Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others (470/2020) [2021] ZASCA 99 (9 July 2021)

Criminal law and procedure – appeal by Director of Public Prosecutions in terms of s 311 of the Criminal Procedure Act 51 of 1977 – import of s 51(1) of the Criminal Law Amendment Act, 105 of 1997 (the 1997 Act) prior to its amendment – on appeal to it, high court concluding that it was bound by this Court's decision in S v Mahlase in which it was held that s 51(1) of the 1997 Act finds no application in circumstances where the rape victim was raped by two or more persons, if not all of the co-perpetrators are before the trial court and have not been convicted of rape – such conclusion constituting a question of law – appeal by Director of Public Prosecutions against such decision competent – appeal upheld and sentence imposed by trial court reinstated

Criminal procedure – appeal in terms of s 311 of Criminal Procedure Act 51 of 1977 – constitution of trial court in terms of s 93ter(1) of Magistrates’ Courts Act 32 of 1944 –– whether peremptory requirements of s 93ter(1) satisfied – duties of magistrate when accused represented– appeal upheld – conviction and sentence reinstated

Contract Law – whether cancellation clause unfair or unreasonable – doctrine of pacta sunt servanda. 

Practice and procedure – Uniform Rules – rule 35(12) – production
of documents mentioned in or referred to in the other party's affidavit –obligation on such party to produce documents sought by opponent – no obligation to produce documents sought if such documents irrelevant or not material or protected by privilege or no longer in the possession of the party required to produce the documents concerned.

Customary law – whether the Premier contravened section 21(2)(b) of the Traditional Leadership and Governance Framework Act 41 of 2003 when he referred the dispute in respect of the senior traditional leadership to the Commission before the Free State House of Traditional Leaders could deal with the dispute – decision of the Commission on Traditional Leadership Dispute and Claims – whether the Commission had authority to investigate and make recommendations in respect of a dispute which arose after 1 September 1927 in terms of s 25(2)(viii) of the Traditional Leadership and Governance Framework Amendment Act 23 of 2009 (the Amendment Act) – whether the Commission had authority to deal with the dispute which was submitted to it after six months from the date of coming into operation of the Amendment Act – the Commission had no such authority.

Arbitration – grounds of review – arbitrator enjoyed no discretionary competence to decide a dispute not contained in the pleadings – Arbitration Foundation of Southern Africa (AFSA) rules applicable – gross irregularity not shown.