• Barry Burger

Summaries of Supreme Court of Appeal and Constitutional Court judgments: September 2021


CIVIL PROCEDURE

CONTRACT

COVID-19

CRIMINAL LAW AND PROCEDURE

EDUCATION

ELECTIONS

EMPLOYMENT

ENERGY

EXTRADITION

FINANCIAL LAW

INSOLVENCY

LAND AND PROPERTY LAW

MEDICAL LAW

PERSONS AND FAMILY LAW

PRESCRIPTION

REFUGEE LAW

TAXATION


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


Chithi and Others; In re: Luhlwini Mchunu Community v Hancock and Others (423/2020) [2021] ZASCA 123 (23 September 2021)

Application for leave to appeal referred for oral argument in terms of Superior Courts Act 10 of 2013, s 17(2)(f) – Costs order – Whether Land Claims Court’s order depriving applicants of their fees was warranted – Leave granted and appeal upheld.

http://www.saflii.org/za/cases/ZASCA/2021/123.pdf


Fédération Internationale de Football Association v Sedibe and Another (303/2020) [2021] ZASCA 113 (8 September 2021)

Attachment to found jurisdiction – Property attached in relation to envisaged review of administrative body taken in Switzerland – Attachment not permissible if claim is not claim sounding in money nor action in rem for movables – Lack of jurisdiction cannot be cured by attachment.

http://www.saflii.org/za/cases/ZASCA/2021/113.pdf


Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)

Rescission – urgent application – direct access – Uniform Rules of Court, rule 42 – common law of rescission.

Res judicatafunctus officio – legal certainty and finality.

Not in interests of justice to grant rescission – application dismissed with costs.

http://www.saflii.org.za/za/cases/ZACC/2021/28.html


CONTRACT


RAiN Chartered Accountants Incorporated v South African Social Security Agency (CCT 48/17) [2021] ZACC 27 (10 September 2021)

Matter arising out of 2013 judgment in Allpay – Subsequent order in 2017 required respondent (SASSA) to determine profits received by Cash Paymaster Services (Pty) Ltd (CPS) – SASSA appointed applicant (RAiN) to make determination on its behalf – RAiN hamstrung in its performance by failure of CPS and others to furnish it with important documents – In April 2021 RAiN was ordered to make final determination on profits and CPS and others were ordered to furnish RAiN with documents – Liability for RAiN’s fees for work to be done in terms of April 2021 order – Requirements of estoppel met – Rendering of services under April 2021 order and payment for services would amount to new contract, which Court could not foist on SASSA as that would be in violation of legal prescripts on procurement – Need for expeditious action warranted consideration by SASSA of whether it was open to it to appoint RAiN through deviation in terms of Treasury Regulation 16A.6.4 – If SASSA does not appoint RAiN, it must consider whether it is open to it to appoint another suitably qualified service provider.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/27.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/27media.pdf


SA National Roads Agency SOC Ltd v Fountain Civil Engineering (Pty) Ltd and Another (395/2020) [2021] ZASCA 118 (20 September 2021)

Contract – Unconditional performance guarantee – Interdict to restrain beneficiary from lodging claim under guarantee – No right established – Dispute resolution – Court impermissibly ordering arbitration when contract provides for mediation and litigation – Appeal upheld.

http://www.saflii.org/za/cases/ZASCA/2021/118.pdf


Traxys Africa Holdings Ltd and Another v Westbrook Resources Ltd (509/2020) [2021] ZASCA 122 (23 September 2021)

Partly oral and partly written agreements – Whether terms of oral parts of agreements included obligation on part of defendant to commission equipment it had sold to plaintiff – Whether oral parts of agreements offended parol evidence rule.

http://www.saflii.org/za/cases/ZASCA/2021/122.pdf


COVID-19


Afriforum NPC v Minister of Tourism and Others; Solidarity Trade Union v Minister of Small Business Development and Others (499/2020; 498/2020) [2021] ZASCA 121 (22 September 2021)

Disaster Management Act 57 of 2002 (DMA) – Validity of direction made by Minister of Tourism under DMA for provision of funds from Tourism Relief Fund to defined types of businesses in tourism industry – Purpose of funds to mitigate impact of COVID-19 – Minister of Tourism not obliged by Broad-Based Black Economic Empowerment Act 53 of 2003, s 10(1)(e) to make eligibility criteria subject to Tourism Sector Code in terms of Act – Minister committed error of law.

http://www.saflii.org/za/cases/ZASCA/2021/121.pdf


CRIMINAL LAW AND PROCEDURE


Grifhs v S (433/2020) [2021] ZASCA 112 (1 September 2021)

Appeal against refusal of petition by high court – Reasonable prospects of success on appeal against conviction and sentence on account of inconsistencies in written statement and oral testimony of single witness – Leave to appeal to high court granted.

http://www.saflii.org/za/cases/ZASCA/2021/112.pdf


Padayachee v S (679/2020) [2021] ZASCA 115 (16 September 2021)

Leave to appeal against convictions and sentence refused by regional court and high court – Rape, two counts of assault with intent to do grievous bodily harm and attempted murder – Reasonable prospects of success on appeal – Upheld – Applicant granted leave to appeal.

http://www.saflii.org/za/cases/ZASCA/2021/115.pdf


EDUCATION


Chairperson: Council of University of South Africa v AfriForum NPC (CCT 135/20) [2021] ZACC 32 (22 September 2021)

University language policy – Phasing out of Afrikaans as language of teaching and learning – Limitation of Constitution, s 29(2) – Justification required – In event that UNISA decides to continue with language policy adopted in 2016, requirements of s 29(2) must be complied with.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/32.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/32media.pdf


ELECTIONS


Democratic Alliance in re Electoral Commission of South Africa v Minister of Cooperative Governance and Others (CCT 245/21) [2021] ZACC 30 (20 September 2021)

Urgent application – Direct access – Free and fair elections – Local government election timetable – Voter registration weekend – Constitutionality of re-opening of candidate nomination process.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/30.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/30media.pdf


Electoral Commission v Minister of Cooperative Governance and Traditional Affairs and Others (CCT 245/21) [2021] ZACC 29 (3 September 2021)

Urgent application – Direct access – Postponement of local government election – Local Government: Municipal Structures Act 117 of 1998, s 24 – Local Government: Municipal Electoral Act 27 of 2000, s 11 – Electoral Commission Act 1 of 1996 – Electoral Act 73 of 1998 – Constitution, s 159 – Free and fair elections – Dismissed.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/29.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/29media.pdf


EMPLOYMENT


Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and Others (CCT 192/20) [2021] ZACC 26 (7 September 2021)

Appeal from Labour Court – Costs – No reasons from Labour Court for departure from general rule that costs do not follow result in labour matters – Appeal on costs upheld and costs order set aside.

Judgment: http://www.saflii.org.za/za/cases/ZACC/2021/26.pdf

Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/26media.pdf


ENERGY


Crompton Street Motors CC v Bright Idea Projects 66 (Pty) Ltd (CCT 19/20) [2021] ZACC 24 (3 September 2021)

Petroleum Products Act 120 of 1977 – Arbitration Act 42 of 1965, s 6 – stay of proceedings – referral to statutory arbitration – section 12B does not oust High Court’s jurisdiction

http://www.saflii.org/za/cases/ZACC/2021/24.html


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


EXTRADITION


Director of Public Prosecutions, Western Cape v Tucker (CCT 85/20) [2021] ZACC 25 (6 September 2021)

Extradition Act 67 of 1962, s 10 – Magistrate’s powers – Extradition enquiry – Leave to appeal dismissed – Magistrate entitled to receive evidence relating solely to Minister’s order in terms of s 11.

Judgment: http://www.saflii.org.za/za/cases/ZACC/2021/25.pdf

Media summary: http://www.saflii.org.za/za/cases/ZACC/2021/25media.pdf


Kouwenhoven v Director of Public Prosecutions (Western Cape) and Others (288/2021) [2021] ZASCA 120 (22 September 2021)

Extradition Act 67 of 1962, s 10(1) – Discharge of person whose extradition is requested on question of law – Appealable in terms of Criminal Procedure Act 51 of 1977, s 310(1) – Procedure for preparing stated case in terms of s 310(1) – Questions of law to be determined by Director of Public Prosecutions (DPP) – Magistrate to prepare stated case in relation to those questions – Magistrate to state factual findings on which questions were answered – Person discharged not entitled to notice that DPP has requested magistrate to state case – Not entitled to make representations in relation to terms of stated case – Extradition Act, s 3(1) – Meaning of expression 'committed within jurisdiction' – Not confined to territorial jurisdiction of court of requesting state – Refers to power of court in requesting state to conduct criminal trial in relation to person whose extradition was requested and determine their guilt or innocence – Extradition permissible where all criminal acts were committed outside territorial jurisdiction of requesting state's courts.

http://www.saflii.org/za/cases/ZASCA/2021/120.pdf


Kouwenhoven v Minister of Police and Others (888/2020) [2021] ZASCA 119 (22 September 2021)

Extradition Act 67 of 1962 – Validity of arrest in terms of s 5(1)(b) – Whether officials gave undertaking not to arrest appellant – Whether any such undertaking was capable of binding State – Whether undertaking invalidates arrest pursuant to otherwise valid warrant – Affidavit in support of application for issue of warrant of arrest in terms of s 5(1)(b) – Attested before another policeman employed in same bureau – Regulation 7 of regulations governing administering of oath or affirmation under Justices of the Peace and Commissioners of Oaths Act 16 of 1963 – Whether oath properly administered – Whether magistrate applied her mind to issue of warrant or 'rubberstamped' it – Failure to notify Minister of Justice of issue of warrant in terms of s 8(1) – Effect.

http://www.saflii.org/za/cases/ZASCA/2021/119.pdf


FINANCIAL LAW


Ombud for Financial Services Providers v CS Brokers CC and Others (781/2020) [2021] ZASCA 117 (17 September 2021

Review – Financial Advisory and Intermediary Services Act – application under s 27(3) for hearing of oral evidence or referral to court – Ombud’s discretion – no discretion exercised at all – decision not to allow application reviewable.

http://www.saflii.org.za/za/cases/ZASCA/2021/117.html


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


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 circumstances – Appeal upheld.

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


MEDICAL LAW


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


Centre for Child Law v Director General: Department of Home Affairs and Others (CCT 101/20) [2021] ZACC 31 (22 September 2021)

Births and Deaths Registration Act 51 of 1992 – Constitutionality of s 10 – Section is unconstitutional – Constitution, s 9 – Unfair discrimination – s 10 fails Harksen test.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/31.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/31media.pdf


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


PRESCRIPTION


Jugwanth v Mobile Telephone Networks (Pty) Ltd (529/2020) [2021] ZASCA 114 (9 September 2021)

Exception – Extinctive prescription – Exception to particulars of claim for not disclosing cause of action on basis that ex facie claim prescribed – Party relying on prescription must invoke and prove it – No requirement for particulars of claim pre-emptively to plead basis to defeat possible plea of prescription – Special plea of prescription susceptible to replication – Particulars of claim not excipiable.

http://www.saflii.org/za/cases/ZASCA/2021/114.pdf


REFUGEE LAW


Somali Association of South Africa and Others v Refugee Appeal Board and Others (585/2020) [2021] ZASCA 124 (23 September 2021)

Applications for refugee status – Duty on decision-maker to assist asylum seeker to obtain as full a picture as possible on which to predicate decision – Information and evidence to be gathered or acquired in terms of provisions of Refugees Act 130 of 1998, regulations and in accordance with UNHCR Handbook – Regard to be had to provisions of both s 3(a) and 3(b) – Persecution too narrowly viewed – Onus to show that statutory requirements met on applicant but has to be viewed with regard to range of factors – Applicant must be afforded opportunity to confront and deal with adverse factors that might weigh against him or her – Refugee Appeal Board (RAB) and high court failed to consider that appeal was one in wide sense – RAB failed to observe fundamental administrative law principles – Decisions set aside – No basis for substitution order – Structural interdict not warranted.

http://www.saflii.org/za/cases/ZASCA/2021/124.pdf


TAXATION


Mukuru Africa (Pty) Ltd v Commissioner: South African Revenue Service (520/2020) [2021] ZASCA 116 (16 September 2021)

Value-added tax (VAT) – Apportionment of input VAT under Value-Added Tax Act 89 of 1991, s 17(1) – Apportionment method for purposes of s 17 must relate to time in future or, if it is to be retrospective, for period not exceeding income tax year during which application is made for change in apportionment method – When SARS approved change of method in response to Mukuru’s application, it had no power to do so, retrospectively, to date earlier than 1 March 2016 – Dismissed.

http://www.saflii.org/za/cases/ZASCA/2021/116.pdf


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