court’s duty when asked to make settlement agreement an order of court.
Media Summary
18 Jun
095 NPGS Protection and Security Services CC & another v FirstRand Bank Ltd (314/2018) [2019] ZASCA 94 (6 June 2019)
Summary judgment – whether bona fide defence established – execution against primary home of debtor – no facts placed before court – whether court entitled to order execution without such facts – loan secured by mortgage over surety’s property – judgment debtor failing to provide court with any information relative to the asserted right to housing save for a statement from the bar which is required to conduct the mandated inquiry.
Media Summary
06 Jun
094 Joan Cynthia Griessel NO & others v De Kock (334/18) [2019] ZASCA 95 (6 June 2019)
Discretionary trust – trustees having power to select beneficiaries from listed potential beneficiaries - whether potential beneficiary acquired rights capable of protection.
Media Summary
06 Jun
093 Gold Circle (Pty) Ltd v Maharaj (1313/17) [2019] ZASCA 93 (3 June 2019)
Complaint of unfair discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 – earlier application dismissed by Equality Court – whether second referral precluded by the operation of doctrine of res judicata or issue estoppel – remittal to Equality Court for de novo hearing.
Media Summary
03 Jun
092 National Credit Regulator v Southern African Fraud Prevention Services NPC (560/2018) [2019] ZASCA 92 (03 June 2019)
Credit bureau – collection of information pertaining to fraud – whether consumer credit information in terms of s 70(1) of National Credit Act 34 of 2005 (NCA) – whether information constituting an adverse classification of consumer behaviour in terms of Regulation 17 of Regulations under NCA in GN R489 of 31 May 2006 – whether credit bureau required to expunge information within one year.
03 Jun
091 Mngomezulu v Ethekwini Metropolitan Municipality (079/2018) [2019] ZASCA 91 (03 June 2019)
Delict – claim for damages for unlawful destruction of property and unlawful assault – plea of self-defence raised – no proof that claimant acted lawfully in defence of property – defensive action must be reasonable and taken against imminent act of aggression.
03 Jun
090 DPP, Gauteng v Ramolefi (705/2018) [2019] ZASCA 90 (3 June 2019)
Criminal Procedure – Sentence – appeal by State against a sentence imposed on appeal to the high court – lack of jurisdiction to determine such an appeal – appeal struck from the roll.
03 Jun
089 Beijers v Harlequin Duck Properties 231 (Pty) Ltd t/a Office Space Online (1216/2017) [2019] ZASCA 89 (31 May 2019)
Contract – interpretation of non-variation clause – alleged oral agreement – estate agent’s entitlement to commission – evidence to contradict express terms of a contract inadmissible.
31 May
088 Rhino Oil and Gas Exploration SA (Pty) Ltd v Normandien Farms (Pty) Ltd & another (100/2018) [2019] ZASCA 88 (31 May 2019)
Mineral and Petroleum Resources Development Act 28 of 2002 – application for petroleum exploration right – process challenged on review prior to decision being taken – at that stage, no prejudice to party challenging the process – matter not ripe for adjudication.
Media Summary
31 May
087 Moto Health Care Medical Scheme v HMI Healthcare Corporation (Pty) Ltd & others (341/2018) [2019] ZASCA 87 (31 May 2019)
Declaratory relief – whether condonation by liquidators of company of non-compliance with written notice of civil action under s 359(2)(a) of the Companies Act 61 of 1973 and prescription properly the subject of a declaratory order – party not entitled to claim declaration of rights merely because rights disputed – case not a proper one for the exercise of discretion to grant declaratory relief – delivery of heads of argument after hearing of appeal – abuse of court process.
31 May
086 Minister of Defence and Military Veterans v Maswanganyi (739/18) [2019] ZASCA 86 (31 May 2019)
Interpretation of statute – s 59(1)(d) of Defence Act 42 of 2002 – operates ex lege – no decision required to be made – nothing capable of being reviewed and set aside – no automatic reinstatement in terms of that section.
Media Summary
31 May
085 Ndou v The State (247/18) [2019] ZASCA 85 (31 May 2019)
Criminal Procedure – the Appeal Court lacks jurisdiction, in the absence of a cross-appeal by the State, to reverse the acquittal of the accused – evidence in relation to common purpose to commit robbery not sufficient to make perpetrators joint possessors of a firearm under the Firearms Control Act 60 of 2000 – sentence in respect of offences related in terms of time and place ordered to run concurrently.
Media Summary
31 May
084 De Almeida v S (728/2018) [2019] ZASCA 84 (31 May 2019)
Criminal Procedure – appeal against sentence of 8 years’ imprisonment – leave to appeal refused by regional court – petition refused by the high court – special leave granted by this court – the test is whether the appellant has shown reasonable prospect of success on appeal against the sentence.
31 May
083 The Director of Public Prosecutions v Moloto (1007/18) [2019] ZASCA 83 (31 May 2019)
Criminal Procedure – sentence for murder, read with s 51(1) of the Criminal Law Amendment Act 105 of 1997 – unclear from judgment whether the trial court found substantial and compelling circumstances justifying deviation from prescribed minimum sentence – sentence in terms of s 276(1)(i) of Act 51 of 1977 set aside and substituted with a sentence of 10 years' imprisonment.
31 May
082 Mochebelele v Director of Public Prosecutions, Gauteng & others (377/2018) [2019] ZASCA 82 (31 May 2019)
Enquiry in terms of s 10 of the Extradition Act 67 of 1962 – powers of magistrate – whether magistrate entitled to consider extraneous factors – Minister’s powers in terms of s 11 of the Extradition Act.
31 May
081 Moss & another v KMSA Distributors (673/2018) [2019] ZASCA 81 (31 May 2019)
Suretyship – interpretation – principles relating to interpretation of contracts apply – agreement comprising more than one document – all documents must be considered.
Media Summary
31 May
080 De Vasconcelos & others v Business Partners Ltd (637/2018) [2019] ZASCA 80 (31 May 2019)
Loan and royalty agreements arising from loan; whether interest disguised as royalty; whether royalty agreement contra bonos mores; whether in duplum rule applies.
31 May
079 Intech Instruments v Transnet Limited t/a South African Port Operations (1165/18) [2019] ZASCA 79 (31 May 2019)
Contract – repudiation manifested by conduct – motive irrelevant – status of interim certificates where construction contract lawfully cancelled by employer – cease to be of force and effect – not self-standing claims separate from remainder of contract.
Media Summary
31 May
078 Fundsatwork Umbrella Pension Fund v Guarnieri and Others (830/2018) [2019] ZASCA 78 (31 May 2019)
Distribution of pension benefit on death of member of fund – s 37C(1)(a) of the Pension Funds Act 24 of 1956 (PFA) – meaning of dependant in terms of definition in s 1 of the PFA – when such dependants are to be identified for the purpose of making a distribution under that section – such to be at the date of distribution not the date of death of the member – accordingly dependants do not include a person who died before the distribution was made – distribution to such person contrary to statutory scheme and not a distribution of member’s pension benefit – fund obliged to distribute the outstanding balance to the member’s dependants.
Media Summary
31 May
077 Atakas Ticaret VE Nakliyat AS v Glencore International AG (768/2018) [2019] ZASCA 77 (30 May 2019)
Discretion of court to permit or refuse joinder in terms of s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983 left untouched by the International Arbitration Act 15 of 2017.
Media Summary
30 May
076 Van der Merwe v Van der Merwe (843/2018) ZASCA 76 (30 May 2019)
Rectification of an ante-nuptial contract – no common mistake or misunderstanding between the parties – rectification not competent – the clear unambiguous terms of the ante-nuptial contract cannot be ignored.
30 May
075 Chonco v The State (1247/2018/) [2019] ZASCA 75 (30 May 2019)
Criminal Law – appeal against sentence above prescribed minimum sentence – whether justified – failure to provide reasons – sentence considered afresh.
30 May
074 Mokoena v The State (200/2018) [2019] ZASCA 74 (30 May 2019)
Criminal Procedure – regional court magistrate mero motu closing defence case in terms of s 342A(3)(d) of the Criminal Procedure Act 51 of 1977 (the Act) - notice in terms of s 342A(4)(a) not given by the State – evidence irregularly excluded - appeal court incorrectly remitting matter back to same magistrate to continue hearing – conviction and sentence set aside – s 324(c) applied.
Media Summary
30 May
073 Bayport Securitisation v Sakata (1320/17) [2019] ZASCA 73 (30 May 2019)
Magistrates’ Court Act 32 of 1944 – s 58 – default judgment – Magistrates’ Court Rules – Rules 49(1), (3) and (8) – rescission of judgment – failure to set out bona fide defence – liability acknowledged – procedural error in proceedings – rescission refused.
30 May
072 Nare v The State (380/2018) [2019] ZASCA 72 (30 May 2019)
Application for leave to appeal against the refusal by the High Court to grant leave to appeal against conviction –– Interpretation of the order of this court granting leave to appeal – Whether reasonable prospects of success established.
30 May
071 The Motor Industry Ombudsman of South Africa v Silver Park Motors CC (479/18) [2019] ZASCA 71 (30 May 2019)
Registration as retailer under Consumer Protection Act 68 of 2008 – meaning of ‘accessories’ in South African Automotive Industry Code of Conduct (the Code) – seller of fuel and engine oils not a supplier or retailer of accessories under the Code.
30 May
070 Z F Stoffberg NO & others v City of Cape Town (1325/2017) [2019] ZASCA 70 (30 May 2019)
Prescription – acquisitive prescription of public outspan – requirements under s 2 of the Prescription Act 18 of 1943 – continuous possession for 30 years not shown – acts of possession not reasonably indicating possession as if owner.
Media Summary
30 May
069* Singh & others v The Companies and Intellectual Property Commission & others (822/2018) [2019] ZASCA 69 (30 May 2019)
Powers of the Companies Commission to investigate a complaint – whether complaint time barred – Effect of civil litigation on an investigation by the Companies Commission.
Media Summary
30 May
068 Gauteng Department of Agriculture and Rural Development & others v Interwaste (Pty) Ltd & others (458/2018) [2019] ZASCA 68 (30 May 2019)
Waste management licence issued in terms of the National Environmental Management Act 107 of 1998 – whether expired by effluxion of time – relevance in prevailing circumstances of a compliance notice issued in terms of the Act.
Media Summary
30 May
067 Afgri Grain Marketing (Pty) Ltd v Trustees for the time being of Copenship Bulkers A/S (in liquidation) and Others (797/2018) [2019] ZASCA 67 (29 May 2019)
Security arrest in terms of s 5(3)(a) of the Admiralty Jurisdiction Regulation Act 105 of 1983 – such restricted to property existing at the time the arrest order was made – reconsideration of arrest order granted ex parte in terms of Uniform Rule 6(12)(c) – procedure – where party seeking reconsideration delivers an affidavit dealing with the merits and the applicant replies reconsideration takes place on basis of all material then before the court – onus remains on applicant to establish a genuine and reasonable need for security on a balance of probabilities – whether onus discharged.
29 May
066 Schoeman & others v Lombard Insurance Co Ltd (1299/2017) [2019] ZASCA 66 (29 May 2019)
Demand guarantee – demand guarantee stipulating that demand to be made at address of beneficiary – demand hand-delivered to address of guarantor – place at which demand to be made directory, not mandatory – demand effective.
29 May
065 Eskom Holdings Soc Ltd v Sidoyi and Others (1207/2018) [2019] ZASCA 65 (28 May 2019)
Electricity – disconnection of allegedly unlawful connections and apparatus – challenge by affected property owners to disconnection – order sought for restoration of electricity supply – such could only be determined after determining whether the disconnected supply was lawful – dispute of fact on the papers – application referred for the hearing of oral evidence on the issue of the lawfulness of the disconnected supply.
28 May
064 Ledwaba v The State (605/2018) [2018] ZASCA 64 (27 May 2019)
Criminal appeal against sentence – appellant convicted of culpable homicide and sentenced to five years’ imprisonment - whether such sentence appropriate in the circumstances. Criminal Procedure – declaration of unfitness to possess firearm in terms of s 103(2) of the Firearms Control Act 60 of 2000 – duty on the court to hold an enquiry and make determination whether accused is unfit to possess firearm – court failed to hold enquiry.
27 May
063* Adhu Investments v State (1410/2016) [2019] ZASCA 63 (24 May 2019)
Contract – joint venture – damages based on breach of agreement - joinder on the basis of a stipulatio alteri – tacit term – whether stipulatio alteri established.
24 May
062 Department: Transport, Province of KwaZulu-Natal v Ramsaran & others (1274/2017) [2019] ZASCA 62 (23 May 2019)
Abandonment of judgment by respondents in terms of Uniform rule 41(2) – no tender of costs – appellant can recover costs by notice in terms of rule 41(1)(c) – costs of appeal – appellant only entitled to costs of appeal up to and including date of abandonment.
Media Summary
23 May
061 Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd (592/18) [2019] ZASCA 61 (20 May 2019)
Civil procedure – the grant of an application for rescission of judgment is not appealable – order of the Full court granting rescission order upheld.
20 May
060 Motala v The Master of the North Gauteng High Court, Pretoria (92/2018) [2019] ZASCA 60 (17 May 2019)
Administration of insolvent estates – Master’s panel of persons suitable for appointment as liquidator or trustee – compilation of panel constitutes administrative action as envisaged by the Promotion of Administrative Justice Act 3 of 2000 (PAJA) – appellant removed from the panel – factors relevant to such removal including appellant’s dishonesty and his disqualification as a liquidator or trustee – appellant’s challenge to his removal from the panel dismissed.
Appellant also having applied to the Master to be reinstated to the panel – Master refusing to do so – this decision not challenged by the appellant under PAJA – Master’s decision not to reinstate renders nugatory the appellant’s claim based on earlier removal.
Costs – appellant contending he ought not to pay costs if unsuccessful as he sought to enforce a constitutional right – factors relevant to discretion in such cases – appellant ordered to pay the costs.
Media Summary
17 May
059 Stephanus de Lange NO v The Minister of Water Environmental Affairs (81/2018) [2019] ZASCA 59 (17 April 2019)
Prescription – water use rights in terms of the National Water Act 96 of 1998 – appellant’s water use not an unrestricted real right – appellant’s delictual cause of action arising when canals the respondent failed to maintain became inoperable – no on-going breach of appellant’s right to water – claim prescribed.
Media Summary
17 Apr
058 Mphephu v Mphephu-Ramabulana & others (948/17) [2019] ZASCA 58 (12 April 2019)
Customary law – traditional leadership – points in limine – whether first respondent was lawfully identified by Royal Family Council and lawfully recognised by the President as the King of Vhavenda community in terms of the provisions of s 9 of Traditional Leadership and Governance Framework Act 41 of 2003 – the President’s decision reviewed and set aside and proceedings referred back to the high court for further hearing on the merits.
Media Summary
12 Apr
057 Ngomane & others v City of Johannesburg Metropolitan Municipality & another (734/2017) [2019] ZASCA 57 (03 April 2019)
Constitutional law – ss 38 and 172 (1)(a) and (b) of the Constitution – municipality removing and destroying property comprising personal effects and materials used to erect overnight shelter belonging to the homeless applicants in a public health law clean-up exercise – not an eviction – applicants not entitled to mandament van spolie or mandatory substitution of the property – destruction of property unlawful and a breach of applicants’ rights to dignity, privacy and not to be deprived of their property – declaration of the unlawfulness of the destruction of the applicants’ property and compensation therefor appropriate relief.
Media Summary
03 Apr
056 Mkhize v S (390/18) [2019] ZASCA 56 (1 April 2019)
Criminal law – deceased assaulted whilst being interrogated by policemen – police officers present in the room – not disputed – appellants not testifying – failure to put version to state witnesses – prima facie case of State strengthened – duty of cross examiner – explained – duty in law of police officers present and who witnessed but did not participate in the assault to put a stop to it – common purpose established – Sentence – correctional supervision inappropriate – high court altered the sentence – no misdirection – sentence of 7 years of which 2 years suspended for 5 years – confirmed on appeal.
01 Apr
055* JJPC Brand Administrators & another v Lombard & others (1223/2017) [2019] ZASCA 55 (1 April 2019)
Road – portion of public road closed – whether remaining portion a public road depends on circumstances. Servitude – relocation of defined servitude of right of way at instance of servient owner – not permissible if proposed new route would be less convenient, less practical or more expensive to dominant owner.
Media Summary
01 Apr
054 Mamela Maqhula v The State (508/18) [2019] ZASCA 54 (1 April 2019)
Criminal Procedure - appeal against conviction - leave to appeal refused by regional magistrate - petition refused by the court a quo - special leave to appeal against conviction granted by the Supreme Court of Appeal - Section 309 of the Criminal Procedure Act - whether leave to appeal ought to have been granted by high court.
01 Apr
053 CDH Invest NV v Petrotank South Africa (Pty) Ltd & others (483/2018) [2019] ZASCA 53 (1 April 2019)
Validity of directors resolution in terms of s 74 of Companies Act 71 of 2008 – the powers of directors when increasing the authorised shares of a company in terms of s 36(2)(b) and (3) of the Act.
Media Summary
01 Apr
052* Jason Naidoo v The State (333/2018) [2019] ZASCA 52 (1 April 2019)
Evidence – single child witness who was under the influence of alcohol at the time of the alleged sexual assault and attempted murder – corroboration and evidential duties in criminal trials.
01 Apr
051 Nceba Tyhulu v The State (1173) [2019] ZASCA 51 (1 April 2019)
Criminal Procedure – Appeal against a refusal to grant leave to appeal on petition – issue to be decided is whether the appellant has a reasonable prospect of success on appeal and not the merits of the appeal.
01 Apr
050 Cooper v The State (285/2018) [2019] ZASCA 50 (1 April 2019)
Criminal Procedure – appeal against convictions and sentence – leave to appeal refused by magistrate – petition refused by the court a quo – the test is whether the appellant has shown reasonable prospect of success on appeal against the convictions and sentence.
01 Apr
049 Ratlou v Man Financial Services (1309/2017) [2019] ZASCA 49 (01 April 2019)
Lease agreement – whether a settlement agreement constituted a credit transaction in terms of the National Credit Act 34 of 2005 (the NCA) – underlying rental agreements excluded from provisions of the NCA as they were large transactions concluded with a corporate entity and secured by a suretyship – on a literal interpretation of s 8(4)(f) of the NCA the settlement agreement constituted a credit transaction – results of that so absurd that it could not have been intended by the legislature – inimical to the purposes of the NCA – provisions of the NCA did not apply – cross-appeal succeeded.
Media Summary
01 Apr
048* Beukes v Smith (211/2018) [2019] ZASCA 48 (01 April 2019)
Delict – claim for damages based on failure to obtain informed consent to medical procedure for hernia repair – factual finding of trial court on whether the patient was informed, confirmed – no dispute on material risks inherent in competing surgical procedures – information given to patient met the required standard – common cause that there was no negligence in the performance of elected surgery – appeal dismissed
Media Summary
01 Apr
047 FirstRand Bank Ltd v Nedbank Ltd (1249/2017) ZASCA 47 (29 March 2019)
Contract – interpretation of cancellation clauses in Invoice Discounting Agreement and Security Cession – effects of out and out cession considered – Invoice Discounting Agreement bestowed full ownership in Nedbank for book debts delivered to it before its cancellation – cancellation of a contract not affecting accrued rights under it.
Media Summary
29 Mar
046 DG Department of Home Affairs v De Saude Attorneys (1211/2017) [2019] ZASCA 46 (29 March 2019)
Application to compel the Department of Home Affairs to process applications and appeals within the structure of the Immigration Act 13 of 2002 and the South African Citizenship Act 88 of 1995 after prolonged delays – Department unjustifiably challenging locus standi of attorneys acting on behalf of affected individuals – challenge to jurisdiction of court without merit – institutional dysfunction and failure to meet statutory and constitutional obligations criticised.
29 Mar
045 Carneiro v S (425/18) [2019] ZASCA 45 (29 March 2019)
Criminal Law – appeal against conviction and sentence – right to speedy and fair trial – extends to appeal process – need for reasonable expedition – principles not adhered to. Evidence – adequacy of proof – State witnesses’ evidence riddled with improbabilities – failure to secure ballistic evidence – trial court misdirected itself – State failed to prove guilt of accused beyond reasonable doubt – appeal upheld – conviction and sentence set aside.
29 Mar
044 Vela v Efora Energy Limited (385/2018) [2019] ZASCA 44 (29 March 2019)
Resignation of Chief Executive Officer – claim by company for repayment of outstanding PAYE - counter-claim by Chief Executive Officer for leave pay, bonus payment – damages consequent on loss of share options
29 Mar
043 Mabaso v National Commissioner of Police & another (1222/2017) [2019] ZASCA 43 (29 March 2019)
State – actions against – s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 – interpretation thereof – whether by necessary implication there is a duty on an organ of state receiving notice in terms of s 3 to make a decision to accept, reject or settle claim prior to commencement of litigation.
29 Mar
042 MEPF v SAMWU PF (1412/2018) [2019] ZASCA 42 (29 March 2019)
Interpretation of rules 3.2.1 and 11.11 of provident fund – termination of membership – precluded whilst in service with Municipality – Pension Funds Act 24 of 1956 – s 13A(5) – transfer of individual benefits – only applicable if membership terminated in terms of rules of Fund – s 14 and rule 11.11 – not applicable to individual termination of membership and transfer of benefits – right to freedom of association of employees and right to freedom of trade of Pension Fund – not infringed by restriction on termination of membership.
29 Mar
041 SAMWU PF v Umzimkhulu Local Municipality (297/2018) [2019] ZASCA 41 (29 March 2019)
nterpretation of rules 3.2.1 and 11.11 of provident fund – termination of membership – precluded whilst in service with Municipality – Pension Funds Act 24 of 1956 – s 13A(5) – transfer of individual benefits – only applicable if membership terminated in terms of rules of Fund – s 14 and rule 11.11 – not applicable to individual termination of membership and transfer of benefits – rights to freedom of association of Municipality and employees – not infringed by restriction on termination of membership.
29 Mar
040 Johannesburg Society of Advocates v Edeling (326/2018) [2019] ZASCA 40 (29 March 2019)
Advocate - re-admission and re-enrolment – whether applicant a fit and proper person to be admitted as an advocate - applicant struck off the roll for serious dishonesty - needing to show genuine, complete and permanent reformation.
29 Mar
039 Jalite (Pty) Ltd v Shanghai Furniture Import & Export (223/2018) [2019] ZASCA 39 (29 March 2019)
Appeal - interference with trial court’s factual findings not justified – lease agreement – alleged material misrepresentation not established – lessee not entitled to cancel the lease.
29 Mar
038 Bergrivier Municipality v Van Ryn Beck (1269/2017) [2019] ZASCA 38 (29 March 2019)
Delictual claim for damages – whether in prevailing circumstances Municipality had a legal duty to take steps to prevent flooding of property – lack of evidence – negligence, wrongfulness and causation not established.
Media Summary
29 Mar
037

Dennegeur Estate v Telkom (366/2018) [2019] ZASCA 37 (29 March 2019)
Spoliation – Electronic Communications Act 36 of 2005 – installation by Telkom of copper cables in portion of underground plastic sleeves, the property of the land owner, does not amount to possession – installation by Vodacom of optic fibre

 

cables in the same sleeves did not disturb Telkom’s use – does not amount to spoliation.
Media Summary

29 Mar
036 Sizazonke Electrical CC v Eskom Holdings (222/2018) ZASCA 36 (29 March 2019)
Contract – damages for loss of profits – what constitutes repudiation – respondent lawfully cancelled contracts due to misconduct committed by first appellant – no repudiation proven – appeal dismissed and decision of court a quo dismissing appellants’ claim upheld.
29 Mar
035 Segwati v The State (620/2018) [2019] ZASCA 35 (29 March 2019)
Criminal Procedure – sentence – appellant’s previous convictions impermissibly taken into account despite s 271A of the Criminal Procedure Act 51 of 1977 – parties agreed sentence imposed at first instance cannot stand.
29 Mar
034 The Chairperson of the Municipal Appeals Tribunal, City of Tshwane & others v Brooklyn and Eastern Areas Citizens Association & others (1239/2017) [2019] ZASCA 34 (28 March 2019)
Appeal – mootness – s 16(2) of Superior Courts Act – court a quo setting aside decision by administrative appeal tribunal dismissing internal appeal against rezoning decision – in meanwhile building on subject property completed and occupied – appeal not rendered moot by such completion and occupation
Appeal – piecemeal appellate adjudication – merits of rezoning still to be determined by administrative appeal tribunal if review successful – s 17(1)(a) of Superior Courts Act not engaged – court a quo finally determined all issues before it – order appealable.
Town planning – internal appeal against rezoning decision – appeal lodged after coming into force of Tshwane’s Land Use Management By-Law 2016 – applicable appeal procedure one laid down in s 20 of By-law read with s 51 of Spatial Planning and Land Use Management Act 16 of 2013 – s 59 of Town Planning and Townships Ordinance 15 of 1986 inapplicable and inconsistent as contemplated in s 2(2) of Act 16 of 2013 – objector’s first internal appeal valid and timeous appeal in terms of By-law – objector’s second internal appeal unnecessary and invalid.
28 Mar
033 De Waal Alberts & others v Louis Nel (128/2018) [2019] ZASCA 33 (28 March 2019)
Summary judgment – bona fide defence established – joint and several liability – co-director had a right to challenge the order.
28 Mar
032 Visagie & Associates CC & another v Small Enterprise Finance Agency Ltd (262/2018) [2019] ZASCA 32 (28 March 2019)
Law of Contract – whether terms of lease tacitly relocated into settlement agreement.
28 Mar
031 Aliko v The State (552/2018) [2019] ZASCA 31 (28 March 2019)
Criminal law – sentencing – appellant convicted of murder – premeditation is not an essential requirement for sentence of life imprisonment – court exercises inherent discretion in determining suitable sentence – life imprisonment justified for brutal murder of a defenceless disabled victim.
28 Mar
030* Mount Edgecombe Country Club Estate Management Association II (RF) NPC v Singh & others (323/2018) [2019] ZASCA 30 (28 March 2019)
Whether roads within a private housing estate public roads as defined in the National Road Traffic Act 93 of 1996 – whether conduct rules ordaining a speed limit of 40 km/h within the estate unlawful.
28 Mar
029 Oregon Trust v BEADICA 231 CC (74/2018) [2019] ZASCA 29 (28 March 2019)
The enforcement of terms of lease agreements leading to their termination was not contrary to public policy as being unconscionable in the particular circumstances of the case.
28 Mar
028 Sivubo Trading v Development Bank (233/2018) [2019] ZASCA 28 (28 March 2019)
Acceptance of tender – suspensive condition not met – no valid and binding contract between the parties.
28 Mar
027 Atwealth (Pty) Ltd & others v Kernick & others (116/2018) [2019] ZASCA 27 (28 March 2019)
Financial advisor – liability for loss incurred on recommended investments – what constitutes financial advice – whether evidence sufficient to conclude that financial advisor breached her legal duties.
Media Summary
28 Mar
026 The Minister of Safety and Security v Nancy MSI (273/2018) [2019] ZASCA 26 (28 March 2019)
Delict – assault by policeman – vicarious liability – deviation case – application of legal principles.
28 Mar
025 Van Rensburg v Minister of Police (424/18) [2019] ZASCA 25 (28 March 2018)
Arrest – lawfulness of – whether arresting officer reasonably suspected appellant of culpable homicide – failure by arresting officer to consider question of negligence – respondent failed to establish reasonable suspicion.
Appeal – duty by trial court to assess whether, in terms of s 17(6)(a) of Superior Courts Act, appeal warranted attention of Supreme Court of Appeal – matter manifestly did not warrant attention of Supreme Court Of Appeal.
Costs – amount recovered falling within jurisdiction of regional division of magistrate’s court – successful appellant limited in court a quo to costs on magistrate’s court scale.
28 Mar
024 Minister of Police v Masina (1082/17) [2019] ZASCA 24 (28 March 2019)
Extinctive prescription – Commencement – Debt due when the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises – knowledge of legal procedures and remedies not required.
28 Mar
023 The Director of Public Prosecutions, KwaZulu-Natal v Ramdass (1236/2017) [2019] ZASCA 23 (28 March 2019)
Criminal Procedure Act 51 of 1977 – s 319(1) – refusal by trial court to reserve questions of law – petition in terms of s 317(5) and s 316(13)(c) for special leave to appeal refused – Superior Courts Act 10 of 2013 – s 17(2)(f) – reconsideration and variation of order – refusal of reservation of questions of law confirmed – erroneous order refusing special leave varied – ordinary leave to appeal refused.
Media Summary
28 Mar
022

Viljoen v S (663/18) [2019] ZASCA 22 (27 March 2019)
Criminal Law and Procedure – purchasing unpolished diamonds in contravention of s 20 of the Diamonds Act 56 of 1956 – admissibility of evidence – whether police trap went beyond providing an opportunity to commit offences – s 252A(1) of the Criminal Procedure Act 51 of 1977 – evidence admissible – appeal dismissed.

27 Mar
021 Born Free Investments 247 (Pty) Ltd v Kriel NO (1183/17) [2019] ZASCA 21 (26 March 2019)
Interpretation of court orders – special leave – whether final order confirmed provisional order – whether failure to obtain leave of court prior to institution of action rendered the action a nullity
Media Summary
26 Mar
020 National Home Builders Registration Council v Michiel Wessel Adendorff & others (406/2018/) [2019] ZASCA 20 (26 March 2019)
Housing - whether a trust is a ‘home builder’ in terms of sections 1 and 10(1) of the Housing Consumers Protection Measures Act 95 of 1998.
Media Summary
26 Mar
019 Tadvest Industrial (Pty) Ltd v Anthea Hanekom & others (83/2018) [2019] ZASCA 19 (25 March 2019)
Section 16(1)(b) of Superior Courts Act 10 of 2013 – appeal from decision of high court sitting as an appeal court – special leave of Supreme Court of Appeal required – s 16(1)(c) of the Superior Courts Act – appeal from decision of Land Claims Court sitting as appeal court – leave to appeal granted by Land Claims Court – s 22(2)(a) of the Restitution of Land Rights Act 22 of 1994 – powers of Land Claims Court limited to powers of high court – special leave of Supreme Court of Appeal required – absence of jurisdiction – each appeal is struck from the roll.
Media Summary
25 Mar
018 Gridmark CC v Razia Trading CC (349/18) [2019] ZASCA 18 (25 March 2019)
Contract: whether compromise was effected.
25 Mar
017 Benhaus Mining v CSARS (165/2018) [2019] ZASCA 17 (22 March 2019)
A company that excavates ground and digs up mineral-bearing ore for a fee on delivery to another entity that processes the ore, undertakes mining operations within the meaning of ss 1 and 15(a) of the Income Tax Act 58 of 1968. It is thus entitled to claim deductions of the full amount of capital expenditure on mining equipment in the tax year in which it is incurred, in terms of s 36(7C) of the Act.
Media Summary
22 Mar
016 Africa Charter Airline v AviSys (421/2018) [2019] ZASCA 16 (22 March 2019)
Aviation – interpretation of aircraft maintenance manual – overhaul of main landing gear of aircraft – language, purpose and context of manual indicate obligation to remove cadmium plating – appeal upheld.
22 Mar
015 Ketzer v Gardens Lodge Body Corporate (1073/17) [2019] ZASCA 15 (20 March 2019)
Rule 14(1) of the magistrates’ court rules – interest rightly disputed – calculation of capital amount claimed – inextricably linked to interest claimed – summary judgment refused.
20 Mar
014

Raubex Construction v Bryte Insurance Company (337/2018) [2019] ZASCA 14 (20 March 2019)
Construction contract – retention guarantee issued by insurance company in lieu of retention money – construction company calling on insurer to make payment – insurer contending that guarantee limited to defects arising after issue of certificate of completions, that amount claimed not a correct estimate of cost of remedying such defects and that the claim was fraudulent – on proper interpretation of main and subcontract, retention guarantee related to all defects and not only those arising after certificate of completion – fraud not established – insurer liable.

Media Summary

20 Mar
013 Pretoria Society of Advocates v Van Zyl (517/18) [2019] ZASCA 13 (14 March 2019)
Removal of name from roll of advocates – serious misconduct – theft of monies of colleagues – perjury in answering affidavit – forging and uttering of bank statements attached to answering affidavit – interference on appeal warranted in respect of sanction imposed by high court – struck from roll of advocates.
14 Mar
012 HM v AM (1317/17) [2019] ZASCA 12 (14 March 2019)
Divorce – postnuptial agreement – whether concluded in contemplation of divorce.
14 Mar
011 Centriq Insurance Company Limited v Oosthuizen & another (237/2018) [2019] ZASCA 11 (14 March 2019)
Interpretation of insurance contract – professional indemnity insurance for financial advisors – whether exclusion clause purporting to exclude cover for negligent financial advice accords with purpose of policy – policy to be interpreted so as to give it commercial efficacy.
Media Summary
14 Mar
010 Parktown High School for Girls v Hishaam & another (93/2018) [2019] ZASCA 10 (14 March 2019)
Liability of the State under s 60 of the South African Schools Act 84 of 1996 (the Act) – whether an injured party is obliged to sue the State and the school – whether a fashion show, organised by the Representative Council of Learners as a fundraising event was a ‘business or enterprise’ as envisaged in s 60(4) of the Act.
Media Summary
14 Mar
009 MFV Qavak: Twende Africa Group (Pty) Ltd v MFV Qavak (476/2018) [2019] ZASCA 9 (12 March 2019)
Shipbroker – entitlement to commission – dependent on agreement between shipbroker and either seller or buyer to pay commission for services rendered by broker – broker advertising sale of vessel without authority from seller – prospective purchaser responding to advertisement – no contractual relationship established – no basis for inferring the existence of a tacit contract.

Media Summary

12 Mar
008 Cook v Morrison (1319/2017) [2019] ZASCA 08 (8 March 2019)
Appeal – application for special leave – dismissal of – reconsideration in terms of 17(2)(f) of Superior Courts Act – such to be considered by ‘court’ constituted in terms of s 13(1), not by two judges of appeal who initially dismissed it.
Appeal – application for special leave – need for special circumstances – applicant not having reasonable prospects of success – even if he had such, no special circumstances justifying grant of special leave.
Prescription – meaning of ‘debt’ – such includes obligation by contracting party to make restitution of money or property following cancellation for repudiation.
Prescription – semble – if prescription adjudicated on assumption that plaintiff’s pleaded allegations correct, permissible to decide matter with reference to plaintiff’s primary factual allegations, disregarding alternatives.
Prescription – s 13(1)(d) of Prescription Act – relationship between co-shareholders in company not one of ‘partnership’.
Media Summary
08 Mar
007 Van Staden and Others NNO v Pro-Wiz (Pty) Ltd (412/2018) [2019] ZASCA 7 (8 March 2019)
Business rescue application – close corporation in liquidation – liquidators cited as respondents – entitled to oppose application – service on corporation to be effected on liquidators – s 131(6) of Companies Act 71 of 2008 not disentitling the liquidators from opposing the application – proceedings brought in order to prevent interrogation under s 418 of Companies Act 61 of 1973 and delay winding up – such an abuse of process justifying a punitive order for costs.
Media Summary
08 Mar
006 Theron v Premier, Western Cape (1310/2017) [2019] ZASCA 6 (8 March 2019)
Interpretation of an employment contract: contract for fixed duration, but with right to terminate for employer and employee on one month’s notice; where employer ceased to exist, contract terminable by body that assumed liability, on one month’s notice.
08 Mar
005 Polokwane Local Municipality v Granor Passi (Pty) Ltd (289/2018) [2019] ZASCA 5 (1 March 2019)
Review – sale of land by municipality in 1988 – property not transferred to purchaser – municipality resolving that purchaser had provided insufficient proof that the purchase price had been paid – on that basis resolving not to transfer land to purchaser – decision reviewable on grounds of material error of fact – all evidence showed price had been paid – decision set aside and referred back to municipality – factors to be taken into account in deciding whether to proceed with transfer.
Media Summary
01 Mar
004 Purlish Holdings v The Commissioner for the South African Revenue Service (76/18) [2019] ZASCA 04 (26 February 2019)
Appeal against imposition of understatement penalties – the appellant’s conduct fell within the category listed in items (a) to (d) of the definition of ‘understatement’ in s 221 of the Tax Administration Act – SARS suffered prejudice – no bona fide or inadvertent error – the imposition of penalties was justified – the increase of understatement penalties by the Tax Court incompetent and set aside.
26 Feb
003 Tutton v The State (294/18) [2019] ZASCA 03 (20 February 2019)
Non-parole order under s 276B of the Criminal Procedure Act not to be lightly imposed unless justified by circumstances relating to parole - parties should be forewarned of the intention to make such an order and be invited to present oral argument on the specific issue.
20 Feb
002 MV Seaspan Grouse: Seaspan Holdco 1 Ltd v MS Mare Traveller Schiffahrts GmbH (376/18) [2019] ZASCA 02 (1 February 2019)
Admiralty – s 3(4) of Admiralty Jurisdiction Regulation Act 105 of 1983 (AJRA) – in rem action based on in personam liability of owner of ship – arrest of associated ship – s 3(7) of AJRA requiring that associated ship be owned at commencement of action by person personally liable on claim – s 1(2) of AJRA – commencement of action date on which process instituting action served in terms of s 1(2)(a)(i).
Media Summary
01 Feb
001 Recycling and Economic Development Initiative of South Africa v The Minister of Environmental Affairs (1260/2017 and 188/2018) and Kusaga Taka Consulting (Pty) Ltd v The Minister of Environmental Affairs (1279/2017 and 187/2018) [2018] ZASCA 01 (24 January 2019)
Application to wind up solvent companies in terms of s 81 of Companies
Act 71 of 2008 (the 2008 Act); whether Minister of Environmental Affairs may invoke
s 157(1)(d) of the Act for standing in the public interest – whether ex parte proceedings and failure to disclose material facts warrants discharge of provisional orders – whether just and equitable for companies to be wound up.
Media Summary
24 Jan