Summaries of Constitutional Court and Supreme Court of Appeal Judgments: January 2022
Updated: Apr 11
Eastern Cape Rural Development Agency and Another v Agribee Beef Fund (Pty) Ltd and Others (827/2020)  ZASCA 2 (6 January 2022)
Procurement – Constitution, s 217(1) – Whether tripartite agreement between two organs of state and private entity was one that contemplated contracting for goods or services – Agreement, in furtherance of objects of organs of state, required private entity to provide smallholder farmers with cattle, paid for with public funds, veterinary kits and feed supplements, and to provide training and mentorship – Agreement was for provision of goods and services as contemplated by s 217(1) – No procurement process complying with s 217(1) preceded agreement – Agreement was declared to be invalid.
Eskom Holdings SOC Ltd v Lekwa Ratepayers Association and Others; Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others (870/2020)  ZASCA 10 (21 January 2022)
Cooperative governance – Constitution, s 41 and Intergovernmental Relations Framework Act 13 of 2005, s 40 require organs of State to make reasonable effort in good faith to settle intergovernmental disputes – Interim interdict – Appealable – Although it is generally considered not in interests of justice to permit appeal against interim interdict, there are limited circumstances where interests of justice dictate that interim interdict be appealable – Prima facie right – Whether residents of two municipalities established requisite prima facie right at level required for interim relief to restrain Eskom from implementing unilateral decisions – Decisions to reduce bulk electricity supply to municipalities to historic, outdated and inadequate contractually agreed supply levels without prior compliance with constitutional and statutory imperatives relating to intergovernmental dispute resolution mechanisms – Municipalities rendered unable to fulfil their constitutional obligations, resulting in catastrophe unfolding with hospitals, schools, households and businesses severely disrupted and with damage to environment as result of water sources being contaminated due to damage to municipal water and sewage systems – Prima facie right on facts established by demonstrating prospects of success in review proceedings in due course to review and set aside Eskom’s decisions on basis that they undermine constitutional and statutory imperatives.
Naidoo and Another v Dube Tradeport Corporation and Others (972/2020)  ZASCA 14 (27 January 2022)
Exception proceedings – Proper approach restated – Close corporations – Common law derivative action – Whether available in respect of close corporations – Whether alleged beneficial owner of member’s interest in close corporation can invoke derivative action on behalf of close corporation – Close Corporations Act 69 of 1984, s 54 – Third party’s reliance thereon must be bona fide and innocent.
Cornerstone Logistics (Pty) Ltd and Another v Zacpak Cape Town Depot (Pty) Ltd (879/2020)  ZASCA 12 (25 January 2022)
Interpretation of contractual provisions intended to indemnify licensee of customs warehouse against liability for customs duty, VAT, and other charges in terms of Customs and Excise Act 91 of 1964 – Conditions for indemnity coming into effect – Whether licensee acted on client’s instructions and liability caused by its own fault – Whether surety’s liability was limited to charges in respect of storage – Client issued instructions regarding release of goods to third party – Licensee held liable by SARS because it submitted falsified documents – No evidence of licensee’s complicity in falsification of documents – Liability thus not as result of any fault on its part – Surety’s liability accessory to that of principal debtor – Surety also liable to indemnify licensee in respect of customs duty, VAT, penalties and other charges.
Pretorius v Bedwell (659/2020)  ZASCA 4 (11 January 2022)
Prescription of damages claim based on acceptance of repudiation of contract – When prescription commences to run – Innocent party’s cause of action for damages accrues when election to treat contract as at an end is communicated to repudiating party – Special plea correctly dismissed.
Cipla Vet (Pty) Ltd v Merial and Others (1068/2020)  ZASCA 5 (11 January 2022)
Interpretation of orders – Rule 42 or common law – Clarification of order – Whether qualifying costs including costs of two counsel occasioned by amendment prior to hearing included in wasted costs order granted – Appeal dismissed – Order of full court confirmed.
Mphanama v S (1107/2020)  ZASCA 11 (24 January 2022)
Fraud – Submission by appellant (magistrate), of false claims in terms of motor vehicle benefit scheme – Prima facie evidence – Approach of court discussed – Appellant choosing not to testify – Court finding that he had case to answer – Defeating/obstructing course of justice – Reducing traffic fine before trial after prosecutor refused to do so – Not proven beyond reasonable doubt.
Masinga and Others v Chief of the South African National Defence Force and Others (51/2021)  ZASCA 1 (5 January 2022)
Statutory interpretation – Defence Act 42 of 2002, s 59(3) – Jurisdictional requirements – Officers of South African National Defence Force discharged after absenting themselves from official duty – Whether they were entitled to hearing – Whether discharge lawful.
Schenker South Africa (Pty) Ltd v Fujitsu Services Core (Pty) Ltd (508/2020)  ZASCA 7 (18 January 2022)
Delict – Damages – Contract – Exemption clause – Whether respondent’s cause of action founded on delict fell within ambit of exemption clause contained in contract concluded between parties – Whether high court was correct in finding that liability for delictual claim for damages was not excluded on basis of exemption clause – Construction of exemption clause – Respondent’s cause of action fell within ambit of clause – Appellant’s liability for claim excluded.
Member of the Executive Council, Department of Education, Eastern Cape v Komani School and Office Supplies CC, t/a Komani Stationers (1417/2018)  ZASCA 13 (26 January 2022)
Public school and school governing body – South African Schools Act 84 of 1996 as amended – Interpretation of s 60(1) – Liability of State for delictual or contractual damage or loss arising from act or omission in connection with school activity for which such public school would have been liable but for Schools Act.
Flower Foundation Pretoria Homes for the Aged NPC v Registrar of Deeds, Pretoria and Others (942/2020)  ZASCA 8 (20 January 2022)
Housing Development Schemes for Retired Persons Act 65 of 1988 – Interpretation of s 4B – Whether holders of rights of occupation in housing development scheme have to give consent to alienation of part of property to purchaser free of encumbrances in terms of s 4A, s 4B and s 4C – Whether housing development scheme was registered over entire property – s 4B prohibits alienation of property without 75% consent of holders of rights of occupation.
LD v Central Authority (RSA) and Another (803/2020: 812/2020)  ZASCA 6 (18 January 2022)
Hague Convention on the Civil Aspects of International Child Abduction, 1980 – Whether defence to return of child to Luxembourg, in terms of art 13(b), was established – Return of child would have effect of breaking up her family in South Africa – Evidence established that there was grave risk that child would, as result, be exposed to psychological hardship or otherwise be placed in intolerable situation – art 13(b) defence established.
Arcus v Arcus (4/2021)  ZASCA 9 (21 January 2022)
Interpretation of Prescription Act 68 of 1969, s 11(a)(ii) – Whether maintenance order is judgment debt, subject to 30 years’ prescription period, or any other debt, subject to three years’ prescription period – Maintenance orders are final, executable and appealable – Maintenance order is thus judgment debt for purposes of Prescription Act, and subject to 30 years’ prescription period.
Smuts and Another v Botha (887/2020)  ZASCA 3 (10 January 2022)
Right to privacy – Right to freedom of expression – Public disclosure of personal information by owner – Whether such personal information protected by right to privacy – Personal information ceases to be private once released to public domain by owner – Appeal upheld.
Date Posted: 7 January 2022