|
Citation
|
Judgment date
|
| December 2022 |
|
|
Reported
Payment from attorney’s TPFA account satisfied bank demand guarantees, not a disposition without value by the insolvent company.
Company law; Insolvency Act s 2, s 26 and s 33; demand guarantees; attorney TPFA accounts; pledge and cession of trust funds; whether payment constituted a disposition without value.
|
30 December 2022 |
|
Applicant negligent for inadequate monitoring; respondent medical practice not vicariously liable and no non‑delegable duty imposed.
Delict — medical negligence — failure to monitor and instruct nursing staff — causation by hypoxia; Vicarious liability — independent contractor — principal not liable absent personal fault; Common law development — non‑delegable duty not established; Constitutional considerations for developing common law.
|
22 December 2022 |
|
Reported
Practitioners may not unilaterally amend adopted business rescue plans; interdict against implementation was correctly confirmed.
Company law — Business rescue — Adopted business rescue plans — No statutory power to unilaterally amend adopted plans — Clause in adopted plan purporting to permit practitioner unilateral amendment contrary to Companies Act — Interdict preventing implementation of purportedly amended plans affirmed — Declaratory/future orders beyond relief sought set aside — Costs against an affected party who actively participated and aligned with respondents upheld.
|
22 December 2022 |
|
Reported
Section 172(1)(b) cannot be used to prevent enforcement of a valid, binding court judgment.
Constitutional and administrative law – s172(1)(b) remedies – just and equitable orders – limitation: cannot prohibit enforcement of an extant, valid and binding court judgment; s165(5) – enforceability and finality of court orders; default judgment competence and binding effect.
|
20 December 2022 |
|
Reported
The appellants were liable for the respondent’s slip; contractor appointment and obscured disclaimer did not absolve them.
Delict — premises liability — slip and fall on wet tiles; negligence and foreseeability; limits of Chartaprops defence (liability despite appointment of independent contractor where principal personally at fault or precautions inadequate); validity and visibility of disclaimer signage as a defence to liability.
|
19 December 2022 |
|
Whether prescription began at birth or only after the respondent acquired sufficient facts to suspect hospital negligence following legal consultation.
Extinctive prescription – Prescription Act s 12(3) – knowledge of "facts from which the debt arises" means sufficient facts giving reasonable grounds to suspect professional fault – legal conclusions (wrongfulness/causation) not required – consultation with attorney may mark acquisition of requisite knowledge – Links, Loni, Mtokonya, WK Construction considered.
|
15 December 2022 |
|
Whether a global sale triggers the applicant’s pre‑emptive right and requires allocation of the purchase price to the pre‑empted portions.
Contract – right of first refusal – package sale of whole property triggers right over specified leased portions – content of right confined to those portions – where third‑party offer is global, grantor must determine in good faith allocation of global price to pre‑empted portions – remedy: direction to grantor to deliver written offer in terms of clause 10; court may not impose a valuation on motion where material factual disputes exist.
|
15 December 2022 |
|
Whether a contractor’s demand on a construction guarantee complied with its terms when the payment advice was issued by the contractor’s agent.
Construction guarantee – JBCC Nominated/Selected Sub-contract Guarantee – interpretation of clause requiring payment advice and written demands – demand made by contractor’s agent acceptable – independent obligation of guarantor – copy of guarantee sufficient where original returned to insurer – insurer’s liability and indemnity obligations triggered.
|
14 December 2022 |
|
Reported
Whether an indemnity by a related company constitutes financial assistance and is void absent a board resolution satisfying s45(3)(b).
Insolvency – expungement of proved claims under s45(3) Insolvency Act requires sufficient ground; Companies Act s45 – definition of "financial assistance" exhaustive; indirect assistance via indemnity; board must adopt resolution and satisfy s45(3)(b) (solvency/liquidity and fairness) — substantive requirements not covered by s20(7); s45(6) voidness applies where requirements unmet; constitutional challenge to s45(6) unsuccessful.
|
13 December 2022 |
|
Reported
SCA upholds review of military judge’s orders for gross irregularity; constitutional challenges dismissed as abstract or moot.
Administrative and constitutional law — Review of judicial orders — delay and condonation — standing of non-parties (executive/organ of state) to review orders that directly affect them — gross irregularity where judicial officer misconceives duties, injects personal views and makes mero motu orders without evidence — limits on boards of inquiry and ripeness of constitutional challenges — costs against judicial officers require bad faith or serious misconduct; Biowatch principle in constitutional litigation.
|
13 December 2022 |
|
Reported
A parking servitude was a valid general servitude; vagueness and statutory approval challenges were rejected.
Property law – servitudes – general versus specific servitude – parking servitude held to be general and enforceable despite unspecified locations; vagueness challenge rejected. Property law – registration – unregistered personal right converting to real right on registration; registration after transfer did not constitute an alienation. Share Blocks Control Act s 8(1)(c) and Retired Persons Act s 4B – statutory approval/consent not required where purchaser acquired property subject to pre-existing parking obligation and deed pre-dated sale of rights.
|
9 December 2022 |
|
Whether clause 28.4.4 permits multiple office-bearers to convene Council meetings and validate the president’s removal.
Voluntary association — Constitution interpretation — Clause 28.4.4 — Ordinary grammatical meaning of "or" — President, Provincial Chairpersons or National Chairperson of Provinces may convene Council meetings in consultation with EXCO — 2011 amendment intended to prevent recalcitrant President blocking meetings — validity of meeting and removal resolution affirmed; practice note on leave to appeal.
|
7 December 2022 |
|
A trust cannot hold a close corporation member’s interest unless strict s 29(1A) requirements are proven.
Close Corporation Act s 29(1) prohibition on trusts holding membership interests; s 29(1A) qualified exception and its strict requirements; evidential onus on party alleging compliance; invalidity of sale where s 29 non‑compliance shown.
|
7 December 2022 |
|
Appeal upheld and striking‑off order set aside because the high court denied the appellant a fair virtual hearing; matter remitted.
Attorneys — disciplinary striking‑off — alleged misappropriation of trust funds; right to a fair public hearing (s 34 of the Constitution) — virtual hearings during COVID‑19 — whether deciding an opposed matter on the papers without affording opportunity to be heard vitiates the order — remit to high court for rehearing.
|
7 December 2022 |
|
Reported
Bottle shape not distinctive as trade mark and removed, but passing-off succeeded due to likely consumer confusion.
Trade marks — Shape/container marks — Inherent distinctiveness and acquired distinctiveness (s 9(2)) — Removal under s 10(2)(a) — Tests for acquired distinctiveness (recognition-association v perception/reliance) — Passing-off — Reputation, likelihood of confusion and damage — Effect of overlapping sales channels and use of house mark alongside shape.
|
1 December 2022 |
|
The applicant's appeal was dismissed as moot after prior SCA rulings resolved the central legal issues.
Mootness of appeal; administrative action under PAJA; section 21(5) ERA permits Eskom to interrupt supply without court order; section 30 ERA not an internal remedy under PAJA; obligation to comply with IRFA before interrupting municipal supply; discretion to hear moot appeals only for discrete future‑affecting legal issues.
|
1 December 2022 |
|
Reported
Tender cancellation upheld as lawful due to changed circumstances and funding shortfall; high court order set aside.
Administrative law – tender cancellation – Preferential Procurement Regulations reg 13(1) – grounds: changed circumstances and lack of funds; Delegation – validity of BAC authority to cancel; Mootness – appeal not moot despite time‑limited high court order; Contract law – SLAs lapsed by effluxion of time, high court’s continuation orders incompetent; Condonation – interests of justice and prospects of success justified reinstatement of lapsed appeal.
|
1 December 2022 |
|
Respondents could not obtain a road servitude on motion due to unresolved disputes about route, interested owners, and width.
Property law – servitude and way of necessity – whether route of praedial servitude may be fixed without agreement of all affected registered owners – disputes of fact on route and width – unsuitability of motion proceedings to determine factual disputes.
|
1 December 2022 |
|
Conviction set aside where identification was unreliable and State failed to investigate or disprove the appellant’s alibi.
Criminal law – Identification evidence – reliability and credibility in moving/chaotic scenes; alibi – late disclosure and burden of proof; failure to investigate tracking/device; suggestibility and possible collusion among witnesses; benefit of doubt and reversal of conviction.
|
1 December 2022 |
| November 2022 |
|
|
Reported
An organ of state reviewing another organ of state proceeds under the principle of legality, not PAJA’s s7(2) exhaustion rule.
Administrative law – Review by one organ of state of another’s administrative action – Principle of legality governs, not PAJA; s 7(2) exhaustion requirement inapplicable absent public-interest footing. Disciplinary procedure – Locus standi – "Complainant" under regulations is broadly defined; non-patient may lodge complaint; conflation of standing and evidentiary proof is legal error.
|
30 November 2022 |
|
Reported
Section 106(1) empowers an MEC to appoint investigations into maladministration, including criminal conduct like theft, not only fraud or corruption.
Constitutional and administrative law — Local government monitoring — s 106(1) Municipal Systems Act — scope of investigations into maladministration or serious malpractice — s 106(1) authorises investigations into criminal conduct beyond fraud and corruption (e.g. theft) — purposive interpretation of statutory monitoring powers — limits on blurring executive and police functions.
|
30 November 2022 |
|
The 75‑day consent order applied only to accounts extant on its date; W.CI.20 not jurisdictional; s32 does not bar cession of medical claims.
Compensation for Occupational Injuries and Diseases Act – interpretation of consent order (75‑day order) – temporal scope; Regulatory billing procedure (W.CI.20) – not a jurisdictional pre‑litigation requirement; Section 32 – ‘‘compensation’’ excludes medical aid costs for purposes of cession prohibition; cession of MSP claims not prohibited.
|
29 November 2022 |
|
Whether imported solar home systems are classifiable as lamps (TH 9405.40.21) or as electric motors/generators (TH 8501.31).
Customs and excise — tariff classification — whether solar home systems are generators (TH 8501.31) or lamps/lighting fittings (TH 9405.40.21). Composite machines — classify according to principal function/essential character as presented on importation. Explanatory Notes and precedents (Ellies Electronics; LG Electronics) guiding assessment of utility and essential features.
|
29 November 2022 |
|
Reported
A shareholder with only a financial interest lacked standing to challenge a regulator’s 60% local‑PDI licence requirement.
Administrative law — Locus standi — Own‑interest litigant — Shareholder seeking declarator against regulatory licence condition — Purely financial interest insufficient; interests of justice required for standing — No fraud or gross irregularity to justify entering merits. Company law — Shareholder remedies distinct from licence‑holder challenges; licensee companies are proper parties to challenge licence conditions.
|
28 November 2022 |
|
Contempt not established: insufficiently particularised proof and bona fide legal-advice defence raised reasonable doubt.
Contempt of court – elements and standard of proof – non-compliance must be proved beyond reasonable doubt and pleaded with particularity; interlocutory orders – not automatically suspended by application for leave to appeal; bona fide legal advice may raise reasonable doubt as to wilfulness and mala fides and defeat a contempt application; costs – no allowance for two counsel where not warranted.
|
28 November 2022 |
|
Cancellation invalid for failure to comply with contractually prescribed notice and cure procedure; appeal upheld.
Contract law – cancellation clauses – requirement of strict compliance with contractual notice and cure procedures (clause 17 rectification procedure and clause 18 30‑day remedy notice); failure to give unequivocal 30‑day notice invalidates cancellation.
|
25 November 2022 |
|
Court amended a patent clerical error in an in rem trademark order to correct the registration year.
Correction of patent error – Rectification of judgment/order – In rem orders affecting public registers – Court may amend clerical mistakes in earlier orders; parties’ request for correction granted.
|
25 November 2022 |
|
Reported
Applicant failed to prove Azaan caused unreasonable nuisance; reasonableness assessed objectively and religious freedom must be balanced.
Nuisance – noise from neighbour – objective reasonableness test – serious and material interference with ordinary comfort – complainant’s special sensitivity not decisive – burden on interdict applicant to prove clear right, unreasonable interference and lack of alternatives – constitutional protection for religious manifestation relevant to balancing exercise.
|
24 November 2022 |
|
Reported
The Medical Parole Advisory Board’s positive medical recommendation is a prerequisite to the Commissioner granting medical parole.
Correctional Services Act – medical parole – s 79(1)(a) medical requirement – Medical Parole Advisory Board’s recommendation is a jurisdictional fact; s 75(7)(a) not an alternative pathway; person detained for contempt is a "sentenced offender"; administrative law – PAJA review – invalidity for taking irrelevant considerations and failing to consider required factors.
|
21 November 2022 |
|
Supervisory order made without hearing, not sought in pleadings and unsupported by evidence is invalid and set aside.
Civil procedure – Supervisory orders – Judicial limits – Requirement to hear affected parties before making supervisory relief – Relief not to be granted on issues not pleaded or applied for – Supervisory relief requires factual justification; separation of powers and internal administrative remedies relevant.
|
21 November 2022 |
|
Refusal of a prospecting right under s17(2) of the MPRDA upheld as lawful in light of transformation objectives and corporate concentration.
Administrative law — Review of decisions under the MPRDA; Interpretation of s 17(2) (refusal for exclusionary act, prevention of fair competition, concentration of resources); relevance of corporate group associations and public documents in assessing concentration; transitional protection for unused old‑order rights; prospecting right not prerequisite to mining right; delay and remedial consequences.
|
18 November 2022 |
|
Reported
Sale of trust-held company shares to interests of trustee‑beneficiaries was valid; no court confirmation required and trustees acted bona fide.
Trusts — Sale of trust-held company shares — Whether judicial confirmation required where company owns immovable property — Shares are movable property; company assets distinct — Trustee purchase: requirement of openness and bona fides; independent valuations and disclosure — Trustees’ wide discretionary powers under trust deed; beneficiary notification/offer entitlement — Alleged unequal treatment of beneficiary and reviewability.
|
16 November 2022 |
|
Capital gains are governed by the Eighth Schedule; a vested resident trust is taxed on vested capital gains, not its beneficiaries.
Tax — Capital gains tax — Interaction between s 25B (trusts) and Eighth Schedule — s 25B applies to income amounts; capital gains governed by Eighth Schedule. Eighth Schedule — para 80(2) — where a beneficiary (including a resident trust) acquires a vested right to an amount derived from a capital gain, that amount is taken into account as a capital gain in the hands of that beneficiary. Conduit-pipe principle — not applicable where intermediary trust holds a vested right to capital gains. Tax administration — understatement penalty — not payable where understatement arises from bona fide inadvertent error; interest payable under s 89quat(2).
|
7 November 2022 |
|
Enrichment claim is not a ‘debt’ under the Institution Act; s172(1)(b) permits just and equitable compensation.
Constitutional law – remedial powers under s 172(1)(b) – procurement irregularity – unjust enrichment not a recognised general action in South African law – Institution of Legal Proceedings Act (s 3 notice) inapplicable to enrichment claims – prescription burden on defendant.
|
7 November 2022 |
|
Directors joined and held in contempt for continuing large‑scale mining despite court order; fines and costs imposed.
Contempt of court – requisites: existence of order, service, non‑compliance, wilfulness and mala fides; joinder and summary contempt proceedings where proposed contemnors received notice and participated; directors’ joint responsibility for corporate non‑compliance; insufficiency of unparticularised legal advice or mere intention to petition for leave to appeal to rebut wilfulness; monetary penalty appropriate where committal inappropriate.
|
7 November 2022 |
|
Whether Covid-19 restrictions excuse rent where lease expressly required advance payment without deduction or setoff.
Contract law – lease – triple-net commercial lease – clause requiring rent payable monthly in advance without deduction or setoff – whether clause excludes reciprocity and precludes exceptio non adimpleti contractus; vis major / impossibility (Covid-19 regulations) and remission of rent – court determination required for remission where amount not promptly ascertainable; eviction on valid contractual cancellation; pacta sunt servanda; split (Part A eviction; Part B arrear computation).
|
4 November 2022 |
|
Issue estoppel fails where an earlier dismissal did not finally determine the lawfulness of the termination because the issue was not ventilated.
Civil procedure – res judicata (issue estoppel) – requires idem actor and eadem quaestio that was necessarily and finally determined; Interlocutory/urgent proceedings – dismissal does not automatically decide the merits; effect depends on whether the issue was fully ventilated and necessarily decided; Reading prior judgment against pleadings and papers to ascertain what was determined; Amendment and ventilation of issues may prevent prior order from having preclusive effect.
|
3 November 2022 |
|
Use of 'Soul Souvlaki' did not infringe the registered service mark 'Soul' because the marks are sufficiently distinguishable.
Intellectual property – Trade Marks Act s 34(1)(a) – infringement requires use of identical or nearly resembling mark likely to deceive or confuse – notional-use comparison – assessment of visual, aural and conceptual similarity – effect of common/descriptive word on distinctiveness.
|
3 November 2022 |
|
Reported
Whether irregular procurement contracts should be declared invalid and remedied by valuation, and whether contractor was complicit.
Constitutional and administrative law — procurement irregularities and corruption — s 217 Constitution — legality review and condonation of delay — contractor complicity versus innocent counterparty — remedial discretion under s 172(1)(b) — appointment of independent expert to value works — inadmissibility of affidavits by purported intervening witnesses — sanction for failure to prepare core bundle (costs).
|
1 November 2022 |
| October 2022 |
|
|
Estate finalised under Black Administration Act by settlement order; cannot be reopened and re-administered by the Master.
Deceased estate – finalisation under Black Administration Act – settlement agreement made court order constitutes winding up. Evidence and Plascon-Evans principle – detailed, corroborated respondent version accepted on motion. Bhe – repeal consequences do not reopen estates already being wound up under s 23. Administration of Estates Act – Master cannot re-assume administration where estate was finalised under Black Administration Act. Remedy – alleged fiduciary breach actionable separately.
|
31 October 2022 |
|
Reported
A broking agreement with agreed duration and termination terms cannot be unilaterally revoked by the medical scheme.
Contract – broking agreement – characterisation as mandate or contractual obligations – revocability of mandate; agreed duration and termination clauses; Medical Schemes Act s 65 and regulation 28 – triangular relationship between scheme, broker and members; unlawful unilateral revocation.
|
28 October 2022 |
|
Failure to monitor and to expedite delivery caused hypoxic‑ischaemic brain injury; appeal dismissed and liability upheld.
Delict — medical negligence — failure to monitor mother and foetus during labour — breach of maternity guidelines. Causation — factual (but‑for) and legal causation established: inadequate monitoring and failure to expedite delivery probably caused hypoxic‑ischaemic BGT brain injury. Expert evidence — court may accept novel peer‑reviewed medical hypotheses founded on logical reasoning where unrefuted; Linksfield/Bolitho principles applied. Appeal procedure — new scientific evidence on appeal admitted only in exceptional circumstances; material available at trial should have been led then. Vicarious liability — state liable for negligent acts/omissions of hospital staff.
|
27 October 2022 |
|
Reported
A partial sale of separately registered parcels triggers a leaseholder’s pre‑emption right; specific performance ordered.
Property law – right of pre‑emption in lease; Partial sale of separately registered parcels triggers right unless contrary intention; Exercise of pre‑emption by matching third‑party terms; Specific performance/unilateral declaration of intent as remedy where purchaser had notice; Co‑lessee claim and undisclosed principal doctrine.
|
26 October 2022 |
|
Reported
A perpetual contractual undertaking not to sue based on a specified transaction is enforceable and not contrary to public policy.
Contract law – interpretation of pactum de non petendo in anticipando; contractual undertakings vs warranties; specific performance to compel withdrawal of proceedings; public policy and constitutional right of access to courts; enforceability of perpetual agreements not to sue.
|
24 October 2022 |
|
Postponement refused; creditor’s claim established and respondent placed under provisional winding-up for failure to show bona fide dispute.
Company law – liquidation – provisional winding-up order where creditor’s debt admitted and not disputed on bona fide and reasonable grounds; procedure – postponement of appeal – unavailability of counsel insufficient without full explanation; urgency – winding-up applications generally urgent and lack of urgency should lead to striking from roll, not dismissal.
|
24 October 2022 |
|
Reported
A creditor and holding‑company shareholder lacks standing to oppose insurer liquidation; s54(5) bars winding‑up during curatorship.
Insurance law – curatorship and resolution under the Insurance Act – s54(5) prohibits business rescue or winding‑up coming into effect while curatorship subsists unless the curator applies – such proceedings are stayed, not void. Practice – standing on appeal – a creditor and shareholder of a holding company lacks the direct and existing interest to challenge liquidation of the insurer. Curator’s powers – to take control, investigate and report and to conserve the business; no duty to recapitalise without Prudential Authority approval.
|
24 October 2022 |
|
Reported
The respondents may erect a gate across the servitude provided the applicants’ reasonable access is preserved.
Property law – Servitude (right of way) – Erection of gate across servitude – civiliter modo (reasonableness) principle – balancing rights of dominant and servient owners – registration of servitude – interplay with National Building Regulations and constitutional protection against arbitrary deprivation of property.
|
24 October 2022 |
|
A court may not issue or confirm a rule nisi to bind a litigant to settlement terms agreed by its legal representatives without authority.
Civil procedure – Rule nisi – whether competent to issue a rule nisi to bind a litigant to settlement terms agreed by legal representatives lacking authority. Civil procedure – Quantum of damages – court may not determine quantum on the basis of counsel’s agreement where evidential/expert material is absent. Constitutional/administrative principle – litigant autonomy and parties’ right to decide settlement; court cannot compel settlement. Case management – remedies for dilatory conduct: rules 37/37A and costs orders, not orders forcing settlement.
|
24 October 2022 |
|
Reported
Declaratory VAT relief is permissible only on clear, uncontested facts; opaque voucher facts required TAA procedures, appeal dismissed.
Tax — VAT — Classification of pre-paid multi-purpose (airtime) vouchers under s 10(18) v s 10(19) of VAT Act — Declaratory relief in tax matters permissible only where facts are clear, uncontested and purely legal — Appropriate use of TAA dispute-resolution machinery.
|
24 October 2022 |
|
Settlement between primary litigants rendered the appeal moot and an intervening party’s application was struck with punitive costs.
Business rescue — appeal rendered moot by settlement between primary litigants — intervention application struck from roll; Uniform Rule 41(2) abandonment permissible; interim order remains extant until varied or set aside; costs on attorney-and-client scale awarded against intervenor.
|
24 October 2022 |
