• Danielle Geldenhuys

Summaries of Constitutional Court and Supreme Court of Appeal Judgments: October 2021

Updated: Apr 11


Administrative Law

Arbitration

Civil Procedure

Competition

Contract

Costs

Defamation

Employment

Energy

Financial Law

Gambling and Lotteries

Insurance

Insolvency

Land and Property Law

Local Government

Maritime Law

Medical Law

Persons and Family Law

Safety and Security

Taxation


Administrative Law


Auditor-General of SA v MEC for Economic Opportunities, Western Cape and Another (671/2020) [2021] ZASCA 133 (4 October 2021)

Accounting – Expenditure of department – Modified Cash Standard applicable in terms of National Treasury instruction under Public Finance Management Act 1 of 1999, s 76 – No principal-agent relationships between department and payees – Payments correctly classified in financial statements as transfers – Promotion of Administrative Justice Act 3 of 2000 – Not applicable to exercise of functions of Auditor-General under the Constitution and Public Audit Act 25 of 2004.

http://www.saflii.org/za/cases/ZASCA/2021/133.pdf


Arbitration


Eskom Holdings Ltd v Joint Venture of Edison Jehano (Pty) Ltd and KEC International Ltd and Others (177/2020) [2021] ZASCA 138 (6 October 2021)

Review of arbitral award – Principle of party autonomy confirmed – Interpretation of ‘gross irregularity’ and ‘exceeding powers’ under Arbitration Act 42 of 1965, s 133 affirmed.

http://www.saflii.org/za/cases/ZASCA/2021/138.pdf


Civil Procedure


Bassani Mining (Pty) Ltd v Sebosat (Pty) Ltd and Others (835/2020) [2021] ZASCA 126 (29 September 2021)

Common law remedy – Anti-dissipation interdict – Whether it was requirement for anti-dissipation interdict for applicant to prove that dispositions were made with intention of thwarting applicant’s pending damages claim or whether there were exceptional circumstances where lesser threshold applied – Whether appellant satisfied requirements of interim anti-dissipation interdict – Foundational requirements of interim interdict not met – Appeal dismissed.

http://www.saflii.org/za/cases/ZASCA/2021/126.pdf


Jacobs v Minister of Justice and Correctional Services (431/2020) [2021] ZASCA 151 (27 October 2021)

Absolution from instance – Claim that responsible Minister liable in delict for decision by Parole Board to release prisoner on parole who later attempts to sexually assault plaintiff – Whether evidence led at trial could sustain claim – Whether test for absolution from instance correctly applied.

http://www.saflii.org.za/za/cases/ZASCA/2021/151.pdf


Kgatla v Mashala (382/20) [2021] ZASCA 154 (29 October 2021)

Application for special leave to appeal – Dispute regarding complaint that applicant had erected fence and off-loaded building material on stand allocated to respondent by traditional council – Whether full bench was correct to grant interdict – Whether right to occupy stand threatened – No real dispute of fact – No special circumstances – Dismissed.

http://www.saflii.org.za/za/cases/ZASCA/2021/154.pdf


Nash and Others v Cadac Pension Fund (in Curatorship) and Others (545/2020) [2021] ZASCA 144 (11 October 2021)

Application for interim interdict – Whether requirements for interim order were met – Whether appellant should have brought separate prior application to institute application – Leave had been sought – No requirement for separate prior application for leave – Requirements for intervention by additional appellants were met – Requirements for interim interdict met – Appeal succeeds.

http://www.saflii.org.za/za/cases/ZASCA/2021/144.pdf


Park 2000 Development 11 (Pty) Ltd v Mouton and Others (684/2020) [2021] ZASCA 140 (6 October 2021)

Superior Courts Act 10 of 2013, s 16(2)(a)(i) proscribes hearing of appeal which will not have any practical effect – As only noteworthy property appellant owned had since been lawfully sold and transferred to independent purchaser, restoring appellant to its former status of being under business rescue would not have any practical effect – Appeal dismissed.

http://www.saflii.org/za/cases/ZASCA/2021/140.pdf


Rand West City Local Municipality v Quill Associates (Pty) Ltd and Another (497/20) [2021] ZASCA 150 (26 October 2021)

Validity of writ of execution – Registrar issuing writ not engaging in administrative action – Not reviewable under Promotion of Administrative Justice Act 3 of 2000 – Question is whether writ is in accordance with court order – Respondent caused writ to be issued outside of terms of court order – Impermissibly providing for compound interest and value-added tax – Writ liable to be set aside.

http://www.saflii.org.za/za/cases/ZASCA/2021/150.pdf


Competition


Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and Another (CCT 31/20) [2021] ZACC 35 (15 October 2021)

Competition Act 89 of 1998, s 12A – Substantial lessening of competition – Impact of merger on competition – Impact on Constitution, s 27 – Interpretation in accordance with Constitution, s 7(2) and s 39(2) – Interference by appellate courts with findings of trial courts Competition Appeal Court not entitled to interfere with findings of Tribunal – Appeal upheld – No order as to costs.

Judgment: http://www.saflii.org.za/za/cases/ZACC/2021/35.pdf

Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/35media.pdf


Contract


Framatome v Eskom Holdings SOC Ltd (357/2021) [2021] ZASCA 132 (1 October 2021)

Construction contract – Contract providing for dispute resolution process through adjudication – Adjudicator’s award final and binding on parties until and unless set aside on review – High court erred in not enforcing award.

http://www.saflii.org/za/cases/ZASCA/2021/132.pdf


McGrane v Cape Royale the Residence (Pty) Ltd (831/2020) [2021] ZASCA 139 (6 October 2021)

Contract – Agreement of sale of immovable property – Whether unenforceable on account of non-fulfilment of condition precedent clause embodied in agreement – Interpretation of clause – Whether condition precedent applicable – Impugned clause sufficiently clear – Agreement not subject to condition precedent – Waiver proven – Agreement valid and binding.

http://www.saflii.org/za/cases/ZASCA/2021/139.pdf


MultiChoice Support Services (Pty) Ltd v Calvin Electronics t/a Batavia Trading and Another (296/2020; 226/2021) [2021] ZASCA 143 (8 October 2021)

Law of contract – Cancellation in terms of provisions of contract – Contracting party applying for interdict to stop cancellation pending judicial review of decision to cancel – Interdict granted – Cancellation of contract not reviewable – Does not involve control of public power – Not administrative action – Neither reviewable under principle of legality – interdict legally unsustainable – Contempt of court – Order based on legally unsustainable interdict – Fatally defective – Requisites for contempt in any event not met – Execution of contempt order granted in terms of Superior Courts Act 10 of 2013, s 18 – Also defective – Execution requirements not met.

http://www.saflii.org.za/za/cases/ZASCA/2021/143.pdf


UPS SCS South Africa (Pty) Ltd v Hendrik Cornelis van Wyk t/a Skydive Mossel Bay (421/2020; 422/2020) [2021] ZASCA 131 (1 October 2021)

Terms of contract – Contract of carriage concluded by way of exchange of emails – Customer thereafter signing credit application with standard trading conditions containing exemption from liability for loss or damage – Exemption clauses not brought to customer’s attention – Exemption clauses not part of contract – Quantum of claim – Item destroyed during carriage – Replacement value of item.

http://www.saflii.org/za/cases/ZASCA/2021/131.pdf


Costs


RH Christie Incorporated v Taxing Master: Supreme Court of Appeal (1086/2018) [2021] ZASCA 152 (27 October 2021)

Review of taxation – Bill of costs in respect of appeal related to divorce proceedings – Counsel’s fees – Travelling costs – Applicable test for court to apply when considering whether to interfere with ruling by taxing master – Review partially successful – Allocator remitted to taxing master to be redrawn.

http://www.saflii.org.za/za/cases/ZASCA/2021/152.pdf


Tadvest Industrial (Pty) Ltd and Another v Hanekom and Others (400/2019; 782/2019) [2021] ZASCA 153 (27 October 2021)

Review of taxation – Settlement agreement – Whether taxing master was correct in proceeding to finalise taxation of bill of costs against applicant’s objections – Taxing master and respondents correct in their view that taxing master’s function is limited to giving effect to court order – Applicant was free to resort to legal process in relation to alleged waiver and thus in relation to enforceability of costs order – Dismissed.

http://www.saflii.org.za/za/cases/ZASCA/2021/153.pdf


Criminal Law and Procedure


Minister of Police v Khoeli (241/2020) [2021] ZASCA 146 (18 October 2021)

Criminal Procedure Act 51 of 1977, s 32 – Search and seizure – Whether decision declaring livestock seized by police forfeited to State lawful – Application for leave to appeal dismissed.

http://www.saflii.org.za/za/cases/ZASCA/2021/146.pdf


National Director of Public Prosecutions, Ex Parte (669/2020) [2021] ZASCA 142 (7 October 2021)

Prevention of Organised Crime Act 121 of 1998, s 26 and s 38 – Uniform Rules of Court – Preservation of property order – Urgency – Whether appellant must prove urgency when applying for preservation order.

http://www.saflii.org/za/cases/ZASCA/2021/142.pdf


Rohde v S (815/2019) [2021] ZASCA 134 (5 October 2021)

Correctness of conviction of murder and obstructing course of justice – Dependent on whether deceased was manually strangulated – Proved beyond reasonable doubt on evaluation of forensic pathologists’ evidence – Own observations of trial court in respect of exhibit not put to witnesses – Deceased not victim of sustained assault – Sentence imposed afresh.

http://www.saflii.org/za/cases/ZASCA/2021/134.pdf


Defamation


NBC Holdings (Pty) Ltd v Akani Retirement Fund Administrators (399/2020) [2021] ZASCA 136 (6 October 2021)

Application proceedings – Relief directed at compensating claimant for harm caused by publication of defamatory material – Such relief, whether damages, apology or retraction cannot be claimed in motion proceedings where there are disputes of fact, but requires evidence to be led – Discretion of judge in granting relief in defamation case – Factors to be taken into account – Interpretation of allegedly defamatory material – Approach of reasonable reader – Statement that findings had been made in judgment of existence of strong evidence of corruption – Thrust of defamation lies in implication of corruption, not that it was finding by judge – Respondent leading evidence of corruption – Such evidence relevant to support possible defences of truth and public interest or privilege – No order can be made in motion proceedings where respondent produces evidence in support of existence of defence.

http://www.saflii.org/za/cases/ZASCA/2021/136.pdf


Employment


Booi v Amathole District Municipality and Others (CCT 119/20) [2021] ZACC 36 (19 October 2021)

Labour Relations Act 66 of 1995 – Remedy of reinstatement – s 193(2)(b) demands that intolerability of continued employment relationship be considered before reinstatement is ordered – High threshold of intolerability required for departure from primary remedy of reinstatement – Application for leave to appeal – Review of arbitration award – Peremption – No ground for interference with arbitration award – Appeal upheld.

Judgment: http://www.saflii.org.za/za/cases/ZACC/2021/36.pdf

Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/36media.pdf


Energy


Former Way Trade and Invest (Pty) Ltd v Bright Idea Projects 66 (Pty) Ltd (CCT 237/20) [2021] ZACC 33 (28 September 2021)

Petroleum Products Act 120 of 1977, s 12B does not oust high court’s jurisdiction – Referral of factual dispute to arbitration in terms of Arbitration Act 42 of 1965, s 6 – Stay of proceedings – Referral to statutory arbitration.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/33.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/33media.pdf


Financial Law


JP Markets v Financial Sector Conduct Authority (460/2021) [2021] ZASCA 148 (20 October 2021)

Financial markets – Application for winding-up by Financial Sector Conduct Authority under Financial Markets Act 19 of 2012 (FMA), s 96 – Not requirement that preceding investigation had to be concluded – Whether winding-up just and equitable – Requires consideration of whether objects of FMA would be achieved and of availability of alternative remedies.

http://www.saflii.org.za/za/cases/ZASCA/2021/148.pdf


Gambling and Lotteries


Vukani Gaming Free State (Pty) Ltd v Pillay and Others (577/2020) [2021] ZASCA 137 (6 October 2021)

Review of administrative decision taken by Free State Gambling, Liquor and Tourism Authority to grant limited gambling machine route operator licence – Investigation report backdated – Reasons for decision inadequate – Appeal upheld.

http://www.saflii.org/za/cases/ZASCA/2021/137.pdf


Insurance


Santam Ltd v Ma-Afrika Hotels (Pty) Ltd and Another (255/2021) [2021] ZASCA 141 (7 October 2021)

Interpretation of insurance contract – Whether agreed indemnity period is 18 months or three months for infectious diseases cover – Principles restated.

http://www.saflii.org/za/cases/ZASCA/2021/141.pdf


Insolvency


Pride Milling Company (Pty) Ltd v Bekker NO and Another (393/2020) [2021] ZASCA 127 (30 September 2021)

Companies Act 61 of 1973, s 341(2) – Disposition by company of its property after commencement of winding-up – Such disposition void ab initio – Court nevertheless retaining discretion to declare disposition valid – Discretion to be exercised judicially in light of all of facts of case – Company effecting one payment to creditor prior to grant of provisional order of winding-up – Court refusing to validate – Three payments made after grant of provisional order – Payments constituting void dispositions in terms of s 341(2) read with s 348 – Court has no discretion to validate such payments.

http://www.saflii.org/za/cases/ZASCA/2021/127.pdf


Land and Property Law


McGrane v Cape Royale the Residence (Pty) Ltd (831/2020) [2021] ZASCA 139 (6 October 2021)

Contract – Agreement of sale of immovable property – Whether unenforceable on account of non-fulfilment of condition precedent clause embodied in agreement – Interpretation of clause – Whether condition precedent applicable – Impugned clause sufficiently clear – Agreement not subject to condition precedent – Waiver proven – Agreement valid and binding.

http://www.saflii.org/za/cases/ZASCA/2021/139.pdf


Nimble Investments (Pty) Ltd v Johanna Malan and Others (556/2020) [2021] ZASCA 129 (30 September 2021)

Land reform – Extension of Security of Tenure Act 62 of 1997 – Whether eviction order just and equitable – Fundamental breach of relationship between occupier and owner under s 10(1)(c) – Occupier unlawfully removing building materials and erecting illegal structure on land – Fundamental breach of relationship justifying eviction – Opportunity for representations under s 8(1)(e) – Not required in the circumstances – Appeal upheld.

http://www.saflii.org/za/cases/ZASCA/2021/129.pdf


Smit v Kleinhans (917/2020) [2021] ZASCA 147 (18 October 2021)

Vindication of property by non-owner – Rei vindicatio not available to non-owner – Bona fide possessor entitled to reclaim possession of property by way of possessory remedy.

http://www.saflii.org.za/za/cases/ZASCA/2021/147.pdf


Local Government


Premier, Gauteng and Others v Democratic Alliance and Others; All Tshwane Councillors who are Economic Freedom Fighters Members and Another v Democratic Alliance and Others; African National Congress v Democratic Alliance and Others (CCT 82/20; CCT 91/20) [2021] ZACC 34 (4 October 2021)

Constitution, s 139(1) – Dissolution – Exceptional circumstances – Local Government: Municipal Systems Act 32 of 2000, Schedule 1, Item 14(4) – Conduct of councillors – Direct appeal – Leave to appeal dismissed – Jurisdictional facts did not exist to warrant dissolution – Dissolution as last resort.

Judgment: http://www.saflii.org.za/za/cases/ZACC/2021/34.pdf

Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/34media.pdf


Maritime Law


MV MSC Susanna: Owners and Underwriters of MV MSC Susanna and Another v Transnet (SOC) Ltd and Another (1039/2020) [2021] ZASCA 135 (6 October 2021)

Tonnage limitation – Merchant Shipping Act 57 of 1951 (MSA), s 261(1) – Whether limitation can be invoked by owner of merchant ship against owner of ship owned by defence force of South Africa or another country – MSA, s 3(3) and (6).

http://www.saflii.org/za/cases/ZASCA/2021/135.pdf


Medical Law


HAL obo MML v MEC for Health, Free State (1021/2019) [2021] ZASCA 149 (22 October 2021)

Medical negligence – Cerebral palsy – Circumstances of brain injury – Adequacy of evidence of negligence – Trial – Conduct – Obligation of parties to define issues – Sequence of witnesses – Joint minutes of experts – Agreement on facts contrasted with agreement on opinion – Approach to agreements on matters of opinion.

http://www.saflii.org/za/cases/ZASCA/2021/149.pdf


MEC for Health and Social Development, Gauteng v MM on behalf of OM (697/2020) [2021]

ZASCA 128 (30 September 2021)

Delict – Medical negligence – Damages – Liability in respect of minor born with brain damage who now suffers from cerebral palsy – Whether hospital staff negligent – If so, whether such negligence caused damage – Negligence and causation established – MEC liable.

http://www.saflii.org/za/cases/ZASCA/2021/128.pdf


Pick 'n Pay Retailers (Pty) Ltd v Pillay (900/2020) [2021] ZASCA 125 (29 September 2021)

Negligence – Foreseeability of harm – Failure to guard against – Shopper injured when struck by automated boom gate – Exit of parking area frequently used by shoppers at shopping centre – After incident certain safety measures implemented – Shopping centre owner negligent.

http://www.saflii.org/za/cases/ZASCA/2021/125.pdf


Persons and Family Law


Hlakanyane v Hlakanyane (775/2020) [2021] ZASCA 130 (30 September 2021)

Matrimonial Property Act 88 of 1984 – Interpretation of s 18 – Amount received as non-patrimonial delictual damages prior to marriage in community of property – Part of joint estate – Not excluded by s 18(a) – Appeal in terms of s 19(a) of Superior Courts Act 10 of 2013.

http://www.saflii.org/za/cases/ZASCA/2021/130.pdf


Safety and Security


Residents of Industry House, 5 Davies Street, New Doornfontein, Johannesburg and Others v Minister of Police and Others (CCT 136/20) [2021] ZACC 37 (22 October 2021)

South African Police Service Act 68 of 1995 – Constitutionality of s 13(7)(c) – Order of constitutional invalidity confirmed – Right to privacy – Constitutional damages – Interdict.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/37.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/37.pdf


Taxation


Commissioner: South African Revenue Service v Spur Group (Pty) Ltd (320/2020) [2021] ZASCA 145 (15 October 2021)

Income Tax Act 58 of 1962 – Whether there was sufficiently close connection between taxpayer’s expenditure of contribution to trust in respect of implementation of employees’ share incentive scheme and its income producing operations so as to qualify for deduction under s 11(a) – Connection between contribution and taxpayer’s production not close or immediate enough to justify the deduction – SARS not precluded from raising additional assessments in respect of taxpayer’s 2005-2009 years of assessment by operation of the period of limitations provided in Tax Administration Act 28 of 2011, s 99(1).

http://www.saflii.org.za/za/cases/ZASCA/2021/145.pdf


Date posted: 8 November 2021

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