Supreme Court of Appeal of South Africa

The Supreme Court of Appeal is, except in respect of certain labour and competition matters, the second highest court in South Africa. In terms of the Constitution, it is purely an appeal court and may decide only appeals and issues connected with appeals. (Banner image by Ben Bezuidenhout).

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13 judgments

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13 judgments

Citation	Judgment date
October 2014
Porritt and Another v National Director of Public Prosecutions and Others (978/2013) [2014] ZASCA 168 (21 October 2014) Reported Removal of prosecutors for perceived bias must show substantive unfairness; judicial recusal test does not apply to prosecutors. Criminal procedure – plea under s106(1)(h) – challenge to prosecutor’s title; Apprehension of bias and fair-trial right (s35(3)) — prosecutors’ role distinct from judges; Test for disqualifying prosecutors — Killian test not SARFU judicial-recusal test; Removal of prosecutor does not automatically entitle accused to acquittal under s106(4); Reservation and appeal of question of law under s319/s322 permitted in favour of the State.	21 October 2014
MEC for Department of Health, Free State Province v E N (924/2013) [2014] ZASCA 167 (8 October 2014) Reported Rape by an outsider while an employee is on duty does not ordinarily arise out of employment and is not barred by COIDA. Compensation law – COIDA s 35(1) – exclusivity requires an "accident" arising out of and in the course of employment; Causal connection – risk incidental to employment; Intentional assault by outsider – motive unconnected to employment severs COIDA exclusivity; Policy – rape/sexual assault generally not an inherent occupational risk and may give rise to common-law claims.	8 October 2014
Industrial Development Corporation of South Africa Limited v Trencon Construction (Pty) Limited and Another (642/2013) [2014] ZASCA 163 (1 October 2014) Reported Court set aside unlawful tender award and remitted the matter where substitution under PAJA was unjustified. • Administrative law – tender evaluation – error of law in declaring tender non-responsive; • Procurement – fairness, transparency and competitiveness under s 217 Constitution and PAJA; • Remedy – substitution under s 8(1)(c)(ii)(aa) of PAJA is extraordinary and sparingly applied; remittal ordinarily appropriate; • Late tender submissions – condonation/disqualification issues do not cure a decision affected by material legal error.	1 October 2014
Investgold CC v Uys and Another (686/2013) [2014] ZASCA 166 (1 October 2014) Delivery with payment and documented handover transferred ownership despite subsequent theft by the seller's employee. Sale of goods – delivery and transfer of dominium – ownership in cash sale passes on delivery if transferor and transferee intend transfer. Company law – attribution of intention – identify directing mind relevant to particular act; limited-role brokers not necessarily directing minds. Theft by employee – subsequent dishonest act does not vitiate an earlier valid transfer of ownership. Delict – no duty to advise on invoicing and no vicarious liability where theft unrelated to performance of employment act.	1 October 2014
Kekana v S (629/2013) [2014] ZASCA 158 (1 October 2014) Accepted s 112(2) plea showed premeditated murder; no substantial and compelling circumstances justified departing from life imprisonment. Criminal law – Murder – Premeditation – short interval between intent and act may suffice where conduct shows steps to implement a plan (fetching petrol, pouring, locking, spreading fuel). Plea procedure – s 112(2) CPA – written plea accepted by the State fixes factual matrix for conviction and sentencing. Sentence – Minimum sentences Act (s 51(1)) – substantial and compelling circumstances absent where offence is brutal, exploited vulnerability and offender failed to render assistance. Appeal – Appellate interference limited absent material misdirection or a sentence that is shockingly inappropriate (S v Malgas).	1 October 2014
Maliga v S (543/2013) [2014] ZASCA 161 (1 October 2014) Reported Appellant's conviction set aside after inadmissible confessions were admitted and no prima facie case existed. Criminal law – Murder – Admission of statement/warning statement – written confession obtained by non-commissioned officer and while accused unrepresented – inadmissible; Criminal procedure – discharge under s 174 – presiding officer must raise mero motu if no prima facie case; Constitutional law – s 35 fair trial rights – duty of judges and prosecutors to manage trials and protect accused's rights; Prosecutorial duty – assist court, seek admissibility rulings or trial-within-a-trial; Effect – conviction and sentence set aside where inadmissible evidence induced accused to testify.	1 October 2014
Msunduzi Municipality v Dark Fibre Africa (RF) (Pty) Limited (20119/2014) [2014] ZASCA 165 (1 October 2014) A licensed network operator may exercise s 22 rights without landowner consent but must comply with applicable law and is reviewable under PAJA. Electronic Communications Act s 22 – licensee’s right to enter and construct without landowner consent; s 22(2) "due regard" requires compliance with applicable law but not to limit s 22 rights; organs of state are not differently treated as landowners; actions under s 22 are administrative action reviewable under PAJA; municipal wayleave processes or moratoria do not override s 22 authority.	1 October 2014
Newcity Group (Pty) Limited v Pellow NO and Others (577/2013) [2014] ZASCA 162 (1 October 2014) Applicant failed to show a reasonable prospect of business rescue under s 131(4)(a); liquidation was appropriate. Companies Act — business rescue (s 131(4)(a)) — requirement of a 'reasonable prospect' of rescue — applicant must place a factual foundation showing reasonable grounds; speculative or conditional third‑party offers insufficient; comparison with return in liquidation where secured creditor likely to recover capital; business rescue will not be ordered if it cannot provide a better return than liquidation.	1 October 2014
N S v Maitin (311/2013) [2014] ZASCA 156 (1 October 2014) Reported Appellant failed to prove negligence or causation from delivery management; appeal dismissed with costs. Delict — medical negligence — obstetric management and causation in shoulder dystocia; foetal weight estimation unreliable; emergency McRoberts’ manoeuvre permissible; informed consent—patient‑centred disclosure test not decided because negligence not established.	1 October 2014
Shuttleworth v South African Reserve Bank and Others (864/2013) [2014] ZASCA 157 (1 October 2014) Reported A 10% exchange‑control exit levy was an unlawful tax and must be repaid to the applicant with interest. Exchange control – Exit levy – Whether regulation 10(1)(c) authorises a general revenue‑raising charge – Statutory procedure for regulations raising revenue (s 9(4) Currency and Exchanges Act) – Constitution’s money‑bill limits – Condictio indebiti and repayment of payments made under protest – Delegation to authorised dealers and ‘closed door’ policy.	1 October 2014
S v Tofie (2) (104/2014) [2014] ZASCA 159 (1 October 2014) Appellate court acquitted the appellant where the 15‑year‑old complainant’s contradictory, uncorroborated evidence failed to prove rape beyond reasonable doubt. Criminal law – Rape of minor (15) – Single witness evidence – cautionary approach required – material contradictions between statements, testimony and medical report – lack of corroboration – prosecution failed to prove guilt beyond reasonable doubt – conviction set aside.	1 October 2014
Zhongji Development Construction Engineering Company Limited v Kamoto Copper Company Sarl (421/2013) [2014] ZASCA 160 (1 October 2014) Reported Courts must defer to agreed arbitration processes; arbitrators may decide arbitrability and declaratory relief was premature. Arbitration law — international arbitration — competence‑competence — arbitrator may decide existence, validity and scope of arbitration agreement; party autonomy respected; courts should not entertain premature declaratory relief where tribunal empowered to determine arbitrability; seat of arbitration and New York Convention support deference to arbitration.	1 October 2014
Z L v S (1049/2013) [2014] ZASCA 164 (1 October 2014) Conviction set aside where complainant’s recantation satisfied De Jager test and witnesses died, making remittal impossible. Criminal procedure – appeal on merits; application to lead further evidence on appeal – De Jager requirements (explanation, prima facie likelihood, material relevance) satisfied; recantation by complainant; death of principal witnesses preventing remittal; setting aside conviction in interests of justice.	1 October 2014