Summaries of Constitutional Court and Supreme Court of Appeal Judgments: December 2021
Updated: Apr 11
Canton Trading 17 (Pty) Ltd t/a Cube Architects v Fanti Bekker Hattingh N O (479/2020)  ZASCA 163 (1 December 2021)
Who decides whether parties consented to refer dispute to arbitration when there is dispute of fact as to their consent – Separability and competence-competence – Discretion of high court to adjudicate question of existence of arbitration agreement – Requirements for application of robust approach to adjudicate disputes of facts not met.
Chairperson: North West Gambling Board and Another v Sun International (SA) Ltd (1214/2019)  ZASCA 176 (14 December 2021)
Appeal – Condonation for late filing of appeal record and reinstatement of appeal and condonation for late filing of heads of argument – Prospects of success assumed – Whether good cause shown – Dilatory conduct of appellants – Failure to explain blatant disregard of rules and inordinate delays – Condonation and reinstatement refused.
City of Cape Town v South African Human Rights Commission (144/2021)  ZASCA 182 (22 December 2021)
Appealability of interim orders – Not appealable when subject to alteration by high court – Exception is where grave injustice would occur – Claim for compensation final in nature – Cannot be granted in interim proceedings.
Former Way Trade and Invest (Pty) Ltd t/a Premier Service Station and Another v Bright Idea Projects 66 (Pty) Ltd t/a All Fuels (1140/2020)  ZASCA 175 (14 December 2021)
Contempt of court – Requisites for contempt satisfied – Wilful disregard of order and mala fides proved on part of appellants – Duty to comply with court orders – Appeal dismissed.
Macsteel Tube and Pipe, a division of Macsteel Service Centres SA (Pty) Ltd v Vowles Properties (Pty) Ltd (680/2020)  ZASCA 178 (17 December 2021)
Order amending quantification of claim in summons did not amount to new cause of action and did not constitute final determination on issue of court’s jurisdiction to adjudicate action – Order amending description of defendant in summons does not amount to substitution of defendant in circumstances where description of defendant was same as in lease agreement concluded by parties – No prejudice was demonstrated by appellant – Application to amend was correctly granted – Appeal dismissed.
Van der Merwe v Bonnievale Piggery (Pty) Ltd (749/2020)  ZASCA 162 (1 December 2021)
Interlinked contracts for sale of pork products – Prices in sale contract market related – Parties unable to reach agreement on price – No consensus – Contractual arrangement ended – Counterclaim for breach of contract – Party allegedly failing to adjust prices – Not giving written notice of inability to do so – Not proved – Delict – Unlawful competition – Use of confidential information to poach customers – Not established – Appeal dismissed.
Tahilram v Trustees: Lukamber Trust and Another (845/2020)  ZASCA 173 (9 December 2021)
Sale of shares – Price – To be fixed by third party’s valuation – Subject to limited exceptions and in absence of agreement to contrary or waiver by parties, whenever parties agree to refer matter to valuer, then so long as valuer arrives at his/her decision honestly and in good faith, decision is final and binding on them and they are bound by it once communicated to them – Valuer is then functus officio insofar as valuation and matters pertaining thereto are concerned – Valuer is then not permitted to unilaterally withdraw or cancel valuation in order to alter or amend it – Only court has power to interfere with valuer’s decision in review proceedings – Judicial ambit of court’s power to interfere severely circumscribed.
Criminal law and procedure
Director of Public Prosecutions, Pretoria v Zulu (1192/2018)  ZASCA 174 (10 December 2021)
Sentence – Appeal by State in terms of Criminal Procedure Act 105 of 1977, s 311(1) – Whether issue raised is question of law or fact – Whether sentence disproportionate to crime – Sentence imposed by Regional Court reinstated.
Minister of Police v Bosman and Others (1163/2020)  ZASCA 172 (9 December 2021)
Criminal Procedure Act 51 of 1977, s 40(1)(b), (f) and (h) – Unlawful arrest and detention – Whether respondents’ arrest and detention was lawful – Arrest and detention justified – Award for damages set aside.
Nongogo v S (852/2020)  ZASCA 166 (3 December 2021)
Conviction of murder and conspiracy to commit murder – Whether court a quo erred in convicting appellant on both conspiracy to commit murder as well as murder – Special entry – Whether irregularity had been committed in ordering trial to start de novo before another judge.
Lucas and Another v Umhlathuze Municipality and Another (785/2020)  ZASCA 181 (17 December 2021)
Negligence – Foreseeability of harm – Child fatally electrocuted when touching metal cage encasing electricity distribution kiosk – Kiosk on private property administered by body corporate – Lock affixed to cage by municipality – Whether municipality liable – Body corporate responsible for maintenance of common property – Electricity Regulation Act 4 of 2006, s 25 – Incident not caused by negligence of municipality – Appeal dismissed.
National Union of Metalworkers of South Africa v Commission for Conciliation, Mediation and Arbitration and Others (CCT 49/20)  ZACC 47 (10 December 2021)
Collective bargaining – Bargaining councils – Dispute about demarcation between sectors and areas – Labour Relations Act 66 of 1995, s 62 – Demarcation – Dispute – Review of CCMA arbitration proceedings – Decisions and awards of arbitrators – Power of Labour Court – Substitution of award.
Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/47media.pdf
Gambling and lotteries
Chairperson, Eastern Cape Gambling and Betting Board and Another v Vukani Gaming Eastern Cape (Pty) Ltd and Others (1338/2019); (1366/2019); (119/2020)  ZASCA 180 (17 December 2021)
Review of issue of request for proposals (RFP) for independent site operator licences – Gambling licences – interpretation of Eastern Cape Gambling Regulations, Reg 59(3)(a) – Deference – Meaning of decision-maker being satisfied – Over-saturation – Province-wide or locality specific – Appeal upheld.
Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others (CCT 157/20)  ZACC 45 (7 December 2021)
Constitution, s 26 – Housing rights – State failure – Constitutional damages – Constitutional damages not awarded – Constitution, s 38 – Appropriate relief – Constitutional damages not appropriate relief in this case.
Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/45media.pdf
Magistrates Commission and Others v Lawrence (388/2020)  ZASCA 165 (2 December 2021)
Constitutional law – Review of decision of Appointments Committee of Magistrates Commission not to shortlist candidate for appointment as magistrate – Rigid exclusion of candidate solely on account of being white male – Recommendation of Appointments Committee reviewed and set aside.
Land and property law
Herbert NO and Others v Senqu Municipality and Others (742/2020)  ZASCA 177 (17 December 2021)
Upgrading of Land Tenure Rights Act 112 of 1991 – Upgrading and conversion into ownership of Permission to Occupy granted in respect of erf in Sterkspruit – Interpretation of s 3(1) – Whether TEBA Property Trust as holder of Permission to Occupy granted in terms of Native Trust and Land Act 18 of 1936 (NTLA) falls within class of persons in whose interest Upgrading Act was enacted – TEBA Property Trust was not disadvantaged by NTLA or racially discriminatory laws and thus may not apply for conversion of its Permission to Occupy into full title.
Malan v Die Gerhard Labuschagne Familie Trust and Another (44/2021)  ZASCA 171 (9 December 2021)
Sale – Immovable property – Subdivision of remainder approved by Surveyor-General – Option to purchase one of proposed subdivisions – Option exercised but transfer not effected – No real right in proposed subdivision to dispose of – Subsequent sale of unsubdivided property including proposed subdivision to third party – Third party taking transfer unaware of any claim to transfer of proposed subdivision – Rectification claimed of sale agreement and title deed to reflect sale and transfer of consolidated property including proposed subdivision – Such rectification not competent – Only personal right to transfer of proposed subdivision could be disposed of since no transfer of proposed division had taken place – No basis for title deed of third party to be ‘rectified’ to exclude proposed subdivision.
Legal proceedings against state organs
NMZ obo SFZ v MEC for Health and Social Development: Mpumalanga Provincial Government (1149/2020)  ZASCA 184 (24 December 2021)
Notice in terms of Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, s 3(4)(b) – Application for condonation – Requirements restated – Condonation granted as good cause having been established.
Masako v Masako and Another (724/2020)  ZASCA 168 (3 December 2021)
Locus standi – Whether attorney requires authority from client to depose to affidavit – Distinction between right to institute proceedings, authority to act on behalf of client and basis for deposing to affidavit – Attorney’s founding affidavit based on facts known to her – Inquiry into attorney’s legal standing irrelevant – Appeal upheld.
Selota v South African Legal Practice Council (658/2020)  ZASCA 169 (3 December 2021)
Appellant seeking declarator that he was entitled to Fidelity Fund certificate for 2019 – Decision would have no practical effect or result within meaning of Superior Courts Act 10 of 2013, s 16(2)(a)(i) – Matter struck from roll.
Member: Executive Council for Cooperative Governance and Traditional Affairs, KwaZulu-Natal v Nkandla Local Municipality and Others (CCT 304/20)  ZACC 46 (8 December 2021)
Local Government Municipal Systems Act 32 of 2000 – Interpretation of s 54A – Operation of constitutional invalidity after expiration of period of suspension – Interests of justice – Mootness.
Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/46media.pdf
Afriforum NPC v Premier, Gauteng Province and Others (1000/2020)  ZASCA 185 (24 December 2021)
Constitution, s 139(1)(c) – Dissolution of Municipal Council – Power of administrator to approve budget – Not legislative function – Not precluded by s 139(4).
Bester NO and Others v Quintado 120 (Pty) Ltd (CCT160/21)  ZACC 49 (13 December 2021)
Liquidation – Factual enquiry – Directing mind of company test – Misapplication of legal test – No jurisdiction.
Media summary: http://www.saflii.org/za/cases/ZACC/2021/49media.pdf
Clicks Group Ltd and Others v Independent Community Pharmacy Association and Others (644/2020)  ZASCA 167 (3 December 2021)
Pharmacy Act 53 of 1974 – Regulation 6(d) of Regulations relating to Ownership and Licencing of Pharmacies – Beneficial interest in community pharmacies and manufacturing companies – Revocation of retail and manufacturing licences – Definition of ‘beneficial interest’ – Constitutional challenge of s 22A – Whether Clicks Group had contravened Act and licensing regulations because entities within Clicks Group owned community (retail) pharmacies while at same time having beneficial interest in manufacturing company – Clicks Group has no beneficial interest in pharmaceutical manufacturing companies – Constitutional challenge has no merit.
Samancor Chrome Ltd v North West Chrome Mining (Pty) Ltd and Others (30/2020)  ZASCA 183 (23 December 2021)
Interdict – Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) – Mining activities conducted in area not covered by mining permits but within area of applicant’s prospecting right – Court erroneously dismissing application on basis of issue not before it – Joinder of Minister of Mineral Resources not necessary – MPRDA, s 47 not precluding relief – Application to adduce further evidence on appeal – Requirements therefor not established.
Post Office Retirement Fund v South African Post Office SOC Ltd and Others (1134/2020)  ZASCA 186 (30 December 2021)
Posts and Telecommunications-Related Matters Act 44 of 1958 – Rules of Post Office Retirement Fund – Rule 3 requires South African Post Office (SAPO) to pay to Fund pension contributions, including employees’ contributions, on monthly basis – SAPO stopped paying contributions – Rule 3 places obligation on SAPO to pay contributions – Obligation to pay has not been extinguished or deferred by intervening impossibility of performance – Obligation to pay may not be avoided by SAPO deciding not to pay Fund, but to pay other creditors instead.
Media summary: http://www.saflii.org/za/cases/ZASCA/2021/186media.pdf
Persons and family law
Bwanya v Master: High Court, Cape Town and Others (CCT 241/20)  ZACC 51 (31 December 2021)
Permanent life partnerships – Application for confirmation of order of constitutional invalidity of Intestate Succession Act 81 of 1987, s 1(1) – Application for direct appeal against High Court’s dismissal of challenge to constitutional validity of definition of “survivor” under Maintenance of Surviving Spouses Act 27 of 1990, s 1.
Media summary: http://www.saflii.org/za/cases/ZACC/2021/51media.pdf
Mahinga v Minister of Home Affairs and Another (1027/2020)  ZASCA 179 (17 December 2021)
Citizenship – Whether Minister of Home Affairs’ decision taken in terms of South African Citizenship Act 88 of 1995, s 8(1) to deprive appellant of his citizenship was reasonable and rational – Certificate of naturalisation was fraudulently obtained on basis of marriage that was not bona fide – Concealment of material facts.
African Transformation Movement v Speaker: National Assembly and Others (643/2021)  ZASCA 164 (2 December 2021)
Review – Rationality – Request for vote by secret ballot – Discretion of Speaker – Requirement that requesting party discharge onus to prove need for secret ballot – No onus on requesting party – Speaker materially misconstruing basis on which to exercise discretion – Reviewable – Appeal upheld.
Abore v Minister of Home Affairs and Another (CCT 115/21)  ZACC 50 (30 December 2021)
Refugees Act 130 of 1998 – Applicability of provisions of Refugees Amendment Act 11 of 2017 – Date of intention to apply for asylum – Principle of non-refoulement.
Media summary: http://www.saflii.org/za/cases/ZACC/2021/50media.pdf
Purveyors South Africa Mine Services (Pty) Ltd v Commissioner for the South African Revenue Services (Pty) Ltd (135/2021)  ZASCA 170 (7 December 2021)
Voluntary disclosure – Whether taxpayer met requirements of Tax Administration Act 28 of 2011, s 227 – Commissioner: South African Revenue Services had knowledge of information subsequently disclosed and prompted taxpayer to comply – Disclosure not voluntary – Requirements of s 227 not satisfied – Appeal dismissed.
Burger NO and Others v Bester NO and Others (CCT 246/20)  ZACC 48 (13 December 2021)
Power of single trustee to conclude loan agreement on trust’s behalf – Use of trust to channel funds to company – Factual disputes – No arguable point of law – Misdirection on facts – Jurisdiction not engaged – Requirements to bind trust – Powers of trustee provided for by trust deed – Settled principle of law – Jurisdiction not engaged.
Media summary: http://www.saflii.org/za/cases/ZACC/2021/48media.pdf
Date Posted: 19 January 2022