Supreme Court of Appeal of South Africa

Posts and Telecommunications-Related Matters Act 44 of 1958 – rules
of Post Office Retirement Fund (the Fund) – rule 3 requires the South African Post
Office (SAPO) to pay to the Fund pension contributions, including employees’
contributions, on a monthly basis – SAPO stopped paying contributions – rule 3 places
an obligation on SAPO to pay contributions – the obligation to pay has not been extinguished or deferred by intervening impossibility of performance – the obligation
to pay may not be avoided by SAPO deciding not to pay the Fund, but to pay other
creditors instead.

Section 139(1)(c) of the Constitution – dissolution of a
Municipal Council – power of administrator to approve a budget – not
legislative function – not precluded by s 139(4).

Prescription – notice in terms of s 3(4)(b) of Institution of Legal
Proceedings Against Certain Organs of State Act – application for condonation –
requirements restated – condonation granted as good cause having been established

Interdict – Mineral and Petroleum Resources Development Act 28
of 2002 (MPRDA) – mining activities conducted in an area not covered by mining
permits but within area of applicant’s prospecting right – court erroneously
dismissing application on the basis of issue not before it – joinder of Minister of
Mineral Resources not necessary – s 47 of the MPRDA not precluding relief
– application to adduce further evidence on appeal – requirements therefor not
established.

Civil Procedure – appealability of interim orders – not
appealable when subject to alteration by high court – exception is where
grave injustice would occur – claim for compensation final in nature –
cannot be granted in interim proceedings

Review of the issue of a request for proposals (RFP) for independent site operator licences – Gambling licences - interpretation of Regulation 59(3)(a) of the Eastern Cape Gambling Regulations – deference - meaning of a decision-maker being satisfied – over-saturation – province-wide or locality specific – appeal upheld

Land - Upgrading of Land Tenure Rights Act 112 of 1991 – upgrading and conversion into ownership of Permission to Occupy granted in respect of erf in Sterkspruit – interpretation of s 3(1) of Upgrading Act – whether TEBA Property Trust as a holder of Permission to Occupy granted in terms of Native Trust and Land Act 18 of 1936 falls within class of persons in whose interest Upgrading Act was enacted –
TEBA Property Trust was not disadvantaged by Native Trust and Land Act or racially discriminatory laws and thus may not apply for conversion of its Permission to Occupy into a full title.

Civil Procedure and Practice – an order amending the
quantification of the claim in a summons did not amount to a new cause of action 

and did not constitute a final determination on the issue of the court’s jurisdiction to
adjudicate the action – an order amending the description of a defendant in a
summons does not amount to a substitution of the defendant in circumstances
where the description of the defendant was the same as in the lease agreement
concluded by the parties – no prejudice was demonstrated by the appellant –
application to amend was correctly granted – appeal dismissed.

Citizenship – whether the Minister of Home Affairs’ decision taken in terms of s 8(1) of the South African Citizenship Act 88 of 1995 to deprive the appellant of his citizenship was reasonable and rational – certificate of naturalisation was fraudulently obtained on basis of marriage that was not bona fide – concealment of material facts.

Appeal – condonation for late filing of appeal record and reinstatement of appeal and condonation for late filing of heads of argument – prospects of success assumed – whether good cause shown – dilatory conduct of the appellants – failure to explain blatant disregard of rules and inordinate delays – condonation and reinstatement refused

Contempt of court – requisites for contempt satisfied – wilful disregard of the order and mala fides proved on the part of the appellants – duty to comply with court orders – appeal dismissed

Sentence – Appeal by the State in terms of s 311(1) of the Criminal
Procedure Act 105 of 1977 – whether the issue raised is a question of law or fact
– whether sentence disproportionate to the crime – sentence imposed by Regional
Court reinstated

Sale – immovable property – subdivision of Remainder approved by Surveyor-General – option to purchase one of the proposed subdivisions – option exercised but transfer not effected –no real right in proposed subdivision to dispose of – subsequent sale of unsubdivided property including proposed subdivision to third party – third party taking transfer unaware of any claim to transfer of proposed subdivision – rectification claimed of sale agreement and Title Deed to reflect sale and transfer of consolidated property including proposed subdivision – such rectification not competent – only personal right to transfer of proposed subdivision could be disposed of since no transfer of proposed division had taken place – no basis for title deed of third party to be ‘rectified’ to exclude proposed subdivision

Criminal law and procedure – Criminal Procedure Act 51 of 1977 – sections 40(1)(b), (f) and (h) – unlawful arrest and detention – whether the respondents’ arrest and detention was lawful in terms of ss 40(1)(b),(f), and (h) of the Criminal Procedure Act 51 of 1977 – arrest and detention justified – award for damages set aside

Sale – price – to be fixed by third party’s valuation – subject to limited exceptions and in the absence of agreement to the contrary or waiver by the parties, whenever parties agree to refer a matter to a valuer, then so long as the valuer arrives at his or her decision honestly and in good faith, the decision is final and binding on them and they are bound by it once communicated to them – valuer is then functus officio insofar as the valuation and matters pertaining thereto are concerned – valuer is then not permitted to unilaterally withdraw or cancel the valuation in order to alter or amend it – only a court has the power to interfere with the valuer’s decision in review proceedings - judicial ambit of the court’s power to interfere is severely circumscribed

Voluntary disclosure – whether taxpayer met the requirements of section 227 of the Tax Administration Act 28 of 2011 – Commissioner for the South African Revenue Services had knowledge of information subsequently disclosed and prompted taxpayer to comply – disclosure not voluntary – requirements of section 227 not satisfied – appeal dismissed

Pharmacy Act 53 of 1974 (the Act) – regulation 6(d) of the Regulations relating to Ownership and Licencing of Pharmacies – beneficial interest in community pharmacies and manufacturing companies – revocation of retail and manufacturing licences – definition of ‘beneficial interest’ – constitutional challenge of s 22A of the Act – whether Clicks Group had contravened the Act and licensing regulations because entities within the Clicks Group owned community (retail) pharmacies while at the same time having a beneficial interest in a manufacturing company – Clicks Group has no beneficial interest in the pharmaceutical manufacturing companies – constitutional challenge has no merit.

 Locus standi – whether an attorney requires authority from client to depose to an affidavit – distinction between right to institute proceedings, authority to act on behalf of client and the basis for deposing to an affidavit – attorney’s founding affidavit based on facts known to her – inquiry into attorney’s legal standing irrelevant – appeal upheld.

Criminal law and procedure – conviction of murder and conspiracy to commit murder – whether the court a quo erred in convicting the appellant on both conspiracy to commit murder as well as murder – special entry – whether an irregularity had been committed in ordering the trial to start de novo before another judge.

Appeal – appellant sought a declarator that he was entitled to Fidelity Fund certificate for 2019 – decision would have no practical effect or result within the meaning of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 – matter struck from roll.

Review – rationality – request for vote by secret ballot – discretion of Speaker – requirement that requesting party discharge onus to prove need for secret ballot – no onus on requesting party – Speaker materially misconstruing basis on which to exercise discretion – reviewable – appeal upheld.

Constitutional law – review of a decision of the Appointments
Committee of the Magistrates Commission not to shortlist a candidate for
appointment as magistrate – rigid exclusion of candidate solely on account of
being a white male – recommendation of Appointments Committee reviewed and
set aside

Arbitration – who decides whether the parties consented to refer a
dispute to arbitration when there is a dispute of fact as to their consent – separability
and competence-competence – the discretion of the high court to adjudicate the
question of the existence of an arbitration agreement – the requirements for the
application of a robust approach to adjudicate disputes of facts not met

Contract – interlinked contracts for sale of pork products – prices in sale contract market related – parties unable to reach agreement on price – no consensus – contractual arrangement ended – counterclaim for breach of contract – party allegedly failing to adjust prices – not giving written notice of inability to do so – not proved – delict – unlawful competition – use of confidential information to poach customers – not established – appeal dismissed.

Delict – unlawful arrest and detention – vicarious liability of the Minister of Police – appropriate amount of compensation

Court – jurisdiction of High Court in employment-related matter – proper analysis of applicant’s pleadings (notice of motion and founding affidavit) required to ascertain legal basis of claim – legal basis of applicant’s claim unfair labour practice – not justiciable in High Court – it should have struck matter from roll for want of jurisdiction.

National Water Act 36 of 1998– interpretation of s 25 thereof – whether s 25 permits transfers of water use entitlements, with the approval of the regulatory authority, from the holder thereof to a third party – such transfers contemplated by s 25 – trading in water use entitlements – such not prohibited in the Act, and therefore, not unlawful.

Law of evidence – admissibility – whether discovered documents were correctly admitted into evidence without proof of the contents – whether the full court drew correct inferences from evidence tendered – whether the appellant was a credible witness and whether the full court was correct in rejecting his version of events – appeal upheld with costs.

Sectional Title Scheme – whether a body corporate’s decision to prohibit an estate agency from operating within its scheme amounted to administrative action for purposes of PAJA – if PAJA not applicable, whether decision subject to judicial review in terms of the common law.

National Credit Act 34 of 2005 – s 103(5) read with s 101(1)(g) – whether collection costs as defined includes all legal costs incurred in enforcing credit agreement – whether s 103(5) applies for as long as the consumer remains in default irrespective of whether judgment has been granted – collection costs, as defined and referred to in s 101(1)(g) – to be given its common law meaning by drawing a distinction between the collection fees charged by an attorney prior to litigation and the costs awarded in an action to recover the debt – legal costs commence with a summons and do not as a general rule allow for pre-litigation costs to be recovered from the losing litigant – the judgment entered is for the capital sum fixed at a particular date together with interest – thus s 103(5) does not apply post-judgment – appeal upheld.

The Local Governance Municipal Property Rates Act, 6 of 2004 (the MPRA) – local government – power of the Minister to promulgate regulations to cap municipal rates on property belonging to public benefit organisations – municipalities are bound to comply with amended regulations.

Summary: Interdict – final order sought – no real disputes of fact shown – special leave to appeal dismissed with costs

Practice – absolution from the instance – claim that responsible Minister liable in delict for the decision by the Parole Board to release a prisoner on parole who later attempts to sexually assault the plaintiff – whether the evidence led at trial could sustain the claim – whether the test for absolution from the instance correctly applied

Practice and Procedure – validity of writ of execution – Registrar
issuing writ not engaging in administrative action – not reviewable under the
Promotion of Administrative Justice Act 3 of 2000 - question is whether writ is in
accordance with court order – respondent caused writ to be issued outside of terms
of court order – impermissibly providing for compound interest and value added
tax (VAT) – writ liable to be set aside.

Medical negligence – cerebral palsy – circumstances of brain injury
– adequacy of evidence of negligence.
Trial – conduct – obligation of parties to define the issues – sequence of witnesses
– joint minutes of experts – agreement on facts contrasted with agreement on
opinion – approach to agreements on matters of opinion

Financial markets – application for winding-up by Financial Sector Conduct
Authority under s 96 of Financial Markets Act 19 of 2012 (FMA) – not requirement that
preceding investigation had to be concluded – whether winding-up just and equitable –
requires consideration of whether objects of FMA would be achieved and of availability
of alternative remedies.

Criminal Procedure – s 32 of the Criminal Procedure Act 51
of 1977 – search and seizure – whether decision declaring livestock seized
by police forfeited to the State lawful.

Vindication of property by non-owner – rei vindicatio not available to non-owner – bona fide possessor entitled to reclaim possession of property by way of a possessory remedy

Tax Law – Income Tax Act 58 of 1962 (the ITA) – whether
there was a sufficiently close connection between the taxpayer’s
expenditure of a contribution to a trust in respect of the implementation of
an employees’ share incentive scheme and its income producing
operations so as to qualify for a deduction under s 11(a) of the ITA – the
connection between the contribution and the taxpayer’s production not
close or immediate enough to justify the deduction – SARS not precluded
from raising additional assessments in respect of the taxpayer’s 2005-2009
years of assessment by operation of the period of limitations provided in
s 99(1) of the Tax Administration Act 28 of 2011

Application for interim interdict – whether requirements for interim
order were met – whether the appellant should have brought a separate prior
application to institute the application – leave had been sought – no requirement
for separate prior application for leave – requirements for intervention by
additional appellants were met - requirements for interim interdict met – appeal
succeeds

Law of contract – cancellation in terms of provisions of contract –
contracting party applying for interdict to stop cancellation pending judicial
review of decision to cancel – interdict granted – cancellation of contract not
reviewable – does not involve control of public power – not administrative action
– neither reviewable under principle of legality – interdict legally unsustainable
– contempt of court – order based on legally unsustainable interdict – fatally
defective – requisites for contempt in any event not met – execution of contempt
order granted in terms of s 18 of Superior Courts Act 10 of 2013 – also defective
– execution requirements not met.

Prevention of Organised Crime Act 121 of 1998 (POCA) – ss 26 and 38 – Uniform Rules of Court – preservation of property order – urgency – whether the appellant must prove urgency when applying for a preservation order.

Interpretation of insurance contract – whether agreed indemnity
period is 18 months or three months for infectious diseases
cover – principles restated

Arbitration – Review of an arbitral award – principle of party autonomy confirmed – interpretation of ‘gross irregularity’ and ‘exceeding powers’ under s 133 of the Arbitration Act 42 of 1965 affirmed. 

Contract – agreement of sale of immovable property – whether unenforceable on account of non-fulfilment of a condition precedent clause embodied in the agreement – interpretation of the clause – whether condition precedent applicable – the impugned clause sufficiently clear – agreement not subject to condition precedent – waiver proven – agreement valid and binding.

Tonnage limitation – s 261(1) of the Merchant Shipping Act 57 of 1951 (MSA) – whether limitation can be invoked by owner of merchant ship against the owner of a ship owned by the defence force of South Africa or another country – ss 3(3) and (6) of the MSA.

Defamation – application proceedings – relief directed at compensating the claimant for harm caused by publication of defamatory material – such relief, whether damages, an apology or a retraction cannot be claimed in motion proceedings where there are disputes of fact, but requires evidence to be led.

Discretion of judge in granting relief in defamation case – factors to be taken into account

Interpretation of allegedly defamatory material – approach of reasonable reader – statement that findings had been made in judgment of the existence of strong evidence of corruption – thrust of defamation lies in the implication of corruption, not that it was a finding by a judge – respondent leading evidence of corruption – such evidence relevant to support possible defences of truth and public interest or privilege – no order can be made in motion proceedings where respondent produces evidence in support of the existence of a defence.