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Citation
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Judgment date
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| December 2015 |
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Reported
Court recognised foreign official assignee and upheld interim preservation order using a practical approach to hearsay in cross‑border insolvency.
Cross‑border insolvency — recognition of foreign trustee — interim anti‑dissipation (preservation) orders — admissibility of hearsay and amplification in urgent applications — domicile for recognition — cooperation between foreign trustees — limits on invoking s 82 Insolvency Act.
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21 December 2015 |
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Reported
Applicant’s late review of its own tender award was dismissed; prior involvement did not disqualify the respondent.
Administrative law – PAJA s 7(1) time bar and s 9(1) extension; municipal procurement – Supply Chain Management Policy clause 95 and Reg 27(4) – prior consultant involvement and disqualification; reviewable irregularities – materiality and prejudice; AllPay approach to procurement deviations; public interest in finality of contracts.
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9 December 2015 |
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Reported
Tender award set aside where decision relied on strategic considerations outside published evaluation criteria; remitted for reconsideration.
Administrative law – Public procurement – Tender evaluation must be restricted to published criteria; taking into account extraneous 'strategic considerations' and undisclosed schedule 'float' vitiates award under PAJA. Administrative law – Review remedies – Remittal preferred where administrator is better placed and circumstances are not exceptional to justify substitution. Procedural fairness – Bidders must be informed of material considerations and given opportunity to respond. Locus standi – Bidder who submitted and negotiated the bid has standing despite references to associated entities.
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9 December 2015 |
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Reported
Limiting private prosecutions to natural persons is rationally related to legitimate public-prosecution policy; appeal dismissed.
Constitutional law — private prosecutions — s 7(1)(a) Criminal Procedure Act — distinction between natural and juristic persons — rationality review under rule of law (s 1(c)) — equality (s 9(1)) — statutory context of s 179 Constitution and NPA Act — reviewability of decisions not to prosecute limited to legality and rationality.
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4 December 2015 |
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Reported
POCA liability upheld: s2(1)(f) can be satisfied by culpa; s2(1)(e) needs no extra mens rea beyond predicate offences.
Criminal law; organised crime – POCA ss 2(1)(e),(f),(b) – elements and mens rea (dolus or culpa for s2(1)(f); s2(1)(e) requires participation via predicate offences only); money‑laundering (s4); receiving/retaining proceeds (s2(1)(b)); duplication of convictions (single offence where statute criminalises carrying‑on of business/practice); Banks Act, Insolvency Act, Companies/Close Corporations Act and Income Tax Act liabilities feeding into POCA; appellate interference with sentence.
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4 December 2015 |
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Reported
Trial court misapplied dolus eventualis and ignored key circumstantial evidence; murder conviction substituted for culpable homicide.
Criminal law – murder v culpable homicide – dolus eventualis – subjective foresight and reconciliation required; identity of victim irrelevant (dolus indeterminatus). Criminal procedure – s 319/322 CPA – State entitled to reserve questions of law despite conviction on competent verdict; appellate powers to correct legal misdirection. Evidence – circumstantial evidence and forensic reconstruction – failure to account for relevant circumstantial evidence can constitute reviewable error of law. Defence – putative private defence – requires an honest rational belief of danger; not sustained where irrational or unsupported by facts.
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3 December 2015 |
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Whether a distance-learning student qualifies as a “full-time student” under pension-fund rules for a child’s pension.
Pension fund rules – interpretation of “full-time student” – distance-learning students – institutional classification not determinative – entitlement to child’s pension assessed by student’s study commitments and dependency.
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3 December 2015 |
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Reported
The State must provide each public-school learner with prescribed textbooks before teaching begins; failure breached education, equality and dignity rights.
Constitutional law – Education – s 29(1)(a) – right to basic education includes entitlement to prescribed textbook per subject before teaching commences; immediately realisable socio-economic right; State duty under s 7(2); failure to deliver textbooks infringes s 29(1)(a), s 9 (equality) and s 10 (dignity); non-compliance with prior court orders; budgetary/separation of powers defence rejected.
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2 December 2015 |
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Non-compliance with s 129 does not defeat a business rescue practitioner's standing until a court sets aside the resolution.
Company law – Business rescue – Effect of non-compliance with s 129(3) and (4) – Resolution lapses but business rescue and practitioner’s appointment continue until a court sets the resolution aside – locus standi to challenge practitioner’s appointment not available absent order setting aside resolution; non-affected persons not better placed than affected persons.
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2 December 2015 |
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Reported
The regulator lacked standing to judicially challenge an Appeal Board decision that substituted its administrative determination.
Administrative law – standing – s 38 Constitution and PAJA – regulator’s locus standi – Appeal Board established under FSB Act – s 26B(15) confirms or substitutes Registrar’s decision – regulator cannot adversarially challenge substituted Appeal Board decisions.
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2 December 2015 |
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Contradictions and contextual shortcomings in a child’s evidence undermined proof of the accused’s identity beyond reasonable doubt.
Criminal law – sexual offences – child complainant evidence: contradictions between police statement, clinical record (J88) and viva voce testimony; medical evidence may establish penetration but not identity; onus remains on State to prove identity beyond reasonable doubt; caution about suggestion, use of intermediary, time‑variances and over‑reliance on demeanour.
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2 December 2015 |
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Reported
State respondents held in contempt; review of contract extension barred by PAJA 180‑day delay.
Administrative law – PAJA s 7(1) 180-day time limit; collateral/defensive challenge by organs of state; civil contempt and committal (Fakie test); performance of court orders despite alleged contractual illegality; interlocutory interdiction and conditional committal to enforce compliance with transfer provisions (schedule 15) of a turnkey contract.
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2 December 2015 |
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Reported
Appeal Board ignored the trustees’ agreed distribution scheme, committing reviewable error under PAJA, so appeal dismissed.
Pension funds – surplus apportionment (s15C) – trustees’ power to apportion surplus and attendant distribution scheme. Transfers of fund business (s14) – requirement that scheme be reasonable and equitable and give full recognition to members’ rights and reasonable benefit expectations. Administrative law – Appeal Board decision reviewable under PAJA; s6(2)(e)(iii) breach where relevant considerations (the distribution scheme and validated apportionment) were ignored. Outsourcing annuities – effect of members’ elections on reasonable benefit expectations. Relief – substitution of administrative decision where remittal would be futile and prejudicial.
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2 December 2015 |
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Reported
A municipal rates policy need not link property taxes to services; council's refusal to exempt a privately serviced estate was lawful.
Local government – Municipal Property Rates Act s 3(3)(a) – equitability of rates policy – whether privately serviced estate entitled to separate rates category or rebate. Distinction between property rates (general tax) and surcharges/fees for municipal services. Reviewability – council rates policy a legislative decision reviewable for legality/irrationality, not under PAJA. Municipal discretion in categorisation of rateable property; effect of engineering services agreement on entitlements. Standing – limits on developer/township owner challenging rates on behalf of residents.
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1 December 2015 |
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Reported
The appellant cannot appeal to the SCA against a High Court's appellate sentence under the Criminal Procedure Act.
Criminal Procedure Act – s 316B – State's right to appeal against sentence – limited to appeals where superior court sat as court of first instance; no CPA provision permitting State appeal to SCA against sentence imposed by a division sitting as court of appeal; Superior Courts Act (s 16(1)(b), s 17(1)(a)) cannot expand CPA-regulated criminal appeal rights; jurisdiction – appeal struck from the roll; sentencing – concern over lenient sentences in white-collar crime.
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1 December 2015 |
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A default judgment granted after non‑compliant notice (Rule 31(5)(a)/Practice Manual) is erroneously granted and must be rescinded.
Civil procedure – rescission of default judgment – Uniform Rule 42(1)(a) – judgment erroneously sought or granted where notice of application for default judgment fails to comply with Rule 31(5)(a) and Practice Manual para 2.3 – practice manual has force of Uniform Rules – defective notice renders registrar’s default judgment susceptible to rescission.
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1 December 2015 |
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Appellant, aged 17 at offences, wrongly given life sentences; SCA substituted a 20‑year effective sentence.
Sentencing — Criminal Law Amendment Act 105 of 1997 — s 51(1) read with s 51(3)(b) — offender aged between 16 and 18 — material misdirection by sentencing courts treating offender as adult — youthfulness and pre‑sentence detention as mitigating factors — life sentences set aside and substituted with 20 years’ imprisonment.
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1 December 2015 |
| November 2015 |
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Reported
Whether a genuine salary sacrifice made vehicle use a taxable benefit under para (i) instead of remuneration under para (c).
Income tax — Salary sacrifice arrangements — Use of company motor vehicles — Whether taxable as a taxable benefit under para (i) and Seventh Schedule or as remuneration under para (c) — Effect of notional accounts, contingent credits and insurance-premium allocations on divestment of salary — Burden of proof on taxpayer to show genuine salary sacrifice.
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30 November 2015 |
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Reported
A search warrant must name the authorised police official, specify the statutory offence and be accompanied by the supporting affidavit; otherwise seizure is unlawful.
Search warrants — statutory requirements — identification of police official authorised to execute warrant; warrants concerning statutory offences must cite statute and section; affidavit supporting warrant must accompany warrant on execution; warrants to be reasonably intelligible and strictly scrutinised; defective warrants render seizures unlawful.
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30 November 2015 |
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Convictions overturned where death/identity were unproven and sole witness was unreliable.
Criminal law – proof of death and identity from skeletal remains; insufficiency of inconclusive post‑mortem and absence of DNA; reliance on single witness evidence – caution and assessment of credibility; appellate intervention where convictions not proved beyond reasonable doubt.
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30 November 2015 |
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Sale by a non-owner requires delivery of vacua possessio and a warranty against eviction, not transfer of ownership.
Sale by non-owner – valid contract though seller not owner – seller’s obligation to deliver vacua possessio and warrant against eviction, not to transfer ownership. Delivery – goods remaining at place of sale constitute delivery. Tacit/implied terms – cannot be imported to contradict express contract or legal rules. Pleadings – admissions of law do not bind where erroneous.
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30 November 2015 |
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Reported
Challenges to extensions of bargaining council collective agreements under the LRA fall within the Labour Court’s exclusive jurisdiction.
Labour law – jurisdiction – s 157(1) LRA exclusive jurisdiction of Labour Court – extension of collective agreements under s 32 LRA – challenges arise out of LRA and belong to Labour Court; constitutional principle of legality does not confer High Court jurisdiction absent a Chapter 2 rights infringement; forum shopping discouraged.
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30 November 2015 |
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A municipal official's clerical miscommunication does not negate a valid council resolution; the council’s conditions remain binding.
Administrative law — municipal council resolution imposing subdivision conditions — defective notification by municipal official — clerical error not administrative action under PAJA; Municipal approval of building plans inconsistent with prior council conditions — reviewable and set aside; Servitude rights — registered servitude (pedestrian access and view) and interaction with municipal planning conditions; Duty of municipal organs to enforce their own decisions; Remedies available: LUPO amendment/rectification procedures and damages for negligent officials.
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30 November 2015 |
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Whether the applicant knew of trust-fund theft within three months for compliance with s 48(1)(a) of the Attorneys Act.
Attorneys Act s 48(1)(a) — time of knowledge of theft; Rule 33(1) stated case — agreed sworn evidence binding as the factual position; Drawing inferences — inference must be supported by objective proved facts, consistent with all proved facts and be the most probable; Onus on respondent to prove earlier knowledge (special plea of prescription/time-bar).
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30 November 2015 |
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Reported
Tribunal jurisdiction arises from lack of agreement; tribunal needs evidentiary satisfaction, not a formal onus, to fix a reasonable tariff.
Copyright Act s9A; Copyright Tribunal jurisdiction — s30 and s33(3) read with s33(5)(b) applied mutatis mutandis; tribunal’s jurisdiction arises from absence of agreement. Evidentiary burden not formal legal onus — tribunal must be satisfied on all evidence that applicant’s claim is well‑founded. No obligation on retailers to produce prohibitive empirical valuation of benefit from music. International benchmarking admissible and useful to prevent arbitrariness. Tribunal award set aside as irrational; court substituted reasonable tariff and awarded costs.
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30 November 2015 |
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Court failed to secure proper expert psychiatric inquiry into accused’s capacity; resulting irregularity set aside convictions.
Criminal law — Mental capacity — ss 77, 78, 79 Criminal Procedure Act — Duty to direct psychiatric inquiry where reasonable possibility of lack of capacity; sufficiency of psychiatric report; expert guidance required; lay inquiries and judicial questioning after close of defence irregular and fundamental; miscarriage of justice — convictions set aside.
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30 November 2015 |
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High Court lacked jurisdiction where it granted leave to SCA after magistrate only refused condonation; appeal struck from roll.
Criminal procedure – s 309B and s 309C CPA – refusal of condonation for late application for leave to appeal – proper petition under s 309C(2)(a)(i) against refusal of condonation – High Court misconstruing petition and granting leave to SCA is nullity – need for documents listed in s 309C(4) to be before adjudicators.
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30 November 2015 |
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Single-counsel joint representation did not vitiate trial; convictions upheld but life sentence for murder reduced to 20 years.
Criminal law — joint representation by single counsel — fairness of trial where accused elected and agreed strategy; s 220 admission; evidence of single survivor and medical evidence sufficient for convictions; improper invocation of minimum-sentence regime without pre-warning; life sentence set aside as disturbingly inappropriate and substituted with 20 years, concurrent three-year term; sentence antedated.
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30 November 2015 |
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The applicant's challenge failed: municipality need not apply provincial ordinance; rates need not be fixed annually and persist until changed.
Local government – Property rates – s 10G(7) Local Government Transition Act confers freestanding rate‑levying competence – Provincial rating ordinances not automatically applicable to levies under s 10G(7) – No obligation to determine rates annually under s 10G(7) – Rates levied do not automatically lapse at end of financial year – Transitional framework distinct from later Rates Act and budgetary requirements.
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30 November 2015 |
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Section 12B arbitration is limited to corrective remedies for ongoing petroleum‑supply contracts; arbitrators cannot decide contract cancellation validity.
Petroleum Products Act s 12B — scope of arbitration; corrective (prospective) remedial jurisdiction; arbitrator cannot determine validity of contract cancellation; Controller’s discretion — consider pending court proceedings and jurisdictional limits; arbitration confined to practices directly related to bulk supply of petroleum products.
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27 November 2015 |
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Whether the applicant fund constituted under the PIC Act qualifies as "the State" for a 15‑year prescription period.
Prescription Act s 11(b) – meaning of "the State"; whether a statutory fund governed by the PIC Act is the State for 15‑year prescription; Companies Act s 424 – director liability; prescription special plea and separation under Rule 33(4); application of Holeni v Land and Agricultural Development Bank precedent.
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27 November 2015 |
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Appellant failed to show reasonable prospects of success against rape conviction and 18-year sentence; appeal dismissed.
Criminal procedure – leave to appeal against refusal of petition – reasonable prospects test; Sexual offences – rape of minor – credibility, corroboration and medical evidence of penetration; Sentencing – prescribed minimum life, substantial and compelling circumstances, appellate interference.
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27 November 2015 |
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Reported
A generalised prior-art disclosure must both disclose and enable a specific selection to anticipate a later patent.
Patents — anticipation — two-step test of disclosure and enablement (Synthon) — generalised prior disclosure does not necessarily disclose specific selections — selection patents treated under ordinary novelty rules (Dr Reddy’s Laboratories) — need for individualised description or clear and unmistakable directions — enablement assessed by whether skilled person can perform invention without undue experimentation.
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27 November 2015 |
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Reported
SCA sets aside high court orders that impermissibly compelled the Minister to supervise other spheres and appoint EMIs.
Environmental law – NEMBA s70(1)(a) and s97(1)(c) – publication of national alien and invasive species list and regulations – subsequent publication of 2014 lists/regulations – declaratory and mandatory relief – cooperative government and separation of powers – impermissible judicial supervision of other spheres – vagueness of orders – appointment/mandating of EMIs – statutory scheme and regulatory timeframes (Regulation 8).
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27 November 2015 |
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Life imprisonment affirmed where murder of a child was premeditated and no substantial and compelling circumstances existed.
Criminal law – sentencing – minimum prescribed sentence under s 51(1) Criminal Law Amendment Act 105 of 1997 – “planned or premeditated” murder – assessment of premeditation on facts – substantial and compelling circumstances (Malgas principles) – guilty plea and remorse as mitigating factors – life imprisonment affirmed for particularly heinous child murder.
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27 November 2015 |
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Whether the SCA may hear merits after a s309C petition was refused and if reasonable prospects of appeal exist.
Criminal procedure – appeal from lower court – s 309/309C Criminal Procedure Act – petition refusing leave to appeal – jurisdiction of Supreme Court of Appeal; Appeals generally – s 16(1)(b) Superior Courts Act – SCA cannot hear merits where high court did not adjudicate appeal on merits; Test on refusal of s 309C petition – whether reasonable prospects of success; Trial evaluation of evidence – adequacy of assessment of eyewitness credibility and ballistic/chain-of-custody evidence.
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27 November 2015 |
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Reported
Fraud vitiating an owner’s intention renders purported transfer and any mortgage bond granted by a non‑owner ineffective.
Immovable property – transfer – vitiated consent by fraud – where owner lacked real intention to transfer, registration of transfer and any mortgage bond granted by nominal transferee are ineffective; rescission of default judgment by party affected under rule 42(1)(a); innocent lender’s remedy is personal, not in rem; courts cannot impose unbargained contractual obligations as part of declaratory relief.
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26 November 2015 |
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Provisional admission of creditor claims under s 44 and validity of attorney‑commissioned affidavits under reg 7(1) exemption.
Insolvency law – s 44 proof of claims – presiding officer’s role is to admit claims provisionally on prima facie proof; detailed prescription inquiries fall to the trustee under s 45. Prescription – presiding officer not required to determine interruption of prescription where a trustee can investigate. Commissioners of oaths/regulations – reg 7(1) prohibition on administering oaths where commissioner has an interest; amended schedule item 1(b) exempts attorney‑taken declarations furnished to an officer in the service of the State, so attorney‑commissioned affidavits in s 44(4) context are valid.
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26 November 2015 |
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Reported
A pre-award municipal tender cancellation is not administrative action under PAJA and courts should not compel procurement.
Procurement law – tender cancellation – whether pre-award cancellation is administrative action under PAJA – direct, external legal effect – reasonable expectation – review for fairness – limits on judicial remedies that would compel procurement and separation of powers.
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26 November 2015 |
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Single-witness, fleeting, and partially obscured identification was unreliable; convictions based on it were set aside.
Evidence — Identification: Single-witness identification requires a cautious approach; honesty alone insufficient — reliability depends on adequate opportunity to observe, absence of obscuring factors, witness state (trauma) and supporting corroborative evidence.
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26 November 2015 |
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Law Society’s unqualified-audit prerequisite is administrative action; secretary must refuse non-compliant applications; review, not mandamus, required.
Administrative law; Law Society resolution requiring unqualified audit certificate — constitutes administrative action under PAJA and binding until set aside on review; Secretary’s role under s 42(3)(a) — limited to satisfying compliance with lawful requirements; No discretion to issue fidelity certificate where requirements unmet; Wrong procedural route — challenge to resolution must be by review; Protection of Fidelity Fund and trust creditors; Insolvency and trust-account misappropriation risks.
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26 November 2015 |
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Regional magistrate failed to inquire into substantial and compelling circumstances and improperly imposed a non‑parole period.
Sentencing — Minimum sentences (s 51 Criminal Law Amendment Act) — requirement for a purposeful enquiry into substantial and compelling circumstances before departing from prescribed minimums. Sentencing procedure — duty to invite and consider mitigation and personal circumstances; failure amounts to serious misdirection. Parole — section 276B Criminal Procedure Act — limits on court powers to fix non‑parole periods; magistrate’s non‑parole order improper. Jurisdiction — Superior Courts Act 10 of 2013 s 16(1)(b) — special leave from SCA required to appeal a decision of a Division given on appeal to it.
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26 November 2015 |
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Reported
A pension fund must prove s 12 compliance before enforcing increased employer contributions.
Pension funds – Rule amendments – s 12 Pension Funds Act – requirement to prove trustee resolution, timely transmission and Registrar approval; Civil procedure – absolution from the instance – prima facie evidence test; Administrative law – validity of administrative approvals – burden of proof and collateral challenge considerations; Pleading – necessity to plead condonation for late submissions to regulator.
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26 November 2015 |
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Section 51(5) does not bar suspending a sentence imposed after finding substantial and compelling circumstances.
Criminal law – sentencing – minimum sentences (s 51 Criminal Law Amendment Act) – effect of finding substantial and compelling circumstances – s 51(5) does not prohibit suspension of sentences imposed after departure from statutory minimum – sentencing discretion; correctional supervision permissible.
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26 November 2015 |
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A conviction for assault does not bar later murder charges if the victim dies after the conviction; matter remitted for finalisation.
Criminal procedure – autrefois convict/acquit – double jeopardy does not bar subsequent homicide prosecution where victim dies after earlier conviction for assault; death as new fact altering the offence; magistrate’s recusal requires remittal for finalisation rather than setting aside conviction under s173.
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26 November 2015 |
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Reported
Holder of a right of habitation is 'person in charge' and owner occupying without consent is an unlawful occupier under PIE.
Property law – Right of habitation (habitatio) – limited real right enforceable against all and registrable against title deed. PIE Act – definition of "unlawful occupier" and "person in charge" – holder of habitatio can be "person in charge" and owner occupying without consent can be an unlawful occupier. Eviction – section 4(7) just and equitable enquiry – courts must consider rights and needs of elderly, children, disabled persons and households headed by women. Remittal – matter remitted for s 4(7) enquiry and finalisation of eviction application.
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25 November 2015 |
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Reported
A third party’s deliberate supermarket trading in breach of its lease can unlawfully deprive an anchor tenant of its exclusivity.
Delict — unlawful interference with contractual relations; lease exclusivity — integral part of lease, not collateral; supermarket — ordinary meaning for lease interpretation; inducement not required; dolus eventualis sufficient; huur gaat voor koop binds successor owner.
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25 November 2015 |
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24 November 2015 |
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Reported
Challenge to dental‑assistant regulations mostly time‑barred; scope regulations valid and appeal dismissed with costs.
Health Professions Act – establishment of professional boards and registers; s 33 scope‑of‑profession regulations; PAJA s 7 time‑bar for review of administrative action; principle of legality and review; costs in constitutional/public‑interest litigation where applicant’s conduct weighs against Biowatch exception.
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24 November 2015 |
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Reported
Clearance certificates under s 118(1) require payment of amounts attributable to the specific erf, not all township arrears.
Municipal law — s 118(1) Systems Act — clearance certificates must certify payment of amounts that became due "in connection with" the property to be transferred (the specific erf) for the preceding two years; township rating — remaining extent valued as single property on valuation roll; municipality must determine and apportion rates/charges attributable to the erf.
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20 November 2015 |
