Bargaining Council established under Labour Relations Act 66 of 1995 – decisions relating to procurement of services – whether subject to judicial review under the Promotion of Administrative Justice Act 3 of 2000 – whether decisions in conflict with that Act.

Oral agreement – whether established – whether damages sustained in consequence of breach

Sale – of land – suspensive condition in written agreement providing that either party entitled to resile from it if suspensive condition not fulfilled – whether exercise of right to resile almost 14 months after lapsing of period for fulfilment of condition unreasonable – whether delay of almost 14 months before exercising right to resile from agreement justifies inference that party resiling had already decided not to resile.

Supreme Court of Appeal Court Roll Update: August / September 2010

Bulletin 3 of 2010 (1 Jun)
CONTENT OF BULLETINS:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons

Supreme Court of Appeal Court Roll Update: August / September 2010

Criminal law – conspiracy to commit murder – what constitutes. Evidence – admissibility of hearsay evidence in terms of s 3(1)(c) of Law of Evidence Amendment Act 45 of 1988: right to challenge evidence – integral to constitutional guarantee of fair trial; cautionary rule towards evidence of accomplice – applicability of.

Mdlongwa v The State (99/10) [2010] ZASCA 82 (31 May 2010)

Opperman v The State (643/09) [2010] ZASCA 83 (31 May 2010)

G Smit v The State (144/08) [2010] ZASCA 84 (31 May 2010)

Delphisure Group Insurance Brokers Cape v Kotze (437/09) [2010] ZASCA 85 (31 May 2010)

Lombaard v Droprop (377/09) [2010] ZASCA 86 (31 May 2010)

Isaacs v S (39/10) [2010] ZASCA 87 (31 May 2010)

MEC v Motokwana (339/09) [2010] ZASCA 88 (31 May 2010)

The Representative of Lloyds v Classic Sailing Adventures (Pty) Ltd (250/09) [2010] ZASCA 89 (31 May 2010)

Botha v Coetzee (459/09) [2010] ZASCA 90 (31 May 2010)

Criminal law – Corporate accused – whether the conviction of the corporate accused based on the conduct of employees other than those expressly mentioned in the charge-sheet is correct – whether the State has proved beyond reasonable doubt that the appellant lacked reasonable cause for the belief as required by s 37(1)(b) of the General Law Amendment Act 62 of 1955 – whether evidential burden of raising a reasonable doubt in relation to reasonable cause discharged by accused.

Appeal by the State in terms of s 310 of the Criminal Procedure Act 51 of 1977 against the appellant’s
acquittal on 197 counts of fraud – Whether the magistrate’s finding that misrepresentations made by the appellant to the Legal Aid Board were not made intentionally but rather negligently was a finding of fact or of law – Whether as a result of this the State had a right to appeal in terms of the above section.

Revenue – Customs and Excise – tariff determination - video monitors (screens) and tuners separately imported - whether screens incomplete reception apparatus for television in terms of General Rules for Interpretation, Rule 2(a) - whether separate importation a scheme to defeat payment of legitimate duties.

Section 25(13) Sectional Titles Act 95 of 1986 – changed circumstances – content of real right of extension reserved – standing of owner of section to apply for demolition of wall on common property.

Britz v S (613/09) [2010] ZASCA 71 (27 May 2010)
Naidoo v ABSA Bank (391/09) [2010] ZASCA 72 (27 May 2010)
Dos Santos v The State (726/07) [2010] ZASCA 73 (27 May 2010)
Ethekwini Municipality v Brooks (411/09) [2010] ZASCA 74 (27 May 2010)
Bredenkamp v Standard Bank (599/09) [2010] ZASCA 75 (27 May 2010)
Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 (27 May 2010)
Samancor Group Pension Fund v Samancor Chrome (452/09) [2010] ZASCA 77 (27 May 2010)

Appellant identified as the driver of a getaway vehicle during a robbery ─ raising alibi defence ─ alleging
that he was hijacked shortly before the robbery while driving the same vehicle ─ question on appeal ─
whether there is a reasonable possibility of his version being true

Conviction on rape – identification evidence credible and reliable – approach to be adopted where oral evidence is at variance with statement restated – cautionary approach to single witness – sentence – 18 years' imprisonment not excessive

Two linked appeals ─ nature of rights derived from restrictive conditions in title deed stated to be subject to alteration discussed ─ zoning regulations and town planning schemes not overriding restrictive conditions ─ the Removal of Restrictions Act 84 of 1967 not applicable ─ power of Member of the Executive Council of the Eastern Cape Province to alter or amend restrictive conditions ...

Application for leave to adduce further evidence –requirements restated – whether lessee entitled to rely on enrichment lien for expenses in respect of necessary and useful improvements.

Contract – whether an oral agreement subsequently entered into by the parties introduces a variation or waiver of the original written agreement – Practice – motions – whether genuine dispute of facts exists – whether the appellant is entitled to invoke a right of lien.

Appeal struck from roll; discrete order, even if final in effect, should not be appealed against where balance of convenience requires that all issues in dispute be determined in one hearing.

Contract – sale of land – tender – whether tender of performance by purchasers (appellants) was sufficient to entitle them to specific performance.

Pension Funds Act 24 of 1956 – actuarial surplus – section 15F – approval by registrar for transfer of credit in reserve account to employer surplus account – considerations to be taken into account.

Liability under ss 18 and 18A of the Customs and Excise Act 91 of 1964: whether clearing and forwarding agent had proved that it was not liable for payment of duties.

Smyth v Mew (270/09) [2010] ZASCA 56 (1 April 2010)

Madzhadzhi v President of the RSA (160/09) [2010] ZASCA 57 (1 April 2010)

MEC for Economic Affairs, Environment & Tourism v Kruizenga (169/09) [2010] ZASCA 58 (1 April 2010)

Molotlegi v Mokwalase (222/09) [2010] ZASCA 59 (1 April 2010)

Khoza v The State (121/09) [2010] ZASCA 60 (1 April 2010)

De Vos v The State (503/09) [2010] ZASCA 61 (1 April 2010)

CONTENT OF BULLETINS:

* Judgments Reserved

* Cases enrolled for Hearing

* Appeals disposed of without written reasons

New Supreme Court of Appeal Court Roll for May 2010

Fedbond Participation Mortgage Bond Managers v Investec Employee Benefits (211/09) [2010] ZASCA 42 (31 March 2010)

Mavangwana v State (379/09) [2010] ZASCA 43 (31 March 2010)

Maree v C Booysen t/a NVM Beleggings & Versekeringsadviseurs (307/09) [2010] ZASCA 44 (31 March 2010)

CSARS v Foskor (375/09) [2010] ZASCA 45 (31 March 2010)

Mankayi v Anglogold Ashanti (126/09) [2010] ZASCA 46 (31 March 2010)

CC Groenewald v M5 Developments (283/029) [2010] ZASCA 47 (31 March 2010)

Olivier v The State (318/09) [2010] ZASCA 48 (31 March 2010)

MP Steyn v The State (444/09) [2010] ZASCA 49 (31 March 2010)

Bengwenyama Minerals v Genorah Resources (71/09) [2010] ZASCA 50 (31 March 2010)

Maake v DPP (481/09) [2010] ZASCA 51 (31 March 2010)

PS Matlou The State (479/09) [2010] ZASCA 52 (31 March 2010)

The South African Reserve Bank v MG Khumalo (235/09 [2010] ZASCA 53 (31 March 2010)

Simcha Properties 6CC v San Marcus Properties (Pty) Ltd (256/09) [2010] ZASCA 54 (31 March 2010)

Hendricks v The State (415/09) [2010] ZASCA 55 (31 March 2010)

Actio iniuriarum – defamation – humiliation – jest – wrongfulness – animus iniuriandi – consciousness of wrongfulness not required - damages

Criminal law – self –defence – whether appellant acted in self defence – whether appellant erroneously believed his life was in danger – putative self defence – sentence of 15 years’ imprisonment reduced to 12 years’ imprisonment.

Wills Act 7 of 1953 – Question is whether the suicide note written by the deceased was intended to be an amendment of his will as contemplated by section 2(3) of Wills Act. Wording of note and the surrounding circumstances indicate that the deceased intended it to be his will. Master of high court directed to accept note as amendment to will for purpose of the Administration of Estates Act 66 of 1965.

Prescription ─ Plaintiff’s claim based on fraud committed on 25 June 1969 ─ claim only instituted in February 2004 ─ special plea of prescription upheld ─ held at the trial and on appeal that by exercising reasonable care knowledge of minimum facts necessary for plaintiff to institute claim could have been obtained in time ─ argument that fraud was a continuing wrong rejected.

Sentence: Cumulative effect of sentences on several counts. Unduly harsh and disproportionate – Effective sentence set aside and substituted.

Claim in delict for damages – negligent misstatement – statement not made to or relied on by plaintiff – on facts statement in any event not false – duty of court when separating issues.

Appealability of order taken by default – order capable of being rescinded by court below – not appealable.

Insolvency – dispositions – liquidator’s right to apply for setting aside under ss 26, 29 and 30 of Insolvency Act 24 of 1936 – when extinctive prescription begins to run.

Road Accident Fund – whether the Fund can pursue an appeal to the SCA which would require this court to express an opinion on a hypothetical question.

Property – Deceased estate – whether the deceased had waived/abandoned her right to the ownership of certain portions of her property which were transferred to first and second respondents.

Order ─ High Court made order after substratum of the litigation had fallen away ─ order having no practical effect on the parties ─ order set aside on appeal. Costs ─ Provincial MEC seeking costs order against councillors for voting contrary to his directions ─ councillors protected from costs when performing local government functions ─ the rule in the Swartbooi case and s 28(1)(b) of Act 117 of 1998 applicable.

Motor vehicle accident ─ death of breadwinner ─ claim against RAF ─ deductibility of child care grants from the damages awarded. Held ─ child support grants are directly linked to the death of the deceased and deductible from final award.

Criminal Procedure – fair trial – murder – fact of presiding judge previously having heard and dismissed bail appeal not brought to his attention at commencement of trial – no credibility findings made in bail application and on appeal – in absence of any irregularity actual bias to be proved for finding of failure of justice where no application made for judge's recusal..
Fire and firearms – firearms – possession of in contravention of s 2 of Act 75 of 1969 – mens rea an
element for contravention of the section – use of firearm for unlawful purpose establishes mens rea.

Rescission of Judgment – good cause shown – bona fide defence based on non-compliance with s 4(6) and (7) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 and s 26(1) and (3) of the Constitution.

Condonation in terms of section 3(4)(b) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 – rationale for notice period discussed – factors to be considered for condonation – statutory requirements not met.

Wrongfulness of conduct of security guard in allowing unauthorized removal of truck from site where security provider had contract with owner of site to protect it, but where contract excluded liability for provider’s services – held security provider not liable – owed no duty to owner to prevent theft of its truck.

Companies Act 61 of 1973; ss 417 and 418: Master in ordering enquiry does not have to act on an application by a limited category of persons, or any application at all; it is competent and sensible for the Master to delegate to the Commissioner the decision as to who may attend the enquiry or have access to the record; s 73: effect of deregistration of company; liquidators: power of liquidators to delegate responsibility to third persons.

Contract - Approach to interpretation of an ambiguous clause – reliance on factual matrix - term ‘financing’ in the relevant clause of a loan agreement excludes equity financing.

Tender process – Preferential Procurement Policy Framework Act – Regulations – duty of organ of state to act when it detects that a preference has been obtained on a fraudulent basis – when duty arises – nature of action contemplated – whether organ of state in breach of duty.

Rape – single witness – many indications that complainant’s evidence fabricated – accused’s version reasonably possibly true.

Contract – interpretation of contract of employment – importation of tacit term – tacit term relied on by
employee imported into contract.

Customs and Excise Act 91 of 1964 – importer’s entitlement to refunds and liability for arrear import duty arising from incorrect determination by Commissioner.

Summary:
Attorney and client – fees – set-off against moneys collected – whether fees liquidated or taxation necessary.

Company – Shareholders – oppression – shareholder in majority bloc making fair offer for minority’s shares before litigation – effect on application under s 252 of the Companies Act 61 of 1973 – offer by minority to purchase a majority shareholding – interests of company and remaining shareholders to be considered.

Whether the procedures prescribed by ss 124(1) and (2) and 172 of Municipal Ordinance 20 of 1974 (Cape) for the alienation of municipal property were of force and effect in November 2003 or whether they were impliedly repealed by Item 2 of Schedule 6 of the Constitution.

Where an agent of a close corporation, who is not a member, concludes on its behalf a contract for the sale of land, authorization must be in writing in order to comply with s 2(1) of the Alienation of Land Act 68 of 1981.

Building contracts; performance guarantees; whether a building contractor can rely on a term of the building contract to interdict the other contracting party from presenting unconditional performance guarantees to the issuing bank.

Summary:
Evidence – whether police conduct amounted to a trap or an unlawful search – whether evidence
discovered as a result is admissible – whether circumstantial evidence sufficient to prove appellant’s guilt.

Summary:
Tender award – setting aside – award of contract by court to unsuccessful tenderer – inappropriate in the circumstances.

Summary:
Circumstantial evidence ─ insufficient to sustain conviction on a charge of murder ─ kidnapping conviction not warranted ─ undesirable interrogation methods discussed ─ blurring of lines between official and private investigations criticised ─ police officials acting in two capacities unacceptable.

Summary:
Secondary tax on companies – exemption of dividend falling under s 64B(5)(c)(ii) – whether moneys distributed constituted ‘profit of a capital nature’.

Summary:
VAT Act 89 of 1991; 'equity security' exemption s 12; the goods 'supplied' comprised preferent shares and other discrete rights; because the rights were not included in the shares, the 'equity security' exemption in s 12(a) was not applicable; the turnover from the sale of the rights was therefore subject to VAT.

Summary:
Refugees Act 130 of 1998 and Immigration Act 13 of 2002 – enactments to be read together – appellant an asylum seeker issued with asylum transit permit in terms of s 23 of Immigration Act – asylum seeker permit issued in terms of s 22 of Refugees Act – whether detention of appellant lawful.

Summary:
Criminal procedure – right to a fair trial – right to a motivated index of police docket – litigation privilege

Summary:
Criminal law – Public violence – what constitutes – group of perpetrators assaulting restaurant patrons at random and damaging restaurant utensils. Public violence – no prior plan – common purpose developing at the scene – association with. Fair trial rights – appeal delay – effect on sentence

Summary:
Tariff classification under Customs and Excise Act 91 of 1964: wefts imported for attachment to hair are not prepared for making of a wig or the like and thus fall under tariff heading 67.04 which covers finished items of false hair.

Summary:
Defamation – amnesty in terms of s 20 of the Promotion of National Unity and Reconciliation Act 34 of 1995 – persons to whom amnesty had been granted in respect of an offence no longer considered to have committed the offence.

Summary:
Liquidators occupying position of trust towards creditors and companies in liquidation ─ required to be independent and to regard equally the interest of all creditors ─ expected to carry out their duties without fear, favour or prejudice ─ standard not met ─ liquidators removed and fees reduced.

Summary:
Local authority ─ National Building Regulations and Building Standards Act 103 of 1977 ─ application to review and set aside approval of building plan ─ whether plan complies with the relevant statutory requirements.

SUMMARY:
Expropriation – when for a public purpose or in the public interest – whether threat of constitutes unfair administrative action – whether issue of permit to operate Industrial Development Zone invalid – whether affects validity of potential expropriation – section 217(1) of Constitution – whether landowner can obtain order compelling authority to expropriate land.

SUMMARY:
Contract of employment – unfair dismissal in terms of section 185 of the Labour Relations Act 66 of 1995 – whether section creates contractual right not to be unfairly dismissed.

Judges of the Supreme Court of Appeal updated.

Supreme Court of Appeal Court Roll Update: A case was added for hearing on the 24th of February 2010