Contents of RSS feed for:
Harrielall v University of KwaZulu-Natal (493/2016)  ZASCA 25 (27 March 2017)
Promotion of Administrative Justice Act 3 of 2000 : refusal of application for admission to course of study leading to MBChB degree : application for review of decision : new challenge on appeal : not raised in founding affidavit : appeal dismissed.
Ndlovu v S (925/2016)  ZASCA 26 (27 March 2017)
Imposition of non-parole period in terms of s 276B of the Criminal Procedure Act 51 of 1977 : sentence : misdirection by trial court in imposing a non-parole period : appeal upheld.
Kotze v The State (776/16)  ZASCA 27 (27 March 2017)
Criminal Law ─ conviction on housebreaking with intent to commit indecent assault and indecent assault ─ whether the State proved the identity of the appellant and all the elements of housebreaking with intent to commit indecent assault and indecent assault beyond reasonable doubt.
Body Corporate v Sithole & another (240/2016)  ZASCA 28 (27 March 2017)
Application for compulsory sequestration : advantage to creditors as contemplated in s 10 (c) of the Insolvency Act, 24 of 1936 not proven : no basis to find that a body corporate of a sectional title development need not prove pecuniary benefit to the general body of creditors.
ZNK Investments CC v Luckytso Transport and Construction CC (328/2016)  ZASCA 20 (24 March 2017)
Company law: sale in execution of property of close corporation whilst deregistered: reinstatement in terms of s 82(4) of the Companies Act 71 of 2008: automatic retrospective validation of the sale in execution.
Manukha v Road Accident Fund (285/2016)  ZASCA 21 (24 March 2017)
Road Accident Fund Act 56 of 1996: ss 17(1); 23 and 24 read with regulation 3(3)(b)(ii): Damages: motor vehicle accident: claim for compensation against Road Accident Fund: non-pecuniary loss forming part of a unitary claim for compensation and not constituting a separate and discrete claim: prescription: late filing of RAF4 form thus not constituting separate claim, and consequently, claim for damages for non-pecuniary loss not prescribed.
Mazina v The State (494/2016)  ZASCA 22 (24 March 2017)
Evidence: sufficiency of: statement in terms of s 115 of the Criminal Procedure Act 51 of 1977.
Asla Construction (Pty) Ltd v Buffalo City Metropolitan Municipality (894/2016)  ZASCA 23 (24 March 2017)
Promotion of Administrative Justice Act 3 of 2000 : ss 6, 7 and 9 : application in terms of s 9 for extension of statutory period in terms of s 7 : substantive application required : no explanation for entire duration of delay : failure to properly consider prejudice to appellant and members of public affected by decision : impugned decision validated by unreasonable delay : unlawfulness of decision not proved by admissible evidence.
Afgri Operations Ltd v Hamba Fleet Management (Pty) Ltd (542/16)  ZASCA 24 (24 March 2017)
Company law : application for a final order of liquidation : underlying debt admitted by the respondent : no allegation that respondent solvent : respondent not trading or conducting any business : respondent’s indebtedness prima facie established : onus on respondent to show that indebtedness disputed on bona fide and reasonable grounds : a counterclaim not in itself a reason for refusing an order for the winding up of the respondent : final order winding-up the respondent granted.
Published: Mon, 27 Mar 2017 11:05:05 GMT
Steyn Lyell Maeyane Attorneys v Oelofse (271/2016)  ZASCA 18 (23 March 2017)
Written undertaking given by a firm of practising attorneys : whether it constituted an unconditional guarantee to make payment itself : having regard to the factual matrix providing the context in which it was given, the undertaking did not constitute a personal guarantee : evidence pertaining to the parties’ intentions regarding the undertaking inadmissible.
Van Rooyen Friedrich & others v Louw Smit NO & others 1028/2015  ZASCA 19 (23 March 2017)
Maintenance of surviving spouse – ss 2 and 3 of the Maintenance of Surviving Spouses Act 27 of 1990 – requisites of Act not satisfied – Special leave to appeal in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 – appeal upheld.
Published: Fri, 24 Mar 2017 09:19:07 GMT
Moila v City of Tshwane Metropolitan Municipality (249/16)  ZASCA 15 (22 March 2017)
Claim for the rendering of a statement of account by a municipality for the supply of utility services and a debate thereof : ex facie the pleadings, no fiduciary relationship existed between the parties, no contractual agreement between them to this effect, no statutory provision creating this obligation : point in limine upheld : appeal dismissed with costs.
Sentrachem v Terreblanche (237/2016)  ZASCA 16 (22 March 2017)
Prescription – pension funds – erroneous double payment – substitution of a party after litis contestatio as a result of a cession of the debt does not give rise to a valid plea of prescription – cessionary attains all the rights of cedent – has full locus standi – impoverishment proved on the facts.
Mothuloe Incorporated Attorneys v The Law Society of the Northern Provinces & another (213/16)  ZASCA 17 (22 March 2017)
Attorneys Act 53 of 1979: complaints having been lodged with the Law Society against a practitioner for failing to account to trust creditors: practitioner admitting having received the money but imposing conditions before releasing it to trust creditors: Law Society directing the practitioner to produce for inspection records and books in his possession and under his control in terms of s 70(1) of the Act: practitioner refusing to comply and challenged the decision of the Law Society: sought to review and set aside decision as irrational: practitioner blatantly disregarding the law and rules: such conduct cannot be countenanced: conduct unprofessional.
Published: Wed, 22 Mar 2017 13:09:18 GMT
Richard Du Plessis Barry v Clearwater Estates NPC & others (187/2016)  ZASCA 11 (16 March 2017)
Companies Act 71 of 2008 : s 58(1) : appointment of proxy ‘at any time’ : s 58(3)(c) : instrument evidencing proxy to be deposited ‘before’ shareholders meeting : Memorandum of Incorporation of company requiring proxy to be deposited ‘not less than 48 hours before’ meeting : article inconsistent with unalterable provisions of s 58(1) : article void in terms of s 15(1).
Mpumalanga Tourism & Parks Agency v Barberton Mines (Pty) Ltd (216/2016)  ZASCA 9 (14 March 2017)
Mining and Environmental Law: grant of a prospecting right in terms of s 17(1) of the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA): whether prospecting area part of a protected area as contemplated by s 12 of the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPAA): whether prospecting prohibited by s 48(1) of NEMPAA.
Riversdale Mining Ltd v Du Plessis (536/2016)  ZASCA 007 (10 March 2017)
Review of arbitrator’s award in terms of s 33(1)(b) of the Arbitration Act 42 of 1965: whether arbitrator exceeded his jurisdiction and committed gross irregularity: whether the words ‘existing dispute’ in an arbitration clause to be given broad meaning: presumption in favour of ‘one stop arbitration’.
Published: Mon, 20 Mar 2017 10:32:51 GMT
Cilliers & others v Ellis & another (200/2016)  ZASCA 13 (17 March 2017)
Appeal : non-appealability of order : appellants not having locus standi to pursue the appeal : appeal dismissed.
Panayiotou v Shoprite (248/2016)  ZASCA 12 (17 March 2017)
Refusal to grant liquor licence by Liquor Board : decision reviewed, set aside and licence granted by high court along with order that Liquor Board must issue licence after certain requirements met : appeal against review of refusal : liquor licence subsequently issued : no challenge to issue of licence : appeal, if successful, could not set aside the issue of the licence : section 16(2)(a) of Superior Courts Act 10 of 2013 : decision sought would have no practical effect or result : appeal dismissed.
SA Metal Group (Pty) Ltd v The International Trade Administration Commission (267/2016)  ZASCA 14 (17 March 2017)
Appeal – s 16(2)(a)(i) Superior Courts Act 10 of 2013 – dismissal of appeal where judgment or order sought would have no practical effect or result
Westminster Tobacco Co v Philip Morris Products SA (925/2015)  ZASCA 10 (16 March 2017)
Expungement of trade mark for non-use in terms of s 27(1(b) of the Trade Marks Act 194 of 1993 – test for bona fide use of a trade mark – factual enquiry
Published: Fri, 17 Mar 2017 13:28:38 GMT
Phasha v Minister of Police (70/2016)  ZASCA 6 (10 March 2017)
Appeal: special leave to appeal in terms of s 16(1)(b) of the Superior Courts Act 10 of 2013: intended appeal raises only factual issues in respect of which the prospects of success are poor: no special circumstances to merit further appeal: special leave refused.
Herbal Zone v Infitech Technologies (204/2016)  ZASCA 8 (10 March 2017)
Passing off – requirement of reputation – failure to prove source of goods and that the reputation vested in the applicant – claim for interdict dismissed.
Defamation – trading corporation – interdict against future publication of defamatory matter – such not lightly granted – dispute of fact on the papers whether statements were justified – such a genuine dispute – applicant failing to show a clear right – interdict refused.
Published: Mon, 13 Mar 2017 09:26:31 GMT
M v M (332/2015)  ZASCA 5 (9 March 2017)
Matrimonial Property Act 88 of 1984 – Marriage out of community of property with accrual – Antenuptual contract – Exclusion of defined assets from accrual – Proof of assets ‘acquired by such party by virtue of the possession or former possession of such asset’ – Particular asset, its proceeds and assets which replace the excluded asset, or acquired with its proceeds excluded – Trust Property Control Act 57 of 1988 – Unconscionable abuse of trust through fraud, dishonesty or improper purpose with object of avoiding accrual claim – piercing of trust veneer - spouse having standing to advance claim against husband as trustee – evidence not establishing such conduct
De Villiers v Elspiek Boerdery (Pty) Ltd  ZASCA 4 (1196/2015) (9 March 2017)
Validity of a notarially executed 99 year lease : whether agent had the necessary authority to bind her principal : held that power of attorney with draft lease attached thereto duly authorised the agent to execute the lease on behalf of her principal : whether the provisions of s 3(d) or 3(e)(ii) of the Subdivision of Agricultural Land Act 70 of 1970 prohibited the conclusion of the lease : held that these provisions of Act did not find application : lease held to be valid.
Published: Fri, 10 Mar 2017 07:07:50 GMT
Joubert v S (642/2016)  ZASCA 3 (3 March 2017)
Criminal Procedure – fatally irregular to increase sentence on appeal absent prior notice by court to appellant of an intention to do so – infringement of fair trial rights – remittal to court of appeal.
Published: Mon, 06 Mar 2017 12:27:39 GMT
Minister of Rural Development and Land Reform v Phillips (52/2016)  ZASCA 1 (22 February 2017)
Award of financial compensation made to redress a dispossession of a right in land under the Restitution of Land Rights Act 22 of 1994 : principles applicable to the determination of redress : no reasonable prospect of another court finding the Land Claims Court had erred in its determination.
Langa v The State (640/16)  ZASCA 2 (23 February 2017)
Criminal Law: Appeal against convictions of murder and attempted murder: whether contradictions in State witnesses’ evidence were material: whether denial of s 174 application was a fatal irregularity: whether s 309B of the Criminal Procedure Act 51 of 1977 was complied with: appeal against sentence: whether sentences should have been made to run concurrently.
Published: Fri, 24 Feb 2017 08:04:00 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Fri, 27 Jan 2017 13:21:01 GMT
Update to 27 March on the Court Roll
Published: Thu, 26 Jan 2017 12:38:41 GMT
Moses Tshoga v The State (635/2016) 2016 ZASCA 205 (15 DECEMBER 2016)
Criminal law: rape of a ten-year-old girl : failure to refer to the Criminal Law Amendment Act 105 of 1997 in the charge sheet or at the commencement of a trial does not necessarily vitiate a sentence of life imprisonment imposed in terms of the Act : the appellant was sentenced to life imprisonment in terms of subsecs 52(1) and 51(1) of the Act : no substantial and compelling reasons to deviate from the minimum sentence of life imprisonment.
Published: Mon, 16 Jan 2017 09:32:05 GMT
Zulu v S (226/2016)  ZASCA 207 (21 December 2016)
Sentence – leave to appeal – misdirections by trial court – failure to take account of time in prison awaiting trial – failure to make allowance for the fact that both offences constituted a single criminal occurrence.
Published: Tue, 03 Jan 2017 20:04:27 GMT
New Court Roll for Feb/Mar 2017
Published: Tue, 03 Jan 2017 20:03:45 GMT
Kaknis v Absa Bank Limited & another (08/16)  ZASCA 206 (15 December 2016)
Interpretation of statute: National Credit Act 34 of 2005: section 12B(1)(b) inserted by National Credit Amendment Act 19 of 2014: section has no retrospective application and did not invalidate the agreement relied upon by the respondents: summary judgment correctly granted.
Pasadena v Resca (137/2016)  ZASCA 204 (15 December 2016)
Patent relating to a lockable holster : purposive interpretation : not all integers of respondents’ patent having been used by the appellants in the design of their holster: patent not infringed.
Published: Thu, 15 Dec 2016 11:02:49 GMT
Salem Party Club v Salem Community (20626/14)  ZASCA 203 (13 December 2016)
Land claim to the Salem Commonage under Restitution of Land Rights Act 22 of 1994 (the Act): whether requirements for restitution established: Hearsay and expert historical evidence: proper approach to and admissibility of: approach to evidence as decreed in the Act to be applied in a manner consistent with the spirit and purpose of the Act.
Published: Wed, 14 Dec 2016 08:22:24 GMT
Gwababa v S (1290/16)  ZASCA 200 (7 December 2016)
Leave to appeal – refusal of application by two judges of the SCA in terms of s 17(2) of the Superior Courts Act 10 of 2013 – application to the President of the SCA in terms of s 17(2)(f) to refer the decision to the court for reconsideration and, if necessary, variation – a grave injustice constitutes exceptional circumstances.
Smalle v Southern Palace Investments 440 (Pty) Ltd (121/2016)  ZASCA 189 (1 December 2016)
Defamation: action for damages for defamation based on innuendos: whether statements made in media release and newspaper article were defamatory of the respondents: respondents failed to plead special circumstances: unable to rely on secondary meaning: respondents failed to prove defamatory meaning: court a quo misdirected: appeal upheld.
Published: Fri, 09 Dec 2016 14:28:28 GMT
NDPP v Ramlutchman (677/15)  ZASCA 202 (9 December 2016)
Prevention of Organised Crime Act 121 of 1998 (POCA) – confiscation order – locus standi of accused person whose estate was sequestrated ─ s 18(2) of POCA – misdirection by regional court – matter referred back to conduct enquiry in terms of s 18(6) of POCA.
Minister of Safety & Security v Booysen (35/2016)  ZASCA 201 (9 December 2016)
Vicarious liability – on duty police reservist shooting partner with service pistol – whether a sufficient link between the wrongful conduct of the police officer and the business of South African Police Service.
Published: Fri, 09 Dec 2016 10:23:26 GMT
Minister of Justice and Correctional Services v Estate Stransham-Ford (531/2015) 2016 ZASCA 197 (6 December 2016)
Applicant suffering in terminal stages of cancer – sought an order that medical practitioner could administer a lethal agent at his request or provide him with a lethal agent that he could administer himself – applicant dying before court granting order – claim ceased to exist – court not entitled to grant order – law in relation to physician administered euthanasia and physician assisted suicide – not appropriate case in which to develop the common law of murder and culpable homicide.
Basson v Hanna (37/2016)  ZASCA 198 (6 December 2016)
Contract: parties’ failure to agree on interest rate in a contract does not render the contract invalid: claim for damages in lieu of specific performance where subject matter of the contract has been alienated, is competent in law.
Windrush Intercontinental SA v UACC Bergshav Tankers AS (556/2015)  ZASCA 199 (6 December 2016)
Admiralty Jurisdiction Regulation Act 105 of 1983 – action in rem – maritime lien – application to set aside deemed arrest in rem of vessel in terms of s 3(4)(a) of the Act to enforce maritime lien for its crew members’ unpaid wages – vessel hijacked by pirates for ransom but pirates releasing vessel and not all crew members despite payment of ransom – pirates’ conduct a supervening event rendering fulfilment of hostage crew members’ employment contracts impossible – hostage crew members’ employment and entitlement to wages ended by supervening impossibility or frustration of performance of employment contracts – no claim for unpaid wages giving rise to a maritime lien enforceable by an action in rem.
Published: Tue, 06 Dec 2016 13:38:08 GMT
The MEC for Health and Social Development of the Gauteng Provincial Government v Zulu (1020/2015)  ZASCA 185 (30 November 2016)
Delictual damages – ‘once and for all’ common law rule – future medical expenses – lump sum award – section 39(2) of the Constitution – development of common law – payment of future medical expenses as and when required – no proof that access to healthcare services in terms of s 27(1) or s 28(1)(c) of the Constitution compromised by common law rule – law reform more appropriately dealt with by legislature. Contingency Fees Act 66 of 1997 – exclusion of award for future medical expenses from agreement – not permitted.
Hohne v Super Stone Mining (Pty) Ltd (831/16)  ZASCA 186 (30 November 2016)
Delictual claim: theft of diamonds from employer : admissibility of confessions to the acts in question and admission of the quantum : threat of criminal prosecution and adverse publicity : not contra bonos mores : the creditor not exacting or extorting something to which it was not otherwise entitled : evidence admitted : claim enforceable : appeal dismissed with costs.
Phillips v The State (370/2016)  ZASCA 187(1 December 2016)
The Prevention and Combating of Corrupt Activities Act 12 of 2004 does not limit the penal discretion of the sentencing court: sentence of a fine not appropriate for a public officer convicted of contravening s 4(1)(a)(i)(aa) of the Act: failure by the trial court to have regard to all relevant considerations constitutes a misdirection warranting interference with the sentence imposed.
Mobile Telephone Networks v Beekmans NO (1139/2015)  ZASCA 188 (1 December 2016)
Local authority: building plans: national building regulations: temporary building: must be determined by objective assessment of its nature and purpose: cellular communications base station and mast not a temporary building: building plans wrongly approved.
Nuance Investments v Maghilda Investments & others (189/2016)  ZASCA 190 (1 December 2016)
Prescription: No evidence that the appellant knew or could by the exercise of reasonable care, have acquired knowledge of the facts giving rise to the invalidity of the sale agreement before the effluxion of the three year period of prescription : Counterclaim : the individual registrations and transfers of ownership in the three individual portions of land with their own cadastral descriptions were effected by separate real agreements and were not prohibited by law.
Patel v NDPP (838/2015)  ZASCA 191 (01 December 2016)
Extradition: meaning of extraditable offence in Extradition Act 67 of 1962: double criminality: conduct to be criminal under law of requested State at date of extradition request not date of commission of offence: certificate under s 10(2) of the Extradition Act: conclusive proof that evidence warrants prosecution in foreign State: fugitive liable to be surrendered to foreign State.
MEC: Department of Education Northwest Province v FEDSAS (021/2016)  ZASCA192 (01 December 2016)
Education – Powers of the MEC to make regulations relating to the administration of public schools hostels – s 27(1) of the North West Schools Education Act 3 of 1998 – ss 9, 12 and 20(1)(g) of the South African Schools Act 84 of 1996 – interpreted in the light of s 29(1) and 28(2) of the Constitution – hostel regulations within the powers of the MEC.
Shoprite v MEC for Economic Development and Environmental Affairs, KwaZulu-Natal (78/2016)  ZASCA 193 (2 December 2016)
Statutes: KwaZulu-Natal Liquor Licencing Act 6 of 2010: liquor licences granted under repealed national Liquor Act 27 of 1989: KwaZulu-Natal Liquor Licencing Act 6 of 2010 providing for conversion of pre-existing licences granted under 1989 Liquor Act and valid before its commencement: proximity of licenced premises to religious or learning institutions: s 101(1) read with s 48(5)(e) not imposing an absolute prohibition to valid pre-existing liquor licences relating to liquor premises located within a circumference of 500 metres of a religious or learning institution as defined: holder of such licence entitled to a licence certificate under s 101(1), (2) and (3) of the KwaZulu-Natal Liquor Licencing Act: such licence certificate regarded as a licence contemplated in s 39(b)(i) or (ii) of the KwaZulu-Natal Liquor Act.
Deez Realtors v SA Securitisation Program (175/2016)  ZASCA 194 (2 December 2016)
Practice: civil procedure: prescription: extinctive prescription: interruption of: service of summons on debtor by creditor claiming payment of a debt arising from contract: contract affording creditor two alternative remedies in the event of breach: creditor suing for accelerated payment of remaining instalments: amendment of particulars of claim to substitute damages claim for accelerated payments: meaning to be assigned to word ‘debt’: amendment not affecting essential character of the debt: debt remaining the same in substance: section 10(1) and 15(1) of the Prescription Act 68 of 1969: word ‘debt’ of wider import than ‘cause of action’.
Zephan v De Lange (1068/2015)  ZASCA 195 (2 December 2016)
Summary judgment: in opposing summary judgment application a defendant must set out in the answering affidavit the facts which, it contends, constitute a bona fide defence: where all facts pleaded in the particulars of claim were admitted and no further facts alleged in answering affidavit the bona fide defence could be determined on the papers: contract: acceptance of a stipulatio alteri benefit by a third party: the agreement was enforceable against the second party: business rescue proceedings relating to first party to a stipulatio alteri contract were irrelevant where the benefit had been accepted the third party.
Minister of Justice v The SA Restructuring & Insolvency Practitioners Association (693/15)  ZASCA 196 (2 December 2016)
Constitutional law: Equality and affirmative action measures: the ambit of the test for equality.
Insolvency law: Insolvency Act 24 of 1936 s 18(1) – policy issued by Minister in terms of s 18(1) – policy also applicable to appointments of liquidators in terms of ss 368 and 374 of Companies Act 61 of 1973 – aim to transform the insolvency industry to make it more accessible to previously disadvantaged insolvency practitioners – policy unconstitutional and irrational – policy declared unlawful and invalid.
Published: Fri, 02 Dec 2016 10:48:19 GMT
Bongokwakhe Bonginkosi Mvubu v the State (518/2015) 2016 ZASCA 184 (29 November 2016)
Section 276B(2) of the Criminal Procedure Act 51 of 1977 does not have retrospective application: 30 years’ imprisonment for attempted murder and cumulative effect of sentence of 45 years’ imprisonment excessive: appeal court entitled to interfere with sentence where it is shocking, startling and disturbingly inappropriate: appellate court able to arrive at a definite view as to what sentence it would have imposed.
Fluxmans v Levenson (523/2015)  ZASCA 183(29 November 2016)
Prescription begins to run as soon as the creditor acquires knowledge of the minimum facts necessary to institute action: knowledge that the relevant agreement did not comply with the peremptory provisions of the Contingency Fees Act 66 of 1997 is not a fact needed to complete cause of action.
Louistef v Snyders NO  ZASCA 182 (29 November 2016)
Petroleum Products Act 120 of 1977: sale of site licence issued in terms of s 2D of the Act: whether site licence constituted a merchantable merx: held to be a valid agreement of sale.
Mahlalela v S (396/16)  ZASCA 181 (28 November 2016)
Criminal Law – murder and robbery with aggravating circumstances: whether State proved beyond reasonable doubt that the appellant was one of three attackers who robbed and killed the deceased – circumstantial evidence: whether sufficient for a finding of guilty.
Published: Tue, 29 Nov 2016 14:16:44 GMT
Kaywood v S (394/2016)  ZASCA 179 (28 November 2016)
Criminal law: appeal against sentences of life imprisonment for rape and 16 years’ imprisonment for attempted murder following a gruesome attack on the complainant: Minimum Sentences Act (105 of 1997) applicable: no substantial and compelling circumstances: sentences not disproportionate to the crimes committed: appeal dismissed.
Mthimkhulu v The State (1135/15)  ZASCA 180 (28 November 2016)
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.
Published: Tue, 29 Nov 2016 11:22:43 GMT
Urban Hip Hotels v KCarrim (1177/2015)  ZASCA 173 (25 November 2016)
Contract ─ interpretation ─ term contended for by the appellant excluded by clear terms of the agreement ─ clear terms cannot be altered by contextual evidence of implementing the contract.
SABC v Masstores (1221/15)  ZASCA 174 (25 November 2016)
Meaning of ‘sell’ in s 27(4) of the Broadcasting Act 4 of 1999 – whether mere agreement of sale or sale completed by delivery contemplated – dealer selling television sets to customer where goods stored at customer’s premises and delivery not made – sale not concluded pending customer obtaining requisite television licence – no breach of s 27(4) – customer not liable for penalties – application for special leave to appeal refused.
Brodsky Trading 224CC v Cronimet Chrome Mining SA (39/2016)  ZASCA 175 (25 November 2016)
Estate Agency Affairs Act 112 of 1976 – estate agent company converted to close corporation in terms of s 27 of the Close Corporations Act 69 of 1984 – Estate Agency Affairs Board not advised of conversion – fidelity fund certificate issued to non-existent company – certificate invalid – close corporation precluded from recovering commission.
MEC Health, Eastern Cape v Mkhitha (1221/15)  ZASCA 176 (25 November 2016)
Delict – negligence – liability for – causation – person unable to walk and confined to wheelchair after medical treatment for injuries sustained in motor collision – negligence of hospital staff a novus actus interveniens. Leave to appeal – to be granted only if truly reasonable prospects of success or compelling reason for appeal to be heard.
Rand Water Board v Big Cedar 22 (Pty) Ltd (1038/15)  ZASCA 177 (25 November 2016)
Statutory power to lay pipeline across private land – s 24(j) of Act 17 of 1950 – no servitude registered over land in respect of pipeline – property sold to new owners – no right to claim removal of pipeline – court not empowered to order the registration of servitude in respect of pipeline – no claim for compensation by new owner against water board.
FirstRand Bank v Normandie Restaurants 189/2016  ZASCA 178 (25 November 2016)
Companies Act 71 of 2008: business rescue proceedings: whether a company which is in financial distress has reasonable prospects of being rescued as envisaged in s 131(4)(a) of the Act: a final order for winding-up of the company more beneficial for the creditors.
Published: Fri, 25 Nov 2016 10:18:50 GMT
Radebe v S (1163/15)  ZASCA 172 (24 November 2016)
Criminal Law and Procedure – appeal against the refusal of application for leave to appeal by high court following a refusal to grant leave to appeal against both the conviction and sentence by the trial court – Section 16(1)(b) of the Superior Courts Act 10 of 2013.
Plekenpol v The State (722/15)  ZASCA 171 (24 November 2016)
Sentence: fatal assault with knobkierie: subsequent robbery: plea of guilty to murder read with Criminal Law Amendment Act 105 of 1997 and robbery: appeal against sentence of 24 years’ imprisonment for murder only: failure to consider the Criminal Law Amendment Act 105 of 1997 misdirection: 24 years’ imprisonment found to be too harsh, inappropriate and amounts to misdirection interference on appeal warranted.
Sable Hills Waterfront Estate v Sable Hills Waterfront Estate Home Owners’ Association (199/2016) 2016 ZASCA 170 (24 November 2016)
Property development – obligation of members of home owners’ association to pay levies – clause in articles of association providing that levies be apportioned equally between owners of stands and units in estate – whether a reference to stands and units as reflected in the survey diagram attached to the township plan or to stands and units as registered in the Deeds Registry – question of construction of articles of association.
FirstRand Bank Limited t/a First National Bank v Makaleng (034/16)  ZASCA 169 (24 November 2016)
Civil Procedure: an order by the high court postponing, sine die, an application for default judgment, and directing the appellant to file, at the next hearing within not less than six months of the said order, an affidavit detailing attempts to prevent foreclosure, is not appealable. Appeal struck from the roll for lack of jurisdiction.
Freshvest Investments (Pty) Ltd v Marabeng (Pty) Ltd (1030/2015)  ZASCA 168 (24 November 2016)
Winding-up application: respondent disputing debt on bona fide and reasonable grounds: court a quo referring matter to oral evidence: winding-up proceedings not designed for the enforcement of disputed debts.
Published: Fri, 25 Nov 2016 09:55:59 GMT
Macassar Land Claims Committee v Maccsand CC (201/2016) 2016 ZASCA 167 (23 November 2016)
Restitution of Land Rights Act 22 of 1994 – Land Claims Court – powers – claim for restitution of commonage – mining right in terms of Mineral and Petroleum Resources Development Act 28 of 2002 – whether Land Claims Court has power to order the expropriation of right and its expungement.
Published: Wed, 23 Nov 2016 14:23:13 GMT
Mbhele v MEC for Health for the Gauteng Province (355/15)  ZASCA 166 (18 November 2016)
Delict ─ failure to take reasonable care to prevent stillbirth ─ Claim for emotional shock ─ damages awarded in the amount of R100 000 ─ claim for constitutional damages based on the right to rear a child ─ not sustainable.
Practice ─ requirements of stated case in terms of Uniform rule 33 ─ facts must be stated with adequate clarity and specificity ─ role of a trial Judge.
UFS v Afriforum & another  ZASCA 165 (17 November 2016)
Appeal in terms of s 18(4)(ii) of the Superior Courts Act 10 of 2013 (the Act) against the implementation of an order pending an appeal: the requirements for the granting of an order in terms of s 18 of the Act considered: appeal upheld due to applicant’s failure to prove the existence of ‘exceptional circumstances’ and to discharge the onus imposed by s 18(3) to show irreparable harm: circumstances justifying a costs order against the unsuccessful applicant.
Published: Fri, 18 Nov 2016 11:40:15 GMT
Wishart v Billiton (162/2016)  ZASCA 164 (16 November 2016)
Section 44(1) of the Insolvency Act 24 of 1936 applies to the proof of claims in the winding-up of companies and fixes a time-period for such proof, and for making a claim after the expiry of the time period with the leave of the Master or a court. Only the Master has the power to expunge a claim under s 407 of the Companies Act 61 of 1973; a court has the power to review the Master’s decision made under the section.
Published: Thu, 17 Nov 2016 08:06:04 GMT
Kruger v Joint Trustees (1121/2015)  ZASCA 163 (10 November 2016)
Banking Law: unregistered person conducting the business of a bank in contravention of certain provisions of the Banks Act 94 of 1990: appointment of a repayment administrator in terms of s 84 of Banks Act to recover and take possession of assets of the unregistered person: extent of powers of repayment administrator: unregistered person subsequently sequestrated and trustees appointed: effect of powers of trustees on those of repayment administrator.
Published: Thu, 10 Nov 2016 13:13:53 GMT
Ndaba v Ndaba (600/2015)  ZASCA 162 (4 November 2016)
Marriage ─ Divorce ─ parties married in community of property ─ pension interest ─ entitlement of non-member spouse under ss 7(7)(a) and 7(8)(a) of Divorce Act 70 of 1979 ─ pension interest of member spouse as at date of divorce is by operation of law part of the joint estate for the purpose of determining the parties’ patrimonial benefits ─ no order required in terms of s 7(7)(a).
Published: Fri, 04 Nov 2016 13:39:12 GMT
The Helen Suzman Foundation v Judicial Service Commission (145/2015)  ZASCA 161 (2 November 2016)
Recording of the private deliberations on judicial appointments by the Judicial Service Commission, properly conducted in terms of the Judicial Service Commission Act 9 of 1994 and regulation 3(k) made thereunder, does not form part of the record of its proceedings for purposes of Uniform rule 53(1)(b) – constitutional principles of openness and accountability are not absolute and the JSC is entitled to raise the defence of confidentiality to a rule 53 demand for the disclosure of the recordings of its private deliberations.
Published: Thu, 03 Nov 2016 10:53:55 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Wed, 26 Oct 2016 12:18:00 GMT
Hotz v UCT (730/2016) 2016 ZASCA 159 (20 October 2016)
Interdict – student protests – requisites for the grant of an interdict – whether requisites satisfied – nature of relief to be granted.
Published: Thu, 20 Oct 2016 12:04:56 GMT
New court roll for November 2016
Published: Tue, 11 Oct 2016 11:48:50 GMT
Jansen v The State (236/2015)  ZASCA (133) (29 September 2016)
Criminal appeal: appellant convicted on two counts of contravening certain sections of Criminal Law Amendment (Sexual Offences and Related Matters) Act 32 of 2007: Trial Court relied on evidence of single witness: proper judicial approach to such evidence: Evidence of single witness not satisfactory and therefore unreliable: convictions and sentences set aside.
Lichtenstein v S (1094/2015)  ZASCA (132) (29 September 2016)
Sentence: Minimum sentence regime: principles to be applied: absence of substantial and compelling circumstances: imposition of minimum sentences justified.
Published: Thu, 06 Oct 2016 13:14:17 GMT
Edwards v FirstRand Bank Limited t/a Wesbank (20734/14)  ZASCA 144 (30 September 2016)
Credit agreement – National Credit Act 34 of 2005 – whether or not the credit provider complied with s 127(2) and (5) of the Act – court must satisfy itself that the credit provider has placed before it facts which show that the notice, on a balance of probabilities, has been sent to the consumer.
Mhlongo v The State (140/16)  ZASCA 152 (3 October 2016)
Criminal Law and Procedure ─ conviction on one count of rape ─ the charge sheet erroneously referred to Part 2 of Schedule 2 and not Part 1 of Schedule 2 to s 51(1) of the Criminal Law Amendment Act 105 of 1997 ─ sentence of life imprisonment imposed ─ whether this irregularity vitiated the sentence proceedings ─ application in terms of s 276B of the Criminal Procedure Act 51 of 1977 ─ importance and permanent infusion of the Victim Impact Statement at the sentencing stage ─ duty of the prosecution to place all information before the court ─ Comprehensive guidelines, protocol and model VIS instruments must be drafted by the National Director of Public Prosecutions ─ matter remitted to court a quo.
Seedat v S (731/2015)  ZASCA 153 (03 October 2016)
Criminal Law and Procedure – Conviction of rape where minimum sentence applied – Appeal by the state on a question of law – Section 311 of the Criminal Procedure Act applicable – Sentence imposed by court and ‘restorative justice award’ not competent in terms of ss 279(1) and (4) of the Act – Sentence set aside and substituted with sentence of four years’ imprisonment.
Bonitas Medical Fund v The Council for Medical Schemes (814/2015)  ZASCA 154 (3 October 2016)
Interpretation of statute ─ a decision to order an inspection in terms of s 44(4)(a) of the Medical Schemes Act 131 of 1998 is not appealable under s 49(1) ─ Costs ─ no genuine and substantive constitutional issue raised ─ Cross-appeal in respect of costs allowed.
Okah v S (19/2014)  ZASCA 155 (3 October 2016)
Interpretation and application of s 15 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 : extra-territorial jurisdiction : extent of.
Minister of Water and Environmental Affairs v Really Useful Investments (436/2015)  ZASCA 156 (3 October 2016)
Environmental law – Interpretation and application of the Environment Conservation Act 73 of 1989 (ECA) and the National Environmental Management Act 107 of 1998 (NEMA) – exemption provisions in terms of s 37 of ECA and s 49 of NEMA not applicable to compensation provisions in terms of s 34 of ECA – provisions of s 34 of ECA not applicable to a regulatory directive issued in terms of s 31A of ECA – landowner’s particulars of claim accordingly not disclosing a valid cause of action.
Slabbert v MEC for Health and Social Development, Gauteng (432/2016)  ZASCA 157 (3 October 2016)
Civil procedure – Compromise agreement made an order of court – Grounds for rescinding compromise are only fraud or justus error provided the mistake (error) vitiated true consent and did not merely relate to motive or to the merits of the dispute – Or mistake common to the parties – Court has no discretion to set aside consent order if underlying compromise is not set aside – Compromise agreement and consent order not rescinded.
CSARS v Marshall NO (816/2015)  ZASCA 158 (3 October 2016).
Value Added Tax: whether actual supply of goods and services by a designated entity to a public authority and a ‘deemed’ supply of services under s 8(5) of the Value Added Tax Act 89 of 1991: whether payment received by a designated entity from a public authority in respect of such supply is zero-rated under s 11(2)(n) of the Act : section 8(5) of the VAT Act does not apply to actual supply of services : payment received is not zero-rated under s 11(2)(n).
XO Africa Safaris v CSARS (395/15)  ZASCA 160 (3 October 2016)
Value Added Tax (VAT) – local company assembling package tours for foreign tour operators and individuals – whether supply of services attracting VAT at standard rate or whether zero rated in terms of s 11(2)(l) of Value Added Tax Act 89 of 1991 – services supplied to person not a resident of the Republic but supplied directly to other persons who were in the Republic at the time the services were rendered – VAT payable at standard rate.
Published: Tue, 04 Oct 2016 11:49:13 GMT
State Information Technology Agency Soc v Gijima Holdings (641/2015)  ZASCA 143 (30 September 2016)
Promotion of Administrative Justice Act 3 of 2000 (PAJA): applicability to organ of state seeking to set aside its own decision: legality review not available when PAJA applies.
Padachie v The Body Corporate of Crystal Cove (704/2015)  ZASCA 145 (30 September 2016)
Arbitration - Arbitration Act 42 of 1965 - statement of case to court in terms of s 20(1) refused for being imprecise - appellant making a qualified request for referral to court - such request impermissible - s 20(1) only applicable where questions of law arise during the course of arbitration - party to an arbitration not entitled to refer to court the very issues referred for arbitration - Arbitrator did not deprive appellant of his right in terms of s 20 to approach court.
Pepkor Retail (Pty) Ltd v Truworths Ltd (900/2015)  ZASCA 146 (30 September 2016)
Trade mark ─ registered trade mark THE LOOK used in fashion retail industry ─ mark has no inherent or acquired distinctiveness ─ removal from the trade mark register ordered.
Tamryn Manor v Stand 1192 Johannesburg (785/15)  ZASCA 147 (30 September 2016)
A written agreement for the sale of an immovable property in respect of which the party who signed the agreement as the purchaser is not the true purchaser as a result of a bona fide error common to the parties: the agreement is capable of rectification to reflect the true purchaser where ex facie the document all the essential elements for a valid contract for the sale of land have been met.
Gumede v The State (800/2015)  ZASCA 148 (30 September 2016)
Evidence obtained as a result of an unlawful search in violation of right to privacy – evidence of pointing out obtained after failure to explain consequences of not remaining silent and co-ercion – detrimental to administration of justice – evidence inadmissible in terms of s 35(5) of the Constitution.
Muller v Sanlam (1162/2015)  ZASCA 149 (30 September 2016)
Procedure: Application for reinstatement of an appeal and condonation for late compliance with rules of court refused because of extreme and inexplicable delay, and no reasonable prospects of success on appeal. Prescription: Debt of long term insurer becomes due when insured dies and beneficiary has knowledge of the death and of the existence of the policy.
Eskom Holdings Limited v Halstead-Cleak ZASCA 150 (30 September 2016)
Section 61 of the Consumer Protection Act 68 of 2008 does not create strict liability on the part of a supplier of electricity if the plaintiff is not a consumer vis-à-vis it.
Snyers v Mgro Properties (Pty) Ltd (20816/2014) ZASCA 151 (30 September 2016)
Land – Extension of Security of Tenure Act 62 of 1997 (ESTA) – notice given of eviction in terms of s 8 of ESTA not valid if given before CCMA makes determination on labour dispute – failure to satisfy the requirements for a valid notice of eviction in respect of an occupier previously employed by landowner – notice properly given to spouse – right to family life in terms of s 6(2)(d) of ESTA prevents eviction of one spouse while the other remains.
Published: Fri, 30 Sep 2016 12:25:14 GMT
Mbele v Road Accident Fund (799/15)  ZASCA 134 (29 September 2016)
Road Accident Fund Act 56 of 1996 – a claim for future medical expenses based on an undertaking in terms of s 17(4)(a)(i) of the Act in respect of an action for damages arising from a motor vehicle accident lodged in terms of s 17(1) of the Act is not subject to prescription under the Prescription Act 68 of 1969, instead, s 23(3) of the Road Accident Fund Act as it read prior to its amendment in 2008 is applicable.
Trinity Asset Management (Pty) Ltd v Grindstone Investments (Pty) Ltd (1040/15)  ZASCA 135 (29 September 2016)
Prescription : the date upon which a debt becomes due must not be conflated with that when repayment thereof is demanded : a debt which is repayable on demand becomes due the moment the money is lent to the debtor : claim prescribed : appeal dismissed with costs.
Gees v The Provincial Minister of Cultural Affairs and Sport (974/2015)  ZASCA 136 (29 September 2016)
Provincial heritage resources authority granting a permit in terms of s 34 of the National Heritage Resources Act 25 of 1999 for the demolition of a structure older than 60 years situated on a property with no formal heritage status: in so doing conditions were imposed controlling future development on the property: held that such conditions were lawfully imposed.
Van Heerden v Regional Court Magistrate, Paarl (883/2015)  ZASCA 137 (29 September 2016)
Criminal Law and Procedure – Review – whether there was an informal plea agreement between the appellant and the State – Disputes of fact arising from the respective versions not capable of resolution on the papers – State’s version not far-fetched.
CSARS v Van der Merwe NO (598/2015)  ZASCA 138 (29 September 2016)
Customs and Excise Act 91 of 1964 - ss 20(4), 38, 39 and 114 do not create an embargo in favour of the Commissioner preventing a liquidator from taking possession of property in terms of the Insolvency Act 24 of 1936 until duty and VAT is paid.
Municipal Employees Pension Fund v The Natal Joint Municipal Pension Fund (562/2015)  ZASCA 139 (29 September 2016)
Pension funds – local authorities in KwaZulu-Natal obliged to associate as employer with one or more of the respondents – not entitled to associate with appellant fund to the exclusion of the respondents – local authority employees obliged to be members of one of the respondents.
EThekwini Municipality v Breakers Share Block Limited (42/2016)  ZASCA 140 (29 September 2016)
Contract – Lease agreement - Interpretation of – Reference in original lease agreement to ‘floor area’ being determined, for calculating rental payable – amendment to relevant clause providing ‘floor area’ to be calculated in accordance with town planning scheme – whether amendment indicates change in method of calculating ‘floor area’.
Afgri Corporation Ltd v Eloff (20474/2014)  ZASCA 141 (29 September 2016)
Contract ─ acknowledgement of debt and undertaking to pay ─ evidence contradicting the terms of the agreement rendered inadmissible by the parol evidence rule ─ judgment granted in terms of the agreement.
Primedia Broadcasting v Speaker (784/2015)  ZASCA 142 (29 September 2016)
Constitutional law: Parliament: The rules and policy adopted by Parliament governing the broadcast of disorder in the Parliamentary Chamber violate the public’s right to an open Parliament and are unconstitutional and unlawful. The disruption of the cell phone signal in Parliament during the State of the Nation address was in contravention of the s 4(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 and was unlawful.
Published: Fri, 30 Sep 2016 07:08:47 GMT
Shelton v Eastern Cape Development Tribunal (489/2015)  ZASCA 125 (26 September 2016)
Constitutional law – Practice – Construction of judgments and orders – Principles applicable – When Chapters V and VI of the Development Facilitation Act 67 of 1995 declared invalid, by Constitutional Court, declaration of invalidity suspended for 24 months on conditions – Suspension period expiring without enactment of remedial legislation – court order not granting tribunal power to decide application after expiry of suspension period – appeal upheld.
The Registrar of Pension Funds v British American Tobacco Pension Fund (664/2015)  ZASCA 130 (28 September 2016)
Pension Funds Act 24 of 1956: interpretation : whether s 15H(1) overrides s 15D(2) read with ss 15A(2) and 15A(4).
Dobsa v Dlamini Advisory Services; Dlamini Advisory Services v Dobsa (050/2016)  ZASCA 131 (28 September 2016)
Civil Procedure ─ Costs ─ Award of costs is at the discretion of the court of first instance ─ Power of appellate court to interfere with the exercise of such judicial discretion circumscribed.
Published: Thu, 29 Sep 2016 10:13:46 GMT
Travelex Limited v Maloney (823/15) ZASCA 128 (27 September 2016)
Civil procedure: rescission application: based on alleged lack of jurisdiction of court that granted order of attachment ad fundandam et confirmandam jurisdictionem: ratio jurisdictionis present: no submission to jurisdiction established.
ACSA v Exclusive Books (945/2015)  ZASCA 129 (27 September 2016)
Contract: where a lease is terminable on the giving of reasonable notice, the lease must be interpreted to determine what is reasonable in the circumstances; an application for eviction of a lessee must be determined on the basis of the averments made by the applicant that are not disputed by the respondent, and the version of the respondent that is not implausible, far-fetched or not credible.
Published: Wed, 28 Sep 2016 07:34:38 GMT
Khobane v S (887/15)  ZASCA 124 (26 September 2016)
Sentence – Criminal Law Amendment Act 105 of 1997 (the Act) – Appellant sentenced to 15 years’ imprisonment for theft of R3 million from ATMs in terms of the Act – Charge sheet made no mention of possibility of sentence in terms of the Act – Magistrate also failed inter alia to warn the appellant at commencement of trial that if convicted he faced the risk of a sentence imposed in terms of the Act – Criminal petitions procedure requiring convoluted process – Appeal against the high court’s dismissal of the petition against regional court sentence upheld – Leave granted to appeal against sentence.
Scheibert v Allen (694/2015)  ZASCA 126 (26 September 2016)
Contract: damages for breach of warranty: onus on plaintiff to prove diminution in value of property as a result of breach of warranty: the evidence must show an adverse difference between the purchase price and the market value of the property: the purchase price paid for the property was lower than its market value: breach of warranty did not result in loss of value of the property.
Absa Technology Finance Solutions v Fulela Trade and Invest (519/2015)  ZASCA 127 (26 September 2016)
Absolution from the instance erroneously granted – no onus to prove admitted issue – matter remitted to trial court.
Published: Tue, 27 Sep 2016 11:06:55 GMT
CSARS v Marula Platinum Mines (218/2015)  ZASCA 121 (22 September 2016)
Interpretation of s 23F(2) of the Income Tax Act 58 of 1962 (the ITA), read with the definition of ‘trading stock’ in s 1 of the ITA and the application thereof to the respondent’s business operations: such operations involving a manufacturing process: respondent excluded unquantified sales of concentrate from its gross income under s 24M of the ITA: commissioner entitled to invoke s 23F(2) of the ITA by disallowing a percentage of the s 11(a) deductions claimed by respondent.
SANRAL v City of Cape Town (66/2016)  ZASCA 122 (22 September 2016)
The South African National Roads Agency Limited and National Roads Act 7 of 1998 : Declaration of national road as toll road in terms of s 27 of the Act : Application to review and set aside a) an application by South African National Roads Agency Limited (SANRAL) to Minister of Transport (Minister) for approval of declaration of toll road; and b) decision by the Minister to approve declaration as toll road : delay in bringing review : delay unreasonable but interests of justice nevertheless requiring that condonation be granted : SANRAL’s board had not in fact taken decision to seek Minister’s approval : later attempt to rectify omission invalid : Minister misconstruing function in approving declaration : approval set aside : cross-appeal : claim for interdict in relation to possible future contract : application premature.
Dube v The State(89/16)ZASCA 123(22 September 2016)
Criminal Law – Rape of daughter by biological father on two separate occasions on the same day – daughter falling pregnant – charged on two counts of rape in terms of section 51 of the Criminal Law Amendment Act 105 of 1997 – entered plea of guilty in terms of section 112(2) of the Criminal Procedure Act 51 of 1977 – convicted on two counts of rape – defect in charge sheet did not render the proceedings invalid – sentence of life imprisonment appropriate.
Published: Thu, 22 Sep 2016 11:39:57 GMT
Law Society of the Northern Provinces v Kyle (2015)  ZASCA 120 (19 September 2016)
Attorney: Section 22(1)(d) of Attorneys Act 53 of 1979 : misconduct : appropriate sanction : court a quo misdirecting itself in the exercise of its discretion : attorney suspended from practice until such time as he satisfies the court that he is a fit and proper person to resume practice as an attorney.
Published: Wed, 21 Sep 2016 11:35:23 GMT
Yuppiechef Holdings (Pty) Ltd v Yuppie Gadgets Holdings (Pty) Ltd (1088/2015) 2016 ZASCA 118 (15 September 2016)
Trade mark – online retailer – whether mark used in relation to goods in respect of which mark registered – s 2(3)(a) of Trade Marks Act 194 of 1993 – whether marks confusingly similar or calculated to deceive – registered mark a composite of words in common use – attempt to secure a monopoly in the word ‘Yuppie’ – no likelihood of confusion – marks not similar in terms of s 34(1)(c) of Trade Marks Act – no passing off.
Media 24 Books (Pty) Ltd v Oxford University Press SA (Pty) Ltd (886/2015)  ZASCA 119 (16 September 2016)
Copyright – dictionary – proof of copying – correspondence of example sentences in bilingual dictionary directed at learners aged ten to sixteen – similarity raising suspicion of copying – evidence by compilers of methods used to compile example sentences – lack of access and reference to appellant’s dictionary – explanation for similarity that such inevitable in a work of this type – disputes of fact not resolved by trial – onus of proving copying not discharged on the basis of similarity alone.
Published: Fri, 16 Sep 2016 13:20:43 GMT
Transnet v Total (728/2015)  ZASCA 116 (14 September 2016)
A contract pertaining to tariffs payable for the transportation of crude oil remains enforceable despite a change in legislative regime that governs the conveyance of petroleum products in South Africa: nothing in the contract incompatible with the relevant legislation.
Breakers Share Block Limited v Ethekwini Municipality (804/2015)  ZASCA 117 (14 September 2016)
Local Government: Municipal Property Rates Act 6 of 2004: Sections 49 and 78(2): adequacy of notice of supplementary valuation: notice substantively compliant with Act.
Published: Thu, 15 Sep 2016 07:32:24 GMT
Malele v S (723/16) and Ngobeni v S (724/16)  ZASCA 115 (13 September 2016)
Leave to appeal – refusal of application by two judges of the SCA in terms of s 17(2) of the Superior Courts Act 10 of 2013 – application to the President of the SCA in terms of s 17(2)(f) to refer the decision to the court for reconsideration and, if necessary, variation – a grave injustice constitutes exceptional circumstances.
Published: Tue, 13 Sep 2016 13:35:51 GMT
G4S Cash Solutions v Zandspruit Cash & Carry (Pty) Ltd  ZASCA 113 (12 September 2016)
Interpretation of time-limitation clause in written services agreements: whether or not delictual claims are subject to the time-limitation clause: nature of interpretative process considered: delictual claims held not to be subject to the time-limitation clause.
Essop v S (31/2016)  ZASCA 114 (12 September 2016)
Criminal Procedure: appeal against refusal by court below to grant leave to appeal on petition: test is whether the appellant has reasonable prospects of success on appeal: leave to appeal against refusal of petition is granted.
Published: Mon, 12 Sep 2016 11:00:59 GMT
Notshokovu v S (157/15)  ZASCA 112 (7 September 2016)
Reconsideration of an order refusing special leave by two judges of the SCA: test has stringent requirements as the threshold is now higher: whether the courts below, including the decision of the two SCA judges, ought to have granted leave or not: appellant failed to show special circumstances: special leave refused.
Published: Fri, 09 Sep 2016 13:42:47 GMT
Wingate-Pearse v CSARS (830/2015)  ZASCA 109 (1 September 2016)
Appeal from Tax Court – s 133(1) of Tax Administration Act 28 of 2011 – only decisions under ss 129 and 130 appealable – interlocutory ruling on onus and duty to begin not a decision in terms of s 129(1) and (2) – ruling not appealable.
Published: Tue, 06 Sep 2016 09:12:31 GMT
Monye v S (107/16) ZASCA 111 (02 September 2016)
Sentence - Appeal against sentence of life imprisonment for murder - appellants the middlemen in contract killing - only co-operated with police and admitted guilt after conviction - no true remorse - no substantial and compelling circumstances to depart from minimum sentence - sentences confirmed on appeal.
Joest v Jöst (319/2015 & 324/2015)  ZASCA 110 (1 September 2016)
Trade marks and passing off : contested proprietorship of confusingly similar registered trade marks : application and counter-application for expungement of trade marks from register and consequential relief : mark originating from first respondent, a German based company and holding company of a subsidiary which introduced its machines and components into South Africa bearing the mark indicating provenance : years later ownership in subsidiary relinquished : commercial relationship continuing : no acquisition of proprietorship by former subsidiary : licensee and not licensor : ineffective assignment of rights not validly held.
Published: Fri, 02 Sep 2016 12:23:22 GMT
The SA Hackney Pony Breeders’ Society v Majiet (131/2015)  ZASCA 108 (31 August 2016)
Review: Whether cross-breed of hackney horse and hackney pony eligible for registration as hackney pony: Interpretation of breeders’ society’s constitution and by-laws: Application of Animal Improvement Act 62 of 1988.
Published: Wed, 31 Aug 2016 12:49:33 GMT
Mathekola v State (487/2016)  ZASCA 106 (14 July 2016)
Published: Wed, 17 Aug 2016 11:45:45 GMT
City of Cape Town v Khaya (Pty) Ltd (158/15)  ZASCA 107 (26 July 2016)
Constitution - right to adequate housing – private construction company not an organ of state and incurs no constitutional obligations independent of any statutory or contractual obligations when it contracts to build low cost housing funded by the State - houses allegedly defectively built – arbitration pending between developer and construction company – City of Cape Town not a party to the arbitration and has no locus standi to have the arbitration declared lapsed – principle of subsidiarity applies where parties seek to enforce socio economic rights – should first rely on existing statutes or challenge those instruments as unreasonable.
Published: Tue, 26 Jul 2016 12:37:22 GMT
Chapeikin v Mini (103/2015)  ZASCA 105 (14 July 2016)
Delict ─ medical malpractice ─ general practitioners ─ whether failure to refer patient with unusual stroke to hospital for specialised treatment constitutes negligence ─ causation ─ whether patient’s sequelae could have been prevented by referral to hospital ─ no causal link between the alleged negligence and sequelae.
Practice and procedure ─ Rule 33(4) of the Uniform rules ─ trials ─ order separating merits from quantum not desirable where issues are inextricably linked.
SAAB Grintek Defence v South African Police Service (316/2015)  ZASCA 104 (5 July 2016)
Constitutional law – tender – cancellation of – decision to cancel made in exercise of executive authority – decision not constituting administrative action – reasons for cancellation not offending principle of legality.
Published: Fri, 15 Jul 2016 10:28:23 GMT
Vilakazi v The State (636/2015)  ZASCA 103 (15 June 2016)
Criminal Law – Evidence of young children in sexual assault cases – imperfections in evidence not necessarily fatal – evidence to be considered carefully and holistically to determine trustworthiness.
Published: Wed, 15 Jun 2016 11:00:14 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Wed, 15 Jun 2016 09:51:43 GMT
Hangar v Robertson (211/2015)  ZASCA 102 (10 June 2016)
Contract – interpretation – contract not too vague to be enforceable.
Published: Tue, 14 Jun 2016 10:32:17 GMT
Gowar v Gowar (149/2015)  ZASCA 101 (9 June 2016)
Trust and trustee ─ removal from office on grounds of misconduct ─ power of the high court to remove trustee under the common law not abrogated by s 20(1) of the Trust Property Control Act 57 of 1988. Trust ─ termination of ─ power of the court in terms of s 13 of the Trust Property Control Act to terminate a trust circumscribed.
Hewitt v The State (637/2015)  ZASCA 100 (9 June 2016)
Sentence – appeal against imposition of effective sentence of six years’ imprisonment upon 75 years old offender for rape and indecent assault of young girls - crimes committed three decades ago –– appeal dismissed.
Published: Thu, 09 Jun 2016 11:28:17 GMT
New court roll for August-September 2016
Published: Tue, 07 Jun 2016 13:57:54 GMT
Minister of Human Settlements, Western Cape v Penhill Residents Small Farmers Co-operative (429/2015)  ZASCA 99 (3 June 2016)
Land: unlawful occupation of land owned by provincial government: occupiers of farm land interdicted from taking further occupation of additional land and erecting new structures: did not have consent of owner to settle on additional land and were not deprived of any right unlawfully.
Blue Chip 2 (Pty) Ltd v Ryneveldt (499/15)  ZASCA 98 (03 June 2016)
Magistrates’ Court Act 32 of 1944 - jurisdiction - s 28(1)(d) - cause of action arising wholly within the district or regional division - delivery of notice in terms of s 129(1)(a) of the National Credit Act 34 of 2005 - a material element of the cause of action - delivery thereof outside the area of jurisdiction of the magistrate’s court is fatal to claim since cause of action did not wholly arise within the district or regional division.
Malani v Natalia Financial Brokers CC (20850/2014)  ZASCA 84 (31 May 2016)
Negligence - Claim for pure economic loss based on omission – No evidence that the insured had instructed the insurance broker to amend beneficiary on a policy – The appellants, as disappointed beneficiaries, failed to establish negligence on the part of the insurance broker.
Published: Fri, 03 Jun 2016 11:20:47 GMT
Botha v Road Accident Fund (463/2015)  ZASCA 97 (2 June 2016)
Contract ─ agreement in settlement of claim for damages made an order of court ─ agreement concluded on the strength of a representation of fact made by appellant’s attorney relied on by the respondent ─ agreement binding and not to be set aside under Uniform rule 42(1)(c).
S v Motloung (182/15)  ZASCA 96 (2 June 2016)
Murder – second offender committing murder whilst on parole – sentenced to 14 years of imprisonment of which six years suspended for five years – sentence startlingly inappropriate having regard to the degree of violence involved in the current and previous offences.
Sentence – s 280(2) Criminal Procedure Act 51 of 1977 (CPA) - court cannot order the Parole Board to take into account the overall impact of the re-imposition of unexpired portion of an earlier sentence when deciding the current sentence
Firearms Control Act 60 of 2000 – has not impliedly repealed s 51(2) of the Criminal Law Amendment Act 105 of 1997 − National Director of Public Prosecutions can elect whether to prosecute under the Firearms Control Act or the Criminal Law Amendment Act 105 of 1997, or both.
Costs – s 316B(3) of CPA − such an order requires both parties to argue the issue − no costs incurred where respondent represented by Legal Aid Board .
Koukoudis v Abrina (20747/2014)  ZASCA 95 (2 June 2016)
Delict ─ claim for damages for abuse of rights ─ requirements of such a claim ─ requirements not established.
Published: Fri, 03 Jun 2016 08:52:38 GMT
Du Toit NO v Errol Thomas NO (635/15)  ZASCA 94 (1 June 2016)
Maintenance Court jurisdiction - claim for maintenance on behalf of minor child against an executor of her deceased father’s estate – executor participating in the proceedings and not objecting to the jurisdiction of the maintenance court – thereafter challenging jurisdiction on review to the high court – refusing to pay maintenance for child on an unduly technical basis – executor’s conduct unconscionable - ordered to pay costs de bonis propriis on attorney and client scale.
Absa Bank Ltd v Knysna Auto Services CC (266/15)  ZASCA 93 (1 June 2016)
Contract ─ floor plan agreement (FPA) ─ Sale and financing of motor vehicles ─ reservation of ownership until receipt of payment ─ payment not received – rei-vindicatio ─ estoppel ─ possessor not acting reasonably in construing representation by owner that seller entitled to pass ownership – any representation ambiguous – possessor obliged to enquire from owner as to true position – possessor obliged to return vehicle.
National Tertiary Retirement Fund v Mokadi (419/2015)  ZASCA 92 (1 June 2016)
Pension Funds Act 24 of 1956 – s 30N – discretion conferred on Pension Funds Adjudicator to determine whether interest shall accrue where determination consists of an obligation to pay money, and the rate at which, and date from which it accrues.
Standard Bank v Miracle Mile Investments (187/2015) ZASCA 91 (1 June 2016)
Prescription – extinctive – claim based on agreement providing for a loan repayable in instalments and containing acceleration clause – only enforceable where creditor has made election to cancel agreement and claim full amount – prescription accordingly commences running upon election being made.
Avenant v CSARS (367/2015)  ZASCA 90 (1 June 2016)
Paragraphs 2, 3(1), 4(1) and 9 of the First Schedule to the Income Tax Act 58 of 1962 – ‘produce held and not disposed of’ – grapes delivered by wine farmer to a co-operative – pressed into pulp and mixed with pulp of other members of co-operative – identity of natural product retained – resultant pulp ‘produce’ – ownership of pulp retained by members of co-operative – produce ‘not disposed of’.
Northern Endeavour Shipping Pte Ltd v Owners of MV NYK Isabel (972/2015) 2016 ZASCA 89 (1 June 2016)
Maritime law – associated ship arrest relying on deeming provision in s 3(7)(c) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act) – charterer deemed to be owner of ship concerned – charterer includes a slot charterer – application for security in terms of s 5(2)(c) of the Act – requirements for – prima facie claim – reasonable and genuine need for security – factors relevant to exercise of discretion.
MEC: Social Development, Western Cape v The Justice Alliance of South Africa  ZASCA 88 (1 June 2016)
Establishment of child and youth care centres in terms of s 195 of the Children’s Act 38 of 2005 – involves decisions which are polycentric and policy-laden in nature – intervening therewith undermines the doctrine of separation of powers – the requirements for the establishment of child and youth care centres not met.
Mutual & Federal v KNS Construction (208/15)  ZASCA 87 (31 May 2016)
Building contract: performance guarantee found to be conditional guarantee akin to suretyship.
Published: Thu, 02 Jun 2016 11:02:50 GMT
Britz v S (889/2015)  ZASCA 86 (31 May 2016)
Sentence – non-parole period in terms of s 276B(1) of the Criminal Procedure Act 51 of 1977 – imposed without affording the appellant an opportunity to address the court – that portion of the sentence set aside – sentence of 15 years’ imprisonment shockingly inappropriate and reduced to 10 years’ imprisonment.
e.tv (Pty) Ltd v Minister of Communications (1039/2015)  ZASCA 85 (31 May 2016)
Legality: an amendment by the Minister of Communications of the Digital Broadcasting Migration Policy in 2015 that did not follow a process of consultation was irrational and in breach of the principle of legality: amendment did not achieve its purpose and was thus irrational and invalid on that basis too: the Minister purported to bind regulatory authorities and broadcasters and thus acted ultra vires: amendment reviewed and set aside.
Herr v Innomet (Pty) Ltd (394/2015)  ZASCA 82 (30 May 2016)
Contract: Lease agreement – landlord and tenant – reciprocity of obligations – obligation on lessor to provide peaceful and undisturbed occupation in return for rental from lessee.
Published: Wed, 01 Jun 2016 07:08:09 GMT
Swart v Starbuck & others (20785/2014)  ZASCA 83 (30 May 2016)
Claim by insolvent on behalf of his insolvent estate for the payment of damages by his trustees in terms of s 82(8) of the Insolvency Act 24 of 1936 – section 82(8) does not find application where the trustees sold immovable properties of the estate prior to the second meeting of creditors – sale of the immovable properties of the estate valid and enforceable – claim for damages dismissed.
Caine Brothers v Development Tribunal for KwaZulu-Natal (471/2015)  ZASCA 81 (30 May 2016)
An objector to an application for land development is not entitled to review a decision on the basis that it has not had a hearing prior to the decision being made when in fact it has been heard on more than one occasion and in more than one forum.
Palala Resources v Minister of Mineral Resources and Energy (479/15)  ZASCA 80 (30 May 2016)
Mining and minerals – Companies – interpretation and application of s 56(c) of the Mineral and Petroleum Resources Development Act 28 of 2002 and s 73(6A) of the Companies Act 61 of 1973 – deregistration of a company which is the holder of a mineral prospecting right does not result in that company irretrievably losing that right – subsequent restoration of company’s registration having the legal effect of retrospectively reviving the lapsed prospecting right.
Roering and Another NNO v Mahlangu (581/2015)  ZASCA 79 (30 May 2016)
Company law – Enquiry in terms of ss 417 and 418 of the Companies Act 61 of 1973 – summons to attend – application to set aside summons – abuse of process – what constitutes – fact that the issues canvassed may overlap with issues in pending or contemplated civil litigation not as such a ground for inferring abuse.
Golden Dividend v Absa Bank (569/2015)  ZASCA 78 (30 May 2016)
Application to set aside business rescue proceedings – creditors have a direct and substantial interest – non-joinder of creditors is fatal to the relief sought in the application.
Published: Tue, 31 May 2016 12:58:14 GMT
Lucky Star Ltd v Lucky Brands (Pty) Ltd (164/2015)  ZASCA 77 (27 May 2016)
Trade Marks Act 194 of 1993 – ss 34(1)(a)(b) and (c) – infringement – trade mark sufficiently dissimilar to registered trade mark – likelihood of deception or confusion not established – Companies Act 71 of 2008 – s 11(2) – company name not confusingly similar to appellants company names and registered trade marks.
Mfundo Nontshinga v S (770/2015)  ZASCA 76 (27May 2016)
Criminal Procedure: Appeal against the refusal of a petition for leave to appeal by High Court before the commencement of the Superior Courts Act 10 of 2013 – No leave sought from the court refusing the petition – special leave to appeal granted against conviction by the Supreme Court of Appeal – order a nullity – Supreme Court of Appeal having no jurisdiction.
Registrar of Medical Schemes v Genesis Medical Scheme (238/2015)  ZASCA 75 (27 May 2016)
Medical Schemes Act 131 of 1998 – members’ funds allocated to members’ savings accounts are ‘trust property’ in terms of the Financial Institutions (Protection of Funds) Act 28 of 2001 and are to be accounted for separately in terms of ss 4(4) and (5) of that Act, read together with s 35(9)(c) of the Medical Schemes Act 131 of 1998.
Cochrane Steel Products (Pty) Ltd v M-Systems Group (Pty) Ltd (227/2015)  ZASCA 74 (27 May 2016)
Intellectual property – use of the trademark CLEARVU as a keyword in the Google AdWords system – does not constitute unlawful competition or passing off.
Published: Mon, 30 May 2016 08:10:26 GMT
Masilo v Betterbridge (37/2015)  ZASCA 73 (25 May 2016)
Prescription – extinctive prescription – delay in completion – debt object of claim filed against company in liquidation – claim withdrawn after ‘admitted to proof’ under s 44 of the Insolvency Act 24 of 1936. Whether prescription delayed in terms of s 13(1)(g) of the Prescription Act 68 of 1969.
Masemola v Road Accident Fund (256/2015)  ZASCA 72 (25 May 2016)
Delict – claim for future loss of earnings – applicable contingency percentage rate to be deducted for pre-morbid future loss of earnings – discretion of the trial court to make a subjective estimate – court of appeal may not interfere unless the trial court has misdirected itself – contingency percentage rate to be deducted reduced.
Published: Thu, 26 May 2016 13:29:36 GMT
Hibiscus Coast Municipality v Hume Housing (638/15)  ZASCA 71 (23 May 2016)
Res judicata – appeal against decision of full court dismissed – full court correct in upholding appeal against decision of court of first instance which had wrongly found matter to be res judicata.
Mulaudzi v The State (768/2015)  ZASCA 70 (20 May 2016)
Criminal Law ─ whether the State proved beyond a reasonable doubt that appellant was guilty of murder and robbery where the only material evidence was that of an accomplice, a single witness found to be untruthful and whose evidence was not corroborated.
Published: Tue, 24 May 2016 07:50:21 GMT
Chairperson of the National Council of Provinces v Malema (535/2015)  ZASCA 69 (20 May 2016)
Parliament – suspension of member – for refusal to retract a statement ruled unparliamentary.
Abbott v Overstrand Municipality (99/2015)  ZASCA 68 (20 May 2016)
Application for the review and setting aside of a municipality’s decision to refuse to take steps to prevent damage being caused to immovable property by flooding – failure to prove that the municipality had the legal authority or obligation to take such steps – requirements for reliance on the doctrine of legitimate expectation also not met.
Educated Risk Investments 165 (Pty) Ltd v Ekurhuleni Metropolitan Municipality (308/2105)  ZASCA 67 (20 May 2016)
Town planning scheme – interpretation thereof – dwelling house – what constitutes – local authority proposing to permit temporary informal houses to be constructed on land zoned Residential 1 where dwelling houses could be constructed without further consent – informal houses satisfied the zoning requirements – scheme also empowered the local authority to use land for purposes not in accordance with zoning where it deemed it beneficial to the community or surrounding area.
Gayiya v S (1018/15)  ZASCA 65 (19 May 2016) Media Summary
Criminal law – practice and procedure – trial – charge of murder – appointment of assessors in terms of proviso to s 93ter(1) of Magistrates’ Courts Act 32 of 1944 – such appointment compulsory unless accused requests, prior to plea, that assessors not be appointed – failure by regional magistrate to invoke proviso – court not properly constituted – purported waiver by accused of assessors after guilty verdict cannot cure defect.
Geldenhuys NO v Daniels (20848/14)  ZASCA 45 (31 March 2016)
Contract – offer to purchase immovable property irrevocable up to a stated date – effect of date passing – offer not lapsing but becoming revocable – acceptance of offer after stated date effective to constitute a binding contract.
Tyco International v Golden Mile Trading (949/2013)  ZASCA 44 (31 March 2016)
Apportionment of Damages Act 34 of 1956 – trial court erred in apportioning damages substantially in favour of respondent – negligence of the two drivers deviated in equal measure from the norm of the reasonable person – when appeal court may interfere with the narrow exercise of judicial discretion by trial court in apportioning damages.
Published: Fri, 20 May 2016 13:32:29 GMT
City of Johannesburg v Dladla (403/15)  ZASCA 66 (18 May 2016)
Local authority – powers and duties when providing temporary accommodation – rules of a shelter providing temporary accommodation in an emergency are not unconstitutional – appeal upheld.
Published: Thu, 19 May 2016 07:03:00 GMT
Radzilane v S (127/15)  ZASCA 64 (16 May 2016)
Criminal Procedure – sections 297(7) and (9) of the Criminal Procedure Act 51 of 1977 do not provide a mechanism to impose a new sentence pursuant to an application to enforce a suspended sentence – court a quo correct in finding that regional court exceeded its powers – matter remitted to trial court to consider application to enforce suspended sentence.
Published: Mon, 16 May 2016 11:59:17 GMT
Nova Property Group Holdings v Cobbett (20815/2014)  ZASCA 63 (12 May 2016)
Appealability – interlocutory application – appealable under s 17(1) of the Superior Courts Act 10 of 2013.
Company law – interpretation of s 26(2) of the Companies Act 71 of 2008 – provides an unqualified right of access to a company’s securities register – person’s motive for access not relevant – right of access not subject to the provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA).
Rule 35 (14) – appellants failed to demonstrate that the documents sought are relevant to a reasonably anticipated issue in the main application.
Published: Fri, 13 May 2016 12:00:56 GMT
Mojapelo v The State (574/2014)  ZASCA 22 (18 March 2016)
Criminal Law: Whether the State proved beyond a reasonable doubt that appellants are guilty of murder where the only evidence is that of an accomplice, warned in terms of s 204 of the Criminal Procedure Act 51 of 1977, who was found to be untruthful and whose evidence was uncorroborated.
Published: Fri, 06 May 2016 13:27:18 GMT
Off-Beat Holiday Club v Sanbonani Holiday Spa (20231/2014)  ZASCA 62 (25 April 2016)
Prescription – extinctive prescription – whether claims brought by minority shareholders under ss 252 and 266 of the Companies Act 61 of 1973 constitute ‘debts’ as envisaged in s 10 of the Prescription Act 68 of 1969 and are susceptible to prescription – whether s 13(1)(e) of the Prescription Act insulates a claim brought under s 266 of the Companies Act from prescription.
Published: Thu, 28 Apr 2016 09:20:21 GMT
Umso Construction (Pty) Ltd v MEC for Roads and Public Works Eastern Cape Province (20800/2014) ZASCA 61 (14 April 2016)
Administrative law – validity of decision to award tender – whether successful tenderer had duty to disclose business rescue application – whether tender requirements were met – appropriate remedy in the circumstances – whether exceptional circumstances exist to justify the grant of a substitution order – on the facts, exceptional circumstances established.
First National Bank v Scenematic One (Pty) Ltd (20832/2014) ZASCA 60 (14 April 2016)
Prescription – application of ss 11 and 12(3) of the Prescription Act 68 of 1969 – claim to recover sum of money deducted through unauthorised debit order payments – appeals in respect of the special pleas of prescription dismissed.
Published: Fri, 15 Apr 2016 08:52:44 GMT
Compensation Solutions (Pty) Ltd v The Compensation Commissioner (072/2015)  ZASCA 59 (13 April 2016)
Contempt of court – repeated failure by the Compensation Commissioner to comply with a settlement order of which he was aware – settlement order has the full force of a court order – commissioner not establishing reasonable doubt that his non-compliance was not wilful and mala fide –appellant proved requisites for civil contempt of court and the commissioner’s committal to prison therefor.
BSB International Link CC v Readam South Africa (Pty) Ltd (279/2015)  ZASCA 58 (13 April 2016)
Review – municipality – illegal building – sections 7 and 21 National Building Regulations and Building Standards Act 103 of 1977 (the NBSA) – adjacent property owner – locus standi at common law – demolition order – exercise of discretion – stark dichotomy between discretion at common law and discretion in terms of s 21 of the NBSA.
Published: Thu, 14 Apr 2016 08:16:05 GMT
Chiliza v Govender (20837/14)  ZASCA 47 (31 March 2016)
Interpretation – sections 9(4A) and 11(2A)(c) of the Insolvency Act 24 of 1936 – couched in peremptory terms – failure to furnish petition and – failure to serve provisional order on the South African Revenue Service constitutes non-compliance – petition furnished but provisional order not served on SARS – final order of sequestration set aside.
Published: Tue, 05 Apr 2016 13:41:26 GMT
Merial v Cipla Vet (20772/2014)  ZASCA 57 (1 April 2016)
Patents – Validity – certainty of claim – compound consisting of a number of ingredients, each fulfilling a specific function – combination of potential ingredients to be selected accordingly – crystallisation inhibitor test to determine whether crystallisation inhibitor within scope of claim – whether dual functions of potential ingredients impact on clarity – interpretation of patent a process of construction by a mind willing to understand, not deconstruction by a mind desirous of misunderstanding – skilled addressee capable of understanding ambit of claim, and only real challenge to clarity based on contrived or ‘mythical’ hypotheticals – patent not invalid for lack of clarity – infringement – held to have been proved.
Trustco Group International (Pty) Ltd v Vodacom (Pty) Ltd (82/2015)  ZASCA 56 (1 April 2016)
Power of Registrar of Patents to extend time periods within which any act or thing is required to be done in terms of the Patents Act 57 of 1978 – provisions of s 16(2) of the Act not limited by Regulation 83, which sets the times for filing a counterclaim in relation to an application for restoration of a patent.
Van Niekerk v Kruger and others (20632/14)  ZASCA 55 (1 April 2016)
Wills Act 7 of 1953, section 4 – whether deceased had testamentary capacity to execute a will – Expert evidence – court must be satisfied with the reasoning which led to conclusion by expert witness- held testatrix not of sound mind at time of execution of will.
Foxlake Investments v Ultimate Raft Foundation Design (144/15)  ZASCA 54 (01 April 2016)
Civil Procedure and Practice – an order amending the incorrect description of a defendant in a summons does not amount to a substitution of the defendant where the summons was served at the offices and on the director shared by the incorrectly cited party and the true defendant who was clearly recognisable from the original summons – original summons complied with the requirements of s 15(1) of the Prescription Act 68 of 1969 and service thereof interrupted running of prescription.
CSARS v Coltrade International (54/2015)  ZASCA 53 (1 April 2016)
Customs duty levied under Customs and Excise Act 91 of 1964 – principles to be applied in interpreting the Schedule to the Act ─ correct tariff to be applied in respect of coconut milk, coconut cream and coconut powder.
Minister of Safety and Security v Tembop Recovery (006/15)  ZASCA 52 (1 April 2016)
Civil Procedure ─ Uniform rules of court ─ application to strike out the defence in application for return of items seized in terms of warrant of search and seizure ─ where such application is made, and criminal proceedings are pending or have been reinstituted, court must consider the interests of justice, policy and public considerations in the exercise of its discretion to grant order ─ court should be loath to issue civil declaratory orders in matters which are the subject of criminal proceedings.
Nndanduleni v The State (84/2014)  ZASCA 51 (1 April 2016)
Criminal Procedure – court a quo granted leave to appeal against conviction on some charges and refused leave on others – appellant applying for leave to appeal against conviction on those charges in respect of which leave was refused – appellants found guilty on the basis of common purpose – sentence – cumulative effect.
Mitchell NO v Wren (153/2015)  ZASCA 50 (1 April 2016)
Will ─ two notes written by deceased immediately before her death –wording of notes and circumstances under which they were written manifesting that deceased intended them to be an amendment of her existing will ─ no direct evidence as to which written last ─ surrounding circumstances and probabilities as a whole indicating that one of the notes was written after the other and was to be accepted as a codicil to deceased’s existing will.
Published: Mon, 04 Apr 2016 08:48:44 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Mon, 04 Apr 2016 08:27:01 GMT
Van Schalkwyk v The State (680/15)  ZASCA 49 (31 March 2016)
Criminal Law and Procedure – mens rea – evidence – assault with hay hook across the chest of the deceased – piercing heart and severing rib – conviction of murder with intention in the form of dolus eventualis not correct.
Kosmos v Leopont (20546/2014)  ZASCA 48 (31 March 2016)
Prescription – when does prescriptive period commence – agreements of sale of erven not yet created – appellants claimed specific performance of ancillary obligations under the agreements – special plea of prescription raised – respondent contended that prescription commenced on conclusion of the agreements – prescription could only commence when sale agreements enforceable – special plea of prescription dismissed.
MV ‘Shark Team’ v Tallman (190/2015)  ZASCA 46 (31 March 2016)
Admiralty Jurisdiction Regulation Act 105 of 1983 – maritime claim involving loss of life at sea – boat capsized when struck by unusually large wave – whether skipper of boat negligent – no negligence established – appeal allowed and claim for damages dismissed.
Itzikowitz v Absa Bank Ltd (20729/2014)  ZASCA 43 (31 March 2016)
Delict – pure economic loss – shareholder suing for diminution in the value of his shareholding – wrong committed against company, not shareholder – shareholder not entitled to recover loss.
Published: Fri, 01 Apr 2016 07:21:27 GMT
New court roll for May 2016
Published: Thu, 31 Mar 2016 12:33:45 GMT
Grainco (Pty) Ltd v Van der Merwe (20693/2014))  ZASCA 42 (30 March 2016)
Purchase and sale ─ sale of business, inclusive of goodwill ─ implied prohibition against seller canvassing customers of sold business ─ prohibition a term implied by law ─ only seller bound by it.
Published: Wed, 30 Mar 2016 13:21:50 GMT
Adcock Ingram Intellectual Property (Pty) Ltd v Actor Holdings (Pty) Ltd (20625/14)  ZASCA 41 (24 March 2016)
Trade Marks Act 194 of 1993 – s 21 read with s 45(3) thereof empowers the Registrar of Trade Marks to condone the late filing of opposition to an application for the registration of a trade mark and extend the three month period prescribed for the filing of opposition.
De Villiers v The State & another (20732/14)  ZASCA 38 (24 March 2016)
Review – a high court of two judges sitting as a review court is a court of first instance as contemplated in s 16(1)(a) of the Superior Courts Act 10 of 2013 – that court is thus empowered to grant leave to appeal to the Supreme Court of Appeal in terms of s 16(1)(a)(ii) – duress allegedly exerted by legal representatives on appellant to plead guilty to theft not borne out by the facts.
Shamduth Singh & others v The State 862/2015  ZASCA 37 (24 March 2016)
Undercover operation conducted in terms of s 252A of the Criminal Procedure Act 51 of 1977 – merits of convictions not challenged – challenge based on s 35(5) of the Constitution – fairness of trial conceded – rights violations challenged on the basis that the conduct of the undercover operation was detrimental to the administration of justice – not alleged that the rights violation affected the appellants themselves – alleged the rights violated were those of the general public – enquiry – no onus of proof – entails a value judgment – entails a balancing of rights in the Bill of Rights and respect for the judicial process – on the facts the undercover operation was aimed at protecting the general public – no flagrant disregard of rights of public.
Gihwala v Grancy Property Ltd (20760/2014)  ZASCA 35 (24 March 2016)
Investment agreement – express and tacit terms – breach – damages – heads of damage – claims not excluded by rule in Foss v Harbottle – declaration of delinquency in terms of section 162(5)(c) of the Companies Act 71 of 2008 – section applies in cases of substantial misconduct by directors – not retrospective in its operation – section a rational response to the problem of delinquency by directors – not unconstitutional – circumstances justifying the making of a declaration of delinquency.
Mabaso v The State (200/2015)  ZASCA 29 (23 March 2016)
Pointing out by accused person in terms of s 218 of the Criminal Procedure Act 51 of 1977 ─ flagrant disregard of accused’s constitutional right to legal representation ─ unlawful production of a confession in the guise of a pointing-out ─ handwritten notes of pointing-out not read back to accused ─ notes not constituting admissible probative material ─ conviction and sentence set aside.
Nurcha Finance Company (Pty) Ltd v Oudtshoorn Municipality (20821/2014)  ZASCA 28 (23 March 2016)
Undertaking to pay amounts due in terms of a building contract to third party ─ failure to do so giving rise to claim for damages ─ claim not precluded by virtue of subsequent cancellation of building contract.
Mothupi v MEC, Department of Health Free State (20598/2014)  ZASCA 27 (22 March 2016)
Application for condonation under s 3(4) of Act 40 of 2002 ─ requirements of ─ good cause established for condonation.
Fisher v Natal Rubber Compounders (Pty) Ltd (20640/14)  ZASCA 33 (24 March 2016)
Prescription ─ cession of a claim ─ action instituted by cedent against the debtor ─ claim ceded after litis contestatio and substitution of cessionary for cedent not objected to ─ debt not prescribed in terms s 15(2) and (6) of the Prescription Act 68 of 1969.
Published: Tue, 29 Mar 2016 11:22:26 GMT
Brookstein v Brookstein (20808/14)  ZASCA 40 (24 March 2016)
Arbitration Act 42 of 1965 – interpretation of ‘matrimonial cause or matter incidental to such cause’ in s 2 of the Act – court order incorporating settlement agreement disposed of all matrimonial issues and its natural consequences – deliberate non-disclosure of true value of accrual – delictual claim susceptible to arbitration – Matrimonial Property Act 88 of 1984 – date for determination of value of accrual – date of dissolution appropriate date, not litis contestatio.
Pro Tempo v Van der Merwe (20853/2014)  ZASCA 39 (24 March 2016)
Delict – erection by school of steel rods on playground to support recently planted saplings – school catering for learners who struggle with learning disabilities – child impaled on steel rod after leaning or sitting on it – appellant negligent – considerations of public and legal policy do not dictate exclusion of liability.
Botha NO v The Governing Body of the Eljada Institute & another (20530/14)  ZASCA 36 (24 March 2016)
Application for the reinstatement of a patient, 30 years old, functioning at the level of a child three years of age, at a community mental health facility – patient a danger to herself, other occupants and staff – institution lacking resources to cope – audi principle had been extensively applied – application dismissed in the high court – application for leave to appeal to SCA – dismissed – no reasonable prospects of success.
Gonya v S (891/15)  ZASCA 34 (24 March 2016)
Criminal law and procedure – appeal for leave to appeal against refusal by high court to grant leave to appeal brought by way of petition from the regional court - Supreme Court of Appeal does not have jurisdiction to hear the appeal directly from the regional court – trial commenced prior to promulgation of the Superior Courts Act 10 of 2013 – appeal must be determined in terms of the Supreme Court Act 59 of 1959 – appellant granted leave to appeal against the non-parole period of the sentence – s 276B of the Criminal Procedure Act 51 of 1977.
Feedpro Animal Nutrition v Nienaber NO (20866/2014)  ZASCA 32 (23 March 2016)
Prescription – Dismissal of special plea: the trial court erred in separating the special plea from the remaining issues in the trial where the agreed facts in the stated case were inadequate: need for evidence to be led: matter
remitted to the trial court for determination of the special plea together with the remaining issues in light of evidence to be led.
Bunton v Coetzee (20794/2014)  ZASCA 31 (23 March 2016)
Civil Procedure – agreement by parties aimed at achieving inexpensive and expeditious completion of litigation – high court erroneously refusing to permit agreed procedure.
Eravin Construction CC v Bekker NO (20736/2014)  ZASCA 30 (23 March 2016)
Company law – whether void disposition in terms of s 341(2) of the Companies Act 61 of 1973 recoverable by creditor or whether enforcement precluded by s 154(2) of the Companies Act 71 of 2008 – whether pre-business rescue debt – meaning of ‘debt owed’.
Published: Thu, 24 Mar 2016 11:01:08 GMT
Pillay v The State (453/2015)  ZASCA 26 (18 March 2016)
Criminal law and procedure - Assessment of evidence – trial court’s failure to evaluate evidence of a child witness who is also a single witness by overlooking various contradictions in the evidence and their effect on its credibility constituted misdirection.Media Summary
Madalane v Van Wyk (87/2015)  ZASCA 25 (18 March 2016)
Locus standi in judicio – mother purporting to institute action on behalf of her adult daughter – lacks locus standi to do so. Media Summary
SAMWU v Mokgatla (20810/2014)  ZASCA 24 (18 March 2015)
Labour Law – concurrent and exclusive jurisdiction of the Labour Court and the High Court – dispute based on non-adherence to disciplinary procedures provided in the constitution of a trade union – s 158(1)(e) of the Labour Relations Act 66 of 1995 – matter within exclusive jurisdiction of the Labour Court.
Rumdel Cape v SA National Roads Agency (234/2015)  ZASCA 23 (18 March 2016)
Declaratory order – should not be issued where dispute has become only of academic interest and where rights of the parties are not determined.
Viking Inshore Fishing (Pty) Ltd v Mutual and Federal Insurance Co Ltd (41/2015)  ZASCA 21 (18 March 2016)
Marine Insurance – hull policy – Inchmaree clauses – vessel lost in collision as a result of negligence – whether claim for indemnity barred by virtue of a breach of a Merchant Shipping Act warranty – application of warranty – whether collision resulting from a want of due diligence by the owner. Media Summary
MEC for the Department of Public Work, Roads and Transport v Botha (20811/2014)  ZASCA 20 (17 March 2016)
Delict – tree falling across public road – public authority responsible for safety of road users – liability of public authority for loss and damage caused by a tree falling onto a public road – court a quo erring in imposing a wide general duty upon public authority in the absence of relevant evidence – imposition of duty not necessary for just determination of case.
Zwane v The State (700/15)  ZASCA 19 (17 March 2016)
Criminal Law – Appeal against conviction on count of murder and sentence of life imprisonment – Appeal on conviction dismissed – Failure to bring to the attention of the appellant provisions of s 51 of Criminal Law Amendment Act 105 of 1997 vitiates the imposition of minimum sentence of life imprisonment – Sentence set aside and replaced with 20 years’ imprisonment.
Published: Wed, 23 Mar 2016 09:27:47 GMT
Distell Ltd v KZN Wines and Spirits CC (20291/2014)  ZASCA 18 (15 March 2016)
Trade mark infringement: the marks KNIGHT’S GOLD and KNIGHTS in respect of whisky are not likely to be confused with the mark BLACK KNIGHT: no infringement of s 34(1)(a) of the Trade Marks Act 94 of 1993 by selling BLACK KNIGHT in competition with KNIGHTS.
The Minister of Justice and Constitutional Development v The Southern African Litigation Centre (867/15)  ZASCA 17 (15 March 2016)
International law - International Criminal Court (ICC) – South Africa’s obligations to arrest and surrender person against whom the ICC has issued an arrest warrant – Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 – provisions of sections 4(2) and 10(9) – whether head of state enjoys immunity from arrest in terms of customary international law – provisions of section 4(1) of the Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA) – whether immunity exists by virtue of hosting agreement concluded with African Union and ministerial proclamation under section 5(3) of DIPA.
Practice and procedure – application for admission as amicus curiae – rule 16 of rules of Supreme Court of Appeal – process to be followed – admission as amicus does not give rise to a right to make oral submissions – whether entitled to do so determined by Court hearing the appeal – party may only be admitted as amicus if it has new contentions to advance – what constitutes new contentions.
Swart v Heine (192/15)  ZASCA 16 (14 March 2016)
Company law ─ application for rescission of an order enabling enquiry into the affairs of a company in voluntary liquidation in terms of s 417 of the Companies Act 61 of 1973 ─ ex parte application made to enable enquiry met the requirements of s 388 of the Act ─ appeal dismissed with costs.
Published: Tue, 15 Mar 2016 19:02:12 GMT
Du Toit v Ntshinghila (733/2015)  ZASCA 15 (11 March 2016)
Criminal Law and Procedure – disclosure – accused charged with possession of child pornography – whether prosecution obliged to furnish accused with copies of images said to constitute child pornography as part of pre-trial disclosure.
Mohapi v De Beers Pension Fund (64/2015)  ZASCA 14 (11 March 2016)
Pension Fund Rules – Interpretation – member’s entitlement to retirement on the grounds of medical infirmity – precluded where member fairly dismissed from employment – also precluded where employer of the opinion that member not incapable of carrying working on the ground of medical infirmity.
Renasa Insurance Company Limited v Watson (32/2014)  ZASCA 13 (11 March 2016)
Insurance policy ─ alleged fraudulent claim ─ arson ─ insurer failing to discharge onus of proving that insured was the arsonist or that insured is precluded from claiming loss due to his failure to take reasonable steps and precautions to prevent the loss.
Nkabinde v The Judicial Service Commission (20857/2014)  ZASCA 12 (10 March 2016)
Complaint against judge lodged with the Judicial Service Commission (JSC) in 2008, and investigated in terms of procedure for alleged judicial misconduct applicable at that time – investigation and outcome set aside by court order, and inquiry begun de novo in 2011, by which time a new procedure was applicable in terms of amendments to the Judicial Service Commission Act 9 of 1994 (JSCA) – JSC following new procedure and establishing a Judicial Conduct Tribunal – whether the new procedure impermissibly retrospectively applied – no substantive rights affected – application of new procedure sensible, fair and just – not impermissible – whether s 24 of the JSCA, by permitting a prosecutor to be involved in the collection and leading of evidence before the Tribunal is in breach of the doctrine of the separation of powers and unconstitutional and affects judicial independence – prosecutor not part of the executive, and independence guaranteed by s 179 of the Constitution – Tribunal hearing conducted in an inquisitorial manner – prosecutor not involved in making of decision by Tribunal or JSC – doctrine of the separation of powers not infringed and judicial independence not threatened – s 24 of the JSCA accordingly not unconstitutional.
Lourens v Speaker of the National Assembly of Parliament (20827/2014)  ZASCA 11 (10 March 2016)
The Rules and practice of Parliament and its failure, and that of the Minister of Arts and Culture, to publish all statutes in all official languages does not constitute unfair discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
Van der Bank v The State (245/15)  ZASCA 10 (09 March 2016).
Appellant convicted of rape and indecent assault - sexual intercourse with sixteen year-old girl who has a mental capacity well below her age - consent alleged - consent can only be given by person capable of consenting - expert evidence proving complainant incapable of consenting - appeal dismissed.
Published: Fri, 11 Mar 2016 12:01:37 GMT
Navin Naidoo v The Standard Bank of South Africa (20595/14)  ZASCA 9 (9 March 2016)
National Credit Act 34 of 2005 – notice in terms of s 129(1) – purpose is to bring default to the attention of a consumer – on appellant’s own pleadings he had been aware of the notice and had responded thereto – defence amounts to an abuse of process – appeal dismissed.
Published: Thu, 10 Mar 2016 07:56:37 GMT
Director of Public Prosecutions, Gauteng v Mphaphama (20454/14)  ZASCA 8 (3 March 2016)
Criminal Law and Procedure – application for special leave to appeal under s 16(1)(b) read with s 17(3) of the Superior Courts Act 10 of 2013 – High Court having reduced sentence of the regional court from life imprisonment to 20 years – State has no right to appeal further to the SCA – appeal struck from the roll.
Mndebele v S (173/2015)  ZASCA 7 (3 March 2016)
Criminal Procedure; appeal against refusal of a petition by High Court -common cause that sentence of 8 years imprisonment unduly harsh - reasonable prospects of success - appeal upheld - leave to appeal to High Court against sentence granted.
Minister of Police v Dlwathi (20604/14)  ZASCA 6 (2 March 2016)
Damages – facial injuries, loss of hearing and depression resulting from unlawful assault by police – general damages award of R675 000 for pain, suffering, disfigurement and loss of the amenities of life excessive – reduced to R200 000.
Published: Fri, 04 Mar 2016 08:39:59 GMT
CSARS v Kluh Investments (Pty) Ltd (115/2015)  ZASCA 5 (1 March 2016)
Income Tax – whether taxpayer conducting farming operations for the purpose of s 26 of the Income Tax Act 58 of 1962 read with paragraph 14 of the First Schedule to the Act.
Lubando v The State (347/2015)  ZASCA 4 (1 March 2016)
Application for leave to appeal to High Court – conviction of rape – reasonable prospects of success – failure to call doctor to explain gynaecological findings – absence of corroboration of minor complainant’s evidence – Criminal Law Amendment Act 105 of 1997 – minimum sentence – failure to prove age of complainant.
Published: Tue, 01 Mar 2016 13:29:31 GMT
Ntlanyeni v The State (015/2016)  ZASCA 3 (25 February 2016)
Reconsideration of an application for leave of appeal under s 17(2)(f) of the Superior Courts Act 10 of 2013 – lodging an application for reconsideration outside stipulated one month period – there is no time limit where the President of the Supreme Court of Appeal refers an order for reconsideration mero motu.
Published: Fri, 26 Feb 2016 08:06:05 GMT
CSARS v Capstone 556 (Pty) Ltd (20844/2014)  ZASCA 2 (9 February 2016)
Income tax ─ whether proceeds of sale of shares revenue or a receipt of a capital nature ─ dominant purpose of acquisition of shares long term capital investment to rescue a distressed business ─ at time of acquisition sale of shares at a profit contemplated only as one of several possibilities to be explored at the appropriate time in future ─ subsequent sale of shares unsolicited and fortuitous ─ proceeds a receipt of a capital nature ─ cross-appeal ─ calculation of base cost for capital gains tax purposes ─ inclusion of indemnity payment.
Published: Wed, 10 Feb 2016 12:53:38 GMT
City of Tshwane Metropolitan Municipality v PJ Mitchell (38/2015)  ZASCA 1 (29 January 2016)
Local Government – Section 118(3) of the Local Government: Municipal Systems Act 32 of 2000 creating charge on land (hypothec) in favour of municipality for debt due to it for rates, taxes and services – hypothec not extinguished upon transfer – municipality must comply with jurisdictional requirements in terms of own by-laws before pursuing owner for debt.
Published: Tue, 02 Feb 2016 08:17:41 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Thu, 28 Jan 2016 10:14:30 GMT
Updated court roll for Feb/Mar 2016
Published: Wed, 27 Jan 2016 10:59:55 GMT
Updated court roll for Feb/Mar 2016
Published: Mon, 04 Jan 2016 12:49:35 GMT
Lagoon Beach Hotel v Lehane (235/2015)  ZASCA 210 (21 December 2015)
Cross-border insolvency ─ recognition of foreign trustee ─ interim interdict serving as preservation order ─ nature of evidence required to obtain such an order ─ practical common sense approach to the issue.
Published: Mon, 04 Jan 2016 12:37:48 GMT