• Danielle Geldenhuys

Summaries of Constitutional Court and Supreme Court of Appeal Judgments: June 2022

























City of Ekurhuleni Metropolitan Municipality v Takubiza Trading and Projects CC and Others (846/2021) [2022] ZASCA 82 (3 June 2022)

Tender – Award of after expiry of tender validity period – Once tender validity period expired – Tender process completed, albeit unsuccessfully.


Minister of Finance v Sakeliga NPC (previously known as Afribusiness NPC) and Others (CCT 62/22) [2022] ZACC 17 (30 May 2022)

Whether order given by Constitutional Court in Minister of Finance v Afribusiness NPC (CCT 279/20) [2022] ZACC 4 (16 February 2022) is susceptible to variation – Whether order in any way lacks clarity – Court dismissed appeal by applicant against Supreme Court of Appeal judgment declaring Preferential Procurement Regulations invalid – No basis for suggesting that majority judgment adopted content of footnote of minority judgment – Superior Courts Act 10 of 2013, s 18(1) – Dismissed.

Judgment: http://www.saflii.org/za/cases/ZACC/2022/17.pdf.

Media summary: http://www.saflii.org/za/cases/ZACC/2022/17media.pdf.


Engen Petroleum Ltd v Flotank Transport (Pty) Ltd (876/2020) [2022] ZASCA 98 (21 June 2022)

Interpretation of cession – Whether pledge or out-and-out cession incorporating pactum fiduciae – Effect of out-and-out cession on ceded debts upon liquidation of cedent – Appeal upheld with costs.



Speaker: National Assembly and Another v New Nation Movement NPC and Others (110/19) [2022] ZACC 24 (29 June 2022)

Suspended declaration of invalidity – Urgent application for extension of suspension of invalidity – Avoid last-minute applications for extension – Interests of justice overarching factor – Extension granted.

Judgment: http://www.saflii.org/za/cases/ZACC/2022/24.pdf.

Media summary: http://www.saflii.org/za/cases/ZACC/2022/24media.pdf.

Heads of argument: http://www.saflii.org/za/cases/ZACC/2022/24hoa.pdf.


e.tv (Pty) Ltd v Minister of Communications and Digital Technologies and Others; Media Monitoring Africa and Another v e.tv (Pty) Ltd and Others (89/22; CCT 92/22) [2022] ZACC 22 (28 June 2022)

Analogue switch-off date – Duty to give notice – Procedural rationality – Remedy – Review of Minister’s decision – Separation of powers – Substitution not appropriate – Setting aside of Minister’s decision.

Judgment: http://www.saflii.org/za/cases/ZACC/2022/22.pdf.

Media summary: http://www.saflii.org/za/cases/ZACC/2022/22media.pdf.

Heads of argument: http://www.saflii.org/za/cases/ZACC/2022/22hoa.pdf


Hendricks v Church of the Province of Southern Africa, Diocese of Free State (108/2021) [2022] ZASCA 95 (20 June 2022)

Canons applicable to Anglican Church in relation to request by Bishop that cleric be relocated to another parish – Interpretation of Canon 25(6) – Procedural fairness relating to decision.



National Credit Regulator v Dacqup Finances CC trading as ABC Financial Services – Pinetown and Another(382/2021) [2022] ZASCA 104 (24 June 2022)

National Credit Act 34 of 2005 – What constitutes reasonable suspicion for National Credit Regulator to initiate a complaint in terms of s 136 – Competence of National Consumer Tribunal to order appointment of independent auditor to assess extent of first respondent’s overcharging – Appeal upheld – Order of Tribunal reinstated.



Naka Diamond Mining (Pty) Ltd v Johannes Frederick Klopper NO and Others (277/2021) [2022] ZASCA 94 (17 June 2022)

Whether obligations created under joint venture contract survived termination of contract – Principles governing interpretation of legal documents reaffirmed – Reconstruction of terms of contract by court on termination impermissible – All obligations ceased on termination of contract.


Rademeyer v Ferreira (343/2021) [2022] ZASCA 92 (17 June 2022)

Prescription – Agreement of sale – Whether respondent's claim instituted by action proceedings in April 2016 had prescribed – Whether claim for cancellation of contract and consequential damages action instituted under different case number constituted 'step' in enforcement of claim for payment of debt.


Transnet SOC Ltd v Total South Africa (Pty) Ltd and Another (CCT 114/21) [2022] ZACC 21 (21 June 2022)

Application for leave to appeal against High Court judgment in which respondents sought damages from Transnet for alleged breach of its obligations in terms of variation agreement to set tariffs for conveyance of crude oil from Durban to Sasolburg – Whether variation agreement is terminable and, if so, whether it has been lawfully terminated – Whether, absent cancellation of contract, claims for contractual damages where refund is sought in respect of amounts that were allegedly overcharged disclose cause of action – Declared that variation agreement was terminable and was terminated validly.

Judgment: http://www.saflii.org.za/za/cases/ZACC/2022/21.pdf.

Media summary: http://www.saflii.org.za/za/cases/ZACC/2022/21media.pdf.


Capital Appreciation Ltd v First National Nominees (Pty) Ltd and Others (280/2021) [2022] ZASCA 85 (8 June 2022)

Companies Act 71 of 2008 – Repurchase by company of more than 5% of its shares – s 48(8)(b) – Transaction requires compliance with s 114 and s 115 – s 115(8) triggers appraisal right, in terms of s 164, in favour of dissenting shareholders.



Mhlongo and Others v Mokoena NO and Others (865/2020) [2022] ZASCA 78 (31 May 2022)

Jurisdiction – Superior Courts Act 10 of 2013, s 21 – Statute takes precedence over practice directives – Order of High Court relying on practice directive for ousting jurisdiction of High Court set aside.



Minister of Cooperative Governance and Traditional Affairs and Another v British American Tobacco South Africa (Pty) Ltd and Others (309/21) [2022] ZASCA 89 (14 June 2022)

Constitutional law – COVID-19 pandemic – Regulation made under Disaster Management Act 57 of 2002 – Prohibiting sale of tobacco and related products – Challenged as infringement of fundamental rights – Dignity, bodily and psychological integrity, freedom of trade and deprivation of property – Limitation under s 36 of Constitution – To reduce strain on health system – Not established – Interpretation of sections 27(2)(n) and 27(3) of the Act – Tobacco ban unnecessary – Appeal dismissed.

Judgment: https://www.saflii.org/za/cases/ZASCA/2022/89.html


Botha v S (546/2021) [2022] ZASCA 87 (8 June 2022)

Sentence – Cumulative effect of sentence totalling 36 years’ imprisonment – Where appellant convicted of similar multiple offences – Circumstances in which appeal court will interfere – Cumulative effect of sentences in this case does not induce sense of shock – Inteference not warranted.


Diljan v Minister of Police (746/2021) [2022] ZASCA 103 (24 June 2022)

Arrest without warrant – Criminal Procedure Act 51 of 1977, s 40(1)(b) – Failure to exercise discretion whether to arrest upon existence of jurisdictional facts for arrest without warrant – Resultant arrest and detention unlawful – Determination of appropriate quantum of damages.


Mashilo v S (1129/2019) [2022] ZASCA 81 (2 June 2022)

Application in terms of Superior Courts Act 10 of 2013, s 17(2)(f) – Referred by President of Supreme Court of Appeal to full court for reconsideration and, if necessary, variation – Dismissed.


Mekuto v S (1120/2020) [2022] ZASCA 86 (8 June 2022)

Reconsideration of order refusing leave by two judges of Supreme Court of Appeal (SCA) – Whether court below and two SCA judges ought to have granted leave or not – Applicant showed special circumstances only in respect of attempted murder charge – Sentence of 15 years’ imprisonment imposed for attempted murder set aside and replaced with 10 years’ imprisonment.


National Director of Public Prosecutions v Moyane (474/2021) [2022] ZASCA 79 (31 May 2022)

Asset forfeiture – Prevention of Organised Crime Act 121 of 1998 – Whether vehicle was proceeds of unlawful activities – Substantial amount of money paid directly to dealership for purchase price emanated from third parties and was not accounted for – Procedure – Full court treatment of evidence flawed – No real, genuine or bona fide dispute of fact arose on papers.


Rensburg v Minister of Police and Another (557/2021) [2022] ZASCA 105 (29 June 2022)

Criminal Procedure Act 51 of 1977, s 40(1)(b) – Arrest without warrant – Whether respondents’ conduct in arresting and detaining appellant was wrongful, unlawful and unjustified.


Tuta v S (CCT 308/20) [2022] ZACC 19 (31 May 2022)

Jurisdiction – Oral submissions – Arguable point of law – Application of incorrect legal test – No prejudice arising – Extempore judgment – Ambiguity in judgment – Rules of interpretation – Rights of accused – Putative private defence – Application of incorrect legal test – Misapplication of established legal principle – Arguable point of law.

Judgment: http://www.saflii.org/za/cases/ZACC/2022/19.pdf.

Media summary: http://www.saflii.org/za/cases/ZACC/2022/19media.pdf.


Memorable Order of Tin Hats v Els (488/2021) [2022] ZASCA 99 (22 June 2022)

Negligence – Omission to install second handrail on flight of stairs – Liability for wrongfulness – Appellant under duty to public and its members to ensure their safety – No causal connection between incident and omission.


Olesitse NO v Minister of Police (470/2021) [2022] ZASCA 90 (15 June 2022)

Delict – Once and for all rule – Claim for damages for malicious prosecution instituted after institution of claim for damages for unlawful arrest and detention – Both claims arising from same event – Later claim offended common law principle of ‘once and for all’ – Appellant should have instituted all his claims for damages he suffered in one action – Claim based on malicious prosecution was properly dismissed.



Alert Steel (Pty) Ltd v Mercantile Bank Ltd (165/21) [2022] ZASCA 96 (21 June 2022)

Condictio indebiti and condictio sine causa – Company in liquidation – Sale of assets – Claim for repayment of amount received by secured creditor – On basis that receipt ultra vires – Enrichment of creditor and impoverishment of company not proved – Appeal dismissed.



Peermont Global (North West) (Pty) Ltd v Chairperson: North West Gambling Review Tribunal and Others and Two Other Cases (1040/2020; 1055/2020; 1056/2020) [2022] ZASCA 80 (2 June 2022)

Peermont v Chairperson: North West Gambling Review Tribunal and Others: Administrative law – Review – Legality – Lawfulness and fairness of licence application process in terms of North West Gambling Act 2 of 2001 (NWGA) – Whether licence application process was procedurally unfair, given that (a) applicable Request for Applications was not provided to appellant, and (b) allegedly incomplete copies of bingo licence applications were made available for public inspection – Whether electronic bingo terminals (EBTs) to be provided for play offered game of ‘bingo’ as defined in NWGA – Whether North West Gambling Board failed to have regard to adverse impact that licence of bingo operations was likely to have on appellant’s nearby casinos.

Galaxy Bingo Moruleng (Pty) Ltd and Another v North West Gambling Board and Others (in re Jonoforce (Pty) Ltd): Administrative law – Review – Legality – Whether decision to grant application of sixth respondent, Jonoforce (Pty) Ltd, for bingo licence at Klerksdorp was unlawful – Whether fact that portion of Jonoforce’s application for bingo licence was marked confidential and not publicly disclosed, violated NWGA, s 32(3)(a) and 24(5)(d) and rendered award pursuant thereto procedurally unfair – Whether impugned decisions were, inter alia, irrational, unreasonable and based on failure to consider relevant considerations.

Galaxy Bingo Moruleng (Pty) Ltd v North West Gambling Board and Others (in re Latiano 560 (Pty) Ltd): Administrative law – Review – Legality – Whether decision of North West Gambling Board to grant application for bingo licence in Mahikeng was unlawful – Whether the decision was made on basis of arithmetical error – Whether reasons given by Board did not reflect decisions actually made, alternatively, show that Board considered irrelevant considerations and failed to consider relevant ones.


Tsogo Sun Caledon (Pty) Ltd and Others v Western Cape Gambling and Racing Board and Another (89/2021) [2022] ZASCA 102 (24 June 2022)

Review – Principle of legality – Imposition of conditions of licences – Condition that licensee must maintain level 4 broad-based black economic empowerment certification – Jurisdictional facts giving rise to power to impose such condition not satisfied – Absent jurisdictional facts, Board not empowered to impose impugned conditions – Decision set aside on review.



Strydom NO and Another v Snowball Wealth (Pty) Ltd and Others (356/2021) [2022] ZASCA 91 (15 June 2022)

Interpretation of Insolvency Act 24 of 1936, s 26(1) – Disposition not made for value – Phrase ‘not made for value’ means for no value at all.



Cochrane Steel Products v Jumalu Fencing (166/2021) [2022] ZASCA 100 (22 June 2022)

Trade Marks Act 194 of 1993, s 34(1)(a), (c) and s 34(2)(b) – Trade mark infringement claims – Disclaimer in relation to registered trade mark ‘CLEAR VU’ – Registration of mark shall not debar others from bona fide descriptive use of words ‘clear view’ – Whether respondent’s use of those words in course of trade bona fide and descriptive of its kind of goods and their characteristics – Whether respondent’s conduct unlawful and amounting to passing-off.



Govan Mbeki Local Municipality and Another v Glencore Operations South Africa (Pty) Ltd and Others (334/2021; 338/2021) [2022] ZASCA 93 (17 June 2022)

Local Government: Municipal Systems Act 32 of 2000 – Validity of municipal by-laws – Whether provisions of by-laws fell within legislative competence of municipality.



TM obo MM v Member: Executive Council for Health and Social Development, Gauteng (CCT 270/21) [2022] ZACC 18 (30 May 2022)

Claim for damages arising from injuries sustained as result of alleged negligent conduct of medical staff during childbirth – Jurisdiction – Constitutional issue – Interests of justice – Leave to appeal – Not in interests of justice to grant leave – Leave to appeal refused.



PAF v SCF (788/2020) [2022] ZASCA 101 (22 June 2022)

Divorce – Accrual – Asset donation to trust – Whether value thereof should be considered as part of donor spouse’s estate for purpose of calculating accrual – Civil procedure – Application for leave to lead further evidence on appeal – Condonation – Late prosecution of appeal – Principles restated.


The Voice of the Unborn Baby and Another v Minister of Home Affairs and Another (CCT 120/21) [2022] ZACC 20 (15 June 2022)

Births and Deaths Registration Act 51 of 1992 (BADRA) – BADRA does not prohibit the burial of a pre-viable or terminated foetus – Constitutional validity of sections 18(1) to (3) and 20(1) — Order of constitutional invalidity not confirmed.

Judgment: http://www.saflii.org/za/cases/ZACC/2022/20.pdf.

Media summary: http://www.saflii.org/za/cases/ZACC/2022/20media.pdf.

Women's Legal Centre Trust v President: Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23 (28 June 2022)

Muslim marriages – Non-recognition – Infringement of rights to dignity, equality, access to courts and principle of best interests of child – Constitutional invalidity – Divorce Act 70 of 1979 – Marriage Act 25 of 1961 – Retrospectivity.

Judgment: http://www.saflii.org/za/cases/ZACC/2022/23.pdf.

Media summary: http://www.saflii.org/za/cases/ZACC/2022/23media.pdf.

Heads of argument: http://www.saflii.org/za/cases/ZACC/2022/23hoa.pdf.


Commissioner: South African Revenue Service and Others v Dragon Freight (Pty) Ltd and Others (751/21) [2022] ZASCA 84 (7 June 2022)

Review of decision to seize goods under Customs and Excise Act 91 of 1964, s 88(1)(c) – Transaction value of goods under-declared – Decision lawful, reasonable and procedurally fair – Interpretation of s 96(1)(a) – Notice of legal proceedings – Requirements peremptory – Cause of action must be set out – Notice in anticipation of decision not yet taken invalid



Barnes v Mangaung Metropolitan Municipality and Another (996/2020) [2022] ZASCA 77 (30 May 2022)

Principle of legality – Appointment of first chief of metropolitan police – Power to appoint person who was not registered traffic officer – Interpretation of South African Police Service Act 68 of 1995, s 64D – Only requirement that person be fit and proper in instance of first chief of police – No requirement that appointee be traffic officer – Appeal dismissed.



Commissioner: South African Revenue Service v Capitec Bank Ltd (94/2021) [2022] ZASCA 97 (21 June 2022)

Value-added tax – Whether tax fraction of loan cover payouts qualified for deduction in terms of Value-Added Tax Act 89 of 1991, s 16(3)(c) – Whether loan cover qualified as taxable supply – No consideration charged for loan cover – Loan cover supplied in course of business of providing credit – Loan cover qualified as exempt supply – Penalty imposed under Tax Administration Act 28 of 2011, s 213 remitted.


Commissioner: South African Revenue Service v Van der Merwe (211/2021) [2022] ZASCA 106 (30 June 2022)

Income tax – Application for default judgment in terms of Rule 56 of Rules prescribed by Tax Administration Act 28 of 2011 – Application failed to meet jurisdictional requirements even on unopposed basis.


Rennies Travel (Pty) Ltd v South African Revenue Service (207/2021) [2022] ZASCA 83 (6 June 2022)

Revenue – Value-Added Tax Act 89 of 1991 (VAT Act) – Supplementary commission received by travel agency after achieving agreed sales targets of international airline tickets – Constituted consideration for arranging transport of international passengers – Receipts had to be zero-rated under VAT Act, s 11(2)(a) and (d) – Practice – Time for lodgement of notice of appeal – Conflict between provisions of Tax Administration Act 28 of 2011 (TAA) and rules of Supreme Court of Appeal – Latter subordinate legislation – Provisions of TAA prevail.



Bestbier and Others v Nedbank Ltd (150/2021) [2022] ZASCA 88 (13 June 2022)

Applicability of Uniform Rules of Court, Rule 46A – Whether Rule 46A applies when property sought to be declared executable was owned by trust and is primary residence of trust beneficiaries – Whether trust beneficiaries and their employees are entitled to constitutional safeguards.


Date posted: 4 June 2022

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