Neutral citation: Richard Du Plessis Barry v
Clearwater Estates NPC & others (187/2016) [2017]
ZASCA 11 (16 March
2017)
Coram:
Leach, Willis, Swain and Mbha JJA and Schippers AJA
Heard:
3 March 2017
Delivered: 16 March 2017
Summary: Companies
Act 71 of 2008 : s 58(1) : appointment of proxy ‘at any time: s 58(3)(c) : instrument evidencing proxy to be deposited ‘before’
shareholders meeting: Memorandum
of Incorporation of company requiring proxy to be deposited ‘not less
than 48 hours before’ meeting : article inconsistent with unalterable
provisions of s 58(1) :
article void in terms of s 15(1).
Neutral
citation: Panayiotou
v Shoprite (248/2016) [2017]
ZASCA 12 (17 March 2017)
Coram: Ponnan,
Shongwe, Petse and Zondi JJA and Gorven AJA
Heard: 3 March 2017
Delivered:
17 March 2017
Summary: Refusal to grant liquor
licence by Liquor Board
: decision reviewed,
set aside and licence granted by high court along with order that Liquor Board
must issue licence after certain requirements met : appeal against review of
refusal : liquor licence subsequently issued : no challenge to issue of licence
: appeal, if successful, could not set aside the issue of the licence : section 16(2)(a) of Superior Courts Act 10 of 2013 : decision sought would have no
practical effect or result : appeal dismissed.
Neutral
citation: Cilliers & others v Ellis & another (200/2016) [2017]
ZASCA 13 (17 March 2017)
Coram: Ponnan, Willis and Zondi JJA
and Fourie and Nicholls AJJA
Heard: 7 March 2017
Delivered: 17 March 2017
Summary: Appeal: non-appealability of order: appellants not having locus
standi to pursue the appeal : appeal dismissed.
Neutral
citation: SA Metal Group (Pty) Ltd v
The International Trade Administration Commission (267/2016) [2017]
ZASCA 14(17 March 2017)
Bench: Ponnan, Leach, Majiedt and Willis JJA and Fourie AJA
Heard: 1 March 2016
Delivered: 17 March 2016
Summary:
Appeal – s 16(2)(a)(i) Superior Courts Act 10 of 2013 – dismissal of appeal where judgment or order sought would have no practical effect or result.
Neutral
citation: Moila v City of Tshwane Metropolitan Municipality (249/16) [2017]
ZASCA 15 (22 March 2017)
Coram: Cachalia,
Willis, Zondi and Van der Merwe JJA and Mbatha AJA
Heard: 6
March 2017
Delivered:
22 March 2017
Summary: Claim for the rendering of a statement of account
by a municipality for the supply of utility services and a debate thereof:
ex facie the pleadings, no
fiduciary relationship existed between the parties, no contractual agreement
between them to this effect, no statutory provision creating this obligation:
point in limine upheld: appeal dismissed with costs.
Neutral Citation:
Sentrachem
v Terreblanche (237/2016) [2017]
ZASCA 16 (22 March 2017)
Coram: Leach, Majiedt, Mathopo and
Mocumie JJA and Schippers AJA
Heard:
2 March 2017
Delivered: 22
March 2017
Summary: Prescription – pension funds
– erroneous double payment
– substitution of a party
after litis contestatio as a result of a cession of the debt does not
give rise to a valid plea of prescription – cessionary attains all the rights
of cedent – has full locus standi – impoverishment proved on the facts.
Neutral
citation: Mothuloe
Incorporated Attorneys v The Law Society of the Northern Provinces &
another (213/16) [2017]
ZASCA 17 (22 March 2017)
Coram: Cachalia, Shongwe, Wallis and
Dambuza JJA and Mbatha AJA
Heard: 1 March 2017
Delivered: 22 March 2017
Summary: Attorneys Act 53 of 1979:
complaints having been lodged with the Law Society against a practitioner for failing to account
to trust creditors: practitioner
admitting having received the money but imposing conditions before releasing it
to trust creditors: Law Society directing the practitioner to produce
for inspection records and books in his possession and under his control in
terms of s 70(1) of the Act: practitioner refusing to comply and challenged the
decision of the Law Society: sought to review and set aside decision as
irrational: practitioner
blatantly disregarding the law and rules: such conduct cannot be countenanced:
conduct unprofessional.
Neutral
citation: Steyn Lyell Maeyane Attorneys v Oelofse (271/2016) [2017]
ZASCA 18 (23 March 2017)
Coram: Leach, Tshiqi, Wallis and Mbha
JJA and Fourie AJA
Heard: 9 March 2017
Delivered: 23 March 2017
Summary: Written undertaking given by a firm
of practising attorneys : whether it constituted an unconditional guarantee to make payment
itself : having regard to the factual matrix providing the context in
which it was given, the undertaking did not constitute a personal guarantee: evidence pertaining to the
parties’ intentions regarding the undertaking inadmissible.
Neutral
Citation: Van
Rooyen Friedrich & others v Louw Smit NO & others 1028/2015 [2017]
ZASCA 19 (23 March 2017)
Coram:
Tshiqi, Petse and Mbha JJA and
Fourie and Molemela AJJA
Heard:
02 March 2017
Delivered:
23 March 2017
Summary: Maintenance of surviving spouse
: ss 2 and 3 of the
Maintenance of Surviving Spouses Act 27 of 1990 : requisites of
Act not satisfied: special leave to appeal in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 :
appeal upheld.
Neutral citation: ZNK Investments CC v Luckytso Transport and Construction CC (328/2016) [2017]
ZASCA 20 (24 March 2017)
Coram:
Maya AP, Theron and Van der Merwe JJA and Gorven and Coppin AJJA
Heard: 2 March 2017
Delivered:
24 March 2017
Summary: Company law: sale in execution of property of
close corporation whilst deregistered: reinstatement in terms of s 82(4) of the Companies Act 71 of 2008: automatic retrospective validation of the sale in
execution.
Neutral Citation: Manukha v Road
Accident Fund (285/2016) [2017]
ZASCA 21 (24 March
2017)
Coram:
Leach, Tshiqi, Theron, Petse JJA and Molemela AJA
Heard:
20 February 2017
Delivered:
24 March 2017
Summary: Road Accident Fund Act 56 of 1996: ss 17(1); 23 and 24 read
with regulation 3(3)(b)(ii): Damages: motor vehicle accident:
claim for compensation against Road Accident Fund: non-pecuniary loss forming part of a unitary claim
for compensation and not constituting a separate and discrete claim: prescription: late filing of RAF4 form
thus not constituting separate claim, and consequently, claim for damages for
non-pecuniary loss not prescribed.
Neutral Citation: Mazina v The State (494/2016) [2017]
ZASCA 22 (24 March
2017)
Coram: Ponnan, Zondi and Mathopo JJA and Nicholls and Coppin AJJA
Heard: 15 February 2017
Delivered: 24 March 2017
Summary: Evidence: sufficiency of:
statement in terms of s 115 of the Criminal Procedure Act 51 of 1977.
Neutral citation: Asla
Construction (Pty) Ltd v Buffalo City Metropolitan Municipality (894/2016) [2017]
ZASCA 23 (24 March 2017)
Coram:
Ponnan, Cachalia, Swain and Dambuza JJA and Gorven AJA
Heard:
23 February 2017
Delivered: 24 March 2017
Summary: Promotion of Administrative Justice Act 3 of 2000 : ss 6, 7 and 9 : application in terms of s 9 for extension of statutory period
in terms of s 7 : substantive application required: no
explanation for entire duration of delay : failure to properly consider
prejudice to appellant and members of public affected by decision : impugned
decision validated by unreasonable delay : unlawfulness of decision not proved by admissible
evidence.
Neutral citation: Afgri Operations
Ltd v Hamba Fleet Management (Pty) Ltd (542/16) [2017]
ZASCA 24 (24 March 2017)
Coram:
Leach, Theron, Petse,
Willis and Dambuza JJA
Heard:
10 March 2017
Delivered:
24 March 2017
Summary: Company law : application for a final order of liquidation : underlying debt admitted by the
respondent : no allegation that respondent solvent : respondent not trading or
conducting any business : respondent’s indebtedness prima facie
established : onus on respondent to show that indebtedness disputed on
bona fide and reasonable grounds : a counterclaim not in itself a reason for
refusing an order for the winding up of the respondent : final order winding-up
the respondent granted.
Neutral
citation: Harrielall v University of
KwaZulu-Natal (493/2016) [2017]
ZASCA 25 (27 March 2017)
Coram: Cachalia and Swain JJA, and
Molemela, Gorven and Mbatha AJJA
Heard:
16 February 2017
Delivered:
27 March 2017
Summary: Promotion of Administrative Justice Act 3 of 2000 : refusal of
application for admission to course of study leading to MBChB degree :
application for review of decision : new challenge on appeal : not raised in
founding affidavit : appeal dismissed.
Coram: Tshiqi, Petse and Mbha JJA and Fourie and Mbatha AJJA
Heard:
15 February 2017
Delivered:
27 March 2017
Summary: Imposition of non-parole
period in terms of s 276B of the Criminal Procedure Act 51 of 1977 : sentence : misdirection by trial court in
imposing a non-parole period : appeal upheld.
Neutral
citation: Kotze v The State (776/16) [2017]
ZASCA 27 (27 March 2017)
Coram: Shongwe,
Majiedt, Van der Merwe and Mocumie JJA and Schippers AJA
Heard:
16 February 2017
Delivered: 27 March 2017
Summary: Criminal Law ─ conviction on housebreaking with intent to commit
indecent assault and indecent assault ─ whether the State proved the identity of the
appellant and all the
elements of housebreaking with intent to commit indecent assault and indecent
assault beyond reasonable doubt.
Neutral citation: Body Corporate v Sithole & another (240/2016) [2017]
ZASCA 28 (27 March 2017)
Coram: Tshiqi, Wallis, Petse and Mbha JJA and Nicholls AJA
Heard:
6 March 2017
Delivered:
27 March 2017
Summary: Application for compulsory
sequestration: advantage
to creditors as contemplated in s 10(c) of the Insolvency Act, 24
of 1936 not proven : no basis to find that a body corporate of a
sectional title development need not prove pecuniary benefit to the general
body of creditors.
Neutral citation: New Adventure Shelf 122 v Commissioner : SARS (310/2016) [2017]
ZASCA 29 (28 March 2017)
Coram: Shongwe, Leach, Wallis,
Mocumie JJA and Nicholls AJA
Heard: 19 February 2017
Delivered: 28 March 2017
Summary: Revenue: capital gains tax arising
from the sale of immovable property: sale cancelled more than three years after assessment of capital gains
tax but before purchase price paid in full: seller not entitled to have assessment
reconsidered in the light of the subsequent cancellation: regard to be
had to the cancellation in assessing a capital gain or capital loss in year of cancellation.
Neutral
citation: Kitshoff
v Fedsure Staff Pension Fund & others (597/16) [2017]
ZASCA 31 (28 March 2017)
Coram: Shongwe, Swain, Zondi and
Mathopo JJA and Gorven AJA
Heard: 14 March 2017
Delivered: 28 March 2017
Summary: Pension Fund,: termination of membership: s14(1) Pension Funds Act 24 of 1956: transfer of
benefits to new pension fund approved by Registrar: employee retrenched before
approval: approval
retrospective to
date when membership of former fund terminated: no vested right to claim
enhanced pension benefits as a result of retrenchment in terms of rules
of former fund: right ceased on termination of membership of former fund: no
enforceable right effected by retrospective operation of approval.
Neutral citation: University of the
Free State v Afriforum (1027/2016) [2017]
ZASCA 32 (28 March
2017)
Coram:
Cachalia, Swain and
Mathopo JJA and Fourie and Schippers AJJA
Heard:
17 February 2017
Delivered: 28 March 2017
Summary: Review : whether decision of University to adopt language
policy administrative action under Promotion of Administrative Justice Act 3 of 2000 :
whether University misconstrued its power under principle of legality : test
for legality review restated : whether language policy ‘reasonably practicable’
as contemplated in s 29(2) of the Constitution : whether in the exercise
of its power to decide language policy University constrained by requirement
that policy ‘subject to’ Higher Education Language Policy in terms of s 27(2) of
the Higher Education Act 101 of 1997.
Neutral citation: Head of Department, Mpumalanga Department of
Coram:Maya AP,
Bosielo and Van der Merwe JJA and Schoeman and Fourie AJJA
Heard: 4 November 2016
Delivered: 29 March 2017
Summary: Administrative law: review of decision to cancel and re-advertise public
tender: decision not authorised by regulation 8(4) of the Preferential
Procurement Regulations, 2011 and irrational: decision correctly set
aside.
Neutral Citation: Media 24 Limited v Du Plessis (127/2016) [2017]
ZASCA 33 (29 March 2017)
Coram: Cachalia, Petse, Swain and
Mbha JJA and Gorven AJA
Heard: 27 February 2017
Delivered: 29 March 2017
Summary: Defamation: liability of the media: test of: words
complained of to be considered from the point of view of the reasonable reader:
defence of justification: truth and public benefit: only the material
allegations or sting of the article required to be substantially true:
publication of defamatory statement found not to have been reasonable:
damages: assessment: award of R80 000 excessive justifying interference on
appeal.
Neutral
citation: Mudau v The State (1148/2016) ZASCA 34 (29 March 2017)
Coram: Tshiqi, Petse and
Mbha JJA and Fourie and Mbatha AJJA
Heard: 15 February 2017
Delivered: 29 March 2017
Summary: Appeal against
convictions and sentence: admissibility of confessions: misdirections by trial court,
right to a fair trial infringed: appeal upheld.
Neutral Citation: Cathay Pacific
Airways & another v Lin & another (260/2016) [2017]
ZASCA 35 (29 March
2017)
Coram: Maya AP and Majiedt and
Van der Merwe JJA and Molemela and Gorven AJJA
Heard: 9 March 2017
Delivered: 29 March 2017
Summary: Practice – urgent application – whether court order issued
orally only was effective – whether there was proper notice and service to affected parties
– contempt of court – whether the requirements for contempt of court were proved beyond reasonable
doubt
Neutral citation: Nelson Mandela Bay Municipality v Amber Mountain Investments (576/2016) [2017]
ZASCA 36 (29 March 2017)
Coram: Cachalia, Theron, Dambuza and Mocumie JJA and Molemela AJA
Heard: 7 March 2017
Delivered: 29 March 2017
Summary: Local authority: Rates:
Property rates levied for a financial year : levying of rates an integral part
of budget process.
Neutral Citation: Adendorffs Boerderye v Shabalala
& others (997/15) [2017] ZASCA 37 (29 March 2017)
Coram: Shongwe, Majiedt, Mathopo and Van
der Merwe JJA and Mbatha AJA
Heard: 28 February 2017
Delivered: 29 March 2017
Summary: Conservation of Agricultural Resources Act 43 of 1983 (CARA) : Regulation 9 : land users as defined in CARA responsible for ensuring
that grazing land is protected from overgrazing and deterioration : CARA not
explicitly prohibiting a land owner from pursuing remedy in the form of a
restraining order : land users not exercising grazing rights in terms of
the provisions of the Extension of Security of Tenure Act 629 of 1997 but in terms of an agreement with
landowner.
Court practice: Court orders: overbroad court orders not sought by
parties and not supported by pleadings : such orders not sustainable,
especially where parties were not afforded opportunity to make prior
representations : orders set aside both in appeal and cross appeal.
Costs : de bonis propriis: where attorneys flagrantly
disregard court rules by late delivery of heads of arguments without proper
explanation: additionally, attempting to obtain postponement without proper basis : such conduct
prejudicing opponent : appropriate to mulct attorney with costs.
Neutral citation: Mount Amanzi
Share Block Limited v The Body Corporate of Windsor Heights Sectional Title
Scheme & others (537/2016) [2017]
ZASCA 38 (29 March 2017)
Coram: Cachalia and Swain JJA and Nicholls, Coppin and
Mbatha AJJA
Heard: 10 March 2017
Delivered: 29 March 2017
Summary: Deed of servitude: right to supply services to other party to deed:
right to determine levies payable for services : bare denial of correctness of
determination : real, genuine and bona fide dispute of fact not
established : discretion to determine levies exercised reasonably and honestly
: claim valid and enforceable.
Neutral citation: Griesel v
Haasbroek (538/2016) [2017]
ZASCA 39 (30 March
2017)
Coram: Leach, Willis and Mbha JJA and
Molemela and Gorven AJJA
Heard:
21 February 2017
Delivered: 30 March 2017
Summary: Sale:
action for purchase price: express term as to risk passing to purchaser: ambit
of risk: risk event
causing loss : purchase price payable.
Neutral
citation: Minister
of Home Affairs v Saidi (294/2016) [2017]
ZASCA 40 (30 March 2017)
Coram: Maya
AP, Majiedt and Swain JJA and Gorven and Mbatha AJJA
Heard:
7 March 2017
Delivered: 30 March 2017
Summary: Refugees Act 130 of 1998 : section 21(1) : refusal of application for asylum:
Chapter 4 rights of review and appeal : unsuccessful : section 22(1) : grant of asylum seeker permit
: section 22(3) : Refugee Reception Officer
empowered to extend permit pending outcome of judicial review : no substantive
legitimate expectation that permits would be extended : no grounds for court to
assume decision makers discretion to extend permits.
Coram: Ponnan, Willis, Zondi, Mocumie
JJA and Schippers AJA
Heard: 20 February 2017
Delivered: 30 March 2017
Summary: Application for forfeiture order in terms of s 48(1) of the Prevention of Organised Crime Act 121 of 1998 : whether residential property is
instrumentality of an offence : property used in contravention of ss 82(a) and 83(b) of the
Diamonds Act 56 of 1986 : whether forfeiture constitutionally disproportionate
Neutral citation: Mashamaite & others v Mogalakwena Local Municipality &
others (523 /2016) and MEC, Limpopo & another
v Kekana & others (548/2016) [2017]
ZASCA 43 (30 March 2017)
Coram: Maya AP, Theron and Dambuza JJA and Fourie and Schippers AJJA
Heard: 28 February 2017
Delivered: 30 March 2017
Summary: Res Judicata : the same cause, between the same parties for the
same relief: the court a quo was precluded from granting a substantive
order of reinstatement.
Motion
proceedings:
an applicant must, in the
founding papers, disclose facts that would make out a case for the relief
sought : the relief granted by the court a quo was inconsistent with the facts
and averments contained in the papers : relief improperly granted.
Employee on
suspension:
an employee who is
suspended does not have authority to act on behalf of an employer during the
period of suspension, unless called upon to perform duties during that period.
Section 16(1)(a)(i)
of the Superior Courts Act 10 of 2013 : mootness: circumstances have altered to such an extent that part of the judgment
has become moot : order will have no practical effect.
Contempt of
court: respondents failing to establish
that the MEC acted wilfully and mala fide in failing to comply with a court
orde : not entitled to a declarator.
Costs order: discretionary and not lightly interfered with on appeal :
absence of grounds on which a court, acting reasonably, could have made the
order : appeal court entitled to interfere.
Neutral citation: Polokwane Taxi Association v Limpopo Permissions Board and others (490/2016) ZASCA 44 (30 March 2017)
Coram: Maya AP and Willis, Mbha and Mocumie JJA and Fourie AJA
Heard: 23 February 2017
Delivered: 30 March 2017
Summary:
Court Practice: locus
standi: whether
appellant could bring the application: whether appellant had direct and
substantial interest in the subject matter.
Neutral Citation: Factaprops v The Land Bank (353/2016) [2017]
ZASCA 45 (30 March 2017)
Coram: Tshiqi, Zondi and Van der Merwe JJA and Nicholls and Coppin AJJA
Heard: 1 March 2017
Delivered: 30 March 2017
Summary: The phrase ‘mortgage bond’ in s 11(a)(i) of
the Prescription Act 68 of 1969 has a wide meaning and includes a special notarial bond
in terms of the Security by Means of Movable Property Act, 57 of 1993: therefore the period of
prescription applicable to a debt secured by such special notarial bonds is
thirty years.
Neutral Citation: Marais & others v Varicor Nineteen (Pty) Ltd (843/16) [2017]
ZASCA 46 (30 March 2017)
Coram: Tshiqi, Theron, Mathopo and Van der Merwe JJA and Coppin AJA
Heard: 24 February 2017
Delivered: 30 March 2017
Summary: Contract: whether agreement to
establish a diesel depot constituted extension of an existing supply agreement
between the respondent and a trust or a new agreement with trustee of the trust
in personal capacity : respondent satisfied onus to prove the former: appeal dismissed.
