• Adami Geldenhuys

Supreme Court of Appeal and Constitutional Court judgments handed down during August 2021




Constitutional Law

Criminal Law

Delict

Energy

International Law

Land and Property Law

Medical Law

Revenue



Constitutional Law


Qwelane v South African Human Rights Commission and Another (CCT 13/20) [2021] ZACC 22 (20 July 2021)

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 – Constitutionality of s 10(1) – Section unconstitutional to extent that it includes “hurtful”.

Judgment: http://www.saflii.org/za/cases/ZACC/2021/22.pdf

Media summary: http://www.saflii.org/za/cases/ZACC/2021/22media.pdf


Criminal Law


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.

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


Delict


BE obo JE v MEC for Social Development, Western Cape (CCT 234/20) [2021] ZACC 23 (27 August 2021)

Delict – liability – child care facilities – public law duty – wrongfulness.

Judgment: http://www.saflii.org.za/za/cases/ZACC/2021/23.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 — Section 6 of the Arbitration Act 42 of 1965 — stay of proceedings — referral to statutory arbitration — section 12B does not oust the High Court’s jurisdiction.

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

Media Summary: http://www.saflii.org.za/za/cases/ZACC/2021/24media.doc


International Law


L v Ad Hoc Central Authority for the Republic of South Africa and Others (1143/2020) [2021] ZASCA 107 (3 August 2021)

International child abduction – Hague Convention on Civil Aspects of International Child Abduction (1980) – Application for leave to appeal referred for oral argument in terms of Superior Courts Act 10 of 2013, s 17(2)(d) – Applicability of Article 13(b) defence of Convention – Burden of proof on person resisting return to show that return of minor children to their habitual residence would expose them to grave risk of physical or psychological harm or otherwise place them in intolerable situation – Whether reasonable prospects of success – Application for leave to appeal dismissed.

Judgment: http://www.saflii.org/za/cases/ZASCA/2021/107.pdf


Land and Property Law


Davidan v Polovin NO and Others (1674/2021) [2021] ZASCA 109 (5 August 2021)

Application for eviction under Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 – Unlawful occupation – Consent to occupy – Under oral lease – Termination – Whether right to occupy lawfully terminated – Dismissed.

Judgment: http://www.saflii.org/za/cases/ZASCA/2021/109.pdf


Harbour Arch Investment Holdings (Pty) Ltd v Capital Propfund 4 (Pty) Ltd (437/2020) [2021] ZASCA 108 (5 August 2021)

Contract – Acquisition by sub-lessee of immovable property previously rented by it – Sub-lessee’s contractual obligations under leases assignment agreement subsumed by ownership rights – Payment obligation under leases assignment agreement for further development on leased property accordingly terminated.

Judgment: http://www.saflii.org/za/cases/ZASCA/2021/108.pdf


Medical Law


The MEC for Health & Social Development, Gauteng v TM obo MM (380/2019) [2021] ZASCA 110 (10 August 2021)

“Claim by mother on behalf of child suffering from cerebral palsy in consequence of acute profound hypoxic ischaemia intrapartum – whether hospital staff was negligent in failing to perform caesarean section more promptly – whether hospital was negligent in not having second theatre for caesarean sections – whether staff was negligent in the way the theatre was used during the day in question – whether staff was negligent in failing to refer mother to neighbouring hospital – whether staff was negligent in failing to apply intrauterine resuscitation – negligence not proved – in any event, not proved that non-negligent action would have averted the acute profound hypoxic ischaemia.”

Judgment: http://www.saflii.org/za/cases/ZASCA/2021/110.pdf


Revenue


Commissioner, South African Revenue Service v Glencore Operations SA (Pty) Ltd (Case no 462/2020) [2021] ZASCA 111 (10 August 2021)

Revenue –Customs and Excise Act 91 of 1964 (the Act) – diesel fuel concession – entitlement to a refund of diesel fuel levy used for primary production in mining – interpretation and ambit of Note 6(f)(iii) of Item 670.04 in Part 3 of Schedule 6 to the Act – claim by entity engaged in mining activities for diesel rebates in respect of period between August 2011 and 13 December 2013 – claim disallowed by Commissioner on grounds that the activities in respect of which claim submitted not constituting primary production activity in mining within ambit of Note 6(f)(iii) but related to secondary activities in mining – decision by the high court overturning the Commissioner's determination and instead holding that taxpayer entitled to a refund of diesel fuel levy for the relevant period reversed on appeal.

Judgment: http://www.saflii.org/za/cases/ZASCA/2021/111.pdf


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