• Danielle Geldenhuys

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


ARMS AND AMMUNITION

ADMINISTRATIVE LAW

BUSINESS RESCUE

CIVIL PROCEDURE

CONTRACT

COURTS

CRIMINAL LAW

DAMAGES

DELICT

EMPLOYMENT AND LABOUR LAW

ENVIRONMENTAL LAW

FINANCIAL LAW

INSOLVENCY

INTELLECTUAL PROPERTY

LAND AND PROPERTY LAW

MINING LAW

PERSONS AND FAMILY LAW


ARMS AND AMMUNITION


Minister of Police and Others v Fidelity Security Services (Pty) Ltd (CCT 195/21) [2022] ZACC 16 (27 May 2022)

Firearms Control Act 60 of 2000, s 13 to 20 – Application for licence to possess firearm – Lapsing of previous licence – No express or implied prohibition against new application – Appeal dismissed.

Judgment: http://www.saflii.org/za/cases/ZACC/2022/16.pdf.

Media summary: http://www.saflii.org/za/cases/ZACC/2022/16media.pdf.


ADMINISTRATIVE LAW


Commissioner: South African Revenue Service v Sasol Chevron Holdings Ltd (1044/2020) [2022] ZASCA 56 (22 April 2022)

Promotion of Administrative Justice Act 3 of 2000 (PAJA) – Application for review of administrative action – Delay in instituting application – PAJA, s 7(1) – No agreement between parties under s 9(1) for extension of period prescribed in terms of s 7(1) – Nor application to court under s 9(2) for extension of prescribed 180 day period.

Judgment: http://www.saflii.org/za/cases/ZASCA/2022/56.pdf.

Media summary: http://www.saflii.org/za/cases/ZASCA/2022/56media.pdf.


BUSINESS RESCUE


Kgoro Consortium (Pty) Ltd and Another v Cedar Park Properties 39 (Pty) Ltd and Others (935/2020) [2022] ZASCA 65 (9 May 2022)

Business rescue proceedings – Whether reasonable prospect of rescuing company as contemplated in Companies Act 71 of 2008, s 131(4)(a) – Costs de bonis propriis ordered against attorneys – No opportunity afforded to state case – Special costs order set aside.

http://www.saflii.org/za/cases/ZASCA/2022/65.pdf


Lutchman NO and Others v African Global Holdings (Pty) Ltd and Others; African Global Holdings (Pty) Ltd and Others v Lutchman NO and Others (1088/2020; 1135/2020) [2022] ZASCA 66 (10 May 2022)

Interpretation of Companies Act 71 of 2008, s 131(6) – s 131(6) provides for suspension of liquidation proceedings at time business rescue application is made – Meaning of when business rescue application is ‘made’ – Business rescue application must be issued, served by sheriff on company and Companies and Intellectual Property Commission, and each affected person must be notified of application in prescribed manner, to meet requirements of s 131(6) in order to trigger suspension of liquidation proceedings – Practice – Judgments and orders – Interpretation of order – Applicable principles – Determining manifest purpose of order – To be determined by also having regard to relevant background facts which culminated in it being made.

http://www.saflii.org/za/cases/ZASCA/2022/66.pdf


CIVIL PROCEDURE


Exxaro Coal Mpumalanga (Pty) Ltd v TDS Projects Construction and Newrak Mining JV (Pty) Ltd and Another (169/2021) [2022] ZASCA 76 (27 May 2022)

Interdict to stop payment of demand guarantee – Whether requirements for final interdict satisfied – Injury not established – Alternative satisfactory remedy available.

http://www.saflii.org/za/cases/ZASCA/2022/76.pdf


IGS Consulting Engineers and Another v Transnet SOC Ltd (198/2020) [2022] ZASCA 63 (29 April 2022)

Non-compliance with Constitution, s 217 – Contracts set aside – Superior Courts Act 10 of 2013, s 16(2)(a) – Decision on appeal having no practical effect – No live issue other than costs – No exceptional circumstances justifying hearing on costs.

http://www.saflii.org/za/cases/ZASCA/2022/63.pdf


Le Hanie and Others v Glasson and Others (214/2021) [2022] ZASCA 59 (22 April 2022)

Contempt of court – Interpretation of court order – Non-compliance not proven – Absence of wilfulness and mala fides – Court order not directed at respondents.

Judgment: http://www.saflii.org/za/cases/ZASCA/2022/59.pdf.

Media summary: http://www.saflii.org/za/cases/ZASCA/2022/59media.pdf.


Luke M Tembani and Others v President: Republic of South Africa and Another (167/2021) [2022] ZASCA 70 (20 May 2022)

Exception – Delictual claim – Whether high court correct in upholding exception based on causation – Whether exception proceedings appropriate to decide factual and legal issues raised – Appealability – Dismissal of exception not appealable – Conclusion that ‘no order is required to be made’ in conditional application not appealable order.

http://www.saflii.org/za/cases/ZASCA/2022/70.pdf


RTS Industries and Others v Technical Systems (Pty) Ltd and Another (145/2021) [2022] ZASCA 64 (5 May 2022)

Interim interdict – Appealability of interim interdictory relief and refusal of counter-application – Interests of justice do not require that appeal be entertained.

http://www.saflii.org/za/cases/ZASCA/2022/64.pdf


CONTRACT


Tee Que Trading Services (Pty) Ltd v Oracle Corporation South Africa (Pty) Ltd and Another (065/2021) [2022] ZASCA 68 (17 May 2022)

Arbitration and governing law clauses in licence agreements – Whether subsequent contracts replaced or rendered clauses inoperative – No variation of the licence agreements – Subsequent contracts regulating different aspects of business – Arbitration clause and governing law clause not invalid.

http://www.saflii.org/za/cases/ZASCA/2022/68.pdf


COURTS


Matamela v Mulaudzi (475/2021) [2022] ZASCA 71 (23 May 2022) Appeal – Superior Courts Act 10 of 2013, s 16(1)(b) – Appeal of decision of high court sitting as appeal court – Leave to appeal wrongly granted by full court – Special leave of Supreme Court of Appeal is required – Absence of jurisdiction – Appeal struck from roll.

http://www.saflii.org/za/cases/ZASCA/2022/71.pdf


CRIMINAL LAW


Nhlapo v S (933/20) [2022] ZASCA 72 (25 May 2022)

Appeal against sentence – Special leave to appeal granted only against sentence of ten years’ imprisonment for attempted murder – Cumulative effect of sentences relevant – Sentence on one count cannot be viewed in isolation from others – No warrant for interference – Dismissed.

http://www.saflii.org/za/cases/ZASCA/2022/72.pdf


DAMAGES


Mirchandani v Unica Iron and Steel (Pty) Ltd and Unica Iron and Steel (Pty) Ltd v Mirchandani (802/2020, 813/2020) [2022] ZASCA 58 (22 April 2022)

Damages – Breach of profit share agreement and lease agreements – Claim for payment of utilities and bond charges erroneously debited in appellant’s loan account and damages – Tacit term of fiduciary duties – Liability in terms of Companies Act 71 of 2008, s 218(2) read with s 76(2)(a) – Breach of common law fiduciary duty – s 218(2) and common law fiduciary duty not pleaded.

Judgment: http://www.saflii.org/za/cases/ZASCA/2022/58.pdf.

Media summary: http://www.saflii.org/za/cases/ZASCA/2022/58media.pdf.


DELICT


Minister of Police and Another v Erasmus (366/2021) [2022] ZASCA 57 (22 April 2022)

Actio iniuriarum – Unlawful arrest and detention – Liability of police for post-court appearance detention – Not caused by unlawful conduct of police – Elements of malicious deprivation of liberty not proved in respect of prosecution.

Judgment: http://www.saflii.org/za/cases/ZASCA/2022/57.pdf.

Media summary: http://www.saflii.org/za/cases/ZASCA/2022/57media.pdf.


EMPLOYMENT AND LABOUR LAW


Solidarity obo Members v Barloworld Equipment Southern Africa and Others (CCT 102/21) [2022] ZACC 15 (6 May 2022)

Application for leave to appeal – Labour Relations Act 66 of 1995 – Meaningful joint consensus-seeking process before dismissal – Selection criteria – Law relating to dismissals based on operational requirements – What s 189 requires of parties engaged in consultation process – Correct interpretation and application of s 189A(13) – Whether there is distinction between disputes about procedural fairness and those relating to compliance with procedure – In too eagerly dismissing s 189A(13) application without applying its mind to whether condonation ought to be granted, court risks allowing employers to evade responsibility for flouting obligations imposed on them by s 189 and s 189A – Appeal on merits dismissed.

http://www.saflii.org/za/cases/ZACC/2022/15.pdf


ENVIRONMENTAL LAW


A Penglides (Pty) Ltd and Another v Minister of Agriculture, Forestry and Fisheries and Another (298/2021) [2022] ZASCA 74 (26 May 2022)

Marine Living Resources Act 18 of 1998, s 80(2) – Appeal to Minister – When Department’s offices closed on last day of 30-day period envisaged in Marine Living Resources Regulations, reg 5 – Appeal will be served within designated period if served on next day on which offices are open.

http://www.saflii.org/za/cases/ZASCA/2022/74.pdf


Astral Operations Ltd t/a Country Fair Foods and Others v Minister for Local Government, Environmental Affairs and Development Planning (Western Cape) and Others (1104/2020) [2022] ZASCA 62 (29 April 2022)

Application for environmental authorisation in terms of Environment Conservation Act 73 of 1989, s 22 – Appeal against decision of competent authority – Powers of appeal authority under s 35 – Appeal authority has wide powers including power to substitute or replace decision of competent authority – Appeal dismissed.

http://www.saflii.org/za/cases/ZASCA/2022/62.pdf


FINANCIAL LAW


Nedbank Ltd v Houtbosplaas (Pty) Ltd and Another (164/2021) [2022] ZASCA 69 (19 May 2022)

Banker and client – Summary closure of bank accounts by client – Exercise of contractual right by client to do so – Trusts that held shares in companies which were bank's clients refusing to provide their trust deeds requested by bank ostensibly for verification of companies under Financial Intelligence Centre Act 38 of 2001 (FICA) – bank refusing to give effect to client's instruction on grounds that accounts restricted – FICA, s 21 and s 22 read with regulations promulgated in terms of s 77(1) thereof – Bank's refusal to execute client's instructions unlawful – Mora interest – Client's claim therefor – Claim for mora interest following bank's refusal to close accounts upon client's summary termination of banker and client contractual relationship upheld.

http://www.saflii.org/za/cases/ZASCA/2022/69.pdf


INSOLVENCY


Imobrite (Pty) Ltd v DTL Boerdery CC (1007/2020) [2022] ZASCA 67 (13 May 2022)

Close corporation – Winding-up – Proper interpretation of Close Corporation Act 69 of 1984, s 69 – Whether application for winding-up brought by secured creditor constituted abuse of court’s processes – Unpaid creditor generally entitled to winding-up ex debito justitiae against corporation unable to pay its debts – Discretion to nevertheless refuse winding-up order – Whether discretion not to grant the winding-up order was properly exercised – Appeal upheld.

http://www.saflii.org/za/cases/ZASCA/2022/67.pdf


INTELLECTUAL PROPERTY


Open Horizon Ltd v Carnilinx (Pty) Ltd (225/2021) [2022] ZASCA 75 (26 May 2022)

Trade Marks Act 194 of 1993, s 34(1)(a) – Whether various ATLANTIC marks used by respondent are confusingly or deceptively similar to appellant’s registered PACIFIC trade marks – Whether respondent’s adoption and use of ATLANTIC marks amounts to unlawful competition.

http://www.saflii.org/za/cases/ZASCA/2022/75.pdf


LAND AND PROPERTY LAW


Frannero Property Investments 202 (Pty) Ltd v Clement Phuti Selapa and Others (222/2020) [2022] ZASCA 61 (29 April 2022)

Land tenure – Extension of Security of Tenure Act 62 of 1997 (ESTA) – Onus to prove application of – Party who invokes ESTA bears onus – Sufficient evidence must be tendered.

http://www.saflii.org/za/cases/ZASCA/2022/61.pdf


MINING LAW


Limpopo Economic Development Agency v Klopper NO and 10 Others (982/2020) [2022] ZASCA 73 (25 May 2022)

Mineral and Petroleum Resources Development Act 28 of 2002 – Conversion of old order mining right into new order mining right – Interpretation of shareholders agreement – Interpretation of clause of mining right.

http://www.saflii.org/za/cases/ZASCA/2022/73.pdf


PERSONS AND FAMILY LAW


Koch NO and Another v Ad Hoc Central Authority: Republic of South Africa and Another (188/2021) [2022] ZASCA 60 (26 April 2022)

Children – Whether retention by one parent of child in South Africa was wrongful – Return of child to United Kingdom (UK) sought in terms of Hague Convention on the Civil Aspects of International Child Abduction (1980) on basis that removal had become unlawful – Whether defence of consent under art 13(a) was established – Evidence that father had consented not established – Application for admission of new evidence granted – Defence under art 13(b) that there was grave risk that child would be exposed to psychological hardship or otherwise be placed in intolerable situation, was established – Return of child to UK ought not to have been granted.

http://www.saflii.org/za/cases/ZASCA/2022/60.pdf


Date posted: 30 May 2022


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