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Citation
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Judgment date
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| December 2020 |
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Reported
An organ of state may interrupt municipal electricity under statute but must first exhaust intergovernmental dispute mechanisms.
Constitutional and administrative law – cooperative government (s 41 Constitution) and IRFA ss 40–41 – organs of state must make every reasonable effort in good faith to settle intergovernmental disputes before unilateral action; Electricity Regulation Act s 21(5) – licensee may reduce or terminate supply without court order, but exercise must respect constitutional cooperative‑government duties where entire municipality affected; PAJA review – irrationality and failure to consider relevant factors; MFMA/ s 139 intervention and National Treasury dispute‑resolution mechanisms relevant.
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29 December 2020 |
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Where s 163(1) is not proved, a court cannot grant s 163(2) buy-out relief, nor vary orders to appellant’s detriment without a cross-appeal.
Company law – s 163 Companies Act – relief for oppressive or unfairly prejudicial conduct; s 163(1) must be proved before s 163(2) relief granted; appellate procedure – respondent cannot obtain variation to appellant’s detriment without cross-appeal; majority voting/ removal as director and dismissal for misconduct do not automatically constitute oppression; winding-up as just and equitable requires insolvency or destroyed substratum, not mere breakdown of relations.
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24 December 2020 |
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Reported
An ineligible person accepted as a pension‑fund member may recover contributions via the PFA adjudication system.
Pension funds – membership admitted contrary to rules – acceptance ultra vires and void; membership contract void for common mistake – Pension Funds Adjudicator’s jurisdiction under Chapter VA of PFA – wide definitions of 'complaint' and 'complainant' – non‑member may pursue complaint if dispute arises from fund administration/rules – restitution/enrichment (condictio indebiti/condictio sine causa) available to recover contributions – estoppel/waiver not available – prescription not established.
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23 December 2020 |
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Shareholders may enforce specific performance of loan and funding obligations without bringing a derivative action.
Specific performance; standing of shareholders to enforce loan agreements and shareholder funding obligations; derivative action (s 165) not required; conditions precedent in loan agreements (clauses 7,15,16) and evidentiary proof; interpretation and enforcement of shareholder funding clause requiring separate agreement and simultaneous loans; remedy: specific performance and costs (including two counsel).
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23 December 2020 |
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A creditor’s suit on an AOD limited to arrears does not bar later enforcement of the original credit agreements or the suretyship.
Civil procedure – acknowledgement of debt – not a novation where parties expressly reserve original rights; res judicata/issue estoppel – requires same relief on same ground; creditor who sued for arrears under AOD not precluded from later claiming under underlying credit agreements; suretyship survives deregistration of debtor company.
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23 December 2020 |
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A court may declare an organ of state's procurement contract invalid in a collateral challenge where justice requires.
Public procurement – unsolicited bid – contravention of s 217 Constitution and MFMA – contract invalid from inception; collateral/reactive challenge to administrative action – Merafong and Tasima – court may declare public contract invalid in proceedings where justice requires.
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22 December 2020 |
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"Remarriage" in a maintenance settlement means a legally recognised marriage; an unregistered religious ceremony is not remarriage.
Family law – interpretation of settlement deed – meaning of "remarriage"; Marriage Act s29A formalities for valid marriage; effect of unregistered religious ceremony on maintenance obligations; contempt for non‑payment of maintenance; de bonis propriis costs against attorney – procedural fairness and substantive threshold.
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18 December 2020 |
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Refinancing‑related advisory services were not acquired for the purpose of making taxable supplies; input tax disallowed and imported services taxable.
VAT – input tax – requirement that goods or services be acquired for the purpose of consumption, use or supply in the course of making taxable supplies – functional relationship test. VAT – imported services – definition and taxation under s7(1)(c) where services are utilized or consumed otherwise than for the purpose of making taxable supplies. VAT – exempt supplies – distinction between borrowing/receipt of financial services and supply/issue of debt securities; borrower is not supplier of financial services. Pleading and evidence – new factual/legal ground (competitiveness) not entertained where not properly pleaded or litigated.
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18 December 2020 |
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Reported
Non-recognition of Muslim marriages violates equality, dignity and children's rights; invalidity suspended pending legislative remedy.
Constitutional law — Recognition of Muslim (Sharia) marriages — Marriage Act and Divorce Act inconsistent with ss 9, 10, 28 and 34 of the Constitution for failing to recognise and regulate Muslim marriages; specific Divorce Act provisions (s 6, s 7(3), s 9(1)) unconstitutional as they fail to protect children, provide equitable redistribution and forfeiture on dissolution; common-law definition of marriage invalid to extent of excluding Muslim marriages; declarations suspended for 24 months pending legislative remedy; courts cannot, on s 7(2) alone, order the State to enact legislation absent express constitutional or binding international-law obligations; interim relief to govern existing Muslim unions.
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18 December 2020 |
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A court cannot revisit its final order; a later contrary order is null and the matter must be remitted for merits.
Civil procedure – functus officio – finality of judgment – Zweni attributes; Non-joinder – preliminary points – effect on proceedings; Administrative review – remittal to first instance – limits on appellate substitution; Appellate jurisdiction – SCA cannot decide merits not determined by high court; Substitution orders – exceptional circumstances (Trencon).
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18 December 2020 |
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Recognition of a traditional leader set aside for procedural unfairness and failure to establish living customary law.
Customary law – recognition and appointment of traditional leader – compliance with Traditional Leadership and Governance Framework Act – audi alteram partem – requirement to establish and apply living customary law of the relevant community – review and set-aside of recognition for procedural and substantive defects.
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18 December 2020 |
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Trustees’ recovery claims for broker commissions prescribed where reasonable care would have revealed debtors and relevant facts.
Prescription Act s 12(1) and (3) – knowledge of identity of debtor and facts – deemed knowledge if obtainable by exercise of reasonable care; trustees in insolvency – duty to make reasonable enquiries; prioritisation of other estate tasks does not postpone prescription; imputing/obtaining knowledge from employees and files; recovery of broker commissions in Ponzi scheme context.
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17 December 2020 |
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Reported
Defamatory social-media publication lacked reasonable verification; damages cannot be awarded in motion without oral evidence.
Defamation; defences — truth and public interest; fair comment; reasonable publication (Bogoshi) — failure to verify unverified social-media tip; animus iniuriandi; limits on extending media defences to non-media/social media actors; procedural requirement that unliquidated damages in defamation be proved on viva voce evidence or referred to oral evidence.
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17 December 2020 |
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Reported
A lockdown responding to a notifiable disease within 50 km forms part of the insured peril for business-interruption cover.
Insurance law – Business-interruption cover – Infectious-diseases extension – Scope of cover where a notifiable disease occurs within prescribed radius and government imposes widespread measures. Contract interpretation – Objective construction of insurance clauses; threshold radius as qualifying requirement not excluding broader public-health responses. Causation – Factual and legal causation in insurance; concurrent and proximate causes; public-health response as part of insured peril. Quantification – Trends/other-circumstances clause adjusts loss quantum, does not negate liability where response is intrinsic to peril.
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17 December 2020 |
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Reported
A struck‑off advocate must prove complete reformation; Bars retain standing and interim enforcement needs exceptional circumstances.
Advocate readmission – onus on applicant previously struck off to demonstrate complete and permanent reformation; legal profession regulation – Advocates Act applies to pending readmission launched before LPA commencement; Bars and national Bar retain standing as custodes morum to intervene; medical evidence must establish causal nexus to mitigate deliberate dishonesty; s18 enforcement pending appeal requires truly exceptional circumstances.
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15 December 2020 |
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The respondent’s claim dismissed where the trial court improperly rejected the parties’ agreed expert opinion.
Medical negligence – perinatal hypoxic-ischaemic brain injury; expert evidence – parties’ agreed expert opinion; judicial recourse to literature; causation — acute profound (sentinel) event versus prolonged partial hypoxia; fundal pressure and causation; duty to notify parties when questioning agreed expert evidence.
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14 December 2020 |
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Reported
Section 115 preserves pre‑LPA entitlement to admission as advocate; LPC’s s 32 conversion power does not oust high court jurisdiction.
Legal Practice Act – s 115 preservation of pre‑commencement entitlements to admission and enrolment; interpretation of transitional provision; s 32 conversion powers of Legal Practice Council; limits of rule‑making; high court retains jurisdiction to admit and authorise enrolment where practitioner qualifies under LPA.
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14 December 2020 |
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A valid recusal for bias nullifies the presiding officer’s proceedings and interlocutory orders, requiring a fresh merits hearing.
Judicial recusal – bias – effect of successful recusal nullifies entire proceedings and interlocutory orders; res judicata – interlocutory orders rendered null by recusal; court raising res judicata mero motu – improper where prior recusal vitiates proceedings; remedy – set aside proceedings and remit to full court for merits determination.
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11 December 2020 |
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Reported
A bona fide purchaser who did not know and could not reasonably have known of a spouse’s lack of consent is protected by s 15(9)(a).
Matrimonial Property Act s 15(2)(a) & s 15(9)(a) – sale by one spouse without other spouse’s consent – deemed consent where third party did not know and could not reasonably have known lack of consent; duty on purchaser to make reasonable enquiries; objective reasonable-person standard; balance between protection of non-consenting spouse and bona fide third-party purchasers.
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11 December 2020 |
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Court held mortgage property identifiable; lower court erred and respondent’s fraud defence rejected.
Property law – mortgage bond – adequacy of description – intention and context of sale agreement and addenda determine identifiability of property. Civil procedure – court raising and deciding issues not pleaded by parties – lower court misdirection. Contract law – alleged fraudulent misrepresentation – must be established on the papers; contractual allocation of development levies relevant to culpability and damages. Relief – declaratory relief preserving security as at judgment date despite subsequent transfer and liquidation.
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10 December 2020 |
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S 12(3) requires primary factual causes, not legal conclusions; inadequate particulars defeat a prescription special plea.
Extinctive prescription – s 12(3) Prescription Act – two-stage enquiry: (i) identification of primary facts from which debt arises; (ii) when creditor had or should have had knowledge of those facts. Legal conclusions (negligence) are not primary facts. Pleading particularity – where primary facts are not pleaded, a prescription special plea cannot be determined and should be dismissed.
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10 December 2020 |
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Application for reconsideration dismissed: no exceptional circumstances, single‑witness evidence properly evaluated and s 227 application rightly refused.
Criminal procedure – reconsideration under s 17(2)(f) Superior Courts Act – exceptional circumstances; Criminal law – single witness evidence and cautionary rule; Failure to call potentially material witness – adverse inference and fairness; Section 227 Criminal Procedure Act – cross‑examination on prior sexual history; Corroboration by first report, police and medico‑legal evidence.
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10 December 2020 |
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Reported
An applicant must prove specific, material grounds under s 139(2) before a court may remove business rescue practitioners.
Companies Act s 139(2) – Removal of business rescue practitioner – Applicant must prove statutory grounds (incompetence, lack of care, illegality, conflict, incapacity) on balance of probabilities; s 140(3)(a)/(b) (BRP as 'officer of the court' and bearing directors' duties) has limited application in voluntary business rescue; bona fide or commercially-motivated errors (e.g. VAT invoicing practice) do not automatically justify removal; appointment to multiple group companies does not automatically create disqualifying conflict.
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9 December 2020 |
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Whether a company’s board may appoint a substitute business rescue practitioner without approval of the existing practitioner.
Company law – business rescue – appointment and replacement of business rescue practitioners; interpretation of ss129, 130, 131, 137, 139 and 140 of the Companies Act; board’s power to appoint substitute practitioners; practitioner authority (or lack thereof) to appoint substitutes; interplay between regulatory filings and substantive validity of appointments.
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8 December 2020 |
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Reported
An authorised s 69 LRA picket is not a "gathering" for purposes of s 11 of the Regulation of Gatherings Act.
Labour law – Picketing under s 69 LRA – Statutory interpretation – Later specialised legislation (LRA) excludes application of general Regulation of Gatherings Act s 11 liability for authorised pickets; Labour Court remedies under s 68 prevail.
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7 December 2020 |
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A surety’s right of recourse accrues on payment to the creditor and s 154(2) does not alter that common-law rule.
Suretyship – surety’s right of recourse arises upon payment to the creditor; Companies Act s 154(2) – does not alter common law as to timing of accrual of surety’s claim; Business rescue – creditor’s right to enforce debts determined by existing law, including common law; Summary judgment – defence based on s 154(2) held to be bad in law.
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3 December 2020 |
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Conversion between close corporation and company does not interrupt juristic personality; misdescription does not invalidate contracts or judgments.
Company law – conversion of close corporation to company – continuity of juristic personality; Contract law – misdescription of corporate form in agreements (suretyship) does not vitiate enforceability; Civil procedure – rescission of default judgment – misdescription and director knowledge not a ground for rescission; Service at domicilium in misdescribed document effective.
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1 December 2020 |
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Reported
Handwritten hospital records with an incomplete RAF1 medical section can constitute substantial compliance and, absent timely objection, render the claim valid.
Road Accident Fund Act s 24 – RAF 1 medical report – substantial compliance by submission of hospital records – s 24(5) deeming provision where Fund fails to object within 60 days – prescription and procedural requirements – purposive interpretation.
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1 December 2020 |
| November 2020 |
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Three-year prescription applies; debtor's payments and balance requests interrupted prescription, creditor entitled to debt and mora interest.
• Prescription Act s11(b): meaning of "the State" — organs of state distinct from government do not automatically attract 15-year period; s11(d) three-year period applies to such creditors.
• Prescription Act s14: tacit acknowledgement — partial payments and annual requests for balances can interrupt prescription.
• Pleadings: admissions and deemed admissions obviate need for further proof of admitted facts and quantum.
• Mora interest: arises by operation of law from contractual due date; rate and commencement dates to be correctly stated.
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30 November 2020 |
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Pre-commencement ticket revenues were debts owed to the carrier and barred from suit by the business rescue moratorium.
Company law – business rescue – s 133 moratorium on legal proceedings; pre-commencement receipts – nature as debt versus trust/agency; timing of creditor’s entitlement; leave of court or practitioner’s consent required to litigate during business rescue.
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30 November 2020 |
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Search and seizure warrants under the Counterfeit Goods Act invalid where quarantined goods and no reasonable grounds existed for suspected dealing.
Counterfeit Goods Act – search and seizure warrants – requirement of reasonable grounds before judicial authorisation; ex parte disclosure duties of complainant; statutory timelines for prosecution and rights to release where timelines lapse; prohibiting use of Act’s remedies as a terrorem device in commercial disputes; costs for abusive litigation conduct.
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27 November 2020 |
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Reported
Uncorroborated, internally inconsistent single‑witness evidence and investigative failures rendered the State's case inadequate; appellants acquitted.
Criminal law – single-witness evidence – corroboration and caution where witness' versions contain material contradictions; criminal procedure – s 174 discharge – sufficiency of State evidence; police/investigation failures – impact on reliability of prosecution case; substitution to culpable homicide – negligence in conveyance of arrestee.
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27 November 2020 |
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Unexplained, lengthy delay by MEC in seeking review disentitles setting aside municipal managers despite regulatory irregularity.
Local government — s 54A Municipal Systems Act — appointment of municipal managers — supervisory role of MEC and time-limited duty to act within 14 days — jurisdiction of High Court v Labour Court — review under PAJA or principle of legality — reasonableness of delay and remedial discretion to grant just and equitable relief.
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26 November 2020 |
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Reported
Where s 4(3) requirements are clearly met, a court may order the Minister to grant citizenship rather than remit.
Citizenship law – s 4(3) Citizenship Act – requirements: birth in Republic, non‑citizen parents not permanent residents, continuous residence from birth to majority, registration of birth under Births and Deaths Registration Act (s 5). Birth registration – issuing of birth certificate (s 5(3)) constitutes registration for non‑citizen parents. Administrative law – citizenship recognition is a question of law not discretion; courts may order grant where statutory conditions are satisfied. Procedural – absence of prescribed application form does not defeat an application where none has been prescribed; admissions in answering affidavit not raising real dispute of fact. Costs – punitive costs (attorney‑and‑client and two counsel) justified where organ of state persists unreasonably after controlling authority.
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25 November 2020 |
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Reported
Whether a municipal entity performing municipal functions qualifies as a municipality for income tax exemption purposes.
Income Tax – s 10(1) exemption – scope limited to entities that are part of a sphere of government (municipalities) – municipal entities and state-owned companies performing municipal functions do not automatically qualify – corporate autonomy, governance and financial independence determinative.
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20 November 2020 |
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An external foreign company cannot invoke South African business rescue; foreign compositions require formal recognition proceedings.
Companies Act – business rescue – whether an external (foreign) company registered under s 23 may be placed under business rescue – definition of "company" and incorporation under the Act. Private international law/insolvency – recognition and enforcement of foreign insolvency/composition orders – extra-territorial effect and requirement for recognition proceedings in South Africa. Procedure – who may apply for recognition (foreign representative/official liquidator) and protective terms for local creditors. Appeals – admissibility of further evidence on appeal; lateness and costs consequences.
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20 November 2020 |
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Reported
A court may not override s 18(4)(iv)’s automatic suspension of execution orders; any such order is void.
Superior Courts Act s 18 — execution orders — s 18(4)(iv) automatic suspension of execution pending urgent appeal — high court cannot order otherwise to override statutory suspension — such an order is a nullity; requirements for leave to execute under s 18(3) (exceptional circumstances; irreparable harm to applicant; absence of irreparable harm to respondent) must be strictly proved; appointments and acts by substitute practitioners during suspended execution invalid.
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19 November 2020 |
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Deemed consent under s 15(9)(a) protects bona fide purchasers who could not reasonably have known a spouse’s consent was lacking.
Matrimonial Property Act 88 of 1984 – ss 15(2)(a) and 15(9)(a) – sale by one spouse in community of property without other spouse’s written consent – applicability of deemed consent where purchaser did not and could not reasonably know consent was lacking – burden on purchaser to prove bona fides and reasonableness of reliance on seller’s representations.
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18 November 2020 |
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Reported
Whether the respondent was barred by the underlying contract from calling the applicant’s unconditional performance guarantee.
Contract law – Performance guarantees – Autonomy of guarantee; limited exception where underlying contract clearly precludes demand; construction of FIDIC-based clauses 4.2 and 2.5; employer’s right to call unconditional guarantee at its risk under indemnity; application of Hitachi precedent.
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13 November 2020 |
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Email service to the nominated address was held valid; rescission refused for lack of good cause and no bona fide defence.
Civil procedure – rescission of judgment – Uniform Rule 42(1)(a) – judgment erroneously sought or granted – effect of non-receipt of notice due to opponent’s attorneys’ internal affairs. Civil procedure – form of notice of motion – compliance with form 2(a) – condonation of hybrid form where no prejudice. Civil procedure – service by electronic mail – rule 4A and rule 6(5)(d)(i) – electronic service to nominated address constitutes valid service. Civil procedure – common-law rescission – good cause requires reasonable explanation for default, bona fides and a bona fide defence with some prospect of success. Succession law – reconstruction of wills under common law v reliance on s 2(3) of the Wills Act.
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13 November 2020 |
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Reported
Prescription in malicious‑proceedings claims starts only after proceedings have terminated in the applicant’s favour.
Prescription — Prescription Act s12 — commencement of prescription when creditor has complete cause of action; Malicious proceedings — requirement that proceedings terminate in plaintiff’s favour before cause of action arises; Professional regulatory tribunals (HPCSA) — disciplinary/disciplinary-like proceedings analogous to criminal prosecutions for purpose of malicious-proceedings claims; Kruger — limited application and does not remove favourable-termination requirement.
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5 November 2020 |
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Reported
A right of first refusal cannot be extended against unrelated third parties or other property via Oryx or notice.
Right of first refusal; Oryx mechanism — creates independent contract with grantor only, does not make grantee party to original third‑party contract; doctrine of notice — enforces preferential right against third parties with knowledge but does not enlarge its substantive scope; exception for failure to disclose cause of action; severability of multi‑aspect agreements; remedy limits — cannot convert improper conduct into new contractual rights against unrelated grantors.
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4 November 2020 |
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Reported
Whether the respondent’s regulations introducing pre-qualification criteria were ultra vires and inconsistent with s217 and the Framework Act.
Constitutional and procurement law – section 217 – public procurement must be fair, equitable, transparent, competitive and cost-effective – preferential procurement permitted only within statutory framework. Administrative/legislative power – ultra vires – ministerial regulations cannot contradict or add to the framework set by national legislation. Procurement regulations – pre-qualification criteria and mandatory subcontracting – impermissible antecedent disqualification outside the points system. Remedy – declaration of invalidity suspended for 12 months to allow remedial action.
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2 November 2020 |
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A Minister cannot mandate unreleasable contingency reserves that usurp a pension fund board’s statutory discretion over surplus apportionment.
Pension Funds Act — surplus apportionment — s 15B(4) & s 15B(5)(e) — contingency reserve accounts — board discretion — regulation 35(4) ultra vires — Minister exceeded delegated powers — principle of legality; PAJA/condonation of delay; supervisory remedies (s 18, s 15K) adequate.
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2 November 2020 |
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A Ministerial regulation forcing calculable untraced members’ enhancements into frozen contingency reserves exceeded statutory power.
Pension funds – surplus apportionment – contingency reserve accounts – interpretation of ss 15A, 15B(4) and 15B(5)(e) – limits of Ministerial regulation‑making under s 36 of the Pension Funds Act – ultra vires and principle of legality.
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2 November 2020 |
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Reported
Whether a ministerial regulation compelling treatment of calculable allocations to untraced former members unlawfully exceeded PFA powers.
Pension funds – Surplus apportionment – Boards’ discretion under ss 15A, 15B(4) and 15B(5)(e) – Contingency reserve accounts – Minister’s regulation-making power under s 36 – Regulation 35(4) ultra vires – principle of legality; Administrative delay/condonation – collateral challenge considered.
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2 November 2020 |
| October 2020 |
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Leave to appeal costs order dismissed; high court properly exercised discretion in awarding punitive personal costs against applicant.
Costs — personal and punitive costs against public officials — appellate restraint in reviewing discretionary costs orders — interference only for material misdirection — conduct amounting to recklessness, vexatious litigation or abuse of process may justify punitive costs; Biowatch principles not engaged where law is not challenged.
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30 October 2020 |
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Premier's recognition of a traditional leader upheld; factual disagreement not reviewable absent irrationality; MEC countersignature unnecessary.
Traditional leadership — administrative review — factual findings of provincial committee; PAJA — review grounds; irrationality threshold; s 140(2) Constitution — countersignature only where decision concerns MEC-assigned function; admissibility of confirmatory affidavits.
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30 October 2020 |
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Reported
Whether convictions under both s 2(1)(e) and s 2(1)(f) POCA duplicate offences.
POCA ss 2(1)(e) and 2(1)(f) – distinction between active conduct/participation and managerial knowledge – potential splitting of charges. Admissibility – satellite vehicle tracking reports are factual measurements, admissible and may be reliable evidence. Search warrants – irregular warrant does not automatically require exclusion under s 35(5) where officers acted bona fide and exclusion would be detrimental to justice. Sentencing – prescribed minimums and assessment of substantial and compelling circumstances.
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29 October 2020 |
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Reported
Interim enforcement under s18 requires exceptional circumstances and irreparable harm; dissolution administrators cannot govern beyond 90 days.
• Civil procedure – Superior Courts Act s 18 – interim enforcement pending appeal requires exceptional circumstances and proof of irreparable harm on a balance of probabilities.
• Constitutional law – Local government – s 139(1)(c) intervention and appointment of administrators – interaction with s 159(2) 90‑day election requirement.
• Municipal law – Municipal Structures Act (ss 34, 35) construed as regulating implementation of s 139 interventions.
• Separation of powers and local autonomy – prolonged administration beyond 90 days undermines voters’ rights and constitutional scheme.
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27 October 2020 |
