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Mandela v The Executors, Estate Late Nelson Rolihlahla Mandela & others (131/17)  ZASCA02 (19 January 2018)
Administrative law – common law review – unreasonable delay – assumption of prospects of success on merits – outweighed by potential for severe resultant prejudice – refusal of condonation – whether court justified in mulcting appellant with costs.
Published: Fri, 19 Jan 2018 11:10:00 GMT
Basson v Hugo & others (968/16)  ZASCA 01 (17 January 2018)
Promotion of Administrative Justice Act 3 of 2000, s 7(2) – failure to exhaust internal remedy prior to instituting judicial review proceedings – whether this is an appropriate case to grant exemption in terms of s 7(2)(c) where administrator alleged to be biased or reasonably suspected of bias – court finding that internal remedy ineffective and inadequate.
Published: Fri, 19 Jan 2018 09:13:25 GMT
Merchant Commercial Finance (Pty) Ltd v Katana Foods CC (1238/2016)  ZASCA 191 (20 December 2017)
Fraudulent scheme causing a factoring business to make payments by factoring fictitious sales – respondent’s director falsely verifying in a series of transactions that goods had been sold and delivered to respondent – in last three transactions such verification not made before payments made – prior conduct having lulled appellant into making such payments – causation proved in regard to loss suffered by reason of last payments.
Volkswagen South Africa (Pty) Ltd v Commissioner for SARS (1123/2016)  ZASCA 190 (20 December 2017)
Income tax – rebate paid to motor manufacturers to encourage rationalisation of models – rebate dependent upon capital investment made by manufacturers in order to rationalise – rebate of a capital nature and not taxable.
Published: Fri, 19 Jan 2018 09:12:41 GMT
New Court Roll for February/March 2018
Published: Thu, 11 Jan 2018 10:08:44 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Thu, 11 Jan 2018 08:33:26 GMT
Cochrane Steel Products (Pty) Ltd v M-Systems Group (1272/2016)  ZASCA 189 (13 December 2017)
Disclaimer and admission in relation to the trade mark ‘CLEARVU’ – registration of mark giving no right to the exclusive use of the words ‘clear’ and view’ separately and apart from the mark – admission that the registration of this mark shall not debar others from the bona fide descriptive use in the course of trade of the words ‘clear view’ and ‘view’.
RAF & others v Gouws & another (056/2017)  ZASCA 188 (13 December 2017)
Interpretation and application of Road Accident Fund Act 56 of 1996 and Regulations thereunder – primary purpose of Appeal Tribunal is to determine a dispute concerning seriousness of injury – Appeal Tribunal does not have final say on question of link between the driving of a motor vehicle and the injuries allegedly sustained – causation to be determined by court.
Head of Department: Western Cape Education Department & another v S (Women’s Legal Centre as Amicus Curiae) (1209/2016)  ZASCA 187 (13 December 2017)
Interpretation and application of s 40(1) of the South African Schools Act 84 of 1996 – subsection provides for joint and several liability – fee-exemption applications can, however, be processed in terms of the Act and the Regulations to enable single parents separated from their partners or divorced from a spouse to have their applications assessed in relation to their own personal circumstances and not on combined income.
The Minister of Home Affairs v Ruta (30/2017)  ZASCA 186 (13 December 2017)
Refugees Act 130 of 1998 – ss 21 and 22 – contravention of ss 9 and 49(i) of the Immigration Act 13 of 2002 – respondent found in possession of fraudulent asylum seeker permit and failure on his part to apply for asylum without delay – respondent not entitled to rely on protection afforded by Refugees Act – appeal upheld - appellant entitled to deal with respondent in terms of the provisions of ss 32 and 34 of the Immigration Act.
Published: Wed, 13 Dec 2017 10:32:16 GMT
The Chemical Industries National Provident Fund v Tristar Investments (960/2016)  ZASCA 184 (6 December 2017)
Validity of an investment consulting agreement – whether the signatories who signed the agreement on behalf of the appellant had authority – whether the agreement was ultra vires the rules of the appellant.
Cradle City v Lindley Farm (1212/2016)  ZASCA 185 (06 December 2017)
Interpretation – Sale Agreement – Indemnity and Undertaking – respondent to provide vacant occupation – reciprocity principle applicable – the obligations interlinked – remedy – judgment suspended until vacant occupation is given – counterclaim – absolution from the instance.
Published: Wed, 06 Dec 2017 18:01:29 GMT
De Beer v The State (1210/2016) ZASCA 183 (5 December 2017)
Criminal Law and Procedure: appeal to high court against conviction of rape: after notice to appellant sentence increased to life imprisonment: court entitled to increase sentence in terms of s309 (3) of the Criminal Procedure Act 51 of 1977: sentence disproportionate: sentence of regional court reinstated.
Bakane v The State (1180/2016)  ZASCA 182 (5 December 2017)
Criminal law and procedure – evidence obtained contrary to the provisions of s 35 of the Constitution – appellant assaulted - trial rendered unfair - onus on the State to prove that a confession or admission was made voluntarily - no admissible incriminating evidence against the appellant – convictions and sentences set aside.
Milton Zwane & others v The State, (1296/2016)  ZASCA 179 (1 December 2017)
Appeal against sentence – misdirections by the court a quo, including failure to take period of incarceration into account pending finalisation of the trial – sentences reduced.
Van der Westhuizen v Burger (204/2017)  ZASCA 178 (1 December 2017)
Actio de ferris – defence of provocation – ostrich provoked – owner not liable.
City Capital SA Property Holdings Ltd v Chavonnes Badenhorst St Clair Cooper NO (85/2017)  ZASCA 177 (1 December 2017)
Companies Act 71 of 2008 : when making an order under s 20(9)(a), a court has no power to order a person to act as the liquidator of a company : only the Master may do so : relief sought by appellant having no practical effect : for this reason appeal dismissed.
Mohamed’s Leisure Holdings (Pty) Ltd v Southern Sun Hotel Interests (Pty) Ltd (183/17)  ZASCA 176 (1 December 2017)
Contract law – cancellation clause not unfair or unreasonable – doctrine of pacta sunt servanda to be enforced and applied – impermissible to infuse principles of ubuntu and good faith in the circumstances.
MEC for Local Government, Environmental Affairs and Development Planning, Western Cape & another v Hans Ulrich Plotz NO & another (495/2017)  ZASCA 175 (1 December 2017)
Administrative law – Review of decision of director determining administrative penalty payable in terms of s 24G(4) of the National Environmental Management Act 107 of 1998 (NEMA) – Duty to exhaust internal remedies before instituting legal proceedings – s 7(2) of the Promotion of Administrative Justice Act 3 of 2000 - duty absolute except where court grants exemption upon being satisfied that there are ‘exceptional circumstances’ and that it is in the interest of justice that exemption be given - s 43(2) of NEMA affords internal remedy of appeal to MEC against decision of director - submission of procedurally defective internal appeal out of time – failure to seek condonation – failure to take reasonable steps to exhaust available internal remedy – exemption not justified – appeal succeeds.
Ndengezi v The State (876/2017)  ZASCA 174 (1 December 2017)
Appeal against conviction and sentence – doctrine of common purpose improperly applied – conviction set aside – sentence reduced based on misdirections including failure to take into account considerable period spent in detention pending finalisation of trial.
Malele v The State (723/2016)  ZASCA 173 (1 December 2017)
Reconsideration in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013 of a decision of two judges of the court refusing leave to appeal –principles in relation to the application of the doctrine of common purpose to be considered – reasonable prospect that another court may overturn the murder convictions.
Stedall v Aspeling (1326/2016)  ZASCA 172 (1December 2017)
Delict: claim based on negligent omission: young child falling into swimming pool: necessity to show landowner’s omission to secure gate in pool fence wrongful: child under parental supervision: wrongfulness and negligence of landowner not established.
Omega Risk Solutions (Pty) Ltd v De Witt (149/2017)  ZASCA 171 (1 December 2017)
Prescription Act 68 of 1969 – s 12(3) – identity of debtor and facts from which debt arose – objective standard of reasonable care – statutory attribution of knowledge to creditor – claims prescribed.
Wierda Road West Property (Pty) Ltd v SizweNtsalubaGobodo Inc (1156/16)  ZASCA 170 (1 December 2017)
Lease – National Building Regulations and Building Standards Act 103 of 1977 – lease agreement not rendered invalid and unenforceable by ss (4)(1) and 14(1), read with s 4(4) and s 14(4)(a) of the Act.
Drake Flemmer & Orsmond Inc & another v Gajjar NO (21/2017)  ZASCA 169 (1 December 2017)
Contract – breach of mandate by first attorneys in under-settling RAF claim – breach by second attorneys in allowing claim against first attorneys to prescribe – damages to be assessed at notional trial date of RAF claim.
Contract – damages – whether court a quo ought to have reduced damages for delay in bringing claim to trial.
Interest – applicability of s 2A(5) of Prescribed Rate of Interest Act 55 of 1975.
Media24 (Pty) Ltd v Estate Late Du Plessis (169/2017)  ZASCA 168 (1 December 2017)
Appeal ─ Determination of the price of shares by an independent expert ─ appeal against the decision to enforce the award made by an independent expert ─ whether there was a manifest error in the report of the independent expert in that he went beyond the terms of the mandate ─ whether the court a quo correctly found that there was no manifest error.
Published: Tue, 05 Dec 2017 20:17:56 GMT
Director of Public Prosecutions, Limpopo v Mokgotho (068/2017)  ZASCA 159 (24 November 2017)
Criminal law and procedure: Criminal Procedure Act 51 of 1977, s 319: application for leave to appeal by State on question of law: acquittal of accused: trial court finding that State failed to prove guilt of accused beyond reasonable doubt: such finding a result of the trial court applying a wrong test in evaluating evidence: such error constituting a question of law.
Published: Tue, 05 Dec 2017 19:37:47 GMT
Msimango v The State (698/2017)  ZASCA 181 (01 December 2017)
Criminal Law – appellant convicted of one count of robbery with aggravating circumstances read with s 51(2) of the Criminal Law Amendment Act 105 of 1997 and two counts of attempted murder based on common purpose. No allegations of common purpose in the charge sheet.
Published: Mon, 04 Dec 2017 18:46:37 GMT
Diener N.O. v Minister of Justice (926/2016)  ZASCA 180 (1 December 2017)
Companies Act 71 of 2008 – business rescue – whether, when business rescue converted to liquidation, business rescue practitioner’s claim for remuneration and expenses enjoys a ‘super-preference’ over all creditors, secured or unsecured – whether, when business rescue proceedings converted to liquidation proceedings, date of liquidation is date of commencement of business rescue proceedings or date liquidation application filed – whether business rescue practitioner’s claim for remuneration and expenses must be proved in terms of s 44 of the Insolvency Act 24 of 1936.
Published: Fri, 01 Dec 2017 15:27:42 GMT
Esquire Consulting and Marketing CC v Sea Glades Holdings (Pty) Ltd (1315/2016)  ZASCA 167 (30 November 2017)
Simultaneous applications for rezoning and subdivision of land brought under the Land Use Planning Ordinance 15 of 1985, Cape (LUPO): subdivision granted but rezoning of certain erven to business deferred for further information: later application brought for rezoning of those erven to business: this construed as part of original application that had been deferred: two year utilisation period envisaged in s 16(2)(a) of LUPO therefore not applicable: property in any event utilized for business purposes as envisaged by LUPO within that period: claim for an interdict based on allegation that property’s use for business purposes was illegal accordingly dismissed.
Published: Thu, 30 Nov 2017 09:35:33 GMT
Roazar CC v The Falls Supermarket (232/2017)  ZASCA 166 (29 November 2017)
Contract – whether contract can be terminated without entering into negotiations – duty to negotiate in good faith – appellant not obliged to renew lease agreement – application for eviction upheld – not competent for court to import term not intended by parties simply on the basis of ubuntu.
Pan African Mineral Development Company (Pty) Ltd & others v Aquila Steel (S Africa) (Pty) Ltd (179/2017)  ZASCA 165 (29 November 2017)
Mineral and Petroleum Resources Development Act 28 of 2002 – s16 read with Item 8 of Schedule 2 – Department of Mineral Resources granting rights to two different entities in respect of same land and minerals – once the holder of an unused old order right submits an application within the one year exclusivity period, both the unused old order right and the exclusivity which it confers remain extant until the application is either granted and dealt with in terms of s 17 or refused - where the application is made but neither granted nor refused the unused old order right and its exclusivity period endure – that precludes
C Septoo obo J M Septoo & another v The Road Accident Fund (058/2017)  ZASCA 164 (29 November 2017)
Delict – action for damages – loss of support – dependant's action – breadwinner died as a result of own negligence – single vehicle accident – wrongfulness not established against the Road Accident Fund – appeal dismissed.
Minister of Rural Development and Land Reform v Normandien Farms & others; Mathimbane & others v Normandien Farms Cases 512/2016 & 370/2017  ZASCA 163 (29 November 2017)
Civil procedure – application for condonation and reinstatement by appellants in Case 370/2017 (‘occupants’) granted in interests of justice despite egregious non-compliance with rules relating to heads of argument.
Contempt of court – occupants failed to establish beyond reasonable doubt that respondent (‘Normandien’) in contempt of appellate process – contempt application, including related postponement application, dismissed.
Land reform – whether Minister has power under Land Reform: Provision of Land and Assistance Act 126 of 1993 to make land available solely for purposes of grazing – court a quo erred in compelling Minister to exercise permissive powers in favour of occupants – Minister’s appeal succeeds.
Environmental law – Normandien had standing to seek removal of occupants’ livestock on land overgrazed in violation of Conservation of Agricultural Resources Act 43 of 1983 (CARA) – labour tenants not exempt from CARA – removal of animals in terms of CARA not an eviction for purposes of Land Reform (Labour Tenants) Act 3 of 1996 – occupants’ appeal dismissed.
Costs – Biowatch principle applicable to costs in court a quo and on appeal as between Minister and Normandien, ie parties to bear their own costs.
Costs – no grounds for interfering in court a quo order that occupants pay Normandien’s costs on punitive scale.
Costs – occupants’ application for condonation and reinstatement necessitated by joint failings by attorneys and counsel – contempt and postponement application an abuse having no substantive merit – attorneys ordered personally to pay Normandien’s costs of opposing said applications on attorney/client scale – attorneys and counsel precluded from recovering fees from occupants in respect of these applications.
Appeals – practice – papers in opposed interlocutory applications to be indexed and paginated.
Published: Wed, 29 Nov 2017 11:44:59 GMT
Red Coral Investments (Pty) Ltd v Cape Peninsula University of Technology (498/17)  ZASCA 152 (22 November 2017)
Condonation application – pleadings – exception – National Student Financial Aid Scheme Act 56 of 1999 precluding oral agreement between NSFAS and service provider directly or through agent on behalf of NSFAS – exception correctly upheld by high court – no prospects of success – condonation application dismissed with costs.
Carneiro v The State (1040/2016) ZASCA 154 (24 November 2017)
Criminal law and procedure – application for leave to appeal against appeal court striking off application for leave to appeal against its order in terms of the Superior Court Act 10 of 2013 – application for leave to appeal pending at promulgation of Act 10 of 2013 – Act not only regulating procedural issues but substantive rights as well – prospective only – applicable legislation Supreme Court Act 59 of 1959.
IEC v Cape Party (1233/17); IEC v Khai-Ma Onafhanklike Kandidate Koalisie (1268/17)  ZASCA 161 (27 November 2017)
Application for leave to appeal to this court from Electoral Court in matters involving municipal elections - leave granted - objections in one matter not material - in the other incorrect conclusions of fact - appeals upheld - Electoral Commission decisions confirmed.
Mathibela v The State (714/2017)  ZASCA 162 (27 November 2017)
Application for condonation – late filing of and reinstatement of lapsed appeal – inadequacy of explanation - delay unreasonable and would result in inordinate miscarriage of justice - no prospects of success – application dismissed.
Published: Tue, 28 Nov 2017 06:57:11 GMT
HMI Healthcare Corporation (Pty) Limited v Medshield Medical Scheme & others (1213/2016)  ZASCA 160 (24 November 2017)
Application for rescission – whether applicant an affected party as contemplated in Rule 42(1)(a) of the Uniform Rules of Court – whether rescission appealable.
The Director of Public Prosecutions, Gauteng v Oscar Leonard Carl Pistorius (950/2016)  ZASCA 158 (24 November 2017)
Criminal law and procedure – murder – appeal against sentence arising from conviction of murder dolus eventualis – sentence of six years' imprisonment inappropriate – Increased to 13 years and 5 months' imprisonment on appeal.
Minister of Defence v Mamasedi (622/2017)  ZASCA 157 (24 November 2017)
Defence Act 42 of 2002 – Section 59(3) – deemed dismissal of member after absence of 30 days – re-instatement of member on good cause shown – board of enquiry making recommendation to Chief of SANDF not to re-instate member – member not given opportunity to participate in proceedings of board of enquiry, contrary to s 102 of Act – decision of Chief of SANDF not to re-instate member correctly set aside by court below on account of procedural unfairness – order of re-instatement of member incorrectly made and set aside.
Sayed v The State (530/2017)  ZASCA 156 (24 November 2017)
Condonation and reinstatement of lapsed appeal – explanation for delay in lodging notice of appeal and appeal record inadequate – delay extreme and explanation unacceptable – condonation refused – special plea of autrefois acquit and application to stay prosecution - no prospect of success – conduct of judicial officer - must be seen to be independent and impartial and treat persons with civility and courtesy – referred to Magistrate’s Commission.
Road Accident Fund v Mohohlo (882/16)  ZASCA 155 (24 November 2017)
Delict – dependant’s action – claim by deceased’s aunt – de facto adoption – deceased owed her duty of support – claimant sufficiently indigent to enforce duty.
Published: Fri, 24 Nov 2017 10:55:45 GMT
The Commissioner for SARS v Reunert Ltd (971/2016)  ZASCA 153 (22 November 2017)
Liability for income tax: Whether commission earned in terms of agreement accrued to taxpayer: proper interpretation of agreement: language, context, purpose, background: whether interpretation of agreement commercially sensible: whether the manner in which parties gave effect to the agreement accorded with proper interpretation.
Published: Thu, 23 Nov 2017 12:40:24 GMT
DPP v Plekenpol (333/17)  ZASCA 151 (21 November 2017)
Criminal law and procedure : cross-appeal by the State : prescribed minimum sentence for robbery involving the taking of a motor vehicle not considered by the trial court or this court in the hearing of the convicted person’s appeal : s 51 (2) of the Criminal Law Amendment act 105 of 1997 : cross-appeal succeeds : prescribed minimum sentence of 15 years’ imprisonment imposed, 10 of which ordered to run concurrently with the 18 years imposed on the count of murder : effective sentence 23 years’ imprisonment.
Umude & others v The State (148/2017)  ZASCA 150 (21 November 2017)
Criminal Procedure – appeal against conviction – leave to appeal refused by magistrate – petition refused by the courts 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: Wed, 22 Nov 2017 13:17:06 GMT
Van Vuuren v eThekwini Municipality (1308/2016)  ZASCA 124 (27 September 2017)
Municipality providing a beachside facility of a pool with slides – whether legal duty on Municipality to provide supervision or access control – whether Municipality negligent – foreseeability.
Published: Tue, 21 Nov 2017 11:57:46 GMT
Qhinga v State (1327/2016)  ZASCA 149 (15 November 2017)
Evidence – pointing-out – trial-within-a trial – after pointing out ruled admissible, no evidence in record to prove contents of pointing-out – such evidence either not led or, if led, lost and not capable of being reconstructed – no admissible evidence implicating appellant in commission of offences – convictions and sentences set aside.
Published: Thu, 16 Nov 2017 08:07:13 GMT
Botha v S (901/2016)  ZASCA 148 (8 November 2017)
Criminal procedure – refusal of discharge in terms of s 174 – court a quo did not act irregularly by refusing discharge – there was evidence on which a reasonable court might convict.
Criminal procedure – reopening of the State’s case – State failed to establish grounds for reopening – court a quo’s decision to allow reopening irregular (Mokgohloa AJA and Mbatha AJA dissenting).
Criminal procedure – whether State proved beyond reasonable doubt that appellant shot deceased and that deceased did not commit suicide – excluding evidence adduced pursuant to irregular reopening, such guilt established (Gorven AJA, Cachalia JA concurring, Rogers AJA dissenting)
On all the evidence, including evidence adduced pursuant to reopening, such guilt established (Mbatha AJA, Mokgohloa concurring).
Sentence – 12 years’ imprisonment strikingly inappropriate – mitigating circumstances, including prolonged abuse – appellant not a danger to society – matter remitted to trial court for reconsideration of sentence in terms of s 276(1)(h).
Published: Wed, 08 Nov 2017 11:25:48 GMT
Smyth v Investec Bank Ltd (674/2016)  ZASCA 147 (26 October 2017)
Company: Shareholders: Oppression: Oppressive or Unfairly Prejudicial Conduct: Section 252 of the Companies Act 61 of 1973: party entitled to remedy under s 252: member is someone whose name has been entered in the company’s register of members as contemplated in s 105 of the Companies Act. Locus standi: Beneficial owners of shares in a company not eligible to join as co-applicants with relevant nominees holding the shares on their behalf and subject to their instructions.
Published: Thu, 26 Oct 2017 13:08:51 GMT
New Court Roll for Nov 2017
Published: Mon, 16 Oct 2017 12:33:19 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Mon, 16 Oct 2017 11:22:35 GMT
Hassim Hardware v Fab Tanks (1129/2016)  ZASCA 145 (13 October 2017)
Rescission of default judgment –– Uniform Rules of Court 31(2)(a) and (b) –court of appeal may only interfere if power not properly exercised – court a quo erred - bona fide defence – carries prima facie reasonable prospects of success – appeal succeeds with costs.
Zuma v DA (771/2016); ANDPP V DA (1170/2016)  ZASCA 146 (13 October 2017).
Decision by Acting National Director of Public Prosecutions to discontinue prosecution – whether decision wanting for invocation and reliance on inapposite provision of the Constitution– whether decision rational – manner in which NPA conducted litigation deserving of judicial censure.
Published: Fri, 13 Oct 2017 10:30:59 GMT
Passenger Rail Agency of South Africa v Moabelo (1082/2016)  ZASCA 144 (2 October 2017)
Law of Delict – Damages – appellant falling off the train and sustaining bodily injuries when jostled by fellow passengers – claim based on negligent omission – negligence proved – dissent – appellant injured not by train on which he had fallen off – no proof of patrimonial or legal causation of harm.
Khumalo v Twin City Developers (328/2017)  ZASCA 143 (2 October 2017)
Appeal against costs – s 16(2)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 – whether there are exceptional circumstances justifying a consideration of the matter with reference to the issue of costs – whether the Land Claims Court properly exercised its discretion in relation to the award of costs – appeal dismissed with costs.
National Director of Public Prosecutions v Kalmar Industries SA (Pty) Ltd (62/17)  ZASCA 142 (2 October 2017)
Forfeiture of property : Section 50(1) of the Prevention of Organised Crime Act 121 of 1998 : whether property, a lifting platform and equipment alleged to have been stolen, susceptible to seizure : whether NDPP ought to have become involved in commercial dispute.
Bondev Midrand (Pty) Ltd v Puling (802/2016); Bondev Midrand (Pty) Ltd v Ramokgopa (803/2016)  ZASCA 141 (2 October 2017)
Immovable property : title deed : registered condition entitling developer to have property re-transferred to it in certain circumstances : this a personal not real right, capable of prescribing.
Road Accident Fund v Mphirime (1036/2016)  ZASCA 140 (2 October 2017)
Road Accident Fund Act 56 of 1996 : undertaking to pay future services under s 17(4)(a) of that Act : undertaking may be given in respect of the cost of providing a domestic assistant.
Published: Tue, 03 Oct 2017 10:16:06 GMT
Mvoko v SABC (1066/2016)  ZASCA 139(29 September 2017)
Application for leave to appeal in terms of 17(2)(d) of the Superior Courts Act 10 of 2013 granted – in relation to merits of the appeal – claim for specific performance of a written agreement between independent contractor and the South African Broadcasting Corporation (SABC) – SABC ordered to comply with written agreement – SABC has to conduct itself within constitutional parameters and within its statutory mandate – Broadcasting Act 4 of 1999.
Maharaj & others v Mandag Centre of Investigative Journalism NPC & others (844/2016)  ZASCA 138 (29 September 2017)
National Prosecuting Authority Act 32 of 1998 – whether discretion in terms of s 41(6) properly exercised by the National Director of Public Prosecutions in refusing to grant permission to publish record of investigation in terms of s 28.
Maqubela v The State (821/2015)  ZASCA 137 (29 September 2017)
Murder – cause of death – expert medical evidence – scientific and judicial measures of proof – erroneous application of scientific measure by trial court – cause of death inconclusive – application of judicial measure – probable cause of death – natural causes – determination of guilt – evidence of guilty conduct and mendacity – unlawful killing not the only reasonable inference to be drawn.
DPP v Heunis (196/2017)  ZASCA 136 (29 September 2017)
Criminal Law and Procedure: appeal by NDPP against conviction in terms of the Criminal Procedure Act 51 of 1977 (CPA): the respondent charged with murder read with s 51(2) of the Criminal Law Amendment Act 105 of 1997: found guilty of culpable homicide based on his statement in terms of s 115 of the CPA: reserved question of law: probative value of a statement made in terms of s 115(2)(a) of the CPA.
Loch Logan Waterfront v Bentel Associates International (147/2015)  ZASCA 135 (29 September 2017)
Condonation: application for condonation for late filing of appeal record not granted. Delay excessive and inexplicable.
Cross appeal: architect’s contract with employer not varied in absence of written consent to delegation of employer’s obligations; interest on amount awarded for fees and disbursements claimed is to be calculated in terms of the Prescribed Rate of Interest Act 55 of 1975; miscalculation of amount payable by trial court corrected.
Cipla Agrimed v Merck Sharp Dohme Corporation (972/16)  ZASCA 134 (29 September 2017)
Delict: Interlocutory interdict: whether appealable: whether final in effect: contention that patent would have run its course prior to finalisation of action for final interdict: restatement of test for appealability: order must be definitive of an issue and not susceptible of alteration by court of first instance: interdict interim in form and effect: not appealable.
Du Preez v Pretorius (949/2016)  ZASCA 133 (29 September 2017)
Delict: Medical negligence: pleadings: causation: pleaded causation not established: appeal dismissed.
The Advertising Standards Authority v Herbex (Pty) Ltd (902/16)  ZASCA 132 (29 September 2017)
Jurisdiction – voluntary association – self-regulation of advertising industry – no jurisdiction over non-members – costs on appeal – discretion – agreement on substituted order.
Kransfontein Beleggings (Pty) Ltd v Corlink Twenty Five (Pty) Ltd, (624/2016)  ZASCA 131 (29 September 2017)
Application to set aside business rescue proceedings – creditors have direct and substantial interests – non-joinder of creditors is fatal to the relief sought in the application.
Uys & another v Msiza & others (1222/2016)  ZASCA 130 (29 September 2017)
Land – Land Reform – calculation of just and equitable compensation to owner for land awarded to labour tenant – proper evaluation of factors including market value – owner aware of labour tenant’s claim when land purchased for development – claim a pre-existing impediment affecting development potential -Pointe Gourde principle not of application.
eThekwini Municipality v Mounthaven (Pty) Ltd (1068/2016)  ZASCA 129 (29 September 2017)
Claim for re-transfer of property – a debt as contemplated in Chapter III of the Prescription Act – whether reversionary clause creates a limited real right or a personal right – right not absolute but a relative one and only enforceable against a class of individuals – prescription affects the contractual right to claim re-transfer – claim prescribed.
Investec Bank Ltd v Erf 436 Elandspoort (Pty) Ltd (1029/2016)  ZASCA 128 (29 September 2017)
Practice: Civil Procedure: extinctive prescription: claim by bank for payment of a debt arising from loan agreement: mortgage bond registered over a notarial lease: lease cancelled and thus security falling away: debt no longer secured: period of prescription running from date when amount payable under the loan became due as envisaged in s 12(1) of the Prescription Act 68 of 1969.
Mtshali & others v Buffalo Conservation 97 (Pty) Ltd (250/2017)  ZASCA 127 (29 September 2017)
Application for condonation and re-instatement of lapsed appeal – adequacy of explanation for delay – delay extreme and explanation unacceptable – application dismissed with costs.
Scalabrini Centre, Cape Town v The Minister of Home Affairs (1107/2016)  ZASCA 126 (29 September 2017)
Refugees Act 130 of 1998 : decision to close refugee reception office under s 8(1) : challenged for want of rationality : decision-maker not taking into account relevant considerations, not complying with the empowering provision, acting with ulterior and improper purpose and making error of law.
Published: Fri, 29 Sep 2017 11:28:37 GMT
Pather v Financial Services Board (866/2016)  ZASCA 125 (28 September 2017)
Securities Services Act 36 of 2004 – proceedings before enforcement committee – not in the nature of criminal proceedings – civil standard of proof applies – administrative penalties imposed by enforcement committee – not in the nature of a penal sanction.
The Minister of Home Affairs v Ahmed (1383/2016)  ZASCA 123 (26 September 2017)
Asylum seekers in terms of the Refugees Act 130 of 1998 may not, while they are in the country, apply for a visa in terms of s 10(2) of the Immigration Act 13 of 2002, read with regulation 9(2) of the Immigration Regulations.
Otto v State (988/2016)  ZASCA 114 (21 September 2017)
Criminal law – appeal against conviction of rape – appellant failed to testify – conceded by appellant that sexual intercourse proved – lack of consent and intention also proved – appeal against conviction dismissed – appeal against sentence – no misdirection on part of court below and sentence of 22 years imprisonment not shockingly inappropriate – appeal against sentence dismissed.
Published: Fri, 29 Sep 2017 08:13:32 GMT
Yarona Heathcare Network v Medshield (1108/2016)  ZASCA 116 (22 September 2017)
Condictio indebiti: respondent’s mistakes in making payments inexcusably slack: excusability not a requirement where claimant a medical scheme: respondent proved its impoverishment: if respondent enriched by services provided by appellant, latter should have counterclaimed with condictio indebiti. Prescription: actual or constructive knowledge necessary for prescription to start running that of board of trustees: appellant failed to prove that board had actual or constructive knowledge by relevant date.
Els v The State (1241/2016)  ZASCA 117 (22 September 2017)
Appeal against sentence - environmental offences - unlawful purchasing, possession and conveying of rhinoceros horns without a permit - in contravention of the Limpopo Environmental Management Act 7 of 2003 - misdirection by the trial court - appeal court entitled to interfere - four years’ imprisonment appropriate.
Drift Supersand (Pty) Ltd v Mogale City Local Municipality (1185/2016)  ZASCA 118 (22 September 2017)
Administrative law - Town Planning and Townships Ordinance 15 of 1986 – owner of land in close proximity to proposed township having standing as an interested person to challenge establishment of township.
Fairness of procedure to approve township – breach of legitimate expectation of a hearing by municipal tribunal – procedure inherently unfair in various respects.
Party excluded from process not obliged to pursue internal appeal against such decision before seeking to review the administrative action taken.
Procedure – striking out – court required to exercise practical, common sense and flexible approach in considering whether allegations made in reply need be struck out – cross-appeal relating to the failure to strike out an incontrovertible fact which was in any event not relied upon to decide the merits of the dispute – cross-appeal dismissed.
Heppell v The Law Society of the Northern Provinces (1096/16)  ZASCA 119 (22 September 2017)
Attorney – whether fit and proper to practise notwithstanding being sequestrated – whether suspension an appropriate sanction for an attorney guilty of non-disclosure of critical information when applying for his sequestration – no sound reason to interfere with the exercise of discretion.
State Information Technology Agency SOC Limited v ELCB Information Services (Pty) Ltd & another (995/16)  ZASCA 120 (22 September 2017)
Arbitration Award – review – arbitrator alleged to have committed gross irregularities – s 33(1)(b) of the Arbitration Act 42 of 1965 – gross irregularities not proved – appeal dismissed.
Mosalasuping & others v NC Housing & others (903/2016)  ZASCA 121 (22 September 2017)
Rescission – a court of appeal may only interfere if power not properly exercised – no bona fide defence which prima facie carries prospects of success.
Long Beach Home Owners Association v Department of Agriculture, Forestry and Fisheries (South Africa) & another (865/2016)  ZASCA 122 (22 September 2017)
National Forests Act 84 of 1998 – ss 3(3)(a), 7(1)(a) and 7(4) – licence to carry out prohibited activities in a natural forest – meaning of ‘natural forests must not be destroyed save in exceptional circumstances’ – nature of discretion – rigid adherence to policy – improper exercise of discretion – refusal of licence – review of decision.
Published: Fri, 22 Sep 2017 12:25:00 GMT
Odinfin (Pty) Ltd v Reynecke (906/2016) ZASCA 115 (21 September 2017)
Delict – Pure economic loss – Loss suffered as a result of debarment in terms of s 14 of the Financial Services Advisory and Intermediary Services Act 37 of 2002 – Whether conduct of employer in debarring employee without complying with the provisions of Promotion of Administrative Justice Act 3 of 2002 was wrongful and gave rise to damages.
Costa NO v Arvum Exports (969/2016)  ZASCA 113 (21 September 2017)Trust: a resolution of trustees of a family trust, that authorized one trustee to ‘sign all the documentation’, does not authorize the conclusion of two business agreements when read in context; no ostensible authority arises where an agent, and not the principal, makes a misrepresentation as to authority.
Plant breeders’ rights: rights not infringed where there is no propagation of a fruit tree varietal.
Reclamation Property Holdings (Pty) Ltd v Arcelormittal South Africa Ltd (986/2016) ZASCA 112 (21 September 2017)
Section 67 of the Town-Planning and Townships Ordinance 15 of 1986: prohibition of sale of erf until township is declared an approved township: definition of ‘erf’.
Published: Thu, 21 Sep 2017 13:24:06 GMT
Tudor Hotel Brasserie & Bar (Pty) Ltd v Hencetrade 15 (Pty) Ltd (793/2016)  ZASCA 111 (20 September 2017)
Lease – agreement to pay rental in advance without deduction – exclusion of reciprocity – landlords failure to grant full beneficial occupation of entire leased premises – tenant obliged to pay rent.
Published: Wed, 20 Sep 2017 13:24:53 GMT
Mostert NO v The Registrar of Pension Funds (986/2016) ZASCA 108 (15 September 2017)
Promotion of Administrative Justice Act 3 of 2000: 180 day period in s 7(1): whether court a quo could have raised the delay mero motu: when the period commenced to run: whether there was compliance with s 7(1).
PepsiCo v Atlantic Industries (983/16)  ZASCA 109 (15 September 2017)
Trade marks: respondent’s registered marks TWIST, LEMON TWIST and DIET TWIST inherently capable of distinguishing its soft drinks: such marks not purely descriptive of products or their characteristics: appellant’s expungement application correctly dismissed.
Trade marks: appellant’s proposed marks, consisting of or incorporating the words PEPSI TWIST, likely to deceive or cause confusion by virtue of similarity to respondent’s marks: respondent’s opposition to appellant’s trade mark application correctly upheld.
Big Five Duty Free v ACSA (1064/2016)  ZASCA 110 (15 September 2017)
Interpretation of an agreement of settlement made an order of full court on appeal to it: agreement is binding on all the parties to the litigation, including one who has not participated but has chosen to abide the outcome of the appeal.
Published: Mon, 18 Sep 2017 08:13:16 GMT
Shawn Palmer v The State (599/2016)  ZASCA 107 (13 September 2017)
Criminal Procedure – rape – sentence – life imprisonment – minimum sentence in terms of Criminal Law Amendment Act 105 of 1997 – substantial and compelling circumstances – proper approach – to require exceptional circumstances for the determination of whether substantial and compelling circumstances exist, incorrect – sentence of life imprisonment set aside and replaced with 15 years' imprisonment.
Rantlai v The State (1178/2016)  ZASCA 106 (13 September 2017)
Appeal against sentence – appellant convicted on three counts of robbery read with s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing ) Amendment Act 38 of 2007 and one count of unlawful possession of a firearm and one of unlawful possession of ammunition – all three counts of robbery were taken together for purposes of sentence – the appellant was sentenced to a composite sentence of 20 years’ imprisonment – the conviction in respect of one count of robbery set aside on appeal – the original sentence not altered – whether the composite sentence imposed on appellant was appropriate.
Van Heerden & another v NDPP & others (145/2017)  ZASCA 105 (11 September 2017)
Application for permanent stay of prosecution – extraordinary remedy – complaint that the right to have trial begin and conclude without reasonable delay infringed – many years of postponements and delays – material and substantial part of delays due to the State – dishonest conduct by the State – appropriate remedy for infringement of Constitutional right.
Mogoba v The State (01219/2016)  ZASCA 104 (06 September 2017)
Criminal Procedure - Appeal against sentence - whether substantial and compelling circumstances exist to justify deviation from prescribed life sentence - whether misdirection by trial court and full court - no misdirection found - appeal dismissed.
Published: Thu, 14 Sep 2017 07:46:39 GMT
Mgwenya v Kruger (1060/16)  ZASCA102 (6 September 2017)
Section 16(2)(a)(i) and (ii) of the Superior Courts Act 10 of 2013 – judgment or order sought on appeal would have no practical effect or result – no exceptional circumstances justifying a consideration of the matter with reference to the issue of costs – appeal dismissed.
Minister of Safety and Security v Magagula (991/2016)  ZASCA 103 (6 September 2017)
Criminal Law and procedure — damages — Unlawful arrest and detention — appeal against judgment awarding damages for unlawful arrest and detention of the respondent — whether or not the appellant’s servant had the requisite suspicion to arrest and detain the respondent — periods of detention before and after first appearance in court to be separately considered — claim for detention after first appearance neither pleaded nor established — appeal upheld.
Published: Thu, 07 Sep 2017 08:00:49 GMT
Mathekola v State (487/2016)  ZASCA 100 (21 August 2017)
Section 17(2)(f) of the Superior Courts Act 10 of 2013 – reconsideration of dismissal of petition for leave to appeal – co-accused of applicant having been granted leave to appeal on petition and having succeeded in his appeal – applicant’s prospects of success on appeal strong – leave to appeal granted.
Karpovska v The State (1396/2016)  ZASCA 101(24 August 2017)
Appeal – application for leave to appeal against convictions dismissed by regional magistrate - petition refused by the court a quo- special leave to appeal against the dismissal of petition granted to Supreme Court of Appeal – whether leave to appeal ought to have been granted by court a quo - whether there are reasonable prospects of success.
Published: Thu, 24 Aug 2017 09:48:27 GMT
Minister of Justice and Correctional Services v Walus (777/2016)  ZASCA 99 (18 August 2017)
Parole – application therefor brought by respondent serving sentence of life incarceration for murder in terms of s 136(1) of the Correctional Services Act 111 of 1998 – appellant’s omission to consider widow of deceased’s victim impact statement and the failure to furnish the respondent therewith constituted material procedural irregularities in terms of s 6(2) of the Promotion of Administrative Justice Act 3 of 2000 vitiating the refusal to place the respondent on parole – decision remitted for the appellant’s reconsideration.
Published: Fri, 18 Aug 2017 10:57:26 GMT
Amendment to the Court Roll for Aug/Sep 2017
Published: Mon, 24 Jul 2017 10:59:54 GMT
Manyike v S (527/17)  ZASCA 96 (15 June 2017)
Application in terms of s 17(2)(f) of the Superior Courts Act 10 of 2013: powers of the President of the SCA: in exceptional circumstances: to refer a decision of this court on petition for reconsideration and, if necessary, variation: exceptional circumstances not found: application refused.
Published: Wed, 19 Jul 2017 13:21:12 GMT
KLD Residential v Empire Earth Investments (1135/2016)  ZASCA 98 (6 July 2017)
Where an acknowledgment of indebtedness is made by a debtor to a creditor, even in without prejudice settlement negotiations, the acknowledgment may be admitted in evidence for the sole purpose of interrupting the running of the prescription period in terms of s 14 of the Prescription Act 68 of 1969.
Published: Fri, 07 Jul 2017 07:56:58 GMT
Court Roll for Aug/Sep 2017: Amendment to case 12 & 14
Published: Mon, 03 Jul 2017 10:16:33 GMT
New Court Roll for Aug/Sep 2017
Published: Thu, 29 Jun 2017 13:28:40 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Thu, 29 Jun 2017 13:27:57 GMT
The NDPP v Media 24 Limited & others and HC Van Breda v Media 24 Limited & others (425/2017)  ZASCA 97 (21 June 2017)
Constitutional law – application by media to broadcast criminal proceedings – tension between the right to freedom of expression and the open justice principle, on the one hand and the right to a fair trial, on the other – those rights should as far as possible be harmonised with one another – court must exercise a proper discretion under s 173 of the Constitution in each case by balancing the degree of risk involved in allowing the cameras into the court room against the degree of risk that a fair trial might not ensue – courts ought not to restrict the nature and scope of the broadcast unless prejudice is demonstrable and there is a real risk that such prejudice will occur – mere conjecture or speculation that prejudice might occur ought not to be enough.
Published: Thu, 22 Jun 2017 07:21:00 GMT
Transalloys v Mineral-Loy (781/2016)  ZASCA 95 (15 June 2017)
Requirements for res judicata and issue estoppel: When appropriate to separate issues.
NMB Bank Ltd v Capsopoulos (505/2016)  ZASCA 94 (15 June 2017)
Exchange control; illegal payments of US dollars made by a bank by reason of a fraud: recipient aware that payments made due to a false misrepresentation and would not otherwise have been made: recipients resultantly complicit in the fraud: amounts paid to be refunded to the bank.
Published: Mon, 19 Jun 2017 12:14:51 GMT
Gcaza v The State (1400/16)  ZASCA 92 (9 June 2017)
Evidence: what constitutes sufficiency of circumstantial evidence: conviction based on circumstantial evidence well-founded: cross-appeal: finding of substantial and compelling circumstances justifying sentences lesser than the minimum sentences prescribed by statute not constituting misdirection.
Published: Tue, 13 Jun 2017 07:54:12 GMT
NERSA v Borbet SA (Pty) Ltd  ZASCA 87 (1288/2016 & 1309/2016) (6 June 2017)
Adjudication by the National Energy Regulator of South Africa (NERSA), a statutory regulator, of tariff adjustment application by Eskom, a licensee with a license, inter alia, to distribute as principal supplier electricity in South Africa : nature of adjudication process and decision: administrative action: subject to review in terms of the Promotion of Access to Justice Act 3 of 2000: not, as suggested by NERSA and Eskom, immune from judicial scrutiny because it involved application of policy.
Price adjustment methodology discussed, interpreted and applied: whether decision by NERSA rational and whether adjudication process and decision unfair.
Discussion of deference to specialised administrative body.
Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited (95/2016)  ZASCA 88 (6 June 2017)
First appeal – appeal lapsing on account of failure to timeously prosecute it – application for condonation. Second appeal – discharge of provisional restraint order – failure on the part of presiding judge to bring an open and impartial mind to bear – proceedings before the high court on the return day set aside – provisional restraint order revived. Both appeals – sequestration - substitution of insolvent by trustees on appeal – leave to intervene by insolvent.
Goosen v The Mont Chevaux Trust (148/2015)  ZASCA 89 (6 June 2017)
Land: eviction under Extension of Security of Tenure Act 62 of 1997: appeal against an order of the Land Claims Court confirming the eviction order of a magistrate’s court on automatic review to it: nature of automatic review by the Land Claims Court: test on appeal: eviction order correctly confirmed by the Land Claims Court: constitutional obligation on municipality to provide emergency housing upon eviction: execution of the eviction order postponed and municipality ordered to provide emergency accommodation prior to execution of the order.
Published: Tue, 06 Jun 2017 13:46:32 GMT
The State v Pilane (559/16)  ZASCA 71 (1 June 2017)
Witnesses in criminal trial: administration of the oath: may be administered by interpreter: s 165 of Criminal Procedure Act 51 of 1977.
Principal of Mbilwi High School v RM (633/2016)  ZASCA 72 (1 June 2017)
Appeal: mootness: the court should exercise its discretion to hear an appeal where it relates to the proper construction and application of important provisions in the National Education Policy that will impact on the future conduct of education officials and learners.
Interpretation: the high court misinterpreted the National Policy Pertaining to the Programme and Promotion Requirements of the National Curriculum Statement Grade R-12.
Primat Construction v Nelson Mandela Bay Metropolitan Municipality (1075/2016)  ZASCA 73 (1 June 2017)
Where a party to a contract repudiates it, the aggrieved party has an election to abide by the contract and enforce its performance: if that election is exercised, but the defaulting party nonetheless persists in the breach by evincing an unequivocal intention not to remedy the breach, the aggrieved party, after affording the defaulting party the oportunity to repent of the repudiation, may change the election and cancel the contract and claim damages.
Ramoba v The State (1301/2016) ZASCA 74 (1 June 2017)
Criminal Law and Procedure: appeal against conviction and sentence: principles of joint possession of firearms applied: appeal against conviction for unlawful possession of firearms upheld in part: cumulative effect of sentence appropriate.
Nkabinde v The State (115/17)  ZASCA 75 (01 June 2017)
Criminal Law and Procedure: acting in concert with common purpose: murder and robbery with aggravating circumstances: purported special entries in terms of s 317 of the Criminal Procedure Act 51 of 1977: to be strictly complied with and resorted to only if the irregularity does not appear on the record: appeal dismissed.
Mpahla v RAF (698/16)  ZASCA 76 (1 June 2017)
Road Accident Fund 56 of 1996 – Interpretation of regulation 3(3)(dA) of the Road Accident Fund Regulations – failure of the Fund to take a decision within prescribed period does not create a deeming provision – remedy of claimant lies in s 6(2)(g) of PAJA.
Home Talk Developments (Pty) Ltd v Ekurhuleni Metropolitan Municipality (225/2016)  ZASCA 77 (2 June 2017)
Law of Delict: pure economic loss: whether Municipality liable in delict for pure economic loss arising out of the alleged failure by the Municipal Manager to issue a s 82 certificate in terms of the Town-Planning and Township Ordinance 15 of 1986.
Published: Mon, 05 Jun 2017 11:50:08 GMT
DPP v Moloi (1101/2015)  ZASCA 78 (2 June 2017)
Appeal in terms of s 311 of the Criminal Procedure Act 51 of 1977: Section 311 provides for an appeal as of right, without leave: failure to have regard to all the evidence in determining the guilt or otherwise of an accused constitutes an error of law: question of law upheld: order of the high court set aside: conviction and sentence imposed by the regional court reinstated and matter remitted to the high court for the appeal to proceed on the merits.
Serengeti Rise Industries (Pty) Ltd & another v Aboobaker NO & others (845/2015)  ZASCA 79 (2 June 2017)
Administrative law: validity of a demolition order granted as just and equitable remedy: order granted pursuant to a finding that Municipality decisions approving rezoning of property and approving building plans were unlawful: order vitiated by failure to set the approval decisions aside, failure to specify portion(s) of the building to be demolished, and failure to exercise discretion in determining just and equitable remedy: court order found to lack clarity and certainty.
Mahlangu v Mahlangu (341/2016)  ZASCA 81 (2 June 2017)
Appeal: Power of court of appeal: Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013: Appellate Court empowered to dismiss an appeal where judgment or order sought would have no practical effect or result: Discretion of court: Not an appropriate case for court to exercise its discretion in favour of determining merits of the appeal: Appeal dismissed.
Director of Public Prosecutions, Gauteng v Grobler (6/2017)  ZASCA 82 (2 June 2017)
Appeal by Director of Public Prosecutions: s 311 of the Criminal Procedure Act 51 of 1977: appeal against the decision of a Provincial or Local Division on appeal to it competent before this court only on a question of law: the High Court’s finding that a complainant below the age of 12 years acquiesced in a sexual act defined as rape and then considered this as a mitigating factor in sentencing, is a question of law: appeal upheld and matter remitted.
The Director of Public Prosecutions: Gauteng Division, Pretoria v Portia Thulisile Tsotetsi (170/2017)  ZASCA 083 (02 June 2017)
Sentence: premeditated murder: prescribed minimum sentence: in terms of the Criminal Law Amendment Act, 105 of 1997: what constitutes substantial and compelling circumstances: effect of failing to take into account certain aggravating factors: prescribed sentence not to be lightly deviated from: to be imposed if it is not disproportionate to the crime, the criminal and the needs of society.
Van Huyssteen N.O. and another v Milla Investment and Holding Company (593/16)  ZASCA 84 (2 June 2017)
Contract: Lease: divergent factual versions on terms: doctrine of quasi-mutual assent wrongly applied by the high court: appeal upheld.
The Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi (959/15)  ZASCA 85 (2 June 2017)
Appeal in terms of s 311 of the Criminal Procedure Act 51 of 1977: s 311 provides for an appeal as of right, without leave: question of law upheld: ‘intent to do grievous bodily harm’ not an element in a rape contemplated in Part I(c) of the Criminal Law Amendment Act 105 of 1997: conviction and sentence imposed by the regional court reinstated and matter remitted to the high court for appeal to proceed on sentence.
Politis v MEC for Health, Limpopo  ZASCA 86 (792/2016) (2 June 2017)
Delict : premature discharge by doctor of patient from hospital due to unlawful strike : patient had sustained multiple fractures and was due for orthopaedic surgery : died shortly after discharge : cause of death not determined by pathologist : no reliable expert evidence on which negligence could be attributed to the hospital : inadequate preparation of action for loss of support : no thought given to holding hospital liable on the basis of failure to have in place emergency plans to deal with strikes : organisers of strike not joined as parties to litigation : in any event primary problem of lack of evidence relating to cause of death not overcome.
Published: Mon, 05 Jun 2017 11:21:20 GMT
Machete v S (167/17) 2017 ZASCA 70 (31May 2017)
Robbery – prosecution submitting that evidence of identification of accused unsatisfactory and that accused should be acquitted on appeal to full bench – appeal nonetheless dismissed – appeal upheld – function of appeal court where prosecution does not seek to uphold conviction.
Wilkinson v The Law Society of the Northern Provinces (783/2016)  ZASCA 69 (31 May 2017)
Striking off is an appropriate sanction for an attorney guilty of misappropriation of trust moneys and failure to account for funds entrusted to him: No reason to interfere with the exercise of discretion.
Carlswald & another v Brews (245/2016)  ZASCA 68 (31 May 2017)
Contract: cession: may be oral: where parties agree to reduce contract to writing there will be no contract until terms have been reduced to writing: once cession reduced to writing parties bound by the terms of the deed of cession and cannot rely on oral negotiations.
Published: Thu, 01 Jun 2017 10:21:11 GMT
Magubane & another v Twin City Developers (Pty) Ltd & others (981/16)  ZASCA 65 (30 May 2017)
Extension of Security of Tenure Act 62 of 1997: Land Claims Court erred in failing to consider probation officer’s report submitted in terms of s 9(3) of the Act prior to granting eviction order: considerations of convenience and interests of justice require that Supreme Court of Appeal considers the content of report and not remit matter to the Land Claims Court for reconsideration: content of the report not warranting interference with the eviction order.
AON South Africa (Pty) Ltd v Van den Heever NO (615/2016) 2017 ZASCA 66 (30 May 2017)
Res judicata – requirements – issue estoppel – identity of interest between plaintiffs in the two actions sufficient to satisfy requirement of same party – identity of issues and claims in both actions.
Lazarus Mbethe v United Manganese of Kalahari (503/2016)  ZASCA 67 (30 May 2017)
Derivative action: Section 165(5)(b) of the Companies Act 71 of 2008: requirement of ‘good faith’: proof by applicant on a balance of probabilities: test subjective with objective control: state of mind of applicant determined by drawing inferences from objective facts: absence of collateral purpose not a self-standing requirement of good faith: relevant to determine whether issue ‘of material consequence to the company’: all of requirements of subsec to be satisfied: court retains controlling discretion whether to grant relief: alternative means to obtain the same relief: relevant to determine whether action in best interests of company.
Published: Wed, 31 May 2017 11:00:49 GMT
Broodryk v The State (959/2016)  ZASCA 62 (29 May 2017)
Sentence - imposition of - factors to be taken into account: appellant convicted on a charge of theft: previous conviction one of the factors taken into account: sentence of five years’ imprisonment not shockingly inappropriate: sentence confirmed.
Pearson v eThekwini Municipality (241/2016)  ZASCA 63 (29 May 2017)
Municipal Systems Act 32 of 2000: Sections 102(1)(b) and 118(3): right of municipality to transfer credits between accounts: single account holder: properties with different owners: amounts outstanding on both properties by account holder for services supplied by municipality: transfer of credits by municipality from first account to second account: resultant liability of owner of first property increased and that of owner of second property decreased: municipality entitled to claim from owner of first property increased balance owed.
Patekile Holomisa v Nolizwe Holomisa (564/2016)  ZASCA 64 (29 May 2017)
Civil marriage solemnized in December 1995 in the erstwhile Transkei: the Marriage Extension Act 50 of 1997 did not alter the matrimonial property regime of parties who married without an ante-nuptial contract after 27 April 1994: marriage out of community of property.
Published: Tue, 30 May 2017 09:03:51 GMT
Ndubu v First Rand Bank (1113/2016)  ZASCA 61 (26 May 2017)
Suretyship: release of surety due to alleged prejudicial conduct of creditor in not accepting offers that would eliminate or reduce surety’s liability: onus on surety to prove defences: surety failed to discharge onus: appeal dismissed.
Minister of Safety and Security v Augustine (811/2016)  ZASCA 59 (24 May 2017)
General damages: appeal against quantum: test: damages awarded not disproportionate: appeal against punitive costs order: order warranted: appeal dismissed.
Klassen v The State (57/2017)  ZASCA 58 (24 May 2017)
Criminal Procedure: sentence: effect of convicted accused not testifying when considering whether substantial and compelling circumstances exist justifying a sentence less than a prescribed minimum: failure to hold an inquiry before imposing non-parole period under s 276B of the Criminal Procedure Act 51 of 1977: effect thereof.
Published: Mon, 29 May 2017 08:49:13 GMT
Lourens v Premier of the Free State Province & another (526/16)  ZASCA 60 (25 May 2017)
Contempt of court: failure to comply with court order: no proof of non-compliance, wilfulness or mala fides: s 16(2)(a)(i) of the Superior Courts Act 10 of 2013: issues on appeal having no practical effect: appeal dismissed with costs.
Published: Fri, 26 May 2017 10:53:34 GMT
Saamwerk Soutwerke (Pty) Ltd v Minister of Mineral Resources (1098/2015 & 206/2016)  ZASCA 56 (19 May 2017)
Delict: claim for damages consisting of pure economic loss: claim against first respondent based on negligent administrative omissions: omissions not wrongful: claim correctly dismissed: claim against second respondent based on fraud: circumstances justified overturning of trial court’s findings of credibility: fraud established on balance of probabilities: second respondent declared liable.
Practice: test for receiving further evidence on appeal: no reasonably sufficient explanation for failure to present evidence in trial court: proposed evidence disputed on substantial grounds and not weighty or material.
Prescription: previous proceedings not a step in the enforcement of payment of the same debt: part of claim for payment of damages arising from continuous wrong prescribed.
Published: Tue, 23 May 2017 06:56:25 GMT
MTO Forestry v Swart (420/2016)  ZASCA 57 (22 May 2017)
Delict: wrongfulness and fault separate elements: regard not to be had to foreseeability of harm in determining wrongfulness: whether reasonably adequate steps taken by landowner to prevent fire spreading to neighbour’s property.
Presumption of negligence in s 34 of the National Veld and Forest Fire Act 101 of 1998: effect thereof when facts known.
Published: Mon, 22 May 2017 12:39:23 GMT
Zimila v S (1179/16)  ZASCA 55 (18 May 2017)
Criminal Law and Procedure : Sentence : cumulative effect thereof where appellant convicted of similar multiple offences : circumstances in which an appellate court will interfere : interference warranted.
Moraitis Investments (Pty) Ltd v Montic Dairy (Pty) Ltd (799/2016)  ZASCA 54 (18 May 2017)
Settlement agreement – order of court – grounds for rescinding order – lack of authority to conclude settlement agreement – failure to prove lack of authority – ss 75, 112 and 115 of the Companies Act 71 of 2008 – principle of unanimous assent.
Khumalo v The State (62/17)  ZASCA 53 (18 May 2017)
Criminal Procedure : appeal against refusal of petition by the court a quo : robbery with aggravating circumstances contemplated in s 51 of the Criminal Law Amendment Act 105 of 1997 : no reasonable prospect of success on appeal : appeal dismissed.
DPP, Pretoria v Benbelkacem (831/16)  ZASCA 52 (8 May 2017)
Criminal Law : application for condonation for late filing of the notice of appeal and reinstatement of appeal : no good cause shown for delay: prospects of success not shown : state bound by its acceptance of the statement tendered in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 : application for condonation and reinstatement of appeal dismissed.
Published: Fri, 19 May 2017 11:33:01 GMT
Amended Court Roll for May 2017
Published: Thu, 18 May 2017 10:49:57 GMT
FirstRand Bank Ltd v KJ Foods CC (In business rescue) (734/2015)  ZASCA 50(26 April 2017)
Companies Act 71 of 2008 : proposed business rescue plan : proper interpretation of section 153(1)(a)(ii) and 153(7) : the determination whether a vote by a creditor against the adoption of a proposed business rescue plan was inappropriate and ought to be set aside entails a single enquiry : a court will set aside a vote on the ground that its result was inappropriate if it is reasonable and just to do so : thus entails a value judgment : effect of the court setting aside vote : once vote is set aside, proposed business plan considered to have been adopted ex lege : no further vote envisaged by the Act.
Shange v S (613/2016)  ZASCA 51 (2 May 2017)
Llale v S (663/2016)  ZASCA 049 (25 April 2017)
Conviction and Sentence – special leave to appeal – reasonable prospects of success on appeal against conviction to the high court, and special circumstances present which would justify the grant of special leave to appeal to the high court – failure by the trial court to take account of inconsistencies in written statement and oral testimony of single witness – failure to consider elements of charge of attempt to steal a motor vehicle – leave to appeal to high court granted.
Published: Wed, 03 May 2017 08:34:26 GMT
Neotel (Pty) Ltd v Telkom SOC & others (605/2016)  ZASCA 47 (31 March 2017)
Appeal : Appealability : appeal against reasons for substantive order and not the order itself: appeal struck from the roll for lack of jurisdiction: confirmed that an appeal does not lie against reasons for an order or decision, but against the substantive decision itself : application to intervene to support appellant dismissed.
Published: Tue, 18 Apr 2017 11:10:18 GMT
New Court Roll for May 2017
Published: Fri, 07 Apr 2017 13:40:44 GMT
CONTENT OF BULLETIN:
* Judgments Reserved
* Cases enrolled for Hearing
* Appeals disposed of without written reasons
Published: Fri, 07 Apr 2017 13:09:27 GMT
Orica Mining Services v Elbroc Mining Products (233/2016)  ZASCA 48 (31 March 2017)
Intellectual property: claim for patent infringement: s 45 Patents Act 57 of 1978: extent of protection determined by wording of claims: claims to be read in the context of the patented specification: interpretation of ‘between’ in claim to mean "linearly between" unjustified in context of specification as well as claims: purposive interpretation: "linearly between" not essential for functionality of invention.
Published: Tue, 04 Apr 2017 10:24:28 GMT
Griesel v Haasbroek (538/2016)  ZASCA 39 (30 March 2017)
Sale : action for purchase price : express term as to risk passing to purchaser : ambit of risk : risk event causing loss : purchase price payable.
Minister of Home Affairs v Saidi (294/2016)  ZASCA 40 (30 March 2017)
Refugees Act 130 of 1998 : section 21(1) : refusal of application for asylum : Chapter 4 rights of review and appeal : unsuccessful : section 22(1) : grant of asylum seeker permit : section 22(3) : Refugee Reception Officer empowered to extend permit pending outcome of judicial review : no substantive legitimate expectation that permits would be extended : no grounds for court to assume decision makers discretion to extend permits.
The Premier of the Western Cape Provincial Government N.O. v Rochelle Madalyn Kiewitz obo Jaydin Kiewitz (158/2016)  ZASCA 41 (30 March 2017)
Delict: damages: compensation for future medical expenses: impermissible to tender services in lieu of payment of a monetary award.
Brooks v NDPP (855/16)  ZASCA 42 (30 March 2017)
Application for forfeiture order in terms of s 48(1) of the Prevention of Organised Crime Act 121 of 1998 : whether residential property is instrumentality of an offence : property used in contravention of ss 82(a) and 83(b) of the Diamonds Act 56 of 1986 : whether forfeiture constitutionally disproportionate.
Mashamaite & others v Mogalakwena Local Municipality & others (523 /2016) and MEC, Limpopo & another v Kekana & others (548/2016)  ZASCA 43 (30 March 2017)
Res Judicata : the same cause, between the same parties for the same relief : the court a quo was precluded from granting a substantive order of reinstatement.
Motion proceedings : an applicant must, in the founding papers, disclose facts that would make out a case for the relief sought : the relief granted by the court a quo was inconsistent with the facts and averments contained in the papers : relief improperly granted.
Employee on suspension : an employee who is suspended does not have authority to act on behalf of an employer during the period of suspension, unless called upon to perform duties during that period.
Section 16(1)(a)(i) of the Superior Courts Act 10 of 2013 : mootness : circumstances have altered to such an extent that part of the judgment has become moot : order will have no practical effect.
Contempt of court : respondents failing to establish that the MEC acted wilfully and mala fide in failing to comply with a court order : not entitled to a declarator.
Costs order : discretionary and not lightly interfered with on appeal : absence of grounds on which a court, acting reasonably, could have made the order : appeal court entitled to interfere.
Polokwane Taxi Association v Limpopo Permissions Board and others (490/2016) ZASCA 44 (30 March 2017)
Court Practice: locus standi: whether appellant could bring the application: whether appellant had direct and substantial interest in the subject matter.
Factaprops v The Land Bank (353/2016)  ZASCA 45 (30 March 2017)
The phrase ‘mortgage bond’ in s 11(a)(i) of the Prescription Act 68 of 1969 has a wide meaning and includes a special notarial bond in terms of the Security by Means of Movable Property Act, 57 of 1993: therefore the period of prescription applicable to a debt secured by such special notarial bonds is thirty years.
Marais & others v Varicor Nineteen (Pty) Ltd (843/16)  ZASCA 46 (30 March 2017)
Contract: whether agreement to establish a diesel depot constituted extension of an existing supply agreement between the respondent and a trust or a new agreement with trustee of the trust in personal capacity : respondent satisfied onus to prove the former : appeal dismissed.
Published: Mon, 03 Apr 2017 07:31:16 GMT
New Adventure Shelf 122 v Commissioner : SARS (310/2016)  ZASCA 29 (28 March 2017)
Revenue: capital gains tax arising from the sale of immovable property: sale cancelled more than three years after assessment of capital gains tax but before purchase price paid in full: seller not entitled to have assessment reconsidered in the light of the subsequent cancellation: regard to be had to the cancellation in assessing a capital gain or capital loss in year of cancellation.
Kitshoff v Fedsure Staff Pension Fund & others (597/16)  ZASCA 31 (28 March 2017)
Pension Fund,: termination of membership: s14(1) Pension Funds Act 24 of 1956: transfer of benefits to new pension fund approved by Registrar: employee retrenched before approval: approval retrospective to date when membership of former fund terminated: no vested right to claim enhanced pension benefits as a result of retrenchment in terms of rules of former fund: right ceased on termination of membership of former fund: no enforceable right effected by retrospective operation of approval.
University of the Free State v Afriforum (1027/2016)  ZASCA 32 (28 March 2017)
Review : whether decision of University to adopt language policy administrative action under Promotion of Administrative Justice Act 3 of 2000 : whether University misconstrued its power under principle of legality : test for legality review restated : whether language policy ‘reasonably practicable’ as contemplated in s 29(2) of the Constitution : whether in the exercise of its power to decide language policy University constrained by requirement that policy ‘subject to’ Higher Education Language Policy in terms of s 27(2) of the Higher Education Act 101 of 1997.
Head of Department, Mpumalanga Department of Education v Valozone 268 CC (837/2015)  ZASCA 30 (29 March 2017)
Administrative law: review of decision to cancel and re-advertise public tender: decision not authorised by regulation 8(4) of the Preferential Procurement Regulations, 2011 and irrational: decision correctly set aside.
Media 24 Limited v Du Plessis (127/2016)  ZASCA 33 (29 March 2017)
Defamation: liability of the media: test of: words complained of to be considered from the point of view of the reasonable reader: defence of justification: truth and public benefit: only the material allegations or sting of the article required to be substantially true: publication of defamatory statement found not to have been reasonable: damages: assessment: award of R80 000 excessive justifying interference on appeal.
Mudau v The State (1148/2016) ZASCA 34 (29 March 2017)
Appeal against convictions and sentence: admissibility of confessions: misdirections by trial court, right to a fair trial infringed: appeal upheld.
Cathay Pacific Airways & another v Lin & another (260/2016)  ZASCA 35 (29 March 2017)
Practice – urgent application – whether court order issued orally only was effective – whether there was proper notice and service to affected parties – contempt of court – whether the requirements for contempt of court were proved beyond reasonable doubt.
Nelson Mandela Bay Municipality v Amber Mountain Investments (576/2016) ZASCA 36 (29 March 2017)
Local authority : Rates : Property rates levied for a financial year : levying of rates an integral part of budget process.
Interpretation : Acts to be read together as they form part of current system of local government : Local Government: Municipal Property Rates Act 32 of 2000 : s 13(1) : words and phrases : ‘as from’ : interpreted to mean that the rate is payable within the period of the financial year : s 13(1) read with ss 12, 26, 27 and 28 : obligation to pay property rates arises at the start of the financial year : obligation to make payment arises once the municipality has determined the date of payment and amount due : Local Government: Municipal Finance Management Act 56 of 2003 : ss 15 to 19 : municipality’s duties to approve annual budget for each financial year, budget including projected revenue for current year based on collection levels to date : budget to be finalised before start of financial year : Local Government: Municipal Systems Act 32 of 2000 (the Systems Act) : certificate is issued in terms of s 118(1) in respect of municipal debts which have become due, not future debts : municipality’s rates policy to the contrary is ultra vires the Act and invalid.
Adendorffs Boerderye v Shabalala & others (997/15)  ZASCA 37 (29 March 2017)
Conservation of Agricultural Resources Act 43 of 1983 (CARA) : Regulation 9 : land users as defined in CARA responsible for ensuring that grazing land is protected from overgrazing and deterioration : CARA not explicitly prohibiting a land owner from pursuing remedy in the form of a restraining order : land users not exercising grazing rights in terms of the provisions of the Extension of Security of Tenure Act 629 of 1997 but in terms of an agreement with landowner.
Court practice : Court orders :overbroad court orders not sought by parties and not supported by pleadings : such orders not sustainable, especially where parties were not afforded opportunity to make prior representations : orders set aside both in appeal and cross appeal.
Costs : de bonis propriis : where attorneys flagrantly disregard court rules by late delivery of heads of arguments without proper explanation : additionally, attempting to obtain postponement without proper basis : such conduct prejudicing opponent : appropriate to mulct attorney with costs.
Mount Amanzi Share Block Limited v The Body Corporate of Windsor Heights Sectional Title Scheme & others
(537/2016)  ZASCA 38 (29 March 2017)
Deed of servitude : right to supply services to other party to deed : right to determine levies payable for services : bare denial of correctness of determination : real, genuine and bona fide dispute of fact not established : discretion to determine levies exercised reasonably and honestly : claim valid and enforceable.
Published: Wed, 29 Mar 2017 11:26:40 GMT
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