SUPREME COURT OF APPEAL OF SOUTH AFRICA

PIC

Judgments 2019

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(*) Case Correction

  Citation & Summary
Delivered
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