Supreme Court of Appeal of South Africa

Civil procedure – locus standi – appealability – whether the issue of locus standi determined as a point in limine is appealable

Collective agreement – s 23 of the Labour Relations Act 66 of 1995 – parties to a collective agreement – medical schemes – accreditation of medical schemes under a collective agreement – intentional and unlawful interference with contractual relationship – s 65 of the Medical Schemes Act 131 of 1998 – Regulation 28 – legality of territorial limitation in a broker agreement with a medical scheme

National Credit Act 34 of 2005 – whether agreement subject to the Act – loan and acknowledgment of debt not at arm’s length – interest only payable upon default of repayment – no requirement for registration.

Civil Procedure – Rule 33 separation of issues – when appropriate – expeditious resolution of disputes and convenience.

Income tax law – s 12C(1)(a) of the Income Tax Act 58 of 1962 (the ITA) – whether cells built into landfills and used for treatment and storage of waste qualify as plant under the section – whether they qualify as buildings under s 13 of the ITA – decomposition and biodegradation of the waste in the cells is a process similar to manufacture – the appellant is entitled to claim depreciation allowance in respect of the cells.

Income tax law – understatement penalty imposed for an incorrect statement made in income tax returns – reasonable care not taken in completing returns – Commissioner for the South African Revenue Service did not prove prejudice under s 102 read with ss 221 and 223 of the Tax Administration Act 28 of 2011.

Civil procedure and practice – Contingency Fees Agreement Act 66 of 1997 – high court finding that the fees agreement concluded between the appellants was a contingency fee agreement, and setting it aside – refusing to make the settlement agreement between the second appellant and the Road Accident Fund an order of court and amending its terms without affording the parties a right to address it – whether the high court was empowered to grant orders not sought and against a party not cited in the proceedings.

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 – application for interim interdict in Equality Court – failure to establish prima facie case – appealability of interim interdict.

Reconsideration of dismissal of application for special leave to appeal ─ cancellation of applicant’s trade mark ─ Takis Fuego ─ likely to deceive or cause confusion by virtue of similarity to respondent’s Takis Biltong mark

Family law – customary law – civil procedure – declaratory relief sought on whether parties married according to customary law – dispute of fact – motion proceedings inappropriate

Legal Practice – s 43 of the Legal Practice Act 28 of 2014 – whether the court may hear a matter that has become moot – the issues for determination may engage the interests of other parties who are not before this Court – declaratory relief sought on appeal not set out in the notice of motion – appeal struck from the roll

Civil procedure – Magistrates’ Court Act 32 of 1944 and Rules – sheriffs’ fees and charges – whether sheriff entitled to demand payment of fees and charges before services rendered

Automatic appeal in terms of s 18(4) of Superior Courts Act 10 of 2013 – order made by a single judge of a High Court – appeal lies to the full court of the Division as next highest court – this Court lacks jurisdiction – appeal struck from the roll

Practice and procedure – Contingency Fees Act 66 of 1997 – whether the high court ruling met the benchmark of fairness, rationality and reasonableness – whether the high court acted in a procedurally fair manner

Criminal law and procedure – appeal – appeal to the Supreme Court of Appeal against the refusal of a petition in the high court seeking leave to appeal against conviction and sentence imposed by a regional court – whether the State’s version of the events was to be preferred over the appellant’s version – if so, whether there was intent or negligence on the part of the accused – whether a sentence of 15 years imprisonment is appropriate – reasonable prospects of success on appeal

Application for condonation of the late filing of notice of appeal – requirements for condonation restated – appellant not satisfying requirements – application refused and appeal struck from the roll

Criminal Procedure – Entrapment –import of s 252A of the Criminal Procedure Act 51 of 1977 (‘CPA’) considered.
Evidence – Exclusionary rule in terms of s 252A of CPA and s 35(5) of the Constitution considered – no basis on the facts of the current case to exclude evidence obtained by entrapment by undercover agent

Application by appellant, in appeal against refusal of High Court to grant petition for leave to appeal in terms of s 309C of CPA against conviction in the magistrates’ court, to adduce further evidence for the purpose of the contemplated appeal to the High Court on the merits –appellant purporting to rely on s 19 of Superior Courts Act 10 of 2013 – s 19 not applicable in respect of appeals regulated by the CPA and any other criminal procedural law – application in any event not satisfying the established test for the introduction of further evidence on appeal

Delict – widening of pleadings – wrongfulness and negligence – respondent injured as a result of open manhole under control of appellant – open manhole previously reported to an employee of the appellant

Company Law –– restraint order under the Prevention of Organised Crime Act 121 of 1998 – authority to represent company in business rescue – directors have no such authority – authority residing with business rescue practitioners

Local government – section 22 of the Local Government: Municipal Property Rates Act 6 of 2004 (PRA) – establishment by municipalities of special rating area (SRAs) – attack on legal validity of the appellant’s rates policy and by-law concerning the establishment of SRAs on grounds of alleged inconsistency with s 22 of the PRA and allegation that the appellant unlawfully abrogated its powers and functions by delegating same to applicant ratepayers’ organisation and non-profit company (NPC) established to be management body of proposed SRA

Civil practice and procedure – evidence and argument not cognisably related to relief sought in notice of motion, irrelevant – argument on grounds not properly founded in the papers disregarded for the purposes of determination of appeal

Legal Practitioner – misconduct involving dishonesty – striking from the roll appropriate remedy – court a quo making material misdirection in suspending the respondent from practising for two years – suspension order set aside on appeal and replaced with striking order

Civil procedure – order of court not appealed or rescinded – application to stay execution – issue res judicata unless set aside on appeal or by rescission – application to stay not competent

Declaratory relief – when competent under s 21(1)(c) of Superior Courts Act 10 of 2013 – company law – whether resolutions to increase authorised share capital and conclusion of loan agreement validly passed – dilution of shareholding resulting from perfection of security – whether appellants’ claims have prescribed

Interdict – Final – Whether clear right established.
Interpretation – National Building Regulations and Building Standards Act 103 of 1977 – s 4(1) read with the definitions of ‘erection’ and ‘erect’ in s 1

Civil procedure – rescission of default judgment – interlocutory in nature and thus not appealable – application for condonation and special leave to appeal – condonation of the late filing of the record of appeal and reinstatement of appeal – principles re-stated

Prescription – interruption of running of extinctive prescription –claimant of unsound mind – prescription only begins to run from the date of appointment of curator ad litem. Knowledge of the identity of the debtor and of the facts from which the debt arises

Civil procedure – appealability of dismissal of an exception – restatement of principles

Contract – conclusion – authority to conclude – test for factual disputes – evaluation of evidence – bare denials coupled with untenable version – no bona fide factual disputes

Civil procedure – evidence on appeal – test – requirements not met

Company law ─ action by executor of deceased shareholder’s estate ─ s 163 of the Companies Act 71 of 2008 (the Act) ─ oppressive or unfairly prejudicial conduct ─ whether interest free shareholder loans as an advance on future dividends constituted oppressive or unfairly prejudicial conduct ─ deceased shareholder consenting to the loans ─ claim for payment of indemnity insurance proceeds ─ buy and sell ─ indemnity insurance proceeds not equal to value of shares ─ share buy-out procedure binding on the executor ─ oppressive or unfairly prejudicial conduct not established ─ award of compensation under s 163(2)(j) not competent

Special leave to appeal – appealability of interim order – interim and interlocutory orders and special leave to appeal

Criminal law – defence of pathological incapacity – ss 78(1A) and 78(1B) of the Criminal Procedure Act 51 of 1977 – onus on accused to prove lack of criminal responsibility on a balance of probabilities – onus not discharged

Appeal – Superior Courts Act 10 of 2013, s 16(2)(a) – mootness –
whether, irrespective of mootness, interests of justice require decision on appeal

Criminal law and procedure – fraud – whether appellant had intent, in the form of dolus eventualis, to commit fraud – whether the appellant, as an unrepresented accused, was given insufficient assistance by the regional court – held – no evidence that the appellant had intent in the form of dolus eventualis at time the agreement of sale was concluded – appellant afforded ample opportunity to obtain legal representation by the regional court

Statutory Interpretation – Interpretation of s 32 of the National Water Act 36 of 1998 read with ss 4, 21, 22, 33, 34, 35 and 26 – whether lawfulness is a requirement for the verification of an existing lawful use contemplated in s 32(1)(a)(ii) read with s 36(1) of the 19 National Water Act – correct interpretation of the concept ‘existing lawful water use’ in relation to a ‘stream flow reduction activity’ as defined and referred to in s 32 of the National Water Act

Civil procedure – claim under insurance policy arising from motor vehicle collision – market value pleaded – evidence led on shortfall of amount owed to the financier – no evidence led on market value – incongruity between pleadings and evidence – claim not proved

Application for special leave referred for oral argument in terms of s 17(2)(d) of the Superior Courts Act 10 of 2013 – whether special leave to appeal should be granted – interpretation of court order granting leave – full court misinterpreting court order and deciding the appeal on issues not before it – whether respondent’s employees responsible for applicant’s injuries – sufficiency of evidence – special leave to appeal granted but appeal dismissed

Constitutional law – financial services regulation – whether ss 154, 167 and 231 of the Financial Sector Regulation Act 9 of 2017 (the Act) unconstitutional and invalid – failure to observe procedural fairness in deciding whether a person has contravened a financial sector law – challenge to constitutional validity in terms of s 33 of the Constitution – subsidiarity – application of s 3 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA)

Review – Gambling - Provincial Gambling Board having licenced two limited payout gambling machine operators and allocated limited payout machines to them – decision taken to allocate additional limited payout machines to existing operators in accordance with prior reservation to do so – party, which was not part of the initial licencing and allocation process, lacking standing to challenge the allocation on review – Board decision in any event lawful

Appeal to the Supreme Court of Appeal against the refusal of the high court of a petition seeking leave to appeal against conviction and sentence imposed by a regional court – special leave granted by this court in terms of s 16(1) of the Superior Courts Act 10 of 2013 in respect of sentence only – conceded misdirection or misdirections – reasonable prospect of success on appeal against sentence

Civil Procedure – whether competent for a court to grant an order for payment of a debt which was not sought – proper approach to pleadings

Tax law – declaratory order – whether appropriate not considered by high court – narrow basis for entertaining application for declaratory relief in tax matters

Default judgment against the RAF – whether an attorney and client fee agreement should be incorporated in a court order – a court is not entitled to make orders that were not sought

Constitutional law – the right to further education – s 29(1)(b) of the Constitution – unfair discrimination – Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) – whether the Policy Procedure Directorate Formal Education Programmes (the Policy) of the Department of Correctional Services constitutes unfair discrimination in terms of the Equality Act – high court had no jurisdiction to make an order in terms of the Equality Act – whether the Policy constitutes an infringement of the right to further education of prisoners and is therefore inconsistent with the Constitution – the Policy prohibiting a prisoner from using their personal computer in their cell to further their studies is an infringement of s 29(1)(b) of the Constitution – content of the right includes the right to pursue further education without state interference – security concerns not established as a ground of limitation

Property law – Sectional Titles Act 95 of 1986 – reliance on transfer registration embargo established in terms of s 15B(3)(a)(i)(aa) of the Sectional Titles Act – whether purchaser at a sale in execution is entitled to challenge the amount payable to a body corporate and to compel issue of clearance certificate

Contract law – jurisdiction – Superior Courts Act 10 of 2013 – whether the parties explicitly agreed that a particular high court would have exclusive jurisdiction in the event of the relief sought in respect of arbitration proceedings – whether the parties should be kept to the aforesaid agreement based on the principle of pacta sunt servanda – whether a court of appeal has jurisdiction to act as a court of first instance to determine the merits of the application where the court a quo has made no previous decision on the substantive merits

Prevention of Organised Crime Act 121 of 1998 (POCA) – asset forfeiture – preservation of property order – Companies Act 71 0f 2008 (Companies Act) – business rescue – preservation of property order granted after adoption of business rescue plan under Chapter 6 of the Companies Act – whether a preservation order under s 26 of POCA is appealable – whether this Court’s decisions in Phillips and Others v National Director of Public Prosecutions 2003 (6) SA 447 (SCA) and Singh v National Director of Public Prosecution 2007 (2) SACR 326 (SCA) are definitive on the issue of the appealability of a preservation order

Whether the relationship between a university and a student is contractual or administrative in nature – refusal by a university to confer a degree on a student – termination of the student’s registration – whether separation order in terms of rule 33(4) of the Uniform Rules of Court should have been granted – question raised in the special plea should have been allowed to stand over for determination in the trial.

Civil procedure – review application – whether changed circumstances existed since the order appealed was granted – any decision sought not having practical effect nor can produce practical results – powers of an appeal court in terms of s 16(2)(a)(i) the Superior Courts Act 10 of 2013 – mootness of the appeal – public interest – interpretation of clause 14.2 read with 14.1 of the Pan Africanist Congress of Azania’s Constitution

Summary judgment – non-variation clause – oral agreement alleged – application of the Shifren principle and estoppel.   

Civil law and procedure – practice – joinder – no public law relationship between private landowner and unlawful occupiers – notion of a ‘special cluster of relationships’ did not translate into imposing obligations on private individuals, nor did it convert a contractual relationship into an administrative one – no direct, substantial and legal interest in dispute where no contractual privity – non-joinder point in limine dismissed.

Administration of estates – annual curator’s account in terms of ss 83 and 84 of the Administration of Estates Act 66 of 1965 – realised capital asset reflected as income, not capital asset in the patient’s estate – remuneration of curator – applicable tariff in terms of regulations 7 and 8 – curator entitled to 6% fee on all funds reflected in the income account of annual curators’ account as collected, regardless of origin.

Land claim – Restitution of Land Rights Act 22 of 1994 – whether family or community claim – whether the second and fourth respondents impliedly granted condonation to receive the claim form as a community claim and whether they by law can do so.

Sections 44 and 151 of the Insolvency Act – Master’s decision admitting a creditor’s claim against a company in liquidation stands unless set aside on review in terms of s 151 thereof. Section 31 of Insolvency Act – in an action to set aside a collusive disposition – no entitlement to contest a proved claim of creditor.