Pangarker v Botha and another
[2014] JOL 32106 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
446 / 13
29 / 05 / 2014
South Africa
Supreme Court of Appeal
Mthiyane DP, Lewis, Mhlantla, Wallis JJA, Legodi AJA
Civil procedure – Failure by court to postpone hearing mero motu, and proceeding in absence of party –
Whether amounting to gross irregularity – History of postponements and competing right of opposing party to have matter brought to finality justifying refusal of postponement – Civil procedure – Trial –
Postponements – Where a postponement is sought, it is determined at the court’s discretion, and a party seeking a postponement must demonstrate a full and satisfactory explanation of the circumstances’ underlying the indulgence
Mini Summary:
The divorce proceedings between the respondents came before the appellant as acting Magistrate. A divorce order was granted together with an order for the partial forfeiture of the benefits of the marriage.
The first respondent launched an application in the High Court, to review and set aside the proceedings and the judgment. Granting the review of the divorce proceedings, the High Court ordered that the matter be referred back to the regional court for trial de novo before a Regional Magistrate other than the appellant. The appellant and the first respondent were ordered to pay the second respondent’s costs jointly and severally on the scale as between party and party. Furthermore, they had to bear their own costs in the review application. The present appeal was against that decision.
Held that the first issue for determination was whether the appellant had committed a gross irregularity by not postponing the trial mero motu and proceeding with the trial in the absence of the first respondent when she was aware that the attorney he wished to engage was not available on the days allocated for the hearing. The first respondent alleged that his rights to be heard and to be afforded a fair trial were violated. The second issue was whether, in the event that the latter constituted a gross irregularity, the appellant should be held liable for the costs of the review application in her personal capacity.
The High Court’s granting of the review application was based on its view that the appellant should have
mero motu postponed the matter to enable the first respondent to obtain a legal representative of his own choice and that failure to do so resulted in him not getting a fair trial. On appeal, it was accordingly necessary to determine whether a failure to consider a postponement mero motu constituted a gross irregularity sufficient to ground a review application. Section 24 of the Supreme Court Act 59 of 1959 outlines the grounds upon which the proceedings of inferior courts may be brought under review before a provincial division. In terms thereof, the grounds of review of proceedings of inferior courts include an interest in the cause, bias, malice or the commission of an offence on the part of the presiding judicial officer, and gross irregularity in the proceedings. Rule 31(1) of the Magistrates’ Court Rules provides that the trial of an action or the hearing of an application or matter may be adjourned or postponed by consent of the parties or by the court, either on application or request or of its own motion. Where a postponement is sought, it is determined at the court’s discretion. A party seeking a postponement must demonstrate a full and satisfactory explanation of the circumstances’ grounding the indulgence.
The question of whether the appellant was obliged to postpone the trial mero motu after refusing the recusal application required the court to consider any prejudice suffered by the parties, the history of the proceedings, the first respondent’s numerous struggles with his legal representation and the circumstances and competing rights of the second respondent. The Court found that the appellant’s approach was appropriate in the circumstances. She was faced with a trial that had already been postponed three times to accommodate the first respondent, and the second respondent clearly wished to achieve finality. She considered what was fair to both parties, including the possibility of a postponement, and decided that the matter should proceed. The record showed that she deliberated properly before reaching that decision. Her conduct could not be faulted. The judgment of the High Court in finding that the failure to postpone the trial constituted a gross irregularity was not supported by the facts. It failed to attach any weight to the competing right of the second respondent to have the dispute settled swiftly, and did not take into account the history of postponements in the matter. The first respondent’s right to legal representation had to be considered against that backdrop. He had ample time to secure himself a legal representative who was both well-apprised of the dispute and available to attend the Court proceedings, but failed to do so.
Upholding the appeal, the Court replaced the High Court order with one dismissing the review application.

Vermeulen v RAF
[2011] JOL 27930 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 5002 / 11
18 / 10 / 2011
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten, NF Kgomo JJ, V Notshe AJ
Keywords:
Delict – Motor vehicle accident – Absolution from the instance – Appeal
Mini Summary:
The appellant sued the respondent for damages in respect of personal injuries arising out of a motor vehicle collision. The appellant was riding his motorcycle which allegedly collided with the insured vehicle.
At the close of the appellant’s case in the trial court, the respondent sought and was granted absolution of the instance.
The issue to be decided on appeal was whether or not the court a quo erred in finding that it was not persuaded that any reasonable inferences could be drawn from the evidence, relating to the liability of the driver of the insured motor vehicle which had allegedly collided with the plaintiff’s motorcycle, either as alleged in the plaintiff’s particulars of claim, or at all.
Held that the evidence placed before the court a quo was circumstantial and crucial aspects which seem to have been readily ascertainable were simply overlooked. The court was satisfied that the trial court had correctly concluded that there was no evidence to support an inference of negligence concerning the insured driver resulting in, at the close of the plaintiff’s case, there not being evidence upon which a court applying its mind reasonably to such evidence, could or might find for the plaintiff.
The appeal was dismissed.
Dlanjwa v Minister of Safety & Security & another
[2010] JOL 26064 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1090 / 07
12 / 08 / 2010
South Africa
High Court
Eastern Cape, Mthatha
XM Petse ADJP
Keywords:
Delict – Claim for damages – Absolution from the instance – Assessment of evidence
Mini Summary:
The plaintiff's claim against the defendants arose from the injuries she sustained when she was shot by her later husband, who subsequently committed suicide. He was a policeman in the employ of the first defendant and under the command of the second defendant.
At the conclusion of the plaintiff's case, the defence applied for absolution from the instance.
Held that at this stage of the proceedings the court was not called upon to look at the plaintiff's evidence, as critically as if at trial. The question that it had to ask was whether the plaintiff's evidence, even accepting for present purpose that it was contradictory as was contended by defendant's counsel, was absolutely devoid of any credence.
The court found that viewed in its proper perspective, the plaintiff's evidence was not inherently improbable and had to be taken as true. It would therefore be entirely inappropriate to grant absolution in the context of the evidence adduced by the plaintiff.

Van Niekerk v Clarke & another
[2010] JOL 26111 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14791 / 07
31 / 08 / 2010
South Africa
High Court
Western Cape, Cape Town
DH Zondi J
Keywords:
Civil procedure – Absolution from the instance – Test
Mini Summary:
In instituting action against the defendants, the plaintiff (as cessionary of a trust) averred that in
December 2005, the trust concluded a sale agreement with the defendants in terms of which the defendants sold to the trust certain immovable property.
As provided for in the sale agreement, the trust paid a deposit to the defendants, but failed to deliver guarantees for the payment of the balance of the purchase price. The defendants accordingly cancelled the agreement and sought to withhold the deposit. Subsequent thereto, the trust ceded to the plaintiff its rights, title and interest in all claims it might have against the defendants for the refund of the deposit.
At the close of the plaintiff's case, the defendants applied for absolution from the instance on the ground that the plaintiff had failed to make out a prima facie case against them. it was contended that the plaintiff lacked locus standi to sue the defendants as the deed of cession upon which the plaintiff sued was void and invalid as it was not signed by the trustees of the trust, and it was not the plaintiff who had paid the deposit.
Held that the test for absolution from the instance is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. The test is, however, different where the issue turns on the interpretation of a document. If the plaintiff's evidence consists of the production of a document on which it sues and the sole question between the parties is the proper interpretation of the document, the distinction between the interpretation that a reasonable man might give to the document and the interpretation that he ought to give it, disappears. In those circumstances absolution should be refused unless the proper interpretation appears to be beyond question.
In the absence of a contrary provision in the trust deed, the trustees must act jointly if the trust estate is to be bound by their acts. In the absence of a contrary provision in the deed they may, however, authorise someone to act on their behalf and that person may be one of the trustees. The question whether or not the trustees have powers to delegate will turn on the interpretation of the deed of trust.
The delegation in this case was impermissible, and the locus standi objection was upheld.
Absolution from the instance was granted.
Lushaba v Member of the Executive Council for Health, Gauteng
[2015] JOL 32897 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17077 / 2012
16 / 10 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
RM Robinson AJ
Keywords:
Delict – Medical negligence – Claim for damages – Liability
Mini Summary:
The plaintiff, at 36 weeks’ pregnant, went to a state hospital under the control of the defendant, as she had been experiencing dizziness and constant pain in her abdomen. She was admitted at 12pm, but was only attended to at about 1:45pm. By that time it was too late. The plaintiff was saved but her child was severely disabled, suffering from spastic quadriplegic cerebral palsy and unable to sit or walk. According to the plaintiff, the defendant was negligent in not providing her with adequate medical care upon her arrival. The delay, so the plaintiff claimed, in performing the caesarean, was negligent, permitted the

progression of abruptio that cut off the baby’s supply of oxygen, and which in turn led to the cerebral palsy. The defendant denied negligence, in what amounted to a bare denial.
Held that a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill but he is bound to employ reasonable skill and care. In determining what is reasonable, the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs. Applying the relevant test for negligence, the court found that there was little doubt that the defendant was negligent. In failing to perform a caesarean on the plaintiff shortly after 12pm the defendant breached its duty of care towards the plaintiff and her child. The delay in treating the plaintiff was causally linked to the child’s suffering from cerebral palsy.
The Court referred to the defendant’s proceeding with its defence when it should have been obvious that there was no merit therein. Consequently, the defendant was held liable for costs on the attorney and client scale. It was also held 100% liable for the plaintiff’s damages.
Bahle v Minister of Safety and Security and another
[2012] JOL 29323 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
362 / 09
12 / 04 / 2012
South Africa
High Court
Eastern Cape, Mthatha
M Makaula J
Keywords:
Civil procedure – Actions against the State – Statutory requirements – Compliance
Mini Summary:
The plaintiff sued the defendant for damages arising from unlawful arrest, unlawful detention and
contumelia. In response, the defendant raised a special plea to the effect that the Minister of Safety and
Security was sued in his official capacity as the first defendant; and that the plaintiff was barred from proceeding with the action due to his failure to comply with the provisions of section 3(2)(a) read with section 3(3)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.
Held that the actual section relevant to the matter was section 4(1)(a) of the Act. Therefore, the issue to be decided was whether the plaintiff complied with the provisions of the Act by serving the notice on the defendant instead of the National or Provincial Commissioners.
Section 3(1) of the Act provides that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the said organ of state notice in writing of his or her or its intention to institute the legal proceedings. Section 3 (2)(a) stipulates that a notice must, within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4(1).
Although the provisions of the Act were not fully complied with the defendant did receive the notice in question. Finding that there was substantial compliance with the Act, the Court dismissed the special plea.
Omokoko v Minister of Police
[2012] JOL 29045 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
2011 / 32180
14 / 06 / 2012
South Africa
High Court
South Gauteng, Johannesburg
R Sutherland J
Civil procedure – Action against State organ – Prerequisite – Service of notice – Condonation for late service
Mini Summary:
Intending to sue the respondent in a delictual action, the applicant was required to have served a notice within 6 months of the cause of action arising. The notice was served out of time, and the defendant declined to accept the late notice. The applicant therefore sought condonation.
Held that section 3(2) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of
2002 requires a notice preceding an action against a state organ but if the organ of state relies on a creditor's failure to serve such notice, then the plaintiff may apply to court for condonation. The court may

grant such application is satisfied that the debt has not been extinguished by prescription, good cause exists for the failure, and that the organ of state has not been prejudiced by the failure. The only aspect in contention in the present matter was whether or not good cause for the failure had been shown.
The Court examined the nature of the applicant’s cause of action against the respondent, and the reason for the delay in serving the required notice. There was no undue delay after he became fully cognisant of the cause of action. It was important for him to know the cause of action as the notice had to contain brief details in that regard. It was concluded that the applicant could not be criticised for the failure to serve the notice timeously.
Condonation was granted and the applicant was given leave to institute proceedings against the defendant pursuant to that notice, and was required to serve the necessary process within three months of the date of this judgment.
Alves v LOM Business Solutions (Pty) Ltd & another
[2011] JOL 27743 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 21956
09 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
NP Willis J
Keywords:
Delict – Claim for damages – Delay in preparing appeal record
Mini Summary:
The plaintiff was convicted of attempted murder after he and his friends assaulted a black man they happened across after a party, in an apparently racially motivated incident. Leave to appeal was granted and on appeal, the conviction and sentence were set aside.
In the present action, the plaintiff claimed damages from the defendants, alleging that they were negligent in preparing the transcript for his appeal hearing resulting in his having to spend a further, unnecessary period of incarceration. He claimed R3.65 million as general damages and R153 800 for loss of income.
Held that the evidence showed that the first respondent could not be held responsible for any delays in transcribing the record. Some of the delays were attributable to the tracking down of missing documentary exhibits. The Court found that the first defendant had been diligent in attempting to track down such documents.
The second respondent began its case by arguing that the first respondent’s predecessor had not been joined in the case. The Court dismissed the non-joinder objection on the ground that it was raised late and that the party sought to be joined did not have a substantial interest in the matter.
On the merits, the second respondent conceded that it owed a duty to appellants in the position of the plaintiff to ensure that records were prepared for the hearing of an appeal within a reasonable time.
In terms of section 34 of the Constitution, everyone has a right to access to the courts; and in terms of section 35 the right to challenge the lawfulness of one’s detention and a right of appeal. These constitutional rights cannot be rendered nugatory by unreasonable delays in the offices for which the second defendant is responsible.
To found a claim of damages, there must be a causal connection between the unlawful and negligent conduct complained of, and the harm which is alleged to have ensued. The element of causation involves two distinct enquiries. First, in regard to the issue of factual causation, it must be determined whether or not the postulated cause can be identified as the sine qua non of the loss in question. Secondly, if factual causation has been established, it must be determined whether the wrongful act is linked sufficiently closely to the loss concerned for liability to ensue.
The Court found that the failure of the Department of Justice and Constitutional Development to ensure that the plaintiff’s record of proceedings was prepared within a reasonable time for the appeal hearing to have taken place should result in an award of damages. An amount of R350 000 plus interest was awarded.
Omokoko v Minister of Police
[2012] JOL 29045 (GSJ)
Case Number: 2011 / 32180

Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14 / 06 / 2012
South Africa
High Court
South Gauteng, Johannesburg
R Sutherland J
Keywords:
Civil procedure – Action against State organ – Prerequisite – Service of notice – Condonation for late service
Mini Summary:
Intending to sue the respondent in a delictual action, the applicant was required to have served a notice within 6 months of the cause of action arising. The notice was served out of time, and the defendant declined to accept the late notice. The applicant therefore sought condonation.
Held that section 3(2) of the Institution of Legal Proceedings against Certain Organs of State Act 40 of
2002 requires a notice preceding an action against a state organ but if the organ of state relies on a creditor's failure to serve such notice, then the plaintiff may apply to court for condonation. The court may grant such application is satisfied that the debt has not been extinguished by prescription, good cause exists for the failure, and that the organ of state has not been prejudiced by the failure. The only aspect in contention in the present matter was whether or not good cause for the failure had been shown.
The Court examined the nature of the applicant’s cause of action against the respondent, and the reason for the delay in serving the required notice. There was no undue delay after he became fully cognisant of the cause of action. It was important for him to know the cause of action as the notice had to contain brief details in that regard. It was concluded that the applicant could not be criticised for the failure to serve the notice timeously.
Condonation was granted and the applicant was given leave to institute proceedings against the defendant pursuant to that notice, and was required to serve the necessary process within three months of the date of this judgment.
Minister of Correctional Services v Lee
[2012] JOL 28823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
316 / 11
23 / 03 / 2012
South Africa
Supreme Court of Appeal
Mpati P, RW Nugent, MS Navsa, S Snyders JJA, Ndita AJA
Keywords:
Delict – Claim for damages – Prison inmate diagnosed with tuberculosis whilst in prison – Whether state liable for damages – Where element of causation established – No proof that infection would have been avoided but for negligent omission to ensure risk of contagion was eliminated – Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could not be found that but for the systemic omission he probably would not have contracted the disease
Mini Summary:
The respondent was arrested on charges including counterfeiting, fraud and money laundering, and was in prison for over four years before his acquittal and release. He was 54 years old and in reasonable health when he entered prison. After about three years in prison, he was diagnosed with pulmonary tuberculosis.
The condition was treated and he was declared to be cured after about six months.
Upon his release from prison, the respondent sued the appellant in the high court, claiming damages on the basis that the prison authorities had failed to take adequate precautions to protect him against contracting tuberculosis, that he had contracted the illness in consequence of their omission, and that the omission violated his right to protection of his physical integrity under the common law, the Correctional
Services Act 8 of 1959 and the Constitution.
Dealing only with the issue of liability, the high court held that the state was indeed liable. The present appeal was directed at that finding.
Held that the three elements of a delictual claim that is founded on negligence are a legal duty in the circumstances to conform to the standard of the reasonable person, conduct that falls short of that standard, and loss consequent upon that conduct.
In respect of the first element, negligent conduct will attract liability only if it is wrongful. In other words, considerations of public and legal policy require that the negligent act or omission should be held actionable for damages. The present Court agreed with the high court that negligent failure on the part of the authorities to have reasonably adequate precautions against contagion, which was the foundation of

the respondent’s claim, ought to be categorised as wrongful. When a person becomes a prisoner, he is at the mercy of the state, which bears the concomitant obligation to see to the physical welfare of its prisoner.
Turning to the question of negligence, the Court referred to the classic test which states that a person is negligent if he or she fails to take reasonable steps to guard against harm occurring if the harm is reasonably foreseeable and a reasonable person in his or her position would have taken those steps. In the present case, the Court agreed that the prison authorities failed to maintain an adequate system for management of the disease and in that respect they were negligent.
Remaining for determination was the issue of causation. To succeed in an action for damages, a plaintiff must establish that it is probable that the negligent conduct caused the harm. The test in that regard is whether but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred. The application of the test is simple where the negligent conduct is a positive act. However, where the conduct takes the form of an omission, it means that the defendant was obliged to initiate reasonable action, and the question then is what would have happened if that had occurred?
The Court accepted that the respondent was probably infected whilst in prison. That however, was not the end of the matter. The remaining question was whether he would have been infected if there had been reasonable management of the disease. Whether harm would have occurred if reasonable action had been taken to avoid it entails a two-stage enquiry of fact. The first question is what a reasonable person in the position of the defendant would have done to avoid the occurrence of the harm. The second stage of the enquiry, is whether the harm would have been avoided had that been done. The law does not demand that a defendant must guarantee that foreseeable harm does not occur – only that he must take reasonable steps to avoid it.
While it was clear that the prison authorities had no adequate system in place for managing the outbreak of contagion, that proof was not sufficient for determining whether the harm was caused by the omission.
The problem for the respondent in this matter, was that the source of his infection was not established.
Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could not be found that but for the systemic omission he probably would not have contracted the disease. The appeal was upheld, and the appellant was absolved from the instance.
Xaba v Ekurhuleni Metropolitan Municipality
[2011] JOL 27098 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17720 / 10
07 / 04 / 2011
South Africa
High Court
South Gauteng, Johannesburg
DSS Moshidi J
Keywords:
Civil procedure – Action against State – Prescription
Mini Summary:
The applicant sought an order condoning the late service on the respondent of the notice as contemplated by section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. He also sought an order for leave to institute legal proceedings against the respondent for damages for assault, arrest and detention arising from an incident in February 2007. In the alternative, he sought condonation relief on terms and conditions in the discretion of the court.
The respondent opposed the application on the ground that the applicant’s claims had prescribed.
Held that section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act provides that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question notice in writing of his or its intention to institute legal proceedings in question; or the organ of state has consented in writing to the institution of such legal proceedings without notice. Thus, written notice must be given to the respondent within six months from the date of the cause of action; and such notice must set out the facts relied upon and within the knowledge of the applicant which give rise to the action. If the organ of state to be sued raises the question of no notice having been given, the applicant may apply to court for condonation for such failure.
The court in hearing such application may grant such condonation, if satisfied, firstly, that the intended claim has not become prescribed, secondly, that good cause exists for the failure by the applicant, and thirdly, that the organ of state to be sued has not been unreasonably prejudiced by such failure to comply.
In regard to prescription, the intended proceedings must be brought within a period of three years from the date on which the cause of action arose.

The time begins to run against a creditor when it has the minimum facts that are necessary to institute action. The running of prescription is not postponed until a creditor becomes aware of the full extent of its legal rights.
In terms of the evidence, the applicant’s claims had clearly prescribed. The application for condonation was thus dismissed.
OR Tambo District Municipality v Wild Coast Guards CC
[2010] JOL 26486 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
365 / 2005
04 / 11 / 2010
South Africa
High Court
Eastern Cape, Mthatha
I Schoeman J, XM Petse ADJP
Keywords:
Civil procedure – Action against state – Requirement of notice
Mini Summary:
The respondent had instituted action against the appellant, claiming payment of the sum of R3 320 136 in respect of damages arising out of an alleged breach of contract. The said contract provided for the respondent to provide life saving and related services at various beaches falling under the jurisdiction of the appellant.
The appellant raised a special plea based on section 3 of the Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002. The section provides that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question notice in writing of his intention to institute legal proceedings.
The special plea having been dismissed, the present appeal was noted. The present judgment was a concurring one on appeal.
Held that the whole purpose of pleadings is to bring to the notice of the court and the parties the issues upon which reliance is to be placed for the rivalling contentions. The object of the pleadings is to define and ascertain definitely what the question at issue between the parties is, and that object can only be attained when each party states his case with precision. Accordingly a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another as occurred in this case.
The court went on to confirm that correctness of the finding in the main judgment, that the appeal should fail.
Jomovest Twenty-Five CC t/a Chas Everitt City Bowl v Engel & Volker Western Cape (Pty) Ltd
[2010] JOL 25791 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10887 / 04
17 / 06 / 2010
South Africa
High Court
Western Cape, Cape Town
E Moosa J
Keywords:
Civil procedure – Plea – Admission – Application to withdraw admission
Mini Summary:
The defendant in the main action between the parties herein, applied to withdraw an admission made in its plea to the plaintiff's claim for commission.

Held that the plea amounted to a confession and avoidance. The defendant had made certain clear and unequivocal admissions which constituted the confession. It then in clear and unequivocal terms, denied that there was an oral agreement between the parties that the commission would be shared equally. Such denial constituted the avoidance. The result was that the plaintiff was called upon to prove the oral agreement in question.
The general rule is that an application to amend pleadings will be granted unless mala fide, or prejudicial to the other party, and cannot be compensated by a costs order or postponement. The general rule for withdrawal of admissions is that it will not be allowed unless evidence is tendered showing a reasonable basis for making the mistaken admission.
The court found that the defendant had failed to establish the necessary jurisdictional fact, and the application was thus dismissed.
Lecuona v Property Emporium CC
[2010] JOL 25266 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7015 / 09
26 / 02 / 2010
South Africa
High Court
South Gauteng, Johannesburg
A Gautschi AJ
Keywords:
Civil procedure – Security for costs – Founding affidavit – Prima facie case
Mini Summary:
In terms of section 8 of the Close Corporations Act 69 of 1984, the applicant sought security for costs.
Held that a respondent, despite having filed an answering affidavit, may argue in limine that the founding affidavit does not make out a prima facie case for the relief sought. That is what the respondent did in this case. Affidavits in motion proceedings are a combination of pleadings and evidence and that they must therefore contain the factual averments, in the form of primary facts, necessary to support the cause of action or defence sought to be made out.
In the present case, the court was satisfied that the applicant had made out no case at all in its founding affidavit. Upholding the respondent's point in limine, the court dismissed the application.
Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC & another
[2010] JOL 25410 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
7089 / 09
04 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MJD Wallis J
Civil procedure – Summary judgment – Affidavit – Deponent to – Personal knowledge
Mini Summary:
In 2008, the applicant took cession of a number of claims from a bank. Included therein were 12 agreements concluded between the bank and the first respondent. In addition the applicant took cession of the rights of the bank under a deed of suretyship provided by the second respondent. The applicant thereafter instituted action against the respondents. An appearance to defend having been filed, the present action for summary judgment was made.
In an affidavit by the attorney for the applicant, the attorney stated that the facts deposed to in his affidavit were facts within his personal knowledge and belief as a result of which he claimed to be able to swear positively to the facts giving rise to the applicant’s cause of action. The second respondent denied that the attorney had the requisite knowledge to positively swear to the cause of action.
Held that rule 32(2) requires an applicant for summary judgment to deliver a notice of application together with an affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed, stating that in his opinion there is no bona

fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. The rule has been construed as meaning that the affidavit should be made by the applicant himself or by any other person who can swear positively to the facts; it must be an affidavit verifying the cause of action and the amount, if any, claimed; and it must contain a statement by the deponent that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay.
The court was satisfied that the applicant's attorney had no direct and personal knowledge in relation to the claims. All that he had done was to inspect the documents obtained from the bank in relation to the claims. His affidavit was based entirely on hearsay because he was not a person who could swear positively to the facts and verify the cause of action or the amount owing. Accordingly the application for summary judgment was defective and had to be dismissed.
ABSA Bank Ltd v SACCAWU National Provident Fund (under curatorship)
[2011] JOL 27997 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
697 / 10
27 / 09 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, VM Ponnan, A Cachalia, LO Bosielo, JB Shongwe JJA
Keywords:
Contract – Lease agreements – Authority – Whether principal officer of provident fund had authority to bind fund – Fund’s rules requiring meeting of trustees and contracts to be signed by three trustees for contracts entered into on behalf of fund – Where such requirement was not complied with, resulting agreements not binding on fund
Mini Summary:
The respondent had entered into fifteen contracts for the lease of office equipment to it. The lessor ceded its rights under the agreements to the appellant which instituted action against the respondent for payment of arrears in respect of each of the leases. Defending the claims, the respondent averred that its principal officer did not have the authority to conclude the contracts. a stated case was placed before the high court on that issue alone, and the high court found that the principal officer was not authorised to enter into contracts on behalf of the respondent and that the contracts were thus ultra vires and not binding. That led to the present appeal.
The respondent’s argument was that in order for it to be bound by the rental agreements, the agreements had to have been executed in a particular fashion prescribed by the respondent’s rules. The rule in question provided that all documents or contracts effected by the respondent would be binding upon the respondent provided that they were signed by the chairperson and another two trustees at a duly constituted meeting, or after such a meeting, provided that authorisation for the signing of these documents or contracts was granted at such meeting.
Held that the principal question was whether, notwithstanding non-compliance with the relevant rule, the respondent was nonetheless bound by the lease agreements.
The appeal turned upon the interpretation to be placed on the respondent’s rules. It was necessary in interpreting the rules, to examine the general framework according to which the respondent had been constituted.
The Pension Funds Act 24 of 1965 read together with the regulations and the rules defined the limits of the respondent’s contractual capacity. The regulations promulgated under the Act stated that the rules should provide for the manner in which contracts and other documents binding the respondent should be executed. That rule in the respondent’s rules was the one referred to above. It constituted the only effective overriding control over the legal capacity of the respondent to enter into written contracts. It was common cause that it had not been complied with.
While it might be desirable that there should be a provision in the rules that would enable the principal officer to enter into written contracts with regard to the day-to-day functioning of the respondent, there was no such express provision. The question that then arose was whether it could be inferred by

necessary implication from the rules. The court emphasised that it would be slow to imply a term into the rules, and found no basis for doing so.
The appeal was therefore dismissed by the majority of the court.
In the dissenting judgment, it was held that the issue was whether there was compliance with the peremptory formalities laid down by the respondent’s rules. That raised the question of whether the rule referred to above was applicable to the contracts that the principal officer had concluded.
The rules had to be examined having regard to their purpose and the context in which they operated.
Although the respondent’s rules did not indicate what contracts had to comply with the rule, nor why the trustees, as non-executive officers, should be burdened with the daily administration of the respondent’s business, the judge pointed out that rules must be given a sensible meaning in interpreting them. It was not sensible or reasonable to require that at least 13 trustees should meet and authorise the hiring of office equipment. That was the function of the principal officer.
The rules provided for the conclusion of investment contracts, the prime business of the respondent, to be delegated to a subcommittee of members or a financial institution. If such contracts that were crucial to the respondent could be concluded by other bodies, it made no sense for contracts for the rental of office equipment to have to comply with unnecessary and burdensome procedures. That was not a reasonable or sensible interpretation of the rules. And it undercut the role of a principal officer who was the only executive employed by the respondent and who, in the preamble to the rules, was expressly said to represent the respondent in the acquisition and holding of property.
Satisfied that the principal officer was charged with the administration of the office of the respondent, the dissenting judge would have upheld the appeal.
Bouwer Collins Insurance Brokers (Pty) Limited v Hopgood and another
[2014] JOL 32475 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Amendment of particulars of claim – Time period – Application for extension
Mini Summary:
2012 / 12
20 / 02 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
E Revelas J
The respondents were the plaintiffs in the main action, and the applicant was the defendant. In those proceedings, the applicant successfully raised an exception to the respondents’ particulars of claim, and the respondents were ordered to remedy certain deficiencies in their particulars of claim within 15 days.
Their failure to comply with that order led to an application to dismiss their action. In a second application before the Court, the respondents sought an extension of the time period stipulated in the order.
Held that the respondents had delayed at every step of the proceedings. Were the Court to condone such conduct, the matter would only go to trial almost five years (at the very least) after the event which gave rise to the claim. A party seeking condonation, an indulgence, or an extension of a time period ordered by a court (as in the present case), must satisfy the court that it has a reasonable explanation for failing to comply with the time limits applicable. The two main considerations at play in considering whether good cause was shown in the circumstances referred to above, were the plaintiffs’ right to have the merits of their case tried in open court and the defendant’s right not to be unduly prejudiced by the delay. The
Court had to consider the nature of the relief sought, the extent and cause for the delay, the prejudice or effect of the delay or on the other litigants and the administration of justice, the reasonableness of the explanation for the delay and prospects of success of the matter. The Court did not agree with the respondents’ submission that they had good prospects of success on the merits, and found no grounds upon which to exercise its discretion in respondents’ favour.
The application for extension of the time period was dismissed, as was the respondents’ claim against the applicant.
Ramonyai v LP Molope Attorneys
[2014] JOL 32399 (GJ)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2010 / 29310
27 / 02 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Mokgoatlheng J
Keywords:
Delict – Professional negligence – Attorney – Failure to prosecute claim timeously – Prescription of claim –
Claim for damages
Mini Summary:
On the ground that the defendant, her attorney, had allowed her claim for damages to prescribe, the plaintiff instituted action against the defendant. She alleged that her claim had prescribed in the defendant’s care due to his failure to timeously issue and serve summons against the a supermarket and other entities whose negligent conducted rendered them liable for the damages she had suffered.
Due to the defendant’s averment that he had been instructed to institute action against the supermarket only, the plaintiff applied to amend her particulars of claim to include the allegation that she had instructed the defendant to recover damages from the supermarket and / or the hospital which treated the plaintiff and its employees or any other third party liable for her damages. The amendment was premised on an addendum to the medico-legal-report wherein it was stated that the cause of the amputation of the plaintiff’s left leg, was attributable to the negligence of the hospital’s employees in having delayed to promptly diagnose and treat the plaintiff’s popliteal artery injury. The application was opposed on the basis that it was launched after the plaintiff had testified, further that in adducing evidence the plaintiff did not pertinently testify that she had instructed the defendant to recover damages from the hospital and its employees.
Held that the general rule is that an amendment of a notice of motion, as in the case of a summons or pleading in an action, will always be allowed unless, the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by an order for costs. Considerations of equity, and fairness to the defendant in this case, led to the application for amendment being refused.
The Court then turned to consider the defendant’s liability. Setting out the nature of an attorney’s duties, the Court stated that there is no defence to a claim of negligence where an attorney delayed in issuing summons and if he did so after the claim had prescribed, he is guilty of the breach of a duty of care in which the plaintiff’s damages loss was foreseeable.
The plaintiff bore the onus of showing that the defendant was liable for the damages she suffered as a consequence of the defendant’s breach of his contractual mandate by negligently allowing her claim to become prescribed. The plaintiff had to establish not only that her damages were caused by the defendant’s breach of duty pursuant to such contract but also that the breach of such duty was reasonably foreseeable for liability to result. It was found that the defendant, in causing the plaintiff’s claim to become prescribed, failed to act in accordance with the reasonable care, skill and diligence expected of an attorney practising in the personal injury field. Consequently, he was guilty of a breach of contract entitling the plaintiff to recover damages from him.
The defendant was ordered to pay the plaintiff the amounts quantified by the Court and set out in the order.
Pintado Trading 800 (Pty) Ltd v Fleet Africa (Pty) Ltd
[2010] JOL 25698 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5866 / 09
09 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Hughes-Madondo AJ
Keywords:
Civil procedure – Particulars of claim – Leave to amend – Court's discretion
Mini Summary:
In terms of rule 28 of the Uniform Rules of Court, the plaintiff sought leave to amend their particulars of claim.
In the particulars of claim, the plaintiffs sought a debatement arising from a fiduciary relationship between the parties. The defendants had raised an exception to the claim, leading to the present application. The

crux of the defendants' objection was that the plaintiffs had not set out clearly the basis upon which they relied in respect of the legal conclusion sought in their prayer.
Held that the court has discretion to grant an amendment. Such discretion must be exercised judicially in light of the facts and circumstances before it. When deciding whether to grant an amendment, the crucial issue is whether the amendment would cause the other party such prejudice as cannot be cured by an order for costs and where appropriate postponement.
The court exercised its discretion in favour of the plaintiff.
Jomovest Twenty-Five CC t/a Chas Everitt City Bowl v Engel & Volker Western Cape (Pty) Ltd
[2010] JOL 25791 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10887 / 04
17 / 06 / 2010
South Africa
High Court
Western Cape, Cape Town
E Moosa J
Keywords:
Civil procedure – Plea – Admission – Application to withdraw admission
Mini Summary:
The defendant in the main action between the parties herein, applied to withdraw an admission made in its plea to the plaintiff's claim for commission.
Held that the plea amounted to a confession and avoidance. The defendant had made certain clear and unequivocal admissions which constituted the confession. It then in clear and unequivocal terms, denied that there was an oral agreement between the parties that the commission would be shared equally. Such denial constituted the avoidance. The result was that the plaintiff was called upon to prove the oral agreement in question.
The general rule is that an application to amend pleadings will be granted unless mala fide, or prejudicial to the other party, and cannot be compensated by a costs order or postponement. The general rule for withdrawal of admissions is that it will not be allowed unless evidence is tendered showing a reasonable basis for making the mistaken admission.
The court found that the defendant had failed to establish the necessary jurisdictional fact, and the application was thus dismissed.
Chemical Specialities (Pty) Ltd v Humansdorp Paint Centre CC
[2010] JOL 26114 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Particulars of claim – Amendment to
Mini Summary:
227 / 09
30 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
The plaintiff applied for the amendment of its particulars of claim.
Held that the court will usually allow an application to amend unless it is made mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs. Where, however, the granting of the application for amendment would render the pleading excipiable (as contended by the defendant in this case) the court will not grant an amendment.
The court agreed that the amendment would render the particulars of claim excipiable and accordingly dismissed the application.
Lob v Carribean Estates (Pty) Ltd
[2010] JOL 26096 (GSJ)
Case Number:
Judgment Date:
07 / 16441
30 / 04 / 2010

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Civil procedure – Plea – Application for amendment
Mini Summary:
The applicant, the defendant in the main action, sought an order allowing him to amend his plea and counterclaim. The plaintiff objected to the amendment on the ground that it would render the plea and counterclaim excipiable as the proposed new pleading was vague and embarrassing and did not disclose a defence to the plaintiff's claim and a valid cause of action in respect of the defendant's counterclaim.
The dispute arose from a two-fold agreement entered into between the parties. The first was referred to as a letter of intent agreement and the second an asset management agreement. The plaintiff claimed to have validly exercised a call option provided for in the letter of intent, pursuant to which it paid the defendant R1 268 350,86 for his 12% share in the asset management agreement. It therefore sought a declaratory that it had acquired the defendant's interest in the net capital profit due to the plaintiff upon a sale of its interest in the asset management agreement. The defendant disputed the validity of the exercising of such call option and contended that the correct amount payable to him was in fact R8.4 million, which was the subject matter of the counterclaim.
Held that the terms of the letter of intent lay at the heart of the defendant's proposed amendment. The defendant referred to a clause in the letter of intent, imposing certain good faith obligations on the parties, the defendant averred that the exercise of the call option was rendered invalid by virtue of the plaintiff's breach of its good faith obligations, in that the plaintiff had not disclosed that it intended to dispose of its interest in the management agreement to a third party. The proposed amended plea and counterclaim was, in many respects, a mere repetition of the existing plea and counterclaim. However, certain new allegations were introduced.
Flowing from Rule 23 of the Uniform Rules of Court, an amendment ought not be allowed when its introduction into a pleading would render such pleading excipiable. Rule 23 deals with a situation where a pleading is vague and embarrassing and lacks averments which are necessary to sustain an action or defence. an amendment should be refused on the grounds of excipiability if it is clear that the amended pleading "will", rather than "may" be excipiable.
The court found that the proposed amended plea did not disclose a defence to the plaintiff's claim for declaratory relief with regard to the exercise of its option rights; nor did the proposed amended counterclaim disclose any cause of action which would entitle the defendant to payment of the amount claimed by him
Gauteng MEC for Health v 3P Consulting (Pty) Ltd
[2010] JOL 26590 (SCA)
Case Number: 199 / 10
Judgment Date: 01 / 12 / 2010
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
BJ van Heerden, JA Heher, NZ Mhlantla, ZLL Tshiqi JJA, E Bertelsmann AJA
Keywords:
Civil procedure – Answering affidavit – Arguments raised for first time in heads of argument and not in answering affidavit – While a party in motion proceedings may advance legal arguments in support of the relief claimed even where such arguments are not specifically raised in the papers, provided that all relevant facts are before the court, this will not be allowed if it causes prejudice to the other party –
Contract – Validity – Whether services agreement void for want of legality and/or authority, alternatively void on the application of private law principles – Court finding challenge to validity of agreement to be without merit on any of the grounds raised –Contract – Written agreement – Parol evidence rule – Any extrinsic evidence on the meaning of the relevant clause of a written agreement precluded
Mini Summary:
The respondent, a management consulting company specialising in providing public sector reform solutions, entered into a services agreement with the appellant (“the department”) in 2007. The agreement was renewed in 2009, but a few months later, the department began refusing to allow the

respondent’s employees and sub-contractors access to its premises to perform their work under the renewed services agreement. Eventually, in July 2009, the department informed the respondent that it would no longer perform in terms of the purported extension of the contract, on the ground that when the department took the decision to extend the contract, it acted arbitrarily and failed to take into account relevant considerations like the provisions of the law and the expectations of other potential service providers.
The department contended that both the original and the renewed services agreements were void for want of legality and/or authority. It relied on certain irregularities which had allegedly occurred in the tender process both prior to and after the conclusion of the original services agreement with the respondent.
In response, the respondent approached the high court for relief, and obtained a declaratory order to the effect that the services agreement between the parties had been duly renewed by agreement between the parties for a further period of three years. The high court also ordered the department to implement the renewed services agreement and to allow the respondent to do so.
In support of its contention that the original services agreement was void, the department referred firstly to section 217(1) of the Constitution and section 38(1)(a)(iii) of the Public Finance Management Act 1 of
1999, both of which provide that when an organ of state contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.
Held that the court was satisfied that the procurement decision-making body of the department had approved an initial contract period of two years and a renewal for a further period of two years. That was what was reflected in the relevant clause in the written agreement. By application of the parole evidence rule, any extrinsic evidence on the meaning of the relevant clause of the agreement would be precluded.
The department’s contention that the person who signed the services agreement on behalf of the department lacked the authority to do so was not raised at all in the department’s answering affidavit. It was also found to be untenable given the facts before the court.
Consequently, the court concluded that there was no failure by the department to comply with the constitutional and legislative provisions relied on by the department and that its attack on the validity of the original services agreement had to fail.
The court also rejected the department’s challenge, on public law grounds, to the validity of the renewed service agreement.
In its Heads of Argument and in argument before the court, the department sought to rely on a number of private law grounds for the invalidity of the renewal of the services agreement. With one exception, none of those grounds was raised by the department in its answering affidavit, but appeared for the first time in the department’s Heads of Argument. The court pointed out that while a party in motion proceedings may advance legal arguments in support of the relief claimed even where such arguments are not specifically raised in the papers, provided that all relevant facts are before the court, this will not be allowed if it causes prejudice to the other party.
The only private law grounds relied on by the department which could conceivably be said to raise legal issues, were found to be unsustainable.
The appeal was dismissed.
Avnit v First Rand Bank Trading, inter alia, as Westbank and Wesbank Aviation Finance
[2014] JOL 32336 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
20233 / 14
23 / 09 / 2014
South Africa
Supreme Court of Appeal
L Mpati P
Civil procedure – Leave to appeal – Refusal of – Application in terms of section 17(2)(f) of the Superior
Courts Act 10 of 2013 to refer refusal to court for reconsideration, and if necessary, variation – Section
17(2)(f) provides that the decision to grant or refuse an application is final – provided that the President of the Supreme Court of Appeal may in exceptional circumstances, whether of his own accord or on application filed within one month of the decision, refer the decision to the Court for reconsideration and, if necessary, variation – What constitutes “exceptional circumstances” – As the power under section
17(2)(f) is one that can be exercised even when special leave has been refused, “exceptional circumstances” must involve more than satisfying the requirements for special leave to appeal

“exceptional circumstances” – Section 17(2)(f) of the Superior Courts Act 10 of 2013 – The decision to grant or refuse an application for leave to appeal is final - provided that the President of the Supreme
Court of Appeal may in exceptional circumstances, whether of his own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation
Mini Summary:
Having granted judgment against the applicant, the High Court then refused leave to appeal. An application to the present court was also refused. The present application was brought in terms of section
17(2)(f) of the Superior Courts Act 10 of 2013 (“the Act”) to refer that refusal to the court for reconsideration, and if necessary, variation.
Held that section 17(2)(f) was a new section vesting the President of this court with a power not previously possessed. Section 17(2) prescribes the manner in which this court is to deal with applications to it for leave to appeal. They are referred to two judges for consideration. If they disagree the President appoints a third judge and the decision of the majority is the decision of the court. Sub-section (f) provides that the decision to grant or refuse an application is final - provided that the President of the
Supreme Court of Appeal may in exceptional circumstances, whether of his own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation.
What constitutes “exceptional circumstances” was the focus of the present judgment. As the enquiry is a factual one, no general rule or definition is laid down. The court referred to the case of MV Ais Mamas
Seatrans Maritime v Owners, MV Ais Mamas, and another [2000] JOL 7119 (C) in which the meaning of
“exceptional circumstances” was explored. It was stated that the term refers to something out of the ordinary and of an unusual nature and to which the general rule does not apply. The existence of exceptional circumstances is a factual enquiry. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will, generally best be given to the intention of the legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional. In the context of section 17(2)(f), the
President will need to be satisfied that the circumstances are truly exceptional before referring the view of two judges of this court to the court for reconsideration. The section is not intended to afford disappointed litigants a further attempt to procure relief that has already been refused. It is intended to enable the
President of this Court to deal with a situation where otherwise injustice might result. The power under section 17(2)(f) is one that can be exercised even when special leave has been refused, so “exceptional circumstances” must involve more than satisfying the requirements for special leave to appeal. The power is likely to be exercised only when the President believes that some matter of importance has possibly been overlooked or grave injustice will otherwise result.
The Court was not satisfied that the factors relied upon by the applicant constituted exceptional circumstances as envisaged by the provisions of the Act. The issues alleged to constitute exceptional circumstances were considered not only by the two judges of this Court who dismissed the applicant’s application for leave to appeal to this Court, but also by the High Court, who dealt with them in the judgment of the application for leave to appeal.
The application was accordingly refused.
Minister for Safety and Security v Scott and another
[2014] JOL 31945 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
969 / 2013
30 / 05 / 2014
South Africa
Supreme Court of Appeal
LV Theron, MS Navsa, NP Willis JJA, MF Legodi AJA
Keywords:
Civil procedure – Appeals – Lapsing of appeal – Rule 10(2A)(a) of the Supreme Court of Appeal’s Rules provides that if an appellant fails to lodge heads of argument within the prescribed period or within the extended period, the appeal shall lapse – Civil procedure – Appeal – Late filing of appeal record –
Condonation – In considering applications for condonation , the court must take into account include the adequacy of the explanation, the extent and cause of the delay, any prejudice to the parties, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the avoidance of unnecessary delay in the administration of justice and the applicant’s prospects of success on the merits – Delict – Claim for damages – Loss of income and profits constituting claim for pure economic loss – Delict – Claim for damages – Claim based on an interference with a contractual relationship –
General rule in our law is that only the intentional interference with the contractual relationship of another constitutes an independent delictual cause of action

Mini Summary:
In 2005, the respondents sued the appellant (“the Minister”) for damages arising from the alleged unlawful arrest and detention of the first respondent (“Scott”). The latter was a professional hunter and a registered undertaker of big game hunting enterprises in South Africa. He was also the Chief Executive
Officer of the second respondent, which conducted hunting safaris for paying guests. Included in the claim for damages was a claim by the second respondent for loss of contractual income and profits.
Scott’s arrest occurred during an altercation outside a pub. He claimed that he had been assaulted without provocation by a group of people outside the pub. However, the version of the other persons involved in the incident was that Scott had been disgruntled at not being able to buy alcohol at the pub because it was closing. The witness who testified in court alleged that Scott had asked him where he could get alcohol and was annoyed by the response he received. When the witness (“Verster”) left the pub, he was attacked by Scott and his friends. The police arrived and arrested Scott.
The claim for loss of contractual income was based on the following set of facts. On the night of Scott’s arrest, an American group arrived at his ranch for a planned hunting trip. Scott, having been arrested, was not contactable and by the time he returned after being released from detention the following afternoon, it was no longer possible to undertake the elephant hunting trip. The failure of the trip led to the American magazine which carried advertisements for Scott’s business advising him that it was terminating its agreement with him. In terms thereof, the magazine would no longer run his advertisements, and would also no longer bring its own clients to his ranch as planned.
The High Court awarded Scott R75 000 for general damages in respect of the unlawful arrest and detention and R577 610 being wasted advertisement costs. The second respondent was awarded
R49 268 289 in respect of loss of contractual income. The Minister now appealed against the award of loss of contractual income and profits awarded to the second respondent and the amount of R75 000 awarded to Scott.
At the commencement of the hearing, the Minister brought an application for reinstatement of the appeal and condonation for the late filing of the appeal record and the heads of argument. The appeal had lapsed for failure on the part of the Minister to prosecute it by not timeously filing his heads of argument.
Held that rule 10(2A)(a) of the Supreme Court of Appeal’s Rules provides that if an appellant fails to lodge heads of argument within the prescribed period or within the extended period, the appeal shall lapse.
In considering applications for condonation , the Court must take into account include the adequacy of the explanation, the extent and cause of the delay, any prejudice to the parties, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the avoidance of unnecessary delay in the administration of justice and the applicant’s prospects of success on the merits. A litigant who does not comply with the rules is required to show good cause why the rules should be relaxed. The Court was satisfied with the explanation for the delay in this case, and found the prospects of success on appeal to be reasonable. Condonation was therefore granted and the appeal was reinstated.
It was noted on appeal that the question of the Minister’s liability to the second respondent for loss of contractual income and profits was not considered by the High Court. The court had not considered whether a claim for pure economic loss could be sustained in the circumstances of the case. The present
Court therefore turned to consider the issue of the Minister’s liability to the second respondent. It was common cause that the claim for loss of income and profits was a claim for pure economic loss. Accepting that such a claim could only be brought by way of an Aquilian action, the respondents were constrained to concede that in that respect the particulars of claim were technically lacking. No exception having been filed, the appropriate enquiry was whether, despite the deficiency in the pleadings, and having regard to the evidence, the Minister should be held liable for the loss suffered by the second respondent.
The Court first set out the legal position in respect of claims based on an interference with a contractual relationship. The general rule in our law is that only the intentional interference with the contractual relationship of another constitutes an independent delictual cause of action. In the present case, the police had no knowledge of the contract between the second respondent and the visiting American hunting group. There could therefore not be any intentional interference in the contractual relationship. On that basis alone, the second respondent’s claim had to fail. Even if that was not true, then the second respondent was found not to be able to establish the delictual requirements of wrongfulness and causation. The Court concluded that the damages claimed by the second respondent were too remote to be recoverable.
The appropriateness of the damages awarded to Scott was the next issue considered on appeal. The assessment of general damages is a matter within the discretion of the trial court and depends upon the unique circumstances of each particular case. An appeal court is generally slow to interfere with the award of the trial court but will do so where there has been an irregularity or misdirection. Where the appeal court is of the opinion that no sound basis exists for the award made by the trial court or where there is a striking disparity between the award made by the trial court and the award which the appeal court considers ought to have been made. A comparative study with other cases revealed that the award made

by the High Court was grossly excessive. The Court held that an award of R30 000 was more appropriate, and upheld the appeal.
Phillips v SA Reserve Bank & others
[2012] JOL 28805 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
221 / 2011
29 / 03 / 2012
South Africa
Supreme Court of Appeal
KK Mthiyane DP, IG Farlam, SA Majiedt JJA, XM Petse, Ndita AJJA
Civil Procedure – Appeals – Appeal against order that appellant pay wasted costs of application –
Appealability of order in proceedings which have not yet terminated – Whether or not the order is definitive of the rights being contended in the main proceedings, and whether it disposes of any relief claimed are factors which are not decisive of the issue of appealability – Civil procedure – Constitutional litigation – Rule 16A of the Uniform Rules of Court – Requirements – Rule 16A requires any person raising a constitutional issue in a matter to give notice thereof to the registrar at the time of filing the relevant affidavit or pleading, and on receiving such notice, the registrar must place it on a notice board designated for that purpose – Sufficient for notice to simply set out statutory provisions being challenged, and that the challenge is based on inconsistency with the Constitution without specifying the grounds of the alleged inconsistency – Duty to place notice on notice board is that of registrar
Mini Summary:
In February 2008, foreign currency in the appellant’s possession was seized from him at Oliver Tambo
International Airport. The South African Reserve Bank (the first respondent) made a decision not to return the money to the appellant, who then approached the high court seeking the review of that decision. He also sought orders declaring that the Exchange Control Regulations promulgated in Government Notice R
1111 of 1 December 1961, as amended, alternatively certain provisions in the Regulations were inconsistent with the Constitution and invalid.
On the date of set down, the matter was postponed sine die and the appellant was ordered to pay the first and second respondents’ wasted costs, because in the judge’s view, the appellant had not complied with rule 16A of the Uniform Rules of Court. Rule 16A requires any person raising a constitutional issue in a matter to give notice thereof to the registrar at the time of filing the relevant affidavit or pleading. On receiving such notice, the registrar must place it on a notice board designated for that purpose. The court
a quo found that there was no indication that the rule 16A notice was filed or, if it was filed with the registrar, that it was put on the notice board as required by the rule. It held that the appellant had a duty to ensure that the rule was complied with, and that non-compliance could not be condoned. The postponement of the matter was to allow for the rule to be complied with, and as stated above, the appellant had to pay wasted costs.
Held that the issues for determination on appeal were whether the court a quo’s findings were appealable; whether the notice compiled by the appellant’s attorney complied with rule 16A(1); whether the appellant or the registrar bore the duty to ensure that a rule 16A notice is placed on the notice board for a period of 20 days; whether it was appropriate for an organ of state to raise any alleged noncompliance with rule 16A at a time when it was too late to correct the defect and then to require an applicant to pay the costs of the resultant postponement; and whether the general rule in constitutional litigation that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs applies also to costs orders relating to what were called ancillary matters.
The appealability of an order made in proceedings which have not yet terminated has generally been assessed against the question of whether or not the order is definitive of the rights being contended in the main proceedings, and whether it disposes of any relief claimed. However, the present Court referred with approval to case authority for the proposition that those factors are not decisive.
On the question of compliance with rule 16A, the Court had to be interpreted in the light of the purpose for which it was enacted, namely to bring cases involving constitutional issues to the attention of persons who may be affected by or have a legitimate interest in such cases so that they may take steps to protect their interests by seeking to be admitted as amici curiae with a view to drawing the attention of the Court to relevant matters of fact and law to which attention would not otherwise be drawn. The question to be addressed in casu was whether a notice which correctly specifies the statutory provisions being attacked complies with the rule if it simply states that the attack is based on inconsistency with the Constitution without specifying the grounds of the alleged inconsistency. The point in issue in this case was the constitutional invalidity of the Exchange Control Regulations. It was not necessary for the point to be elaborated by specifying, as the judge held, the grounds of the challenge. That would go beyond the

purpose for which the rule was created as referred to above. The Court was accordingly satisfied that the notice drawn up by the appellant’s attorney complied with the rule.
The next question was whether it was the appellant or the registrar who bore the duty to ensure that the rule 16A notice was placed on the notice board for a period of 20 days. The Court found that the rue was clear that the duty in question was that of the registrar. The appellant was therefore entitled to assume that the registrar’s staff would do what the rule enjoined them to do with the notice.
Although the above finding meant that the remaining two points fell away, the Court dealt with them so as to provide guidance in future litigation.
The first of the remaining two issues was whether the first and second respondents, by raising the rule
16A(1) point at a stage when it was not possible to remedy it and by seeking to put the appellant to the choice of either abandoning his constitutional challenge or paying the costs of the necessary postponement, had acted inappropriately. The second issue related to costs, as referred to above. The
Court found on the first issue that attorneys acting for departments or organs of state which are respondents in such cases should follow the practice of checking as soon as the papers are received that the rule has been complied with and, if it appears not to have been, of bringing the omission to the attention of the applicant’s attorney. On the issue of costs, the Court stated that the general principle applicable in constitutional litigation that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs does not only apply to orders on the merits in constitutional cases but also to ancillary points. The appellant should therefore not have been ordered to pay wasted costs.
In the premises, the appeal was allowed.
Tecmed Africa (Pty) Limited v Minister of Health and another
[2012] JOL 29321 (SCA)
Case Number: 495 / 11
Judgment Date: 21 / 05 / 2012
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
VM Ponnan, MS Navsa, S Snyders JJA, P Boruchowitz, TC Ndita AJJA
Keywords:
Civil Procedure – Appeals – Section 21A of the Supreme Court Act 59 of 1959 – At any civil appeal to the
Appellate Division or any Provincial or Local Division of the Supreme Court, if the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone
Mini Summary:
As an importer and distributor of medical equipment, the appellant had, in 2005, imported a second hand machine (a linear accelerator) which it stored until 2007. Acting in terms of an agency agreement with the manufacturer of the machine, it then refurbished the machine. Consistent with the practice in the industry, it brought about a change in the model number of the machine to indicate that the machine was now a refurbished model. The machine was then sold to the second respondent (Cancare). The latter applied, in 2007, for a licence in terms of section 4 of the Hazardous Substances Act 15 of 1973, to use the machine as a therapeutic device in the treatment of cancer. on the mistaken understanding, based on the licence application form, that the machine was new, the Director-General: National Health and
Population Development issued a licence for the installation of the machine at the premises where Cancare operated. A few months later, a Deputy-Director in the Department of Health who visited Cancare’s premises to conduct an acceptance inspection discovered that the machine was not new. The appellant was advised that as it was only licensed to import new machines, the machine in question had been illegally imported into the country, and the Department of Health would require that the machine be exported or sold as scrap.
In terms section 2 of the Hazardous Substances Act 15 of 1973, the first respondent (the Minister of
Health) had declared linear accelerators, used in the treatment of cancer, to be a Group III hazardous substance. By virtue of that classification no person is entitled in terms of the Act, to sell, let, use operate or apply the machine (s 3(1)(b)) or install or keep installed the machine on any premises (s 3(1)(c)) unless such person has been issued with a licence by the Director-General: National Health and Population
Development.
In a fresh licence application by Cancare, the appellant provided a letter of support in which it apologised for the fact that the earlier application had contained incorrect information. It alleged that in importing the machine it had acted in accordance with the conditions attaching to its licence and that the machine had accordingly not been imported illegally. However, it was notified that an embargo had been placed on its licence. An appeal to the Minister against that decision was dismissed.
As a result, the appellant applied to the High Court for an order reviewing and setting aside the minister’s decision to dismiss its appeal (the embargo application). In a second application, the appellant sought the review and setting aside of the Director-General’s refusal to issue Cancare with a licence to use, operate

or apply the machine and for an order directing the former to issue to Cancare a licence as contemplated in section 4(1) (the licence application). Both applications succeeded and the minister sought and obtained leave to appeal to the Full Court.
Despite having lifted the embargo upon the success of the embargo application, the minister persisted in seeking to overturn the judgment and order in the embargo application. The minister’s persistence with the embargo appeal caused the appellant to go to unnecessary trouble and expense and for that reason was characterised as vexatious by the Full Court, which accordingly ordered the minister to pay the costs of the embargo appeal on the scale as between attorney and client.
In the appeal against the decision in the licence application, the Full Court found that the appellant’s attack on the decision to refuse to grant a licence to Cancare should not have succeeded and the appeal had to be upheld with costs. The order made in the licence application was set aside and in its stead was substituted an order dismissing the licence application.
With the special leave of the present Court, the appellant appealed against the above decision.
Held that the merits of the appeal were not relevant, as the appeal had to fail at a preliminary hurdle – namely, whether the appeal and any order made thereon would, within the meaning of section 21A of the
Supreme Court Act 59 of 1959, have any practical effect or result.
Section 21A(1) provides that at any civil appeal to the Appellate Division or any Provincial or Local Division of the Supreme Court, if the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone.
Although the appellant was, based on the facts placed before the court on appeal, constrained to concede that securing a licence for the use of the machine by Cancare had indeed become academic, it argued that the appeal should nonetheless be entertained so as to challenge the approach and reasoning of the full court. Such an approach would be erroneous. Appeals do not lie against the reasons for judgment but against the substantive order of a lower court. Thus whether or not a court of appeal agrees with a lower court’s reasoning would be of no consequence if the result would remain the same. Moreover, the principles that govern the defence of res judicata and issue estoppel must be considered. The requirements for res judicata are threefold, viz same parties; same cause of action; and same relief. Issue estoppel allows a court to dispense with the two requirements of same cause of action and same relief, where the same issue has been finally decided in previous litigation between the same parties. The application of issue estoppel should be considered on a case-by-case basis and deviation from the threefold requirements of res judicata should not be allowed when it is likely to give rise to potentially unfair consequences in the subsequent proceedings.
Referring to a series of cases in which it was held that courts may not offer free legal advice, and that courts ought not to decide issues of academic interest only, the court concluded that no practical effect or result could be achieved in this case. The appeal was dismissed in terms of section 21A(1) of the Supreme
Court Act.
Pypers and others v Odendaal Summerton Incorporated and another
[2014] JOL 31355 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A 733 / 12
19 / 07 / 2013
South Africa
High Court
North Gauteng, Pretoria
MJ Teffo J, J Baloyi AJ
Civil procedure – Withdrawn appeal – Interim applications – Entitlement to costs
Mini Summary:
The appellants had applied for rescission of a judgment. The dismissal of that application led to their filing an appeal. They later withdrew the appeal. The court was now required to determine whether the respondents were entitled to the costs of two applications which they had filed prior to the appeal hearing, now that the appeal had been withdrawn.
Held that the two applications were respectively an application to declare the appeal invalid and an application to strike the appeal from the roll. Based on the facts, the court was of the view that the respondents were correct to bring the application to declare the appeal invalid before a single judge and not wait for the date of the appeal hearing. The aim was to dispose of the matter even before the appeal could be set down. The reasons for launching the application were that the application only dealt with procedural aspects of prosecuting the appeal. The step was prompted by the failure of the defendants to comply with the court rules. The court also found that it was proper for the respondents to also bring an

application to strike the appeal off the roll. The respondents were therefore entitled to the costs of both applications.
Malatji and another v Standard Bank of South Africa
[2014] JOL 31356 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
77215 / 2009
26 / 07 / 2013
South Africa
High Court
North Gauteng, Pretoria
Pretorius J
Keywords:
Civil procedure – Leave to appeal – Whether order was appealable
Mini Summary:
The applicants sought leave to appeal against an order directing the first applicant to comply with the provisions of section 129(1) of the National Credit Act 34 of 2005, and ordering the respondent to enrol the application within 30 days after the first respondent had complied with the provisions of section
129(1) of the National Credit Act.
A point in limine was raised by the respondent that the order of 24 May 2013 is an interlocutory order and therefore cannot be appealed.
Held that section 20 (1) of the Supreme Court Act 59 of 1959 provides that an appeal from a judgment or order of the court of a provincial or local division in any civil proceedings or against any judgment or order of such a court given on appeal shall be heard by the appellate division or a full court, as the case may be.
The order in this case did not finalise the matter in any way, and was therefore not appealable.
The application was dismissed.
Heafield & others v Rodel Financial Services (Pty) Ltd
[2012] JOL 28710 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 5038 / 2010
03 / 03 / 2011
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener, JP Horn, M Victor JJ
Keywords:
Civil procedure – Appeal – Doctrine of peremption
Mini Summary:
The parties were in dispute over the enforcement of a suretyship. The court below held that a particular clause in the agreement had been inserted for the exclusive benefit of the respondent who could and did waive compliance therewith resulting in the suretyship being enforceable. Subsequent to the Court a quo granting judgment in favour of the respondent and subsequent to an application for leave to appeal being filed, the appellants’ attorney wrote a letter to the respondent, in essence offering to settle the judgment debt.
Held that the letter referred to above was inconsistent with a continued intention to exercise the right to appeal. However, the appellant persisted with their application for leave to appeal. A person who has acquiesced in a judgment cannot thereafter appeal from it – the right of appeal is said to be perempted.
There must be conduct leading to the clear conclusion of an intention not to assail the judgment and the onus of proof rests on the person alleging acquiescence. Those requirements being met in this case, the appeal fell to be dismissed.
Clear Enterprises (Pty) Ltd v Commissioner, SARS & others
[2011] JOL 27974 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
757 / 10
29 / 09 / 2011
South Africa
Supreme Court of Appeal

Bench:
Keywords:
VM Ponnan, A Cachalia, LE Leach, MJD Wallis JJA, XM Petse AJA
Civil procedure – Appeal – Whether appeal and any order made therein would, within the meaning of section 21A of the Supreme Court Act, have any practical effect or result – Where no live issue existed and relief would have no practical effect, appeal struck from roll – Courts – Courts should not decide issues which are purely of academic interest – Where order sought could have no practical effect or result, appeal struck from roll – Property – Possession – Voluntary surrender of possession terminating jus retentionis
Mini Summary:
The Court provided its reasons for having struck the present appeal off the roll in terms of section 21A of the Supreme Court Act 59 of 1959.
In 2008, an employee of the first respondent detained three trucks belonging to the appellant. In so doing, the employee purported to act in terms of section 88(1)(a) read with section 87 of the Customs and Excise Act 91 of 1964. Section 87(1) expressly provides that goods imported or otherwise dealt with contrary to the provisions of the Act are liable to forfeiture no matter where and in whose possession they are found.
The appellant brought two applications in the high court, seeking, inter alia, a declaratory that the detention of the trucks was unlawful. Although the applications were dismissed, leave to appeal to the present court was granted.
The parties were in dispute as to the reasons for the trucks’ presence in South Africa. The appellant alleged that the trucks were imported into Botswana where its business was based, after landing in
Durban. It alleged that its trucks entered South Africa from time to time, and despite not necessarily always being required, permits in accordance with the provisions of section 31 of the Cross-Border Road
Transport 4 of 1998 were also obtained in respect of such trucks.
However, the first respondent’s employee argued that the appellant’s explanation and justification for the presence of the trucks in South Africa was fictional. He claimed that the explanation advanced by the appellant was a subterfuge designed to conceal a scam to import used trucks into South Africa in breach of the provisions of both the Customs and Excise Act 91 of 1964 and the International Trade
Administration Act 71 of 2002. The appellant was accused of importing the trucks were into South Africa without the provisions of the latter two Acts being complied with and for the purpose of avoiding the payment of duty.
In October 2007 all three of the trucks were seized by the fourth respondent (“ITAC”) in terms of section
4(1)(g) of the International Trade Administration Act from an employee of the first respondent. The seizure by ITAC predated the filing of replying affidavits by the appellant in the two applications.
Held that when the matter was argued before the high court, neither the parties nor the court below appeared to appreciate that the dispute which occupied them might no longer be an existing or live one.
After the seizure of the vehicles by ITAC, the primary relief initially sought by the appellant, namely, the return of the vehicles, had become academic. The present court therefore called for argument on whether the appeal and any order made therein would within the meaning of section 21A of the Supreme Court
Act, have any practical effect or result. The parties contended that, notwithstanding the fact that the primary relief could no longer be granted, the Court should nonetheless entertain the appeal. The first reason for that submission was that there were a number of other pending matters in which similar questions of law were required to be determined. Secondly, it was argued that should the appellant in due course succeed in the pending review application against ITAC in the high court the judgment would be meaningless should this court not hand down a judgment in this appeal, as the seizure of the trucks would then simply stand.
The second point was summarily dismissed. The first respondent’s employees who had possession of the three vehicles had voluntarily parted with such possession on being served with a seizure notice by ITAC.
The first respondent’s jus retentionis thus terminated with that loss of possession. If in due course the seizure by ITAC was set aside by the high court in the pending application, possession of the vehicles would not, without more, revert to the commissioner. That disposed of the second issue.
On the first submission, the Court pointed out that not all the pending cases relied upon by the appellant involved the same parties. To the extent that they concerned different parties any declaratory order that issues could hardly be binding on those other parties. Moreover, each of the pending applications involved different vehicles. Whatever issues did arise in the pending matters, none of them were yet ripe for adjudication by this Court.
Courts should not decide issues which are purely of academic interest. Finding that no practical effect or result could be achieved in this case, the court struck the appeal from the roll.

Atkin v Botes
[2011] JOL 27733 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
566 / 10
09 / 09 / 2011
South Africa
Supreme Court of Appeal
TD Cloete, BJ van Heerden, LO Bosielo, WL Seriti JJA, Meer AJA
Keywords:
Civil procedure – Interim interdict – Granting of – Whether appealable – An interim interdict is appealable if it is final in effect and not susceptible to alteration by the court of first instance – The grant of an interim interdict may be challenged by a respondent, who is free to approach the court for an amelioration or setting aside of the interdict, with the result that it is not appealable
Mini Summary:
In 2009, the respondent was shot by the appellant. He sued for damages arising from the shooting. In
February 2010, at the respondent’s instance, the high court granted an urgent interim interdict restraining the appellant’s attorneys from paying out the proceeds of the sale of the appellant’s house, and ordering them to instead invest such proceeds in a bank account. The interim order was subsequently confirmed, with leave to appeal to the present court being granted.
The factual basis for the court a quo’s granting of the interdict was its conclusion that the respondent’s apprehension that the appellant was dissipating his assets with the intention of defeating the claim for damages, was well-founded. That conclusion was sought to be challenged on appeal.
Responding to the Court’s request for heads of argument dealing with the appealability of the order, the appellant contended that the order was appealable, whilst the respondent contended that it was not.
Held that the refusal of an interim interdict was confirmed as being appealable in the case of Knox D'Arcy
Ltd & others v Jamieson & others 1996 (4) SA 348 (A). The Court also discussed, obiter, the position in regard to the grant of an interim interdict, which it held was distinguishable from the refusal of such an interdict. The explanation is that an order granting an interim interdict is an interlocutory order, with the result that there can be no appeal. The refusal of an interim interdict is final, and cannot be reversed on the same facts. By contrast, the grant of an interim interdict may be challenged by a respondent, who is free to approach the Court for an amelioration or setting aside of the interdict.
In Metlika Trading Ltd & others v Commissioner, South African Revenue Service 2005 (3) SA 1 (SCA) this
Court held that an interim interdict is appealable if it is final in effect and not susceptible to alteration by the Court of first instance. Thus, the crucial question in the present appeal was therefore whether the granting of the interim interdict was final in effect.
The Court pointed out that in this case, the appellant could approach the Court a quo for an amelioration or setting aside of the interdict because of the practical experience of its operation. According to the appellant, he was unemployed at the time the interdict was made final and he had sold his house to tide him and his dependants over until he obtained employment. He could show that the continued operation of the order would cause great hardship for him, his family, and his ex-wife and severely handicapped minor child whom he was obliged to maintain in terms of a court order. If so, he would be entitled to request the court a quo to reconsider the order and that court would be entitled to vary or even rescind it.
For that reason the order made in the interdict proceedings could not be said to have final effect. It was therefore not appealable. The appeal was struck from the roll.
Charlton v Parliament of the RSA
[2011] JOL 27799 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
680 / 2010
16 / 09 / 2011
South Africa
Supreme Court of Appeal
BJ van Heerden, FDJ Brand, MML Maya, NZ Mhlantla JJA, Meer AJA
Civil procedure – Exceptions – Dismissal of – Appealability – The dismissal of an exception is generally not appealable - the qualification to that general principle relating to exceptions going to jurisdiction – Words and phrases – “Judgment” and “order” – Section 20(1) of the Supreme Court Act 59 of 1959 – Decision must be final in effect and not susceptible to alteration by the court of first instance; it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings –

Mini Summary:
The appellant was the Chief Financial Officer to the respondent (parliament) until his purported dismissal on 13 January 2006, ostensibly on the grounds of work-related misconduct. However, the appellant contended that his dismissal was in actual fact motivated by the fact that he was a whistleblower in relation to fraud perpetrated by members of parliament in respect of claims for their travel benefits. He alleged that he first discovered an alleged improper travel benefits claim by a member of parliament in
2002. In the course of his investigations, he formed the view that the fraud had been perpetrated on a very large scale as hundreds of members of parliament were implicated. According to the appellant, he enjoyed the support of parliament in his pursuit and investigation of the travel fraud until April 2004, when a new secretary to parliament was appointed. From that point on, according to the appellant, parliament’s support for the investigation and pursuit of the travel fraud declined substantially.
On 18 November 2005, parliament suspended the appellant from his employment without any prior hearing. A disciplinary enquiry into the various charges of alleged misconduct against him was conducted between 12 and 21 December 2005. The disciplinary enquiry recommended his dismissal, and on 13
January 2006, the secretary to parliament accepted the recommendation and summarily dismissed the appellant.
Challenging his dismissal before the labour court, the appellant contended that his dismissal was automatically unfair and that it was substantively and procedurally unfair. Parliament excepted to the statement of claim on six grounds, but only two were pursued at the hearing. The labour court dismissed both exceptions, but the Labour Appeal Court upheld the exceptions previously dismissed by the labour court. The Labour Appeal Court made orders staying the proceedings under section 158(2)(a) of the
Labour Relations Act 66 of 1995 and referring the dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) for arbitration. The present appeal ensued.
The first exception related to the appellant’s first cause of action, ie that his dismissal was automatically unfair in terms of section 187(1)(h) of the Labour Relations Act because he was dismissed for having made protected disclosures as envisaged in the Protected Disclosures Act 26 of 2000 (“the PDA”).
Parliament submitted that, in order to enjoy the protection of the PDA, the disclosure by the employee concerned had to relate to conduct by his employer or by a co-employee. In terms of section 187(1)(h) of the Labour Relations Act, a dismissal is automatically unfair if the reason for the dismissal is a contravention of the PDA, by the employer, on account of an employee having made a protected disclosure defined in that Act. Exception A was to the effect that members of Parliament are neither employees nor employers for purposes of the PDA; that the appellant did not enjoy protection under the
PDA when he made disclosures about their conduct; that his dismissal was accordingly not automatically unfair in terms of section 187(1)(h) and hence that the first claim disclosed no cause of action.
Held that the issue of the appealability of the labour court’s dismissal of the first exception was wrongly dealt with by the Labour Appeal Court which failed to appreciate that it is established law that the dismissal of an exception is generally not appealable. The qualification to that general principle relates to exceptions going to jurisdiction.
It is established practice that exceptions are dealt with in the labour court and the Labour Appeal Court in the same manner as in the high court. In terms of section 20(1) of the Supreme Court Act 59 of 1959, only judgments and orders (and not mere rulings) are appealable. The test for what is meant by a judgment or order is that the decision must be final in effect and not susceptible to alteration by the court of first instance; it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. Because the order is not final in effect in that there is nothing to prevent the aggrieved party from raising and arguing the same issue at the trial, the dismissal of an exception is not appealable. Accordingly, leave to appeal against the dismissal of the first exception should not have been given by the labour court and the Labour Appeal
Court ought simply to have struck parliament’s appeal in respect of the first exception from the roll. In that regard, the appeal had to succeed.
The remaining exception related to the appellant’s fourth and fifth causes of action, in which the appellant alleged that his dismissal was substantively and procedurally unfair. These were the ordinary unfair dismissal claims, as opposed to the automatically unfair dismissal claims. Parliament submitted that the said claims had to be resolved through arbitration in the CCMA and not through adjudication in the labour court. Therefore, it was argued, the labour court lacked jurisdiction to entertain the matter. As indicated above, the qualification to the general principle that the dismissal of an exception is generally not appealable, relates to exceptions going to jurisdiction. In this case, however, in dealing with this exception, the labour court did not in fact decide on the issue of jurisdiction. The Labour Appeal Court thus clearly erred in holding that the labour court in dismissing the exception, made a finding that it had jurisdiction. The labour court made no such finding. As there was no final judgment or order on this exception, no appeal could arise in relation thereto. Here too, the Labour Appeal Court ought to have struck the matter from the roll.
The appeal was upheld with costs.

Minister of Safety and Security A O v Mhlana 2011 (1) SACR 63 (WCC)
The respondent was awarded R50 000 damages for unlawful arrest and detention, arising from an altercation with a municipal traffic officer. The appellants appealed against the award, while the respondent cross-appealed against the upholding of the appellants' special plea, that, since the traffic officer was not their employee, they should not have been joined in the second part of his claim, which was for malicious prosecution.
Held , that the magistrate had correctly found that the evidence given by the traffic officer and the arresting police officer established the probability that the respondent had indeed assaulted the traffic officer. Their testimony had withstood rigorous cross-examination, unlike that of the respondent, which was at times evasive and aggressive. Section 40(1)
(a) of the Criminal Procedure Act 51 of 1977 authorised a peace officer to arrest, without a C warrant, a person who committed or attempted to commit a crime in his presence. All that was necessary for reliance on s 40(1) (a) was observance of behaviour which was prima facie criminal, and it could not be doubted that the police officer had honestly and reasonably come to the conclusion that the respondent was committing a crime in his presence. In order for a peace officer to rely on s 40(1) (a) it was not necessary that a crime in fact be committed, or that the arrested person be later charged and convicted of the suspected offence. In casu the arresting officer had observed what he considered to be riotous behaviour and assault, and the fact, that the respondent's behaviour might not have complied with the requirements for a charge of riotous behaviour, did not deprive him of reliance on s 40(1) (a) . In addition, the magistrate had erred in distinguishing between an unlawful arrest for riotous behaviour on the one hand, and a lawful arrest for assault on the other. Accordingly, the respondent's arrest had been lawful.
Held , further, regarding the cross-appeal, that the special plea had been correctly upheld.
The respondent ought to have instituted malicious prosecution procedures against the traffic officer's employer, a municipality, and not against the first appellant. In any event, the prosecution could not, in all the circumstances, be viewed as malicious. Appeal upheld with costs. Cross-appeal dismissed with costs.
Case Information - Appeal against an order and award for unlawful arrest. Cross-appeal against the upholding of a special plea. The facts appear from the judgment of Meer J, in which Koen AJ concurred.
Alves v LOM Business Solutions (Pty) Ltd & another
[2011] JOL 27743 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 21956
09 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
NP Willis J
Keywords:
Delict – Claim for damages – Delay in preparing appeal record
Mini Summary:
The plaintiff was convicted of attempted murder after he and his friends assaulted a black man they happened across after a party, in an apparently racially motivated incident. Leave to appeal was granted and on appeal, the conviction and sentence were set aside.
In the present action, the plaintiff claimed damages from the defendants, alleging that they were negligent in preparing the transcript for his appeal hearing resulting in his having to spend a further,

unnecessary period of incarceration. He claimed R3.65 million as general damages and R153 800 for loss of income.
Held that the evidence showed that the first respondent could not be held responsible for any delays in transcribing the record. Some of the delays were attributable to the tracking down of missing documentary exhibits. The Court found that the first defendant had been diligent in attempting to track down such documents.
The second respondent began its case by arguing that the first respondent’s predecessor had not been joined in the case. The Court dismissed the non-joinder objection on the ground that it was raised late and that the party sought to be joined did not have a substantial interest in the matter.
On the merits, the second respondent conceded that it owed a duty to appellants in the position of the plaintiff to ensure that records were prepared for the hearing of an appeal within a reasonable time.
In terms of section 34 of the Constitution, everyone has a right to access to the courts; and in terms of section 35 the right to challenge the lawfulness of one’s detention and a right of appeal. These constitutional rights cannot be rendered nugatory by unreasonable delays in the offices for which the second defendant is responsible.
To found a claim of damages, there must be a causal connection between the unlawful and negligent conduct complained of, and the harm which is alleged to have ensued. The element of causation involves two distinct enquiries. First, in regard to the issue of factual causation, it must be determined whether or not the postulated cause can be identified as the sine qua non of the loss in question. Secondly, if factual causation has been established, it must be determined whether the wrongful act is linked sufficiently closely to the loss concerned for liability to ensue.
The Court found that the failure of the Department of Justice and Constitutional Development to ensure that the plaintiff’s record of proceedings was prepared within a reasonable time for the appeal hearing to have taken place should result in an award of damages. An amount of R350 000 plus interest was awarded.
Persadh v Ouderajh & others
[2010] JOL 26463 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6396 / 10
19 / 11 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Ngwenya AJ
Keywords:
Civil procedure – Leave to appeal – Application for interdict
Mini Summary:
The applicant sought leave to appeal against the court’s judgment, and applied for an interdict against the execution of that judgment pending the applicant exhausting all legal remedies available to him in an attempt to overturn the judgment.
Held that a court dealing with an application for leave to appeal is not sitting as a review court over its own judgment. As long as the applicant can show that there are reasonable prospects of success, leave should be granted. In assessing the application, the court must diligently evaluate the facts placed before it. It must always be borne in mind that part of assessing the issues at hand, is the consideration of where the appeal should lie.
In this matter, what fell to be decided was not an intricate legal principle, but the assessment of facts at hand. The enquiry therefore restricted itself to whether another court might come to the conclusion that the applicant should be given an opportunity to present oral evidence.
The granting of an interdict is a matter for discretion by the court. The court found that the applicant had not established a right to the relief sought, and dismissed the applications.
Senwes Ltd v The Competition Commission of South Africa
[2010] JOL 25499 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
87/CAC/Feb09
03/ 02 /2010
South Africa
High Court
Western Cape, Cape Town
DM Davis JP; Mailula, Malan JJA

Competition Law – Appeal – Application for leave to appeal to the Supreme Court of Appeal against an order of the Western Cape High Court – Requirements for leave must meet the test for special leave, for appeals of both technical and substantive issues– Competition Law – Appeal – Expertise into the reasonable reader of pleadings – Impact of experienced and knowledgeable counsel – Consequence of choosing own defence– Competition Law – Appeal – No fundamental disregard of due process requirements – Evidence to support the conviction of margin squeeze is not manifestly inadequate – Facts of the case are decisive – Test for special leave is not met – Appeal dismissed
Mini Summary:
This is an application for leave to appeal to the Supreme Court of Appeal ("SCA") against an order of the
Western Cape High Court (the "Court") upholding a decision originally made by the Competition Tribunal
(the "Tribunal").
The reasons for appeal are twofold. Firstly, it was stated that the decision of the Tribunal and Court disregarded the requirements of due process in a fundamental manner. Secondly, it was alleged that the evidence supporting the conviction of margin squeeze was so manifestly inadequate that a court of appeal would conclude that no such case had been made out against the appellant.
The appellant alleged that the Court incorrectly balanced the inquisitorial powers granted to the Tribunal against the principles of due process, thus subverting the foundational constitutional principle of due process.
As such, it was argued that the need for appeal was due to the failure by the respondent to frame the complaint and pleadings with sufficient specificity, so as to allow the appellant to be properly appraised of the case before it, and thereafter to respond appropriately to the allegations in accordance with its rights of due process.
Held that it is trite law that the requirements for leave must meet the test for special leave. The Court confirmed that special leave is dependent upon (i) reasonable prospects of success; (ii) the existence of special circumstances before an appeal is permitted before the SCA; and (iii) objectively viewed, the matter must be important for both the parties and public interest.
Held further that the test for special leave is due to the SCA's role as an appellate body capable of hearing appeals from specialist courts (eg the Competition Appeal Court). Furthermore, application of this test prevents the unconscionable delay in expeditious dispute resolution, which is consistent with the interests of justice, public interest and upholding the justified objects of statute.
Held further that the Court denied the allegation that it opposes appeals on technical issues. It stated that all applications for leave, whether for technical or substantive issues, must be dealt with in terms of the test for special leave. Whether the case viewed holistically meets the test depends on the facts.
Held further that the concept of margin squeeze does not expressly appear in the Competition Act 89 of
1998 (the "Act"), but the wide definition of "exclusionary acts" indicates that the concept will implicitly form part of section 8 of the Act.
Held further that after examination of the principle judgment, the Court concurred that the appellant was dominant in the upstream market and it supplied storage, a key input, in the downstream market. It charged differential prices for this service, which had an effect on the ability of firms to compete with it in the downstream market. This conduct is consistent with Professor Whish's definition of margin squeeze.
Held further that careful reading of the particular pleadings would have alerted any person qualified in competition law to the fact that the complaint was one of margin squeeze. This is reiterated by the very experienced and extremely knowledgeable counsel charged with advising the appellant. If this was not the case, perhaps the constitutional arguments may have found application. However, the case was judged purely and exclusively on the facts as presented before this Court.
Held further that there was more than sufficient evidence adduced by the respondent to prove the existence of margin squeeze.
Held further that the appellant chose to conduct a particular defense which resulted in adverse judgment. It is not the duty of the Court to grant the appellant a second opportunity to reargue the entire case due to an incorrect defense choice.
Held further that the due process rights of the appellant have not been compromised. To allow otherwise, would permit the arguments that ignorance of the law or risky litigation choices result in the disregard of due process rights. This cannot be a conclusion justified on the facts.
Held further that the test for special leave cannot be met on the facts of the case, which are ultimately decisive. Application for leave to appeal to the SCA is dismissed, together with costs.
Minister of Safety & Security & others v Mohamed & another
[2011] JOL 27875 (SCA)
Case Number:
Judgment Date:
598 / 10
21 / 09 / 2011

Country:
Jurisdiction:
Division:
Bench:
Keywords:
South Africa
Supreme Court of Appeal
S Snyders, MS Navsa, JA Heher, A Cachalia JJA, CM Plasket AJA
Criminal procedure – Appeal – Restricted leave to appeal – Where leave to appeal was granted in respect of a single issue, High Court wrong in extending grounds to consider other issues – Criminal procedure –
Search warrant – Validity of – Starting point in a consideration of the validity of warrant is to establish whether the warrant complied with sections 20 and 21 of the Criminal Procedure Act 51 of 1977 – Court disagreeing with High Court finding that warrant was overly broad and that the Magistrate who issued it did not apply his mind
Mini Summary:
The respondents, who occupied premises where the second appellant conducted a search and made seizures in terms of a warrant granted by the third appellant (“the magistrate”), successfully applied to the court of first instance for an order setting aside the warrant and for the return of all the items seized.
In challenging the validity of the warrant, the respondents raised a number of grounds which were then not pursued before the court of first instance. A completely different point, not adumbrated in any of the affidavits, arose before the court.
By the time the matter was heard by the court of first instance, nobody had included a record of the proceedings before the Magistrate in the papers. The first appellant (“the minister”) and the second appellant placed before the court, a copy of the affidavit by the latter that served before the magistrate.
Although the essence of the allegations made in that affidavit was repeated by the second appellant in the answering affidavit, it was not attached to the papers because the second appellant alleged that it contained sensitive information that would adversely affect his investigation if made public. The copy sought to be introduced was unsigned and unattested, leading to an objection that there was no compliance with section 21(1) of the Criminal Procedure Act 51 of 1977 (“the Act”) because what served before the Magistrate was not information on oath. To overcome that, the first two appellants offered to make the original affidavit available to the judge, but that was objected to by the respondents and refused by the judge.
Despite the Magistrate having stated on oath that he granted the warrant in terms of the provisions of sections 20 and 21(1) after having had regard to an affidavit placed before him, deposed to by the second appellant, the court of first instance ruled that the Magistrate had “based his belief on a document which he mistakenly believed to be an affidavit”, that it was not proper for him to have granted the warrant and that he acted contrary to the provisions of the enabling statute. The negative implications for the
Magistrate’s professional conduct led to his joining the other appellants in seeking leave to appeal to the court a quo. Leave to appeal was granted, in respect of the issue of whether the Magistrate’s decision to issue the warrant was based on an affidavit or a mere document.
The full court was divided as to the merits of the appeal. The majority was of the opinion that the warrant was overbroad in its terms, and that the Magistrate had not exercised his mind in granting the warrant.
The present appeal was against that decision.
Held that the approach of the majority of the court a quo contained at least two fundamental errors, one relating to the procedure and the other to the principles applicable to search warrants.
The first error concerned the grounds of appeal. Leave to appeal was granted in respect of one issue alone, as referred to above. However, the majority in the court a quo raised various other issues mero
motu. An appellant has no right to argue matters not covered by the terms of the leave granted. While the present court had jurisdiction to extend the grounds on which leave to appeal was granted, the court a
quo had no such jurisdiction.
Although the above finding rendered it unnecessary to decide any further issue, the judgment of the majority on the search warrant revealed so clear a departure from established principles as to require this
Court to ensure that it would not in future serve as authority for the reasoning contained therein.
Search warrants are statutory creations designed to assist the state in its fight against crime. Because of the impact it has on an individual’s right to privacy, it is necessary to strike a balance between the interests of the state and that of the individual. The investigating directorate is required to place before a judicial officer an adequate and objective basis to justify the infringement of the important right to privacy. The legislation sets up an objective standard that must be met prior to the violation of the right, thus ensuring that search and seizure powers will only be exercised where there are sufficient reasons for doing so. These provisions thus strike a balance between the need for search and seizure powers and the right to privacy of individuals.
The starting point in a consideration of the validity of the warrant was to establish whether the warrant complied with sections 20 and 21 of the Act. The information placed before the Magistrate by the second appellant, that motivated the granting of the warrant, pointed to evidence of the respondents being involved in terrorist activity. The objective standard of proof set in the Act, together with the judicial

oversight, were important requirements that were duly satisfied. Having regard to the facts, the majority in the court a quo was wrong in their conclusion that the warrant was overly broad and that the Magistrate did not apply his mind.
The appeal was upheld with costs.
Ravfin 1 (Pty) Ltd v The Dunes Partnership
[2011] JOL 27801 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Jurisdiction – Appeal
A 739 / 2010
14 / 09 / 2011
South Africa
High Court
Western Cape, Cape Town
PB Fourie J, JI Cloete AJ
Mini Summary:
The appellant had instituted action against the respondent in the magistrate's court in respect of various claims relating to the payment of estate agent's commission. The issue of jurisdiction was contended, and the parties agreed that it would be dealt with as a special plea.
The evidence and argument centred around whether the court a quo had jurisdiction on the basis that the respondent was carrying on business within the area of the court’s jurisdiction.
Held that before dealing with the merits of the appeal it was necessary to consider the appellant's two applications for condonation. The first application related to non-compliance with rule 50(4)(a) as to the period within which the appellant should have applied for a date for the hearing of the appeal, coupled with a prayer that the appeal be reinstated. The second application related to non-compliance with rule
50(9) as to the time period within which the appellant should have filed its heads of argument. Our courts have refrained from attempting to formulate any comprehensive definition of what constitutes good or sufficient cause for the granting of condonation of procedural shortcomings in appeals. The overriding consideration is that the matter rests in the judicial discretion of the court, to be exercised with regard to all the circumstances of the case. The Court formed the view that both applications for condonation should be granted, but it made an appropriate costs order against the appellant's instructing attorneys as a mark of its displeasure.
Turning to the merits of the appeal, the court held that jurisdictional requirements are set out in section
28 of the Magistrate's Court Act 32 of 1944.
Having regard to the facts, the Court concluded that at the time when the appellant instituted action against the respondent, the latter was conducting business within the area of jurisdiction of the court a quo as envisaged in section 28(1)(a) of the Act. The magistrate was thus wrong in deciding to the contrary. The appeal was upheld.
Lecuona v Property Emporium CC
[2010] JOL 25266 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7015 / 09
26 / 02 / 2010
South Africa
High Court
South Gauteng, Johannesburg
A Gautschi AJ
Keywords:
Civil procedure – Security for costs – Founding affidavit – Prima facie case
Mini Summary:
In terms of section 8 of the Close Corporations Act 69 of 1984, the applicant sought security for costs.

Held that a respondent, despite having filed an answering affidavit, may argue in limine that the founding affidavit does not make out a prima facie case for the relief sought. That is what the respondent did in this case. Affidavits in motion proceedings are a combination of pleadings and evidence and that they must therefore contain the factual averments, in the form of primary facts, necessary to support the cause of action or defence sought to be made out.
In the present case, the court was satisfied that the applicant had made out no case at all in its founding affidavit. Upholding the respondent's point in limine, the court dismissed the application.
South Central Investments 140 CC v JR Bester & Associates Inc & other
[2010] JOL 26008 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1451 / 08
26 / 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
M Makaula AJ
Keywords:
Civil procedure – Dispute – Referral to trial
Mini Summary:
The applicant sought an order that the respondent pay it R1 million, and interest.
In a counter-application, the respondent sought the joinder of the second to seventh respondents, and rectification of the agreement between the parties.
Held that the respondent was a firm of attorneys which had rendered services on behalf of the second to seventh applicants. It had effected transfer of certain properties as the representative of the applicant. In that regard, it had deducted an amount of R1 million in respect of its fees. The applicant contested the deduction.
The court found that the dispute regarding the liability for the fees claimed by the respondent could not be resolved on the papers. The matter was referred to trial, and the counter-application held to stand as a summons.
Bouwer Collins Insurance Brokers (Pty) Limited v Hopgood and another
[2014] JOL 32475 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2012 / 12
20 / 02 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
E Revelas J
Keywords:
Civil procedure – Amendment of particulars of claim – Time period – Application for extension
Mini Summary:
The respondents were the plaintiffs in the main action, and the applicant was the defendant. In those proceedings, the applicant successfully raised an exception to the respondents’ particulars of claim, and the respondents were ordered to remedy certain deficiencies in their particulars of claim within 15 days.
Their failure to comply with that order led to an application to dismiss their action. In a second application before the Court, the respondents sought an extension of the time period stipulated in the order.
Held that the respondents had delayed at every step of the proceedings. Were the Court to condone such conduct, the matter would only go to trial almost five years (at the very least) after the event which gave rise to the claim. A party seeking condonation, an indulgence, or an extension of a time period ordered by a court (as in the present case), must satisfy the court that it has a reasonable explanation for failing to comply with the time limits applicable. The two main considerations at play in considering whether good cause was shown in the circumstances referred to above, were the plaintiffs’ right to have the merits of their case tried in open court and the defendant’s right not to be unduly prejudiced by the delay. The

Court had to consider the nature of the relief sought, the extent and cause for the delay, the prejudice or effect of the delay or on the other litigants and the administration of justice, the reasonableness of the explanation for the delay and prospects of success of the matter. The Court did not agree with the respondents’ submission that they had good prospects of success on the merits, and found no grounds upon which to exercise its discretion in respondents’ favour.
The application for extension of the time period was dismissed, as was the respondents’ claim against the applicant.
Hemingways Shopping Centre (Pty) Ltd v PD Naidoo & Associates Consulting Engineering (Pty)
Ltd
[2012] JOL 28795 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2009 / 44089
30 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
Kathree-Setiloane J
Keywords:
Civil procedure – Discovery of documents – Application to compel
Mini Summary:
The applicant sough to compel the respondent to deliver the further particulars requested by the applicant, as well as the respondent’s notice in terms of rule 35(6) – setting out when certain documents might be inspected.
In response, the respondent contended that the relief sought in the notice of motion was not competent, as the manner in which the prayers were formulated constituted blanket orders. The respondent’s complaint was that the so called “blanket order” sought by the applicant in respect of the further particulars was aimed at depriving it of the opportunity to refuse to deliver the further particulars when it filed its answer, the effect being that the respondent would be in contempt of court should it refuse, even on proper grounds, to deliver the further particularity sought.
Held that rule 35(3) provides that if a party believes that in addition to those documents discovered, other documents and tape recordings exist, which may be relevant to any matter in question, that party may give notice to the other party to make the documents or tape recordings available for inspection in terms of rule 35(6), or to state on oath that such documents are not in his or her possession, within 10 days of the service of the notice. Rule 35(6) provides that a party may by notice require inspection of documents or tape recordings discovered. The party in receipt of the notice must respond, within five days of receipt of the notice, stating a time, within five days of receipt of the notice, when the requisite inspection can occur.
As the documents sought in this application were documents that had not been discovered by the respondent, the respondent had therefore to be given an opportunity, in terms of rule 35(3), to state on oath whether such documents were in its possession or not. The order sought by the applicant did not provide the respondent with such an opportunity. The respondent was ordered to deliver a reply to the applicant’s request for further particulars within 10 days of this order.
G Liviero & Son Building (Pty) Ltd v IFA Fair-Zim Hotel & Resort (Pty) Ltd: In re IFA Fair-Zim
Hotel & Resort (Pty) Ltd v G Liviero & Son Building (Pty) Ltd & another
[2010] JOL 25958 (KZP)
Case Number:
Judgment Date:
Country:
7802 / 09; 7803 / 09 In re 7434 / 09
27 / 08 / 2010
South Africa

Jurisdiction:
Division:
Bench:
High Court
KwaZulu-Natal, Pietermaritzburg
TA Sishi J
Keywords:
Civil procedure – Provisional sentence – Interdict – Further affidavits – Leave to file – Application to strike out – Hearsay evidence
Mini Summary:
In the first two cases before the court, plaintiff sued the defendant for provisional sentence on two interim payment certificates issued in term of a building contract by the principal agent. The defendant contended that the plaintiff sought to obtain payment in circumstances where it had no right to do so because it knew that the two certificates had been issued otherwise than in accordance with the provisions of the principal building contract and as such were invalid.
In the third application, the applicant (the employer in terms of a building contract) sought to interdict the first respondent, the main contractor on the project, from claiming payment in terms of two guarantees issues by the second respondent.
The court was also required to deal with two preliminary applications. The first was the application for leave to file further affidavits in the matters. And the second was an application to strike out certain allegations contained in an affidavit in the provisional sentence proceedings.
Held that as the applicant had advanced good reasons why the further affidavits should be filed at this stage and provided a satisfactory explanation for the lateness, the first preliminary application was granted.
In considering the application to strike out, the court expounded on the admissibility of hearsay evidence
(as contained in the impugned affidavit). It set out the law in that regard, and concluded that the hearsay evidence should not be allowed. The application to strike out was granted.
The next aspect considered was the provisional sentence proceedings. The test as to when provisional sentence should be granted is that – where, as in the present instance, the plaintiff sues for provisional sentence on an illiquid document - the court will ordinarily grant provisional sentence unless the defendant produces such counter proof as it would satisfy the court that the probability of success in principle case is against the plaintiff. The defendant must show on a preponderance of probabilities that it has a valid defence in law. In this case, such onus was not discharged, and provisional sentence was granted.
Flowing from the findings in the provisional sentence application, the court dismissed the application for an interdict.
Pierce v Padongeluk Fonds
[2010] JOL 26493 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
21591 / 08
08 / 11 / 2010
South Africa
High Court
North Gauteng, Pretoria
C Pretorius J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Contributory negligence
– Apportionment of damages
Mini Summary:
The plaintiff sustained personal injuries in a motor vehicle accident, and sued the defendant fund for damages. The only issue in dispute was whether the plaintiff or the insured driver was negligent, and if the insured driver was negligent, whether there was contributory negligence on the part of the plaintiff.
Held that the evidence showed that the plaintiff had been driving at an excessive speed at a time when his vision was impaired by the bright lights of an approaching vehicle. However, the negligence of the insured driver was far worse.
The court apportioned blame as 15% to the plaintiff and 85% to the insured driver.

FLSmidth (Pty) Limited v Racec Rail (Pty) Limited and others
[2014] JOL 32039 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
22914 / 2013
04 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Mayat J
Keywords:
Contract – Arbitration agreement – Repudiation of – Test for repudiation – Cancellation of agreement
Mini Summary:
The applicant (“FLS”) was a provider of engineered solutions, equipment and systems for processing minerals, mainly in the mining industry. The first respondent (“Racec”) was subcontracted by FLS to install railway infrastructure in relation to a project in the North West Province. The second respondent represented Racec in arbitration proceedings relating to a dispute between Racec and FLS. The third respondent was appointed as the arbitrator of the dispute.
In the present application, FLS sought a declaration that the arbitration agreement had been repudiated by Racec and cancelled by FLS.
The factual background to the dispute was as follows. In November 2009, FLS was contracted by a company to install a rail infrastructure. FLS sub-contracted the work to Racec. The contractual relationship between FLS and Racec was governed by the terms stipulated in the purchase order provided by FLS.
After completion of the installation in terms of the purchase order, Racec claimed an additional payment of
R2 526 972,56 from FLS, apparently on the basis of a variation to the purchase order allegedly due to the failure of FLS to provide access to works.
Held that the main issue was whether FLS had validly cancelled the agreement between the parties, pursuant to the averred repudiation of the said agreement by Racec.
It was found that the parties had varied the arbitration agreement to include a term regarding the requirement that Racec be represented by attorneys in the arbitration proceedings. Racec disputed that such requirement was a precondition to the arbitration. The test to determine whether Racec’s volte face relating to the appointment of an attorney constituted a repudiation of the arbitration agreement, was an objective one. The court had to determine whether, fairly interpreted, Racec’s conduct exhibited a deliberate and unequivocal intention no longer to be bound by the arbitration agreement, incorporating the additional term. It was found that Racec did indeed repudiate the arbitration agreement, which was thereafter validly cancelled by FLS. A declaratory order to that effect was issued.
Mzingisi Development Trust & others v Nelson Mandela Metropolitan Municipality
[2010] JOL 26113 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Costs – Liability for
939 / 10
17 / 08 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Mini Summary:
The first applicant was a trust, established as a community based trust having as its principle purpose community led development and large scale housing and other development projects in and around Port
Elizabeth. The remaining applicants were trustees in the trust. They launched an application against the respondent for a variety of relief all of which had its foundation in a Land Availability and Services
Agreement concluded between the applicants and the respondent. all the relief having been conceded by the respondent, the court had only to decide on the issue of costs.
Held that in terms of the agreement between the parties, the applicants had irrevocably bound themselves to have disputes of this nature decided on arbitration. They were therefore not entitled to approach the court.
Each party was ordered to pay its own costs.

Ndlambe Municipality v Lester & others
[2012] JOL 29036 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
92 / 2011
03 / 05 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
Alkema J
Keywords:
Administrative law – Building plans – Approval of– Neighbour law – Obstruction of view – Height restrictions – Violation of – Demolition order
Mini Summary:
The first respondent was the owner of property on which he has constructed a residential dwelling. The third respondent was the owner of the neighbouring property. Both properties were situated within the applicant’s municipal area.
At some point after the first respondent took ownership of his property, he erected a second home on the property. the second respondent objected to the building. Undeterred, the first respondent continued with the building operations pending the outcome of the objection. The second respondent then successfully applied for an interdict against continued building operations pending the outcome of review proceedings.
The first respondent obtained amended plans which addressed the prohibition against the “double
residence” restriction. Those plans were approved in November 2002. However, the first respondent then decided not to proceed with the construction under the said plans, but to construct a different building. He obtained the applicant’s approval of plans for the new building, but when the second respondent realised that the November 2002 plans were departed from, he brought a second application for the review of the plans. By then, the construction of the new dwelling was almost complete. The review court set aside the approval of the plans, but the applicant then approved the plans, conditionally. That led to a third application for review. By agreement between the parties, the plans were again set aside and referred back to the applicant to reconsider approval afresh. The applicant once again approved the plans. In a fourth review application, the Court not only set aside the approval, but made an order that the plans not be approved. The first respondent was required to submit revised plans, which he did. But as the height restrictions now in place were still exceeded the applicant refused to approve the plans. The present application was for the demolition of the buildings.
Held that in terms of the first set of plans, a partial obscuring of the second respondent’s view was to be partially obscured. However, on the next set of plans, the entire view from second respondent’s property was obscured. The eventual building had a roof height which exceeded that shown in either set of plans.
The dwelling required plans and specifications to be drawn and submitted in terms of section 4(1) of the
National Building Regulations and Building Standards Act 103 of 1977.
By virtue of the operation of the presumption of regularity, all administrative decisions remain valid and legal until it is set aside on review or appeal. The dwelling, both judicially and administratively, was an unlawful structure in terms of the Act, and in terms of section 21 thereof the applicant was entitled to an order authorising it to demolish such building. The next question was whether the Court on the facts of this case, had a discretion to issue a Demolition Order, or whether it was obliged to order demolition only if satisfied that the erection was contrary to or did not comply with the provisions of the Act or any approval or authorisation granted thereunder. In the exercise of the discretion in matters of Demolition
Orders, it is not only the usual considerations of equity which play a role, but it is also how the grant or refusal of a Demolition Order will accord with legal and public policy. The Court found that in all cases where a Demolition Order is sought, the Court retains a discretion. Such discretion is to be exercised judicially, that is to say in accordance with the disproportionality of prejudice test, having regard also to the dictates of legal and public policy.
Applying the disproportionality of prejudice test, the Court concluded that if a Demolition Order was granted, the obvious hardship and prejudice which the first respondent would suffer was not disproportionate to the prejudice which his neighbours, particularly the second respondent, would suffer if a Demolition Order was not made. A Demolition Order was thus granted.

Becker v Member of the Executive Council for the Department of Economic Development and
Environmental Affairs and others
[2014] JOL 31969 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3366 / 2013
24 / 06 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
G Goosen J
Keywords:
Civil procedure – Pleadings – Amendment of – Failure to object – Effect of
Mini Summary:
The applicant’s property sustained damage when a nearby river flooded. The Department of Water Affairs reported that the problem was caused by the diversion of water from the river. On learning of the report, the applicant applied in terms of section 18(1) of the Promotion of Access to Information Act 2 of 2000
(“the Act”), to the first, second and third respondents, requesting access to records relevant to the application to divert water into river’s catchment area. The dispute with the first and third respondents had been settled and the Court was concerned with only the third respondent, who had refused the applicant’s request.
The present application was to compel production of the requested information.
In its notice of motion the applicant sought orders for the production of the information only against the first and second respondents, although the terms of the notice of motion indicated that it sought a cost order against all of the respondents. On 17 January 2014, the applicant filed a notice of intention to amend its notice of motion to introduce reference to the third respondent. The respondents did nothing in response to that.
Shortly before the matter was to be heard the third respondent applied for condonation for the late filing of its heads of argument in which two points in limine were raised. The third respondent raised the legal argument in its heads of argument that the amendment was of no force and effect. It also raised another legal point relating to the alleged failure to comply with the provisions of the Act. The contention was that the applicant’s failure to file its amended notice of motion within the time period provided for in rule 28(5) had the effect that such amendment had lapsed and, accordingly, that on the notice of motion as it originally read, no substantive relief was sought against the third respondent.
Held that absent the delivery of amended pages pursuant to rule 28(5), there is in fact no amendment.
Accordingly, the failure to deliver an amendment within the stipulated time period cannot have the effect that such “amendment” lapses. Rule 28(5) confers on a party seeking to amend its pleadings a right to do so in the light of the absence of an objection and a deemed consent to such amendment. Where a party exercises the right to amend pursuant to no objection and a deemed consent, but does so outside of the time period stipulated in rule 28 (5), such step may constitute an irregular step. However, the third respondent did not react to the allegedly irregular filing of the amended notice of motion timeously and within the time periods provided for in rule 30.
Regarding the alleged failure to comply with the provisions of the Act, the Court pointed out that the application was not brought in terms of the latter Act, but in terms of the Promotion of Access to
Information Act.
The third respondent’s objections were dismissed and the application succeeded.
Van Der Merwe v Padongelukkefonds
[2014] JOL 32042 (FSB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Motor vehicle accidents – Claim for compensation – Negligence – Apportionment of blame
Mini Summary:
76 / 2012
06 / 02 / 2014
South Africa
High Court
Free State, Bloemfontein
MH Rampai AJP

The plaintiff was involved in a motor vehicle collision in January 2007, when he collided with another motorcycle whilst riding his own. He claimed compensation from the defendant, for injuries sustained in the accident.
Held that the issue to be determined centred on the issue of negligence, and particularly on who was the blame for the collision.
The onus of proof rested on the plaintiff to show, on a balance of probabilities, that the insured rider was negligent on one or more or all of the grounds as averred in the particulars of claim. Whether the plaintiff has discharged the onus of proof, and the assessment of the credibility of the witness will be inextricably bound up with the consideration of the probabilities of the case and if the balance of probabilities favours the plaintiff, then the Court would be inclined to accept his version as being probably true. Where, as in this case, there are two mutually destructive versions in a civil trial, the correct approach to be adopted in deciding the issue, is to determine which of the two versions is more probable than the other.
The essence of the plaintiff’s case was that the insured driver encroached on the plaintiff’s path of travel and was the cause of the collision. Evaluating the testimony of the various witnesses, the Court preferred that of the defendant’s witnesses. The court then considered whether the insured driver was negligent as alleged or at all, and if so whether his negligence caused the collision between his bike and that of the plaintiff.
The “reasonable person test” is used to assess the conduct of a road user. The Court set out that conduct expected of the prudent road user, and the obligations which apply to motorists. Against that backdrop, it was found that a reasonable and prudent rider would not have conducted himself in the way the plaintiff did prior to the collision. He did not keep a proper lookout, did not maintain a safe following distance, and did not take any evasive step to avoid the collision.
On the facts, both riders were to blame for the accident. However, the plaintiff’s negligence was the primary cause of the accident. The Court apportioned the blame at 60/40 in favour of the defendant.
Ramanzi v Pauer and others
[2015] JOL 32934 (LT)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
086 / 10
13 / 08 / 2014
South Africa
High Court
Limpopo Local Division, Thohoyandou
AML Phatudi J
Keywords:
Delict – Claim for damages – Arrest by police – Arrest without warrant – Lawfulness
Mini Summary:
In 2009, the first defendant, as a member of the South African Police Service, arrested the plaintiff. The issue to be decided by the Court at the present stage was the lawfulness of the arrest.
The arrest of the plaintiff occurred after a police detective called to a robbery, identified the plaintiff on video footage. Police informers confirmed that the plaintiff was involved in the robbery. The detective, harbouring a reasonable suspicion of the plaintiff’s commission of the offence, arrested the plaintiff without a warrant. The investigating officer tasked with the matter, received the file, together with a CD of the video footage referred to above. He handed the CD to the prosecuting authorities, but the CD was later lost.
Held that section 40(1)(b) of the Criminal Procedure Act 51 of 1977 provides for an arrest without a warrant by a peace officer where he harbours a reasonable suspicion that the person in question has committed an offence referred to in Schedule I to the Act. The test in formulating a suspicion is an objective one. The Court found that the test was satisfied, and that all the jurisdictional requirements for an arrest without a warrant had been met.
Concluding that the defendant had discharged the onus pf proving the lawfulness of the arrest, the court dismissed the plaintiff’s claim.

Minister of Police and another v Du Plessis
[2014] JOL 31560 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
666 / 2012
20 / 09 / 2013
South Africa
Supreme Court of Appeal
MS Navsa ADP, VM Ponnan, LO Bosielo, R Pillay JJA, Meyer AJA
Criminal procedure – Arrest and detention – Even where arrest was lawful, where police became aware within a few hours of the arrest that the arrestee had played no part in offence for which he had been arrested, further detention was unlawful – Criminal procedure – Detention of arrested person – Before the court makes a decision on the continued detention of an arrested person comes the decision of the prosecutor to charge such a person – Where prosecutor’s docket established that detainee was merely an innocent bystander and that there was no basis for prosecuting him, the decision to prosecute attracted an award of damages against the directorate of public prosecutions
Mini Summary:
On 28 February 2004, a robbery occurred at a logistics company (“the company”). The police had been tipped off about the robbery by an informant, and were aware of the vehicles to be used by the robbers.
On their way to the scene of the robbery, the police came across two vehicles, as described in the tip-off, seemingly abandoned in the vicinity of the company.
It appeared from the evidence before the Court that on the night of the robbery, one of the employees of the company had asked his uncle (“Bosch”) to transport him and some of his work colleagues to their places of employment in his panel van. After Bosch had dropped off the said passengers, his van broke down. He called the respondent, a motor mechanic, for assistance. The respondent was busy taking steps to tow the van when the police arrived at the scene. Despite his explanation about how and why he had arrived at the scene he was arrested by the police. He and Bosch were taken to a police station where they were held in appalling conditions until 2 March 2004 when they appeared in the Magistrates’ Court and, together with 15 others, were charged with armed robbery. The magistrate postponed the case for 7 days during which Bosch and Du Plessis were held at another police station in similar conditions. On 11
March 2004, the charges against the respondent were withdrawn. He instituted action against the Minister of Police (“the minister”) and the National Director of Public Prosecutions (‘NDPP”) for damages sustained as a result of what was alleged to be an unlawful arrest and detention. The trial court held that the arresting officer’s suspicions in the vicinity of the scene of the robbery were reasonable in respect of the arrest of both Bosch and the respondent, stating that at that stage there was evidence linking them to the robbery. However, the court stated that the police were required to apply themselves to whether or not it was justified to further detain the respondent once he had explained his presence at the scene. It found that his detention from about 2h00 on 29 February 2004 was unlawful. It awarded damages to the respondent. The minister and the NDPP appealed against that order.
Held that the police bear the onus to justify an arrest and detention. Our Constitution guards against intrusions upon personal liberty. Justification for the detention after an arrest until a first appearance in court continues to rest on the police. Thus, if shortly after an arrest, it becomes irrefutably clear to the police that the detainee is innocent, there would be no justification for continued detention.
In the present case, while a basis existed for the arrest, it was contended that a most cursory investigation by the police immediately thereafter would have resulted in them becoming aware of the respondent’s innocence, which should have led to his release. The respondent pleaded that the police owed him a legal duty and that in breach of that duty they failed to cause even the most perfunctory enquiries to have been made, which would have resulted in his release. The State contended that after his initial lawful arrest there was no duty on the police to consider whether the respondent’s further detention was justified. The evidence established that by 2:05am on 29 February 2004, the police were aware that the vehicle driven by the respondent bore no connection to the information provided by the informant. The respondent’s explanation for being present at the scene was corroborated by Bosch. Had the police properly considered all the information in their possession by that morning, they would have concluded that the respondent had played no part in the robbery. The first appellant’s case was therefore without merit.
The conclusion that the police were legally obliged to release the respondent before his appearance in court on the morning of 2 March 2004 had to negatively impact on the case for the NDPP. Once an arrestee is brought before a court, in terms of section 50 of the Criminal Procedure Act 51 of 1977, the police’s authority to detain, inherent in the power of arrest, is exhausted. Before the court makes a decision on the continued detention of an arrested person comes the decision of the prosecutor to charge such a person. A prosecutor has a duty not to act arbitrarily. A prosecutor exercises a discretion on the basis of the information before him. From all the information in the prosecutor’s docket it was clear that

the respondent was merely an innocent bystander and that there was no basis for prosecuting him. The decision to prosecute therefore rightly attracted an award of damages against the NDPP.
The appeal was accordingly dismissed.
MINISTER OF SAFETY AND SECURITY v KLEINHANS 2014 (1) SACR 613
(WCC)
The respondent instituted action in a magistrates' court against the appellant for general damages in the sum of R100 000, arising from his alleged unlawful arrest and detention by the police. The action arose from an incident in which the respondent was stopped by the police for having failed to obey a stop sign at an intersection with a national road. He alleged that he had stopped, but the police witnesses claimed that he had not. After stopping him, the police asked him to accompany them to the police station, as they wished to issue him with a fine and they did not have their fine book with them. He refused and made as if to drive away. The police reacted to prevent him from driving away, but he became aggressive and they restrained him and put him into the police van and took him to the police station where he was released 45 minutes later, after being issued with a fine. The magistrate found on the evidence that the respondent had committed the offence, but held that the trivial nature of the offence did not justify the arrest of the respondent, and found that the arresting officer had not exercised his discretion to arrest the respondent on a rational basis. The magistrate accordingly found in favour of the respondent and awarded him R60 000 in damages. On appeal,
Held, that the intention and conduct of the arresting officers were clearly aimed at bringing the respondent to justice and there was no room for the suggestion, given the particular circumstances of the case, that it was incumbent upon them to have first considered an alternative method of ensuring the respondent's attendance at court, before effecting the arrest. To view it differently would result in unintended consequence that might be open to serious abuse and possibly unethical behaviour.
The standard of rationality was not breached when officers exercised their discretion in a manner other than that deemed optimal by the court. The standard was not perfection or even the optimum, judged with the benefit of hindsight. (Paragraph
[21] at 619b–d.)
Held, further, that the more general purpose of an arrest was to bring the suspect to justice. That could be achieved in more than one way: the issuing of a
H written notice as contemplated in s 56 of the Criminal Procedure Act 51 of 1977 was one way, but in order for that method to be followed, peace officers needed to have the material to issue a notice in the form prescribed by that section. If, as in the present case, the peace officer did not have the necessary material, it was permissible for him to arrest the offender for the purpose of taking him to a police station so that a s
56 notice could be
I issued to him. The arrest in such a case still had the purpose of bringing the offender to justice. In the unusual circumstances of the case, the arresting of the respondent for the limited purpose of keeping him in custody until the notice could be issued was not unlawful. (Paragraph [26] at 620h–621c.) The appeal was upheld and the order of the court a quo was substituted with an order that the claim be dismissed with costs.
Case Information
Advocate O'Brien for the appellant.
TD Potgieter SC for the respondent.
Appeal from an award of damages in a magistrates' court for unlawful arrest

Reynolds & another v Minister of Safety & Security
[2011] JOL 26775 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5023 / 08; 5024 / 08
08 / 02 / 2011
South Africa
High Court
Western Cape, Cape Town
LJ Bozalek J
Keywords:
Delict – Claim for damages – Arrest and detention – Lawfulness
Mini Summary:
Two actions were consolidated for purposes of the present judgment. The first plaintiff was the second plaintiff’s mother. Both sued the defendant for damages arising from their alleged unlawful arrest and detention.
In July 2006, a domestic dispute between the first plaintiff and her husband (the complainant) led to the police arresting the first plaintiff. They also arrested the second plaintiff for allegedly obstructing them in the execution of their duties, more particularly for trying to prevent them from arresting the first plaintiff.
While the plaintiffs challenged the lawfulness of the arrests and detentions, the police defended their actions, claiming that the arrests and detentions were lawful.
Held that the court had to consider the jurisdictional requirements for a valid arrest in terms of section
40(1) of the Criminal Procedure Act 51 of 1977, the nature of the discretion to be exercised by the arresting officer and the onus of proof in such matters.
Once the jurisdictional facts for an arrest are present a discretion arises, since it is clear from the wording of the section that the officer is not obliged to effect an arrest. The court proceeded to analyse the nature of that discretion.
The jurisdictional facts required to be proved by the defendant in relation to the arrest of the first plaintiff were that the arrestor must have been a peace officer; the arrestor must have entertained a suspicion that the arrestee committed an act of domestic violence as contemplated in section 1 of the Domestic
Violence Act 1998 and that act had to constitute an offence in respect of which violence was an element; and the suspicion must have rested on reasonable grounds.
In the case of second plaintiff the jurisdictional facts were that the arrestor must have been a peace officer; and the arrestee must have been wilfully obstructing the arrestor in the execution of his duty.
The defendant was unsuccessful in establishing the relevant jurisdictional facts, and was accordingly held liable for the plaintiffs’ proven damages.
Minister of Safety and Security & another v Johannes Francois Swart
[2012] JOL 28772 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
194 / 11
22 / 03 / 2012
South Africa
Supreme Court of Appeal
Mthiyane DP, LO Bosielo, FDJ Brand, TD Cloete JJA, Ndita AJA
Keywords:
Criminal law – Arrest without warrant – Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 –
Jurisdictional facts which have to be present to justify an arrest without a warrant – Arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1 of Criminal Procedure Act 51 of 1977 – In absence of reasonable grounds for suspicion, arrest was unlawful
Mini Summary:
In May 2007, the second appellant (a police constable) arrested the respondent without a warrant, on suspicion of driving a motor vehicle on a public road whilst under the influence of intoxicating liquor. He was detained at the police station, but the criminal charges against him were withdrawn the next day after the tests revealed that his blood alcohol level at the time of driving was below the permissible legal limit.
The respondent then sued for damages arising from his unlawful arrest and detention. Although the trial court dismissed the claim, the respondent succeeded on appeal, where the high court awarded him damages in the amount of R50 000 plus interest and costs. The appellants appealed against that order.
The second appellant, and the police officer with whom he was doing patrols when they encountered the respondent, were colleagues of the respondent at the same police station. The respondent was their

senior, and it appeared to be common cause that the relationship between the respondent and the second appellant was stormy. On the day in question, the second appellant was flagged down by the respondent, whose vehicle had gone off the road. The arrest was effected after the second appellant detected alcohol on the respondent’s breath.
Held that the issues raised on appeal were whether, based on the facts known to the second appellant at the time when he observed the respondent at the scene, it could be found that the respondent was the driver of the vehicle that went off the road and whether the second appellant’s suspicion that the respondent was at the time under the influence of intoxicating liquor, was reasonable.
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 regulates arrest without a warrant by a police officer. The essential jurisdictional facts which have to be present to justify an arrest without a warrant are that the arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1. The essence of the dispute in this matter was whether the second appellant’s suspicion was based on reasonable grounds.
The key question was whether the mere smell of alcohol was sufficient to give rise to a reasonable suspicion on part of the second appellant that the respondent was under the influence of intoxicating liquor and that for that reason he could not drive a vehicle.
The onus rests on the arresting officer to prove the lawfulness of the arrest. The reasonableness of the suspicion of any arresting officer acting under section 40(1)(b) must be approached objectively. The question is whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a Schedule 1 offence.
The only evidence on which the second appellant decided to arrest the respondent, was the fact that he smelt of alcohol and that his vehicle had left the road and landed in a ditch. There was no evidence that the respondent was unsteady on his feet, that his speech was slurred, that he could not walk in a straight line or that his eyes were bloodshot. As the respondent had not behaved in a manner which suggested that he was drunk, the second appellant’s conclusion could not be regarded as reasonable. The arrest and detention were therefore unlawful.
In awarding the quantum of damages which it did, the high court committed no misdirection.
The appeal was accordingly dismissed with costs.
Sondag v Minister of Justice & Constitutional Development & another
[2010] JOL 26054 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1865 / 09
07 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
VS Notshe AJ
Keywords:
Delict – Claim for damages – Exception to claim – Vicarious liability
Mini Summary:
The plaintiff sued the defendant for damages arising from his alleged unlawful detention in prison. He alleged that despite being granted bail after his first appearance in court, the relevant officials failed to indicate in his detention warrant that bail had been granted.
The first defendant raised three exceptions to the claim. The first was that the first defendant was not liable for the actions of the magistrate in executing his judicial functions. For purposes of the judgment, this was the only relevant exception.
Held that vicarious liability is the strict liability of one person for the delict of another. Such liability arises when there is a particular relationship between two persons – such as employee-employer. When magistrates execute their judicial functions, they do not do so as employees of the first defendant. The latter was therefore not vicariously liable for the actions of the magistrate, and the first exception was upheld.
Mzileni v Minister of Safety & Security
[2010] JOL 26065 (ECM)
Case Number:
Judgment Date:
488 / 09
03 / 09 / 2009

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Eastern Cape, Mthatha
Miller J
Keywords:
Delict – Claim for damages – Unlawful arrest – Detention – claim for damages
Mini Summary:
The plaintiff sued the defendant for damages for unlawful arrest and detention and deprivation of liberty.
She testified that she had been visited by the police at her home, and informed that she had to accompany them to the police station as a certain police officer had a case against her.
Held that the court found the plaintiff not to be a satisfactory witness. Her description of the events surrounding the incident, and the duration of her stay at the police station did not add up.
Accepting certain aspects of the plaintiff's evidence, the court still found that the request by the police for the plaintiff to go to the police station did not in itself constitute an arrest or a deprivation of the plaintiff's freedom. However, the insistence by the police officers that the plaintiff immediately go with them in the police van to the police station was both unnecessary and unreasonable in the circumstances. By causing the plaintiff to get into the back of the police van the police officers assumed control over her movements and accordingly arrested her and deprived her of her freedom unlawfully.
The plaintiff was awarded R15 000 as damages.
Ziaur & another v Minister of Home Affairs & another; Matiwos v Minister of Home Affairs &
another
[2010] JOL 25923 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
687 / 10; 688 / 10
12 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
MR Madlanga AJ
Keywords:
Immigration – Deportation – Arrest and detention pending deportation – Lawfulness – Exercise of discretion
Mini Summary:
The applicants in each of the two cases before court were seeking their release from detention. They were detained pending their deportation to their countries of origin.
Held that the opposing affidavit filed by the Minister did not address an important question regarding the deprivation of liberty namely, must it always follow as a matter of course that somebody who has been refused asylum must be arrested and detained pending deportation?
The court did not agree with the above supposition. It held that there must still be a proper exercise of discretion on the question of whether or not there should be an arrest and detention prior to deporting.
The court emphasised that it was mindful of the risks associated with not detaining persons who are to be deported. However, it remained of the view that the lawfulness of the deprivation of liberty had to be established by showing that there was a proper exercise of discretion.
The applications were postponed, and the release of the applicants ordered, subject to their paying bail.
De Koker v Minister of Safety & Security
[2010] JOL 25954 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Arrest and detention – Unlawfulness – Claim for damages – Liability
Mini Summary:
5676 / 07
13 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J

The plaintiff claimed damages from the defendant for unlawful arrest and detention, which resulted in emotional shock and distress and for damages to his vehicle.
The background facts were as follows. The plaintiff had been driving with his son, his niece and her boyfriend, when he was approached at speed by another vehicle. That vehicle was joined by another, and the plaintiff, who thought he was being hijacked, was forced to stop. The vehicles were not marked as police vehicles, and the occupants were in civilian clothing. Police identification was only produced after the plaintiff had been forced to stop his vehicle. The officer informed the plaintiff that he was arresting him for drunken driving, despite the plaintiff informing him that he was a teetotaller. The plaintiff was arrested and detained, and charges were later withdrawn.
Held that the defendant bore the onus of proving the lawfulness of the arrest.
The court examined the conduct of the police officers during the incident, in order to determine if their conduct was reasonable. It found that the rejection of the plaintiff's explanation that he had not stopped when chased by the police, was due to the fact that he believed he was being hijacked, was not reasonable. The plaintiff's fear that he was being hijacked was a reasonable one caused by the actions of the police. Instead of apologising for the mutual misunderstanding triggered by their conduct and trying to remedy the damages, the police officers compounded their liability by arresting the plaintiff on a spurious suspicion of drunken driving. The conduct of the police was held to be unlawful, and the defendant was held liable for plaintiff's damages.
Malachi v Cape Dance Academy International (Pty) Ltd & others
[2010] JOL 25915 (CC)
Case Number: CCT 05 / 10
Judgment 24 / 08 / 2010
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Ngcobo CJ, Moseneke DCJ, Mogoeng, Cameron, Froneman, Jafta, Khampepe, Nkabinde,
Skweyiya, Van der Westhuizen, Yacoob JJ
Keywords:
Constitutional law – Arrest tanquam suspectus de fuga – Magistrates' Courts Act 32 of 1944 – Magistrates'
Courts Act 32 of 1944, section 30(1) and (3) – Constitutional validity
Mini Summary:
Section 30(1) and (3) (impugned provisions) of the Magistrates' Courts Act 32 of 1944 was declared invalid by the High Court. The section empowers a magistrate to issue an order for the arrest and detention of a debtor in circumstances where a creditor reasonably believes that a debtor is about to flee the country in order to avoid paying what is owed to a creditor – in a procedure known as arrest tanquam suspectus de fuga.
The High Court referred its order declaring both the common law and section 30(1) and (3) constitutionally invalid to the present court.
The applicant was a citizen of the Republic of Moldova, and was employed by the first two respondents
(the employers) as an exotic dancer in South Africa. As part of the agreement between the parties, the employers would pay for all of the applicant's visa and travel arrangements and would provide her with rented accommodation. She was required to reimburse them. On her arrival in South Africa, her passport was taken from her, and she was told that she would only get it back once she had reimbursed the employers as set out above.
After a few months of working, the applicant expressed to her employers that she was dissatisfied with her conditions of employment. She then made arrangements to return home. Upon learning of that, the employers obtained an order to have the applicant arrested in terms of the impugned provisions. The basis for the application, and for the granting of the arrest order, was that the applicant owed her employers about R100 000 and that they reasonably suspected that she was about to flee the country permanently in order to escape payment of the debt. The applicant was arrested and detained, and approached the High Court to secure her liberty. She challenged the constitutional validity of both the impugned provisions and the common law in so far as they empower a court to make an order for arrest
tanquam suspectus de fuga.
Held that as the Constitutional Court cannot confirm an order of constitutional invalidity of the common law, and the issue was limited to confirmation of the statutory provision.

Of the constitutional rights allegedly infringed by the impugned provisions, the most directly implicated was the right to freedom and security of the person in terms of section 12(1) of the Constitution.
An order in terms of section 30 of the Magistrates' Courts Act must be aimed at the debtor who allegedly owes the creditor at least R40 excluding costs; is reasonably believed to be about to leave the Republic, but not one who appears to be leaving one part of the country for another; and intends leaving permanently and whose departure is imminent. Furthermore, the creditor must appear to have no, or insufficient, security for the debt. The impugned provisions empower a magistrate to issue an order for the arrest of a debtor even though the debtor's liability has not been acknowledged or proven in a court of law.
The question was whether the deprivation or limitation of freedom authorised by the impugned provisions was arbitrary or without a just cause. Section 30(1) and section 30(3) are laws of general application, authorising arrest tanquam suspectus de fuga, to facilitate debt collection. However, the impugned provisions go further than is necessary to achieve the objective. The detention of any person without just cause is a severe and egregious limitation of that right. The order of constitutional invalidity was thus confirmed.
The appropriate remedy was to sever the offensive parts of subsection (1) and to strike out subsection (3) in its entirety – and to limit the retrospective application of the order.
VERY NB CASE. DOES AWAY WITH THESE APPLICATIONS!
Janion v RAF
[2010] JOL 25925 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1597 / 08
01 / 04 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JD Pickering J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Liability
Mini Summary:
The plaintiff was involved in a motor vehicle accident in which, he alleged, he sustained severe injury. He sued the defendant fund for damages.
Held that the plaintiff was unable to testify due to his injuries, but his two witnesses satisfied the court as being credible witnesses. The insured driver and his witness on the other hand were found to be unconvincing. Their testimony was described by the court as improbable and contradictory.
In argument, the defence conceded that the evidence of its two witnesses could not be relied upon, and that the matter had to be decided on the basis of the plaintiff's evidence. The defence’s attempt to contend for contributory negligence on the part of the plaintiff was rejected by the court, as lacking in any factual basis.
The defendant was held liable for the plaintiff's proven damages.
Dlanjwa v Minister of Safety & Security & another
[2010] JOL 26064 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Claim for damages – Absolution from the instance – Assessment of evidence
Mini Summary:
1090 / 07
12 / 08 / 2010
South Africa
High Court
Eastern Cape, Mthatha
XM Petse ADJP

The plaintiff's claim against the defendants arose from the injuries she sustained when she was shot by her later husband, who subsequently committed suicide. He was a policeman in the employ of the first defendant and under the command of the second defendant.
At the conclusion of the plaintiff's case, the defence applied for absolution from the instance.
Held that at this stage of the proceedings the court was not called upon to look at the plaintiff's evidence, as critically as if at trial. The question that it had to ask was whether the plaintiff's evidence, even accepting for present purpose that it was contradictory as was contended by defendant's counsel, was absolutely devoid of any credence.
The court found that viewed in its proper perspective, the plaintiff's evidence was not inherently improbable and had to be taken as true. It would therefore be entirely inappropriate to grant absolution in the context of the evidence adduced by the plaintiff.
Centwise 153 CC & another v Tonrais CC & others
[2012] JOL 29118 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
70623 / 11
19 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
TM Makgoka J
Keywords:
Civil procedure – Attachment of goods – Goods belonging to third party – Duties of sheriff
Mini Summary:
The applicant had purchased a business and a vehicle from the first respondent. In a further agreement, the first respondent sub-leased to the applicant the premises on which the business was based. The owner of the premises which the first respondent sub-leased to the applicant obtained judgment against the first two respondents for arrear rentals. Two warrants were issued pursuant to the judgment: one for eviction, and the other for attachment of goods. During execution of the warrants, some of the first applicant's goods on the premises were also attached and removed, pursuant to a lien that the property owner had on all the property on the premises. Included in the goods attached by the sheriff, were the items that the first applicant bought from the first respondent in terms of the sale agreement. Furthermore, there were items that were brought onto the property by the second applicant which had nothing to do with the agreements between the parties. Some of the attached goods were not removed. The first and second respondents were evicted from the premises.
The second applicant served an Interpleader Summons on the office of the sheriff, laying claim to the goods attached during the execution of the warrant of attachment. The sheriff then released the attached goods after the first respondent had satisfied the judgment debt. The third respondent took possession of the released goods. The applicants contended that since the sheriff was informed of the first applicant's claim to the property, the sheriff should have, when releasing the goods, returned them to first applicant, and that the third respondent acted mala fide in receiving the goods from the sheriff and not handing them over to the first applicant. The contention was that the goods were in the lawful possession of the first applicant when they were attached and on release by the sheriff, they should have reverted to the first applicant.
The Court provided its reasons for having granted the relief sought in this application. The applicants sought the urgent return of certain goods in the possession of the first and/or second and/or third respondents.
Held that the applicant had placed undisputed facts before the Court which indicated that the respondents had engaged in a form of objectionable self-help by taking the law into their own hands. Whether what was involved was spoliation or parate executie, was irrelevant. The Court compared the situation to that where the sheriff attaches property in terms of a warrant, and the judgment is later rescinded. In either situation the sheriff loses any further right to persist with the attachment and possession of the goods.
The end result is the same, whether the goods are released from attachment pursuant to a rescission of judgment or satisfaction of the judgment debt.
Rule 39(4) of the Magistrates Court Act 32 of 1944, provides that if any property attached in execution is claimed by any third party as his or her property the sheriff shall deal with matter as provided in rule 44.
The provisions of rule 39(4) are couched in peremptory terms and impose a duty on the sheriff to act in

terms of rule 44. The sheriff has no residual discretion. The sheriff’s failure to abide by the rules in this matter was referred to the Sheriff's Board for further investigation.
Rees & others v Harris & others
[2011] JOL 28014 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 5070 / 10
10 / 11 / 2011
South Africa
High Court
South Gauteng, Johannesburg
H Saldulker, H Mayat JJ
Keywords:
Civil procedure – Attachment order – Application for discharge – Appeal against dismissal of application
Mini Summary:
An attachment order in relation to certain assets of the first appellant was granted to found and/or confirm jurisdiction in respect of actionable claims by the first respondent against the appellants. The first appellant was permanently resident in Switzerland. He applied to the court a quo for the discharge of the attachment order ad fundandam alternatively ad confirmandam jurisdictionem. His application having been dismissed and the attachment order having been confirmed, the present appeal was noted.
Held that the first issue in dispute on appeal was whether the court a quo had erred when it confirmed the attachment order in favour of the first respondent against the first appellant in his personal capacity.
The second issue was whether the court a quo erred when it confirmed the attachment of the assets belonging to a trust in which the first appellant was a trustee on the basis that the trust was the alter ego of the first appellant. In other words, the second issue concerned whether the assets of the trust, could effectively be considered to be the assets of the first appellant.
Attachments to found and/or confirm jurisdiction are remedies of an exceptional nature. In relation to the confirmation of the attachment to found and/or confirm jurisdiction, the onus was on the first respondent to make out a prima facie case on the papers pertaining to a cause of action against the first appellant, as a peregrinus.
The first appellant conceded that the attachment of money in two bank accounts, in favour of the first respondent against the first appellant in his personal capacity was unimpeachable. That concession was confirmed by the court as being sound.
However, the Court found that it was not shown that the trust was the alter ego of the first appellant. The appeal in regard to the attachment of the assets of the trust was thus upheld.
Firstrand Bank Ltd t/a Wesbank v ARI Carriers CC & others
[2010] JOL 25957 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
11274 / 09
24 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Sishi J
Keywords:
Civil procedure – Summary judgment – Deponent to founding affidavit – Return of vehicle – Right of retention
Mini Summary:
The applicant was the owner of a motor vehicle, in terms of an instalment sale agreement. As plaintiff in the main action, it sought an order authorising the sheriff of the court to take possession of and to deliver the vehicle to the applicant. when the defendant filed a defence, summary judgment was applied for.
In resisting the application for summary judgment, the defendant alleged that the application for summary judgment was defective as it did not comply with the rules of court. It was alleged that the affidavit in support of summary judgment was not properly before court in that the deponent did not have personal knowledge of the facts of the matter. On the merits, it was alleged that the plaintiff sold to the first defendant, a defective motor-vehicle.
Held that the deponent to the affidavit in support of the application for summary judgment was a legal supervisor of the applicant, and as such would prima facie have knowledge of the contract and its

conclusion, its terms and effect and would be entitled on reference to her records to claim knowledge of the amount paid or owing by the first defendant. The preliminary point was dismissed.
On the merits, the defendants appeared to be claiming that they were entitled to the retention of the motor-vehicles as security for an alleged counter-claim. The law does not recognise such a right and afforded the defendants no defence to the plaintiff's claim for the return of the motor-vehicle. In the light of the plaintiff's election to cancel the agreement, the defendant’s right to possess the vehicle terminated.
Judgment was granted for the plaintiff.
Rees & others v Harris & others
[2011] JOL 28014 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 5070 / 10
10 / 11 / 2011
South Africa
High Court
South Gauteng, Johannesburg
H Saldulker, H Mayat JJ
Keywords:
Civil procedure – Attachment order – Application for discharge – Appeal against dismissal of application
Mini Summary:
An attachment order in relation to certain assets of the first appellant was granted to found and/or confirm jurisdiction in respect of actionable claims by the first respondent against the appellants. The first appellant was permanently resident in Switzerland. He applied to the court a quo for the discharge of the attachment order ad fundandam alternatively ad confirmandam jurisdictionem. His application having been dismissed and the attachment order having been confirmed, the present appeal was noted.
Held that the first issue in dispute on appeal was whether the court a quo had erred when it confirmed the attachment order in favour of the first respondent against the first appellant in his personal capacity.
The second issue was whether the court a quo erred when it confirmed the attachment of the assets belonging to a trust in which the first appellant was a trustee on the basis that the trust was the alter ego of the first appellant. In other words, the second issue concerned whether the assets of the trust, could effectively be considered to be the assets of the first appellant.
Attachments to found and/or confirm jurisdiction are remedies of an exceptional nature. In relation to the confirmation of the attachment to found and/or confirm jurisdiction, the onus was on the first respondent to make out a prima facie case on the papers pertaining to a cause of action against the first appellant, as a peregrinus.
The first appellant conceded that the attachment of money in two bank accounts, in favour of the first respondent against the first appellant in his personal capacity was unimpeachable. That concession was confirmed by the court as being sound.
However, the Court found that it was not shown that the trust was the alter ego of the first appellant. The appeal in regard to the attachment of the assets of the trust was thus upheld.
A Company and others v Commissioner for the South African Revenue Services
[2014] JOL 32040 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
16360 / 2013
17 / 03 / 2014
South Africa
High Court
Western Cape, Cape Town
AG Binns-Ward J
Keywords:
Legal privilege – Scope of – Attorney’s fee notes
Mini Summary:
In the course of an audit of the applicants’ tax affairs, the respondent (“the Commissioner”) indicated his requirement that the applicants provide SARS with copies of certain documentation. That included a

request for a breakdown of an identified trial balance account in respect of professional fees in the books of one of the applicant companies pertaining to the 2009 year of assessment. On identifying the relevant fee notes, the applicants noted that the fees concerned had been raised in respect of legal professional services rendered by the attorneys to the first and third applicants. Privilege was claimed on the basis that the nature of the advice sought by the first and third applicants was discernible from the invoices, and the applicants refused to provide the invoice, except in redacted form.
Held that legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given. The requirements are that the legal advisor must have been acting in a professional capacity at the time; the advisor must have been consulted in confidence; the communication must have been made for the purpose of obtaining legal advice; the advice must not facilitate the commission of a crime or fraud; and the privilege must be claimed.
The applicants provided no basis for the court to examine the assertion of legal advice privilege other than the applicants’ say so. In general, it is not possible to judge whether privilege is validly claimed or not if the context is not provided. The applicants’ papers provided virtually nothing by way of relevant legal context. They also did not explain how mere reference in the fee notes to work done or documents considered would undermine their privilege in respect of the content of communications with their attorneys concerning the seeking and giving of advice. On the other hand, the respondent’s answering papers explained the context in which SARS’s insistence on being furnished with uncensored copies of the fee notes was being pursued. The Commissioner considered that the content of the invoices might go to confirm that the applicants, or fellow entities in the group of companies of which they were part, had knowledge of the flow of funds involved in certain structured finance arrangements in respect of which
SARS had decided to reassess the third applicant’s liability for payment of income tax and secondary tax on companies.
There being no South African case law dealing with the question before the court, regard was had to foreign jurisprudence. Based on English law, the conclusion was that attorneys’ fee notes are not amenable to any blanket rule that would characterise them as privileged communications per se. Mere reference in fee notes to advice sought or given does not equate to disclosure of the substance of the advice. The position would be different if the fee note set out the substance of the advice, or contained sufficient particularity of its substance to constitute secondary evidence of the substance of the advice.
Only one of the invoices in question contained information from which the nature of the legal advice could be discerned. The remaining invoices would have to be furnished as requested by the respondent.
Randell v Cape Law Society
[2011] JOL 28008 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2646 / 11
27 / 10 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JE Smith J
Keywords:
Civil procedure – Attorney – Striking-off application – Stay of proceedings
Mini Summary:
The applicant had been arrested and charged in criminal proceedings after alleged breaches of his fiduciary duties as trustee and member of a school governing body. As the applicant was a practising attorney, the events referred to above led to the respondent bringing an application for the striking of the applicant’s name from the roll of attorneys.
In the present proceedings, the applicant sought an order directing that the application brought by the respondent be stayed pending the finalisation of the criminal case against him.
Held that our courts have a discretion to suspend civil proceedings where there are criminal proceedings pending in respect of the same issues. Each case must be decided in the light of the particular circumstances and the competing interests in the case. In exercising its discretion the court will have regard to, inter alia, the following factors: the extent to which the person’s right to a fair trial might be implicated if the civil proceedings are allowed to proceed prior to the criminal proceedings; the interests of the plaintiff in dealing expeditiously with the litigation or any particular aspect thereof; the potential prejudice to the plaintiff if the proceedings are delayed; the interests of persons not involved in the litigation; and the interests of the public in the pending civil and criminal litigation. The Court must be satisfied that there is a danger that the accused might be prejudiced in the conduct of his defence in the criminal matter if the civil case is allowed to proceed before the finalisation of the criminal case against him.

While the applicant had disclosed the essentials of his defence in his plea filed in the related civil matter, he would obviously be required to provide far greater detail of his defence in his answering affidavit in the striking-off application. There was therefore a real danger that this might serve to prejudice him in the conduct of his defence in the criminal case. In the circumstances, the Court was satisfied that it was proper that the civil proceedings be stayed pending the finalisation of the criminal trial against the applicant.
Joubert Scholtz Inc & others v Elandsfontein Beverage Marketing (Pty) Ltd
[2012] JOL 28817 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
307 / 11; 765 / 11
09 / 03 / 2012
South Africa
Supreme Court of Appeal
JA Heher, FDJ Brand, NZ Mhlantla, FR Malan, SA Majiedt JJA
Agency – Attorney’s mandate – Funds paid into attorney’s trust account – Terms of mandate in respect of use of funds in dispute – Whether instruction to attorney was such as to limit use of funds deposited by the respondent to strict adherence to payment of debts for which respondent had assumed liability, or whether it conferred a broader authority – Probabilities found to favour attorney’s version that mandate was not limited as alleged by respondent – Enrichment – Allegation of unjust enrichment – Payment by attorney in whose trust account funds had been paid – Claim against payees on basis that attorney had acted beyond mandate in paying them moneys – Claim failing where respondent failed to establish a lack of just cause for the payments, and where it was not shown that respondent had been impoverished by payments
Mini Summary:
In terms of a written agreement entered into between the respondent and a group of entities including the third and fourth appellants, the respondent purchased the group’s business. In so doing, it accepted responsibility in respect of the liabilities of the businesses and its immovable property. According to the respondent, it mandated the first appellant, a firm of attorneys, to investigate, negotiate, settle and pay the relevant debts, and to that end it paid certain moneys into the first appellant’s trust account.
However, the attorneys refused either to account for the moneys received or to repay such moneys as had not been applied to the execution of its mandate. While admitting receipt of the money paid into the trust account by the respondent, the first appellant alleged that it had paid out all moneys so received as it had been instructed to do so by one of the sellers (“Goosen”). The first appellant denied the terms of the mandate as alleged by the respondent.
In the high court, the respondent claimed from the first appellant, specific performance of the alleged oral mandate calling for the repayment of the surplus funds held in trust as referred to above. In the same action, the respondent sued the second appellant (the trustees of Goosen, who had since been sequestrated) and the third and fourth appellants for payment of amounts paid to them or their creditors by the first appellant from the moneys paid by the respondent into the trust account. The respondent contended that such payment by the first appellant was in breach of its mandate and without legal obligation, and resulted in the unjust enrichment of those appellants at the expense of the respondent.
The trial court dismissed the respondent’s claims, but upheld a claim in reconvention by Goosen for a statement and debatement of his capital loan account in the respondent.
On appeal, the full court set aside the trial court’s order in respect of the respondent’s claims and replaced it with money judgments against each of the appellants. The appeal against the order on the claim in reconvention was dismissed. The appellants were granted special leave to appeal.
Held that the terms of the respondent’s mandate to the first appellant was central to the respondent’s case. The question was whether the instruction to the first appellant was such as to limit the use of the funds deposited by the respondent to strict adherence to the payment of the debts for which the respondent had assumed liability, or whether it conferred a broader authority to take and give effect to instructions from Goosen as to the disposal of the money. The respondent bore the onus of proof throughout the trial.
Assessing the probabilities against the evidence before it, the Court found that the respondent had failed to prove that it conferred a mandate on the first appellant in the terms pleaded by it. Consequently, as found by the trial court, the respondent failed to prove that the first appellant was under a duty to account for and return surplus funds to it.
In respect of the claim of unjust enrichment, the Court found the second to fourth appellants to be correct in contending that the claim had to fail. As submitted by the said appellants, the respondent had failed to prove that the first appellant did not act in accordance with a mandate properly given and, therefore, on the case pleaded, had failed to prove a lack of just cause for the payments. Secondly, even if Goosen

acted beyond his authority in receiving the payments to and appropriating them to liabilities not the subject of agreement, the respondent had not been impoverished by such receipts or appropriations.
The appeal was accordingly upheld, and the trial court’s order reinstated.
Mnisi v RAF
[2010] JOL 25857 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Legal practice – Attorneys – Contingency fees agreement – Lawfulness
Mini Summary:
37233 / 09
18 / 05 / 2010
South Africa
High Court
North Gauteng, Pretoria
BR Southwood J
In a dependants' action, the plaintiff claimed damages from the Road Accident Fund in her personal capacity and on behalf of her minor children for the loss of support which they suffered as a result of the death of the plaintiff’s husband in a motor vehicle accident.
The present judgment was not concerned with any issues raised in the trial but with the manner in which the plaintiff's attorney conducted the trial and purported to charge fees for his services. During the course of considering a draft settlement agreement, the court discovered that the plaintiff and her attorney had entered into a contingency fees agreement.
Held that the Contingency Fees Act 66 of 1997 provides for two forms of contingency fee agreements which attorneys and advocates may enter into with their clients. The first, is a "no win, no fees" agreement and the second is an agreement in terms of which the legal practitioner is entitled to fees higher than the normal fee if the client is successful. The latter type of agreement is subject to limitations.
Higher fees may not exceed the normal fees of the legal practitioner by more than 100% and in the case of claim sounding in money this fee may not exceed 25% of the total amount awarded or any amount obtained by the client in consequence of the proceedings, excluding costs.
The fees claimed by the attorney in terns of the agreement in this case was not covered by the Act and the agreement was illegal. The court referred the matter to the law society for investigation.
Law Society of the Cape of Good Hope v Roodt
[2010] JOL 25792 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
18621 / 09
28 / 05 / 2010
South Africa
High Court
Western Cape, Cape Town
R Allie, Fortuin JJ
Keywords:
Legal practice – Attorney – Misconduct – Striking from roll
Mini Summary:
The applicant was a law society, seeking to have the name of the respondent struck off the roll of attorneys. Ancillary relief was also sought.
In 2003, the respondent caused a debt collection payment made by a debtor of his client, to be deposited into his business bank account. That was a contravention of section 78(4) of the Attorneys Act 53 of 1979 and numerous rules of the applicant. He also transferred into his business account, a deposit paid to him by a purchaser of immovable property. That was a contravention of section 78(4) of the Attorneys Act and of various rules of the applicant and of section 26(1)(a) of the Alienation of Land Act. In December 2003 a client paid R300 000 to the respondent who was obliged to pay the money over to another attorney.
Respondent only paid over R100 000 and failed to pay the balance of R200 000.
Held that attorneys are officers of the court and a high standard of honesty and integrity is expected of them because they are the people in whom the public ought to have sufficient confidence to trust them with their affairs and with their funds.
The court found that the offending conduct had taken place in this case, and that the respondent was not a fit and proper person to continue to practice law. It therefore granted the relief sought.

Oppex Consultants CC v University of KwaZulu-Natal
[2012] JOL 29375 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1053 / 08
01 / 06 / 2012
South Africa
High Court
KwaZulu-Natal, Durban
Mnguni J
Keywords:
Contract – Claim for payment – Validity of contract – Authority
Mini Summary:
The plaintiff was a close corporation engaged in the business of analysing the electricity consumption and costs on its clients’ utility accounts and then advising them of possible savings. It achieved that by determining and applying the most cost effective billing structure suitable to a client’s consumption profile.
In 2006, the plaintiff and the defendant entered into a consultancy agreement. The plaintiff conducted its analysis and made its report to the defendant, advising that the municipality had overcharged the defendant for electricity consumption as a result of an incorrect meter reading. The defendant requested a refund from the municipality, and the plaintiff thereafter billed the defendant equalling 50% of the refund.
The defendant denied liability and specifically denied that the person (“Dhuni”) who signed the agreement on its behalf, had the necessary authority to conclude and bind it to a contract with the plaintiff. That led to the present action for the amount claimed.
Held that the in order to act on behalf of another so as to affect that other’s relationships, the necessary authority, either actual or ostensible, to do so must be present. Actual authority may be express or implied.
Based on the evidence adduced, the Court found that Dhuni had lacked actual authority to conclude the agreement on behalf of the defendant. The next enquiry was whether the defendant, made any representation by word or conduct, which induced the plaintiff to act to its detriment by concluding the agreements with Dhuni, and was therefore estopped from repudiating liability. The question was whether the defendant created any impression on outsiders that Dhuni, who had no authority at all, actually had the authority to transact and bind it. In order to hold the defendant liable on the basis of ostensible authority the plaintiff had to prove certain requirements set out by the Court. Those requirements were not established, and the conclusion was that the plaintiff could not have relied on the representations as pleaded, as there were no representations made by the defendant or its officials either in words or conduct that the plaintiff could have reasonably relied on, and acted upon.
The claim was dismissed.
Bernert v ABSA Bank Ltd
[2010] JOL 26562 (CC)
Case Number: CCT 37 / 10
Judgment 09 / 12 / 2010
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Ngcobo CJ, Moseneke DCJ, Cameron, Froneman, Khampepe, Mogoeng, Nkabinde,
Skweyiya, Jacoob JJ, Brand AJ
Keywords:
Courts – Judicial officers – Recusal – Allegation of bias – Legal principles
Mini Summary:
The respondent, a bank, discovered the existence of a document allegedly issued by it, purporting to guarantee a fixed deposit facility to a third party at a certain rate of interest. The document was addressed to Emirates Bank International, and was required by a potential financial investor in a business

enterprise to be undertaken by the applicant. Concerned that Emirates Bank might rely on the authenticity of the document, the respondent, upon becoming aware of its existence, advised Emirates Bank, by letter, that the document had been issued without its authority and in irregular circumstances. That caused the potential investor to withdraw from the applicant’s project.
The central issue in the litigation was whether the respondent acted lawfully when it advised Emirates
Bank that the alleged guarantee had been issued without its authority and in irregular circumstances.
In the present application, the applicant sought to challenge the Supreme Court of Appeal’s finding in the respondent’s favour. The applicant also alleged bias against him by some of the judges who constituted the panel that heard the appeal in the Supreme Court of Appeal.
Two preliminary issues presented before the court. The first was whether the late filing of the application for leave to appeal and the record should be condoned. The other was whether leave to appeal should be granted.
Held that the test for determining whether to grant condonation is in the interests of justice. Factors relevant to this enquiry include, but are not limited to, the extent and the cause of delay, the prejudice to other litigants, the reasonableness of the explanation for the delay, the importance of the issues to be decided in the intended appeal and the prospects of success. The court found that it was in the interests of justice that the applications for condonation be granted.
The question whether an application for leave to appeal should be granted depends upon whether it raises a constitutional matter, and it is in the interests of justice to grant leave.
The question whether a judicial officer should recuse himself is a constitutional matter, as is the issue of whether there was actual or a reasonable apprehension of bias. Finding that it was in the interests of justice that leave to appeal be granted, the court turned to the merits of the appeal.
It began by setting out the legal principles that govern allegations of bias. A judicial officer who sits on a case in which he should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution. The present case concerned the apprehension of bias.
The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case, or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself. Fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.
The applicant relied on a prior association which two judges had with the respondent. The court held that previous activities which judges have been involved in will not form the basis of a reasonable apprehension of bias unless the subject-matter of the litigation arises from this association or activity.
There was no suggestion in this case that the subject-matter of the litigation arose from the prior association with the respondent and, as a result, there was no obligation on the two judges to disclose the association.
Finding no reasonable apprehension of bias, and no merit in the applicant’s complaints of erroneous factual findings, the court dismissed the application.
Mohr v Rohrmoser
[2010] JOL 26153 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
2406 / 09
09 / 09 /2010
South Africa
High Court
Eastern Cape, Port Elizabeth
NG Beshe J
Civil procedure – Bill of costs – Payment – Successful appeal – Entitlement to repayment
Mini Summary:
The plaintiff had sued the defendant for damages. The claim was dismissed and although leave to appeal was obtained, the appeal lapsed due to a delay in prosecuting it. The defendant then had its bill of costs taxed, and when the plaintiff did not pay, issued a writ of execution. The plaintiff’s application to set side

the writ was dismissed. That resulted in the plaintiff paying the defendant the amount claimed in the bill of costs.
However, the plaintiff proceeded to prosecute its appeal, which was ultimately successful. In the present action, the plaintiff claimed that as the appeal was successful, the amount paid pursuant to the bill of costs had to be repaid by the defendant. The defendant argued that at the time the plaintiff paid the taxed bill of costs, the appeal had lapsed and it had a legal obligation to pay the bill.
Held that the issue for determination was whether the plaintiff was entitled to repayment of the amount in question.
The court held that the success of the plaintiff’s appeal meant that the order dismissing plaintiff’s claim was set aside. That relieved the plaintiff of the obligation to pay arising from the order which was set aside. The defendant thus no longer had any legal entitlement to the money paid to it by the plaintiff. It was ordered to repay the amount to the plaintiff.
The court held that the success of the plaintiff’s appeal meant that the order dismissing plaintiff’s claim was set aside. That relieved the plaintiff of the obligation to pay arising from the order which was set aside. The defendant thus no longer had any legal entitlement to the money paid to it by the plaintiff. It was ordered to repay the amount to the plaintiff.
Nedbank Ltd v Usebenzo Trading CC
[2010] JOL 26053 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
550 / 10
11 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
N Dambuza J
Keywords:
Civil procedure – Summary judgment – Bona fide defence
Mini Summary:
The applicant bank sought summary judgment against the respondent close corporation.
The respondent opposed the application on the basis that the written loan agreement on which the applicant relied was not binding, as it was never signed on behalf of the applicant.
Held that in opposing an application for summary judgment, a respondent must set out in his affidavit facts which, if proved at the trial, will constitute an answer to the plaintiff's claim ie a bona fide defence.
It was common cause that the parties intended that the terms of the agreement between them be reduced to writing and signed by them. The responsible person simply omitted to sign the agreement on behalf of the applicant. Nevertheless, the parties went on to perform in terms of the agreement. The parties were therefore ad idem as to the terms on which the loan amount was advanced and accepted. It was therefore opportunistic of the respondent, having only noticed the error regarding the signature when it received the summons, to plead that the loan might have been advanced on terms other than those that had been agreed upon between the parties.
As the court was not persuaded that there was a reasonable possibility that the defence might succeed at trial, summary judgment was granted.
Cloete v Maritz
[2014] JOL 32110 (WCC)
Case Number:
Judgment Date:
6222 / 2010 & 16433 / 2012
13 / 06 / 2014

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Western Cape, Cape Town
RCA Henney J
Keywords:
Contract – Promise to marry – Breach of promise – Claim for damages – Contract – Universal partnership
– Requirements
Mini Summary:
In March 1998, the parties herein orally agreed to marry each other within a reasonable time after such date. They consequently became engaged to each other in February 1999. The plaintiff alleged that the defendant repudiated the said agreement by refusing to marry her, informing her in 2009, that he had someone new in his life.
Based on breach of contract, the plaintiff claimed damages representing amounts of money that she had donated to him in contemplation of the marriage, for the loss of financial benefits of the marriage, and for the contumacious breach of promise to marry.
In August 2012, the plaintiff amended her particulars of claim, claiming the existence of a universal partnership between the parties. She requested an order declaring her to have a 50% share of the value of the assets in the universal partnership. In terms of the amended particulars of claim, she further claimed the payment of an amount of R25 000 for damages for breach of promise.
In a counter-claim, the defendant stated that the plaintiff was unlawfully occupying property owned by the defendant, as a result of which the defendant suffered damages in that he was unable to tender the property for lease to third parties. He claimed damages totalling R420 000, being the amount of 21 months’ unlawful occupation. In his plea, the defendant denied that there was a legally enforceable engagement, or that there was a universal partnership agreement entered into between the parties.
The defendant also raised a special plea to the claim that there was a universal partnership between the parties. he contended that when the plaintiff introduced the alleged universal partnership as a new cause of action, such claim had prescribed because a period of more than 3 years had lapsed since the claim arose.
Held that the court found the version of the plaintiff regarding the functions and the role she played in the businesses of the defendant not only credible but overwhelmingly consistent with probabilities.
The next question was whether there was a universal partnership that existed between the plaintiff and the defendant. Firstly, each of the parties must have brought something into the partnership or must have bound themselves to bring something into it, whether it be money, or labour, or skill. Secondly, the partnership business had to be carried on for the joint benefit of both parties. Thirdly, the object of such partnership had to be to make a profit. Finding all the elements to have been established, the court concluded that the existence of a universal partnership in which the parties agreed to put in common all their property present and future was established.
In respect of the special plea, the court held that even though the romantic relationship had ceased to exist on the defendant’s version on or during March 2009, the universal partnership continued to exist at least until June 2010. As such, when the claim relating to the universal partnership was made on 16
August 2012, the claim had not yet prescribed.
Apart from the 50% share of the universal partnership, the defendant was ordered to pay the plaintiff
R25 000 for the contumacious breach of promise.
The defendant’s counter-claim was held to be without merit and was dismissed.
Outward Investments (Pty) Ltd & another v Park Road Trading 7 (Pty) Ltd
[2011] JOL 27048 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
51 / 2010
31 / 03 / 2011
South Africa
Supreme Court of Appeal
LTC Harms DP, MS Navsa, S Snyders, FR Malan and W Seriti JJA
Contract – Alleged breach of contract – Cancellation in consequence of alleged breach – Contract containing warranty that seller would disclose to the purchaser all facts material to the property – Breach said to arise from respondent’s failure to disclose certain facts about property sold – Warranty interpreted as providing for the disclosure by the seller of facts known to him at the time of signature, and could not sensibly be interpreted to require the seller to disclose facts of which he was ignorant or which would only become known in future –Contract – Sale agreements – Validity – Whether agreements contravened

section 67(2) read with section 67(1) of the Town- Planning and Townships Ordinance 15 of 1986 and were accordingly of no force and effect – Section 67 provides that after an owner of land has taken steps to establish a township on his land, no person shall enter into any contract for the sale, exchange or alienation or disposal in any other manner of an erf in the township, or grant an option to purchase or otherwise acquire an erf in the township, until such time as the township is declared an approved township – Section 67 did not apply where the process of extension of boundaries resulted in a change of the character of the property into township land, but did not result in the creation of a township on the land
Mini Summary:
The respondent had purchased two immovable properties from a third party. It then sold one of the properties to another entity (“Becolger”) which was to establish a township on the property. Options to purchase the other property were created. In 2006, Becolger, with the consent of the respondent, assigned its rights and obligations in respect of the sale and option agreements in a cession and sale agreement to the first appellant. The second appellant subsequently entered into an agreement with the first appellant, in terms whereof it became a co-option holder.
The properties were to be subdivided as part of the development process, the boundaries of the first property sold by the respondent were to be extended and the first appellant was to take transfer of the relevant portions.
In June 2007, the options in respect of three of the notional erven were exercised resulting in agreements of sale between the first appellant and the respondent, but some terms were amended. The first appellant was allowed to take early occupation of the properties against payment of occupational interest.
According to the first appellant, it was unable to subdivide the relevant property as the City of
Johannesburg Metropolitan Municipality had refused to approve the subdivision because Becolger had failed to pay certain bulk services contributions to the city as it should have done consequent to the proclamation of a township on the property purchased by it from the respondent in 2005; and there were various irregularities that might have been committed in the process that led to the extension of the boundaries of that property.
Relying on a provision in the contract that the respondent would disclose to the purchaser all information relating to the property which was reasonably likely to be material to a purchaser of the property, the first appellant argued that the respondent’s failure to inform it of the issues leading to the municipality’s refusal to approve the sub-division, amounted to a breach of contract. Demand was made of the respondent, requiring it to remedy the breaches within ten days, failing which the first appellant would cancel the agreements. The respondent rejected the demand, and the first appellant cancelled the agreements.
The respondent applied to the high court for a declaration that the cancellation of the agreements was invalid. The present appeal was against the granting of the declaration.
Held that the first question was whether the respondent had in fact breached the agreements. The relevant clause was a warranty that the seller had disclosed all facts material to the property to the purchaser. The first appellant’s contention was that where information existed which was material and which had not been disclosed to the first appellant, the responsibility, and therefore the risk, for that unknown information had to be borne by the respondent. The appellants submitted that the lower court was wrong in finding that the warranty in the relevant clause was as to the existence of known facts and not as to the existence of a state of affairs. They also argued that the clause required the seller to warrant a state of affairs both at the time of signature and at the time of transfer. On a proper interpretation of the relevant clause, the court could not agree with the latter argument. The clause clearly provided for the disclosure by the seller of facts known to him at the time of signature. It could not sensibly be interpreted to require the seller to disclose facts of which he was ignorant or which would only become known in future. Nor could it mean that there was a continuing duty on the seller to disclose. Any other interpretation would lead to absurdities. The court concluded that the applicant had not demonstrated that the respondent had, in any way, breached the clause relied upon. The question of the alleged failure to pay for bulk services and irregularities allegedly committed arose long after the option agreements were entered into. The respondent could not be expected to have disclosed such facts at the time the option agreements were signed.
A second issue, was whether the sale agreements contravened section 67(2) read with section 67(1) of the Town- Planning and Townships Ordinance 15 of 1986 and were accordingly of no force and effect.
Section 67 provides that after an owner of land has taken steps to establish a township on his land, no person shall enter into any contract for the sale, exchange or alienation or disposal in any other manner of an erf in the township, or grant an option to purchase or otherwise acquire an erf in the township, until such time as the township is declared an approved township. A contract entered into in conflict with those provisions shall be of no force and effect. The court agreed with the high court’s view that section 67 did not apply as the process of extension of boundaries resulted in a change of the character of the property into township land, but did not result in the creation of a township on the land.
The appeal was dismissed with costs.

BBS Empangeni CC (formerly ZTC Cash Build CC) v Phoenix Industrial Park (Pty) Ltd & another
[2012] JOL 28711 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
203 / 11
29 / 03 / 2012
South Africa
Supreme Court of Appeal
A Cachalia, FDJ Brand, BJ van Heerden JJA, P Boruchowitz AJA
Keywords:
Civil procedure – Claim for damages based on alleged breach of contract – Prescription – Prescription running from time suspensive conditions in contract were fulfilled, and contractual obligations were no longer enforceable after three years from that date
Mini Summary:
On 11 January 1990, the appellant bought certain land from the respondents in terms of a sale agreement. It paid ten per cent of the purchase price as a deposit, with the balance to be paid upon registration of transfer.
Two suspensive conditions governed the sale agreement. Firstly, the sale was subject to the Surveyor-
General’s approval of the sub-divisional diagram consolidating the four lots of land that were the subject of the agreement, and secondly, a certificate of compliance had to be obtained from the City Engineer in terms of section 148 of the Durban Extended Powers Consolidated Ordinance 18 of 1976.
The sole member of the appellant subsequently grew concerned about starting a business in the area for reasons largely related to security. He approached the respondents to cancel the agreement, but was unsuccessful in that regard. The respondents insisted that he pay the balance of the purchase price, and maintained that he was bound to take transfer. The deadlock led the respondents to seek recourse in the high court, where the appellant delivered its answering affidavit in which it asserted that the agreement was to be rectified to include the security features referred to in a pamphlet provided by the respondents, so as to accord with the common intention of the parties. The appellant also disputed that the second suspensive condition referred to above had been fulfilled. The said condition was later fulfilled, but the appellant still refused to take transfer of the property on the basis that the issues pertaining to its security concerns had not been resolved. Some years later, the respondents, unbeknown to the appellant, sold the property to a third party. About five years later, the appellant made enquiries about the property, and on discovering that it had been sold to someone else, took the stance that the sale and transfer of the property was a breach of its agreement with the respondents. The appellant instituted action against the respondents for recovery of the deposit as well as damages for breach of contract amounting to R3
125 500.
The central issue before the trial court was whether the respondents had repudiated the agreement with the appellant by selling the property to the municipality in October 2000. The appellant’s case was that they had, which entitled it to cancel the agreement. The respondents pleaded that they had cancelled the agreement before selling the property and had informed the appellant that they had done so, after the appellant had repudiated the agreement by refusing to take transfer. Amongst the defences raised was the defence that the appellant’s claim had become prescribed. Two distinct periods were in issue. The first was the period from the time when the suspensive conditions had ultimately been satisfied on 4 October
1994 and the transfer of the property to the municipality on 20 December 2002, when the respondents were alleged to have repudiated the agreement, and the second was the period between 20 December
2002 and the issue of summons on 21 August 2006. Concerning the first period, the trial court held that prescription had begun to run in respect of the respondents’ right to claim payment and also of the appellant’s right to claim transfer on 4 October 1994, when the suspensive conditions were satisfied. It held that the appellant ought reasonably to have ascertained this fact by December 1994 due to correspondence between the parties. The appellant’s claim had thus prescribed. That conclusion made it unnecessary for the trial court to consider the second period, although the judge did consider it for the sake of completeness and once again found against the appellant.
Held that the lower court’s finding that prescription had begun to run on 4 October 1994, when the suspensive conditions were fulfilled, and that the appellant’s claim had become prescribed well before the respondents transferred the property to the municipality in December 2002, disposed of the appeal.
The first challenge to the finding in question was that the Court had erred in assuming that the appellant’s cause of action was for the transfer of the property because of the respondents’ correlative right to demand payment as at 4 October 1994. The present Court rejected the notion that the lower court had misunderstood the nature of the appellant’s claim. It was clear that the suspensive conditions were fulfilled by 4 October 1994 and that the respondents’ claim for payment of the purchase price as against their obligation to transfer the property to the appellant therefore arose then. Prescription would thus have begun to run against that claim – and the appellant’s correlative claim for transfer of the property – on 4 October 1994, when the debt became due in terms of section 12(1) of the Prescription Act 68 of
1969 (“the Act”). Both claims, being reciprocal, would thus have become prescribed three years later, on

3 October 1997. If, as alleged by the appellant, the respondents had wilfully withheld information regarding the fulfilment of the suspensive conditions – and that the debt was therefore due – from the appellant, prescription would not have commenced running until the appellant became aware of the existence of the debt. The appellant took issue with the high court’s findings that the respondent had not withheld the relevant facts. Setting out the relevant evidence, the present Court confirmed that the evidence fell far short of establishing that the respondents deliberately withheld the information from the appellant. The Court also confirmed the correctness of the high court’s finding that that the appellant ought to have known by no later than December 1994 that the property had become registrable had it exercised reasonable care.
A final argument raised by the appellant was that, if prescription had begun to run against it on 4 October
1994, the respondents’ admission in their founding papers in the application that they were obliged to give transfer to the appellant upon fulfilment of the suspensive conditions, amounted to an express or tacit admission of liability to give transfer to the appellant against payment of the purchase price. Therefore, so the submission went, in terms of section 14(1) of the Act the running of prescription was interrupted when these admissions were made. Section 14(1) of the Act says that the running of prescription is interrupted when a debtor acknowledges liability, and section 14(2), that prescription runs afresh from the day of the interruption. Again, the High Court was correct in stating that the respondents’ acknowledgment was not an admission of liability as contemplated by the section.
The appeal was dismissed with costs.
Sandlundlu (Pty) Ltd v Shepstone & Wylie Inc
[2010] JOL 26565 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
63 / 10
02 / 12 / 2010
South Africa
Supreme Court of Appeal
S Snyders, RW Nugent, JA Heher JJA, R Pillay, K Pillay AJJA
Keywords:
Contract – Breach of contract – Claim for damages – Factual causation – A plaintiff who enforces a contractual claim arising from the breach of a contract needs to prove, on a balance of probability, that the breach was a cause of the loss –Contract – Breach of contract – Contractual damages – General rule in relation to contractual damages is that the claimant is entitled to be put in the position it would have been in if the respondent executed its mandate properly
Mini Summary:
As owner of immovable property on which a hotel was situated, the appellant wished to develop a vacant part of the property adjacent to the hotel, but required funding to do so. The appellant’s shareholders accordingly entered into negotiations with an Austrian investor who was interested in the development.
They started negotiating an involved series of transactions. At all material times an attorney
(“Breytenbach”) from the respondent’s firm acted for the appellant.
As a first step in the execution of the envisaged transactions the appellant leased to its hotel to the investor. A lease was drafted by the investor’s attorney. Although the parties had orally agreed on a monthly rental of R50 000 which was to escalate at a rate of 12 per cent per annum, when the respondent presented the draft lease the appellant for signature, the monthly rental was reflected as R4 500 with an escalation of 10 per cent per annum. One of the appellant’s shareholders (“Reardon”) noticed the mistake and pointed it out to Breytenbach. He was assured that he could sign the agreement, and that the attorney would correct the error before the investor signed it. Reardon obliged, signed the lease and initialled next to the rental amount and escalation that Breytenbach had undertaken to amend. However,
Breytenbach never amended the document, and the written agreement of lease signed by both parties therefore reflected a monthly rental of R4 500 with a 10 per cent per annum escalation and not for the orally agreed rental of R50 000 with a 12 per cent per annum escalation.
After November 2000, no further rental was paid by the investor. Arbitration proceedings were launched by the appellant to effect a rectification of the lease agreement to reflect the rental orally agreed. The appellant then cancelled the lease due to non-payment of rentals, and eventually successfully evicted the investor from the property. The investor’s company was liquidated and no rental was ever recovered.
The appellant then successfully sued the respondent for damages flowing from the respondent’s conceded negligent failure to insert the orally agreed monthly rental in the written lease agreement signed by the parties thereto. The court below granted the appellant damages for the loss of rental income restricted to the likely date upon which registration of transfer of the property in terms of the sale would have been effected. It awarded the appellant interest at 15.5 per cent per annum as damages calculated, not monthly, but from the date of service of summons. In the appeal, the appellant sought to increase the

damages awarded to include rental for the full period until the eviction of the lessee, and interest calculated from each month as the rental became due, owing and payable.
In a cross-appeal, the respondent contended that the factual cause of the loss was the dishonest conduct of the lessee’s attorney and not the negligence of Breytenbach. It sought the replacement of the order of the court below with an order that the appellant’s claim be dismissed with costs.
Held that a plaintiff who enforces a contractual claim arising from the breach of a contract needs to prove, on a balance of probability, that the breach was a cause of the loss.
The court agreed that the lessee and his attorney had dishonestly attempted to use the error in the document to their advantage. However, if Breytenbach had not failed to execute his mandate there would not have been the opportunity for the lessee to rely on the written lease agreement in support of its dishonest contention. It was therefore probable that Breytenbach’s failure did cause loss to the appellant.
That did not mean that the appellant was entitled to all of the damages it suffered. The general rule in relation to contractual damages is that the claimant is entitled to be put in the position it would have been in if the respondent executed its mandate properly. The general rule suggests that a line needs to be drawn to ensure that the respondent should not be caused undue hardship. Examining the facts, the court found that when the relationship between the appellant and the lessee soured as it had, future dealings between themn became unlikely. In those circumstances the appellant would have been successful in recovering rental of R50 000 per month until 2006. The evidence did not establish as a probability that damages were sustained after the period fixed by the trial court.
Thus, the appeal and the cross-appeal were dismissed.
Cloete v Maritz
[2014] JOL 32110 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6222 / 2010 & 16433 / 2012
13 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
RCA Henney J
Keywords:
Contract – Promise to marry – Breach of promise – Claim for damages – Contract – Universal partnership
– Requirements
Mini Summary:
In March 1998, the parties herein orally agreed to marry each other within a reasonable time after such date. They consequently became engaged to each other in February 1999. The plaintiff alleged that the defendant repudiated the said agreement by refusing to marry her, informing her in 2009, that he had someone new in his life.
Based on breach of contract, the plaintiff claimed damages representing amounts of money that she had donated to him in contemplation of the marriage, for the loss of financial benefits of the marriage, and for the contumacious breach of promise to marry.
In August 2012, the plaintiff amended her particulars of claim, claiming the existence of a universal partnership between the parties. She requested an order declaring her to have a 50% share of the value of the assets in the universal partnership. In terms of the amended particulars of claim, she further claimed the payment of an amount of R25 000 for damages for breach of promise.
In a counter-claim, the defendant stated that the plaintiff was unlawfully occupying property owned by the defendant, as a result of which the defendant suffered damages in that he was unable to tender the property for lease to third parties. He claimed damages totalling R420 000, being the amount of 21 months’ unlawful occupation. In his plea, the defendant denied that there was a legally enforceable engagement, or that there was a universal partnership agreement entered into between the parties.
The defendant also raised a special plea to the claim that there was a universal partnership between the parties. he contended that when the plaintiff introduced the alleged universal partnership as a new cause of action, such claim had prescribed because a period of more than 3 years had lapsed since the claim arose.
Held that the court found the version of the plaintiff regarding the functions and the role she played in the businesses of the defendant not only credible but overwhelmingly consistent with probabilities.
The next question was whether there was a universal partnership that existed between the plaintiff and the defendant. Firstly, each of the parties must have brought something into the partnership or must have

bound themselves to bring something into it, whether it be money, or labour, or skill. Secondly, the partnership business had to be carried on for the joint benefit of both parties. Thirdly, the object of such partnership had to be to make a profit. Finding all the elements to have been established, the court concluded that the existence of a universal partnership in which the parties agreed to put in common all their property present and future was established.
In respect of the special plea, the court held that even though the romantic relationship had ceased to exist on the defendant’s version on or during March 2009, the universal partnership continued to exist at least until June 2010. As such, when the claim relating to the universal partnership was made on 16
August 2012, the claim had not yet prescribed.
Apart from the 50% share of the universal partnership, the defendant was ordered to pay the plaintiff
R25 000 for the contumacious breach of promise.
The defendant’s counter-claim was held to be without merit and was dismissed.
Minister of Correctional Services v Lee
[2012] JOL 28823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
316 / 11
23 / 03 / 2012
South Africa
Supreme Court of Appeal
Mpati P, RW Nugent, MS Navsa, S Snyders JJA, Ndita AJA
Keywords:
Delict – Claim for damages – Prison inmate diagnosed with tuberculosis whilst in prison – Whether state liable for damages – Where element of causation established – No proof that infection would have been avoided but for negligent omission to ensure risk of contagion was eliminated – Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could not be found that but for the systemic omission he probably would not have contracted the disease
Mini Summary:
The respondent was arrested on charges including counterfeiting, fraud and money laundering, and was in prison for over four years before his acquittal and release. He was 54 years old and in reasonable health when he entered prison. After about three years in prison, he was diagnosed with pulmonary tuberculosis.
The condition was treated and he was declared to be cured after about six months.
Upon his release from prison, the respondent sued the appellant in the high court, claiming damages on the basis that the prison authorities had failed to take adequate precautions to protect him against contracting tuberculosis, that he had contracted the illness in consequence of their omission, and that the omission violated his right to protection of his physical integrity under the common law, the Correctional
Services Act 8 of 1959 and the Constitution.
Dealing only with the issue of liability, the high court held that the state was indeed liable. The present appeal was directed at that finding.
Held that the three elements of a delictual claim that is founded on negligence are a legal duty in the circumstances to conform to the standard of the reasonable person, conduct that falls short of that standard, and loss consequent upon that conduct.
In respect of the first element, negligent conduct will attract liability only if it is wrongful. In other words, considerations of public and legal policy require that the negligent act or omission should be held actionable for damages. The present Court agreed with the high court that negligent failure on the part of the authorities to have reasonably adequate precautions against contagion, which was the foundation of

the respondent’s claim, ought to be categorised as wrongful. When a person becomes a prisoner, he is at the mercy of the state, which bears the concomitant obligation to see to the physical welfare of its prisoner.
Turning to the question of negligence, the Court referred to the classic test which states that a person is negligent if he or she fails to take reasonable steps to guard against harm occurring if the harm is reasonably foreseeable and a reasonable person in his or her position would have taken those steps. In the present case, the Court agreed that the prison authorities failed to maintain an adequate system for management of the disease and in that respect they were negligent.
Remaining for determination was the issue of causation. To succeed in an action for damages, a plaintiff must establish that it is probable that the negligent conduct caused the harm. The test in that regard is whether but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred. The application of the test is simple where the negligent conduct is a positive act. However, where the conduct takes the form of an omission, it means that the defendant was obliged to initiate reasonable action, and the question then is what would have happened if that had occurred?
The Court accepted that the respondent was probably infected whilst in prison. That however, was not the end of the matter. The remaining question was whether he would have been infected if there had been reasonable management of the disease. Whether harm would have occurred if reasonable action had been taken to avoid it entails a two-stage enquiry of fact. The first question is what a reasonable person in the position of the defendant would have done to avoid the occurrence of the harm. The second stage of the enquiry, is whether the harm would have been avoided had that been done. The law does not demand that a defendant must guarantee that foreseeable harm does not occur – only that he must take reasonable steps to avoid it.
While it was clear that the prison authorities had no adequate system in place for managing the outbreak of contagion, that proof was not sufficient for determining whether the harm was caused by the omission.
The problem for the respondent in this matter, was that the source of his infection was not established.
Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could not be found that but for the systemic omission he probably would not have contracted the disease. The appeal was upheld, and the appellant was absolved from the instance.
Minister of Correctional Services v Lee
[2012] JOL 28823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
316 / 11
23 / 03 / 2012
South Africa
Supreme Court of Appeal
Mpati P, RW Nugent, MS Navsa, S Snyders JJA, Ndita AJA
Keywords:
Delict – Claim for damages – Prison inmate diagnosed with tuberculosis whilst in prison – Whether state liable for damages – Where element of causation established – No proof that infection would have been avoided but for negligent omission to ensure risk of contagion was eliminated – Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could not be found that but for the systemic omission he probably would not have contracted the disease
Mini Summary:
The respondent was arrested on charges including counterfeiting, fraud and money laundering, and was in prison for over four years before his acquittal and release. He was 54 years old and in reasonable health when he entered prison. After about three years in prison, he was diagnosed with pulmonary tuberculosis.
The condition was treated and he was declared to be cured after about six months.
Upon his release from prison, the respondent sued the appellant in the high court, claiming damages on the basis that the prison authorities had failed to take adequate precautions to protect him against contracting tuberculosis, that he had contracted the illness in consequence of their omission, and that the omission violated his right to protection of his physical integrity under the common law, the Correctional
Services Act 8 of 1959 and the Constitution.
Dealing only with the issue of liability, the high court held that the state was indeed liable. The present appeal was directed at that finding.

Held that the three elements of a delictual claim that is founded on negligence are a legal duty in the circumstances to conform to the standard of the reasonable person, conduct that falls short of that standard, and loss consequent upon that conduct.
In respect of the first element, negligent conduct will attract liability only if it is wrongful. In other words, considerations of public and legal policy require that the negligent act or omission should be held actionable for damages. The present Court agreed with the high court that negligent failure on the part of the authorities to have reasonably adequate precautions against contagion, which was the foundation of the respondent’s claim, ought to be categorised as wrongful. When a person becomes a prisoner, he is at the mercy of the state, which bears the concomitant obligation to see to the physical welfare of its prisoner.
Turning to the question of negligence, the Court referred to the classic test which states that a person is negligent if he or she fails to take reasonable steps to guard against harm occurring if the harm is reasonably foreseeable and a reasonable person in his or her position would have taken those steps. In the present case, the Court agreed that the prison authorities failed to maintain an adequate system for management of the disease and in that respect they were negligent.
Remaining for determination was the issue of causation. To succeed in an action for damages, a plaintiff must establish that it is probable that the negligent conduct caused the harm. The test in that regard is whether but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred. The application of the test is simple where the negligent conduct is a positive act. However, where the conduct takes the form of an omission, it means that the defendant was obliged to initiate reasonable action, and the question then is what would have happened if that had occurred?
The Court accepted that the respondent was probably infected whilst in prison. That however, was not the end of the matter. The remaining question was whether he would have been infected if there had been reasonable management of the disease. Whether harm would have occurred if reasonable action had been taken to avoid it entails a two-stage enquiry of fact. The first question is what a reasonable person in the position of the defendant would have done to avoid the occurrence of the harm. The second stage of the enquiry, is whether the harm would have been avoided had that been done. The law does not demand that a defendant must guarantee that foreseeable harm does not occur – only that he must take reasonable steps to avoid it.
While it was clear that the prison authorities had no adequate system in place for managing the outbreak of contagion, that proof was not sufficient for determining whether the harm was caused by the omission.
The problem for the respondent in this matter, was that the source of his infection was not established.
Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could not be found that but for the systemic omission he probably would not have contracted the disease. The appeal was upheld, and the appellant was absolved from the instance.
Kogana v SBV Services (Pty) Ltd
[2012] JOL 29058 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
384 / 11
23 / 03 / 2012
South Africa
Supreme Court of Appeal
RW Nugent, MS Navsa, A Cachalia, ZLL Tshiqi JJA, XM Petse AJA
Keywords:
Contract – Breach of contractual obligations – Claim for damages – Causation – Whether causal link was established between the breach and the loss sustained – Respondent not proving that robbery would not have occurred had the breach not occurred
Mini Summary:
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) – Referred to
AB Ventures Ltd v Siemens Ltd 2011 (4) SA 614 (SCA) – Referred to
International Shipping Co (Pty) Ltd v Bentley, 1990 (1) SA 680 (A) – Referred to
The respondent was a security company that delivered cash to automated teller machines on behalf of banks. The money was delivered in specially protected vehicles manned by an armed crew. During one such delivery in 2007, the relevant crew was robbed by an armed gang. The respondent sued the appellant, as the supervisor of the crew, alleging that the money had been stolen because he had neglected his duties. The present appeal was against the court a quo’s upholding of the claim.
Although the respondent’s claim started off being delictual in nature, by the time the appeal came before the present court the respondent sought to found its claim instead upon an alleged breach by the appellant of his contractual obligations.

Held that assuming that a contractual claim was properly before the Court, and that the appellant was indeed liable for damages in contract if he failed properly to perform his duties, it remained for the respondent to establish a causal link between his failure and the loss. The question to be answered in this case was whether the respondent had shown that the money probably would not have been stolen had the appellant properly performed his duties. According to the respondent, the appellant’s negligence was manifest in his not ensuring that the armed guard on the crew was strategically placed before the money was removed from the vehicle, and in failing to ensure that the driver did not leave the vehicle. Instead, of remaining in the vehicle, the driver and the relevant crew member attended to a leaking fuel cap. While it might have been the respondent’s duty to do what was alleged by the respondent, the question was whether the robbery would have been averted had he fulfilled that duty.
A major hurdle for the respondent was that there was insufficient evidence to determine what might have been encountered had the crew resisted the robbery. The robbery was clearly well-planned, and there was no justification for the notion that the robbers’ plans would have been thwarted had the armed crew member and the driver done what they were supposed to do. As the respondent could not discharge the onus of satisfying the court that the theft would have been averted, its claim had to fail. The appeal was accordingly upheld, and the court a quo’s order was replaced with one in terms of which the appellant was absolved from the instance with costs.
Pitzer v Eskom
[2012] JOL 29007 (SCA)
Case Number: 336 / 11
Judgment Date: 29 / 03 / 2012
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
RW Nugent, A Cachalia, LO Bosielo JJA, P Boruchowitz, XM Petse AJJA
Keywords:
Delict – Claim for damages – Causation – Test – Whether, but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred – Delict – Electrocution in high voltage yard of electricity supplier – Presumption of negligence – Section 26 of the Electricity Act 41 of 1987 provides that in an action for damages arising out of injury caused by means of electricity generated or transmitted by or leaking from the plant or machinery of an undertaker, the injury shall be presumed to have been caused by the negligence of the undertaker, unless the contrary is proved – Delict
– Negligence – Test – For the purposes of liability, culpa arises if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence; and the defendant failed to take such steps
Mini Summary:
In July 2006, the appellant was employed by a private electrical contracting company to carry out electrical work in a control room located outside a high voltage yard on the respondent’s premises. At the time the high voltage yard was under the control and supervision of an official employed by the respondent. That person left work early on the day in question, and when the appellant emerged from the control room he noticed that the main gate to the high voltage yard was open. The appellant knew that the gate should have been closed and locked unless work was being performed under supervision inside.
He therefore decided to close the gate, but before doing so he wanted to satisfy himself that all the painters had vacated the yard. Upon entering the yard, the appellant observed that the door to the live chamber was open. A live chamber is an enclosed room or area in which a high voltage electrical apparatus is housed. In order to satisfy himself that no one was in the blockhouse, he went up the stairs and into the live chamber. He sustained an electric shock and was rendered unconscious.
He sued the respondent for damages in the high court, alleging that it had been negligent in various respects. The trial proceeded on the issue of liability only. At its conclusion, the claim was dismissed, the court holding that the appellant’s injury was caused solely by his own negligence and that there had been a voluntary assumption of risk. The present appeal was directed at the finding.
Held that a presumption of negligence operated in favour of the appellant. Section 26 of the Electricity Act
41 of 1987 provides that in an action for damages arising out of injury caused by means of electricity generated or transmitted by or leaking from the plant or machinery of an undertaker, the injury shall be presumed to have been caused by the negligence of the undertaker, unless the contrary is proved. The respondent was an “undertaker” as contemplated in the section. The effect of the section was to cast upon the respondent the onus of proving on a balance of probabilities that it was not negligent or, if it was, that there was no causal link between that negligence and the injury sustained by the appellant. On appeal, the respondent disputed that it had been negligent.

Of the three requirements necessary for liability under the Aquilian action, only fault (culpa) and causation were in issue. Wrongfulness was not in contention.
The test for determining negligence is that of the diligens paterfamilias. For the purposes of liability, culpa arises if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence; and the defendant failed to take such steps.
In the present matter, the supervisor of the high voltage yard must have foreseen, or at least ought reasonably to have foreseen, that some person might enter the yard and be exposed to the danger of electrocution if the gate to the yard was left open while it was not under supervision. The Court held that the supervisor should reasonably have foreseen that even a qualified electrician like the appellant might come to harm if the entrances to the premises were left open. The harm being reasonably foreseeable, the yard supervisor was obliged to take reasonable steps to avoid it occurring. All that was required in that regard was for him to lock the gate. His failure to do so was negligent.
On of causation, the Court confirmed the test as being whether, but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred. Had the gate to the high voltage yard and the exit door to the live chamber been closed, the appellant would not have had access to the substation and the incident would not have occurred. There was thus a causal link between the respondent’s conduct in failing to properly secure the yard and the live chamber and the appellant’s injury.
The Court then turned to consider whether the appellant was contributorily negligent. It was found that a reasonable person in the position of the appellant ought to have made such enquiries before entering the live chamber. He was undoubtedly negligent in either touching or standing in close proximity to the high voltage equipment which injured him. Consequently, the court reduced the appellant’s damages by 50%.
Table of Contents
Malatjie v Passenger Rail Agency of South Africa
[2012] JOL 29012 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2377 / 11
20 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
AP Ledwaba J
Keywords:
Delict – Claim for damages – Alleged negligence
Mini Summary:
The plaintiff was seriously injured on 30 April 2010 when he was attacked whilst he was a passenger in a train operated by the defendant. In the course of the attack, he was thrown off the train, and his injuries left him in a wheelchair.
As a result of a separation of issues, the trial proceeded only on the issue of liability.
Held that the issue of the train doors being open at the time the plaintiff fell from the train was not raised by the plaintiff timeously. The plaintiff denied the defendant’s allegation that the issue was raised as an afterthought in order to cast blame on the defendant. The court held that as the plaintiff was unexpectedly attacked just after the train left the station, he did not have ample opportunity to observe whether the doors were opened whilst the train was in motion. There was a possibility that the doors could have been opened by the attackers after the train left the station. Concluding that it would be unreasonable to impute liability on the defendant, the Court dismissed the plaintiff’s claim.
SBV Services Ltd v Kogana & another
[2011] JOL 27065 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Loss of property – Claim for damages – Negligence – Causation – Collateral source rule
Mini Summary:
2722 / 07
01 / 04 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
BR Tokota AJ

The plaintiff was a private security provider which maintained cash centres throughout the country. The centres stored cash used for banks’ ATMs. When banks need to refill an ATM, the plaintiff would deliver cash to the ATM in question. For that purpose, it employed registered security officers. The first defendant was such an officer. In 2007, while he was delivering cash to an ATM with the second defendant and one other officer, an armed robbery occurred at the ATM. The robbers escaped with the cash.
The plaintiff issued summons against the defendants on the basis that they had colluded with the robbers, alternatively, that they were negligent in the performance of their duty and thereby caused the loss to the plaintiff.
As the plaintiff had recovered the money lost from its insurer, the defendants argued that it suffered no damages.
Held that as a general rule the patrimonial delictual damages suffered by a plaintiff is the difference between his patrimony before and after the commission of the delict. But it has been recognised that there are exceptions to this general rule. What was relevant to the present dispute was the “collateral source rule” ie the rule that generally any compensation for damages that the injured party receives from a collateral source, wholly independent of the wrongdoer or his insurer, does not operate to reduce the damages recoverable by him. The court found the rule to be applicable in this case.
In this case, the first defendant had acted negligently in alighting from the delivery vehicle to attend to a problem with the petrol cap, and had failed to keep a proper lookout for danger despite it being reasonably foreseeable that a cash-in-transit vehicle might be robbed. Causation was also clearly established.
Judgment was awarded to the plaintiff.
Premier of the Western Cape Province & another v Loots NO
[2011] JOL 27067 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
214 / 10
25 / 03 / 2011
South Africa
Supreme Court of Appeal
FDJ Brand, PE Streicher, JB Shongwe, Theron JJA
Delict – Medical negligence – Sterilisation operation done incorrectly – Mother falling pregnant after operation, and due to complications in pregnancy, suffering brain damage – Causation – Whether doctor’s negligent conduct was linked sufficiently closely or directly to the harm suffered by patient for legal liability to ensue – Court finding that causation was established –Delict – Medical negligence – Sterilisation operation done incorrectly – Mother falling pregnant after operation, and due to complications in pregnancy, suffering brain damage – Negligence of doctor in not performing sterilisation operation correctly clearly established –
Mini Summary:
The respondent was the curator ad litem of a person (Mrs Erasmus) who had gone to a State Hospital for a sterilisation operation. The operation was performed by the second appellant, who was employed as a clinical assistant in the Department of Obstetrics and Gynaecology at the hospital. The operation involved a laparoscopic occlusion of both fallopian tubes. It was later discovered, however, that the second appellant had mistakenly occluded the round ligaments of the patient instead of her fallopian tubes with the result that she had not been sterilised at all. A few months later, she fell pregnant. The pregnancy was did not end well, as towards the end of the pregnancy, Mrs Erasmus was rushed to the hospital as she had high blood pressure. An emergency Caesarean section was performed but the baby was severely compromised and did not survive. It appeared that Mrs Erasmus must have developed amniotic fluid embolism which caused severe haemorrhaging and cardiac arrest, which in turn led to brain anoxia and eventually to the irreversible brain damage that Mrs Erasmus suffered.
In a delictual action, the respondent claimed damages arising from the harm caused to Mrs Erasmus as a result of the failed sterilisation operation. The high court decided that the appellants were liable for such damages as the respondent might prove , leading to the present appeal.
On appeal, the two defences relied on by the appellants were that the second appellant had not been negligent, and that the causal link between the second appellant’s negligence (if proved) and the harm suffered by Mrs Erasmus was too tenuous to justify the imposition of delictual liability on the appellants for that harm.
While the expert evidence adduced by the respondent was unequivocally that the second appellant had been negligent, the appellants based their argument on the so-called concrete or relative approach to negligence. According to such approach it cannot be said that someone acted negligently because harm to

others in general was reasonably foreseeable. A person’s conduct can only be described as negligent with reference to specific consequences. Yet, the relative approach does not require that the precise nature and extent of the actual harm which occurred was reasonably foreseeable. Nor does it require reasonable foreseeability of the exact manner in which the harm actually occurred. What it requires is that the general nature of the harm that occurred and the general manner in which it occurred was reasonably foreseeable. For the factual basis of their argument the appellants relied on the proposition that the harm which Mrs Erasmus actually suffered was not of a general kind reasonably foreseeable. That proposition, in turn, rested mainly on the concessions by the expert as to the unforeseeability of amniotic fluid embolism.
The general harm consequent upon a failed sterilisation, so the argument went, was pregnancy and the general risks associated with that condition. But the harm that actually occurred resulted from amniotic fluid embolism, which was not reasonably foreseeable.
Held that as the appellants conceded, pregnancy was a generally foreseeable consequence of a failed sterilisation. As pointed out by the expert testimony, pregnancy comes with the potential for many complications and risks – one of which is amniotic fluid embolism. As the latter was reasonably foreseeable, it followed that the second appellant was negligent with regard to the harm that Mrs Erasmus had suffered.
On the issue of causation, the court pointed out that in the law of delict, causation involves two distinct enquiries. First there is the so-called factual causation which is generally conducted by applying the “but for” test. In this case, it was common cause that the harm suffered by Mrs Erasmus resulted from her pregnancy, and but for the failed sterilisation, the inherent likelihood was that she would not have fallen pregnant. Therefore, but for the second appellant’s negligence, Mrs Erasmus would not have suffered the harm. Factual causation was therefore not the real issue.
The real issue turned on the second enquiry under the rubric of causation, namely, whether the second appellant’s negligent conduct is linked sufficiently closely or directly to the harm suffered by Mrs Erasmus for legal liability to ensue. The criterion in our law for determining remoteness is a flexible test, also referred to as a supple test. In accordance with the test, issues of remoteness are ultimately determined by broad policy considerations as to whether right-minded people, including judges, would regard the imposition of liability on the defendant for the consequences concerned as reasonable and fair.
In relying on causation as a defence, the appellants first relied on the direct consequences theory. A key element of this theory is the concept of a novus actus interveniens. The independent intervening cause relied upon by the appellants for its argument was the decision by Mrs Erasmus not to accept the offer of an abortion tendered by the hospital when she discovered that she was pregnant. In order to qualify as a
novus actus interveniens in the context of legal causation, the plaintiff’s conduct must be unreasonable.
Reasonable conduct on the part of the plaintiff cannot free the defendant from the imputation of liability.
The court pointed out that Mrs Erasmus and her husband had opted for sterilsation as they could not afford to have another child. The hospital’s offer of an abortion was because the sterilisation operation had not been properly done, and not for medical reasons. For religious reasons, the Erasmuses could not accept that offer. The court found that it was not unreasonable of them to make such a decision.
Next, the appellants relied on the reasonable foreseeability test. Their argument in that regard rested on the concession by the expert witness that the complication of amniotic fluid embolism that led to the harm was so rare that it would not have been foreseen by the reasonable surgeon. The court rejected this contention, pointing out that while rare, the condition was not unforeseeable.
The court concluded that in all the circumstances, considerations of reasonableness, justice and fairness dictated that the appellants should be held liable for the harm suffered by Mrs Erasmus.
The appeal was dismissed.
Hlomza v Minister of Safety & Security & another
[2011] JOL 26706 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1548 / 07
20 / 01 / 2011
South Africa
High Court
Eastern Cape, Mthatha
Griffiths J
Keywords:
Delict – Personal injury – Loss of support – Claim for damages – Causation
Mini Summary:
The plaintiff sued the defendants, both in her personal capacity and in her representative capacity on behalf of her four minor children, for damages arising out of an incident in which her husband ("the deceased") shot her in her upper jaw and neck and then shot and killed himself with the same firearm.

Personal damages were claimed for the plaintiff, and damages for loss us support was claimed for herself and her children.
It was common cause that the deceased had at all material times been in possession of a police issue regulation firearm which he had in his possession whilst he was not on duty.
Held that the plaintiff had to establish a causal link between the failure of the police to remove the firearm and the claim for loss of support.
When dealing with causation in the law of delict it is necessary to deal with two distinct problems. The first aspect is the question of factual causation and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. The second aspect is whether or not the omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether the harm is too remote.
In light of the background to the matter, the defendants ought to have foreseen as a reasonable possibility that the deceased might have shot the plaintiff with the firearm. The court that causation had not been established for any of the claims other then that for personal damages.
Venfin Investments (Pty) Ltd v KZN Resins (Pty) Ltd t/a KZN Resins
[2010] JOL 25688 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
5814 / 02
24 / 03 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
ND van der Reyden J
Contract – Cession – Claim for payment – Assessment of claims
Mini Summary:
The defendant supplied fresh resin to a manufacturer of geysers, named Fibalogic. The failure of glassfibre geysers manufactured by Fibalogic led the latter to conclude that the resin supplied by the defendant was the cause. Fibalogic ceded its right to claim damages from the defendant to the plaintiff.
The plaintiff now claimed damages from the defendant based on an alleged oral agreement between
Fibalogic and the defendant in terms of which the defendant agreed to compensate Fibalogic for certain consequential losses flowing from the geyser failures. The defendant counterclaimed for resin sold and delivered.
Held that the first issue related to the terms of the oral agreement which was concluded. The issue involved a fundamental dispute in which the plaintiff maintained that it was a term of the agreement that compensation would be paid by the defendant, whereas the defendant maintained that the agreement was merely that the plaintiff would only be compensated if the defendant's insurer accepted the claim. Having regard to the plaintiff's managing director's poor performance as a witness and to the probabilities, the court not persuaded that the plaintiff had discharged the onus of proving the conclusion and the terms of the alleged oral agreement. Plaintiff's claim in convention was dismissed and judgment entered in favour of the defendant in the first claim.
The defendant's claim in reconvention against the plaintiff was for payment of monies allegedly due ex
contractu by Fibalogic to the defendant for goods sold and delivered. The basis of the counterclaim was that, notwithstanding the absence of any contractual privity between the plaintiff and the defendant, the former was alleged to be liable to the defendant by virtue of the provisions of section 156 of the
Insolvency Act 24 of 1936. The agreement relied on by the defendant in invoking section 156 did not assist it as the indemnity provided therein was not such as to render the plaintiff liable for any existing indebtedness of Fibalogic to the defendant in respect of goods delivered.
The third claim, was also a counter-claim by the defendant. The court found that the cession of the claim by Fiblogic to the plaintiff was done to frustrate the defendant's possible counterclaim against Fibalogic.
This claim was upheld.
Ex parte application WH & others
[2011] JOL 27860 (GNP)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
29936 / 11
27 / 09 / 2011
South Africa
High Court
North Gauteng, Pretoria
RG Tolmay et N Kollapen JJ
Keywords:
Family law – Parent and child – Children – Surrogacy motherhood agreement – Confirmation by court
Mini Summary:
The first and second applicants (referred to as the "commissioning parents") were two males who were married to each other. They approached the court to confirm a surrogacy motherhood agreement in terms of the Children's Act 38 of 2005 (“the Act”). The surrogate mother was engaged to the fourth applicant, and had two children of her own.
Held that the Act provides the legal framework for willing parties to facilitate surrogacy agreements with the proviso that the confirmation by the high court of all surrogacy agreements is required to render any such agreement valid. Section 292 of the Act provides for the formal requirements of a valid surrogate motherhood agreement and in terms of section 295, a court may not confirm the agreement unless certain requirements are met. The Act also deals with the question of payments in respect of surrogacy and generally prohibits commercial surrogacy while only permitting payments related to compensation for expenses, loss of earnings and bona fide professional, legal and medical services related to the confirmation of a surrogate motherhood agreement.
In terms of section 28(2) of the Constitution a child's best interests are of paramount importance in every matter concerning the child. This approach is echoed in section 7 of the Act.
The Court in this case found that, having regard to the requirements of the Act, the commissioning parents in this case have made out a proper case for the relief they seek. The formal requirements found in section 292 of the Act have been met and we are satisfied that both the commissioning parents as well as the surrogate mother are suitable persons as contemplated in the Act, both to accept parenthood as well as to act as surrogate mother respectively. The surrogate motherhood agreement was accordingly confirmed.
Louw v Louw
[2011] JOL 26795 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
75723 / 10
22 / 12 / 2010
South Africa
High Court
North Gauteng, Pretoria
C Botha J
Family law – Children – Education
Mini Summary:
The parties herein were previously married, and had a daughter. A court order ruled that the child would spend alternative weeks with each parent.
The applicant was dissatisfied with the school which the child had been attending thus far, and sought an order that she be enrolled in another school for the 2011 year.
Held that if the child were to be moved to the school suggested by the applicant it would entail a disruption in her education. The court found no reason to disturb the status quo and dismissed the application.
EM v OM
[2011] JOL 26653 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
HH 78 / 10
13 / 05 / 2010
Zimbabwe
High Court
Harare
Musakwa J

Family law – Child – Custody – Best interests of child – Factors to be considered in determining what is in best interests of child
Mini Summary:
The primary consideration in a custody dispute is what is the best interests of the child. In determining what is in the best interests of the child, the court must decide which of the parents is better able to promote and ensure the child’s physical, moral, emotional and spiritual welfare. This can be assessed by reference to the following criteria. These are not set out in order of importance, and also there is a measure of unavoidable overlapping. Some of the criteria may differ only as to nuance. The criteria are the following: (a) the love, affection and other emotional ties which exist between parent and child and the parent's compatibility with the child; (b) the capabilities, character and temperament of the parent and the impact thereof on the child's needs and desires; (c) the ability of the parent to communicate with the child and the parent's insight into, understanding of and sensitivity to the child's feelings; (d) the capacity and disposition of the parent to give the child the guidance which he requires; (e) the ability of the parent to provide for the basic physical needs of the child, the so-called “creature comforts”, such as food, clothing, housing and the other material needs – generally speaking, the provision of economic security; (f) the ability of the parent to provide for the educational well-being and security of the child, both religious and secular; (g) the ability of the parent to provide for the child's emotional, psychological, cultural and environmental development; (h) the mental and physical health and moral fitness of the parent; (i) the stability or otherwise of the child's existing environment, having regard to the desirability of maintaining the status quo; (j) the desirability or otherwise of keeping siblings together; (k) the child's preference, if the court is satisfied that in the particular circumstances the child's preference should be taken into consideration; (l) the desirability or otherwise of applying the doctrine of same sex matching; and (m) any other factor which is relevant to the particular case.
Minister of Police and another v Du Plessis
[2014] JOL 31560 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
666 / 2012
20 / 09 / 2013
South Africa
Supreme Court of Appeal
MS Navsa ADP, VM Ponnan, LO Bosielo, R Pillay JJA, Meyer AJA
Criminal procedure – Arrest and detention – Even where arrest was lawful, where police became aware within a few hours of the arrest that the arrestee had played no part in offence for which he had been arrested, further detention was unlawful – Criminal procedure – Detention of arrested person – Before the court makes a decision on the continued detention of an arrested person comes the decision of the prosecutor to charge such a person – Where prosecutor’s docket established that detainee was merely an innocent bystander and that there was no basis for prosecuting him, the decision to prosecute attracted an award of damages against the directorate of public prosecutions
Mini Summary:
On 28 February 2004, a robbery occurred at a logistics company (“the company”). The police had been tipped off about the robbery by an informant, and were aware of the vehicles to be used by the robbers.
On their way to the scene of the robbery, the police came across two vehicles, as described in the tip-off, seemingly abandoned in the vicinity of the company.
It appeared from the evidence before the Court that on the night of the robbery, one of the employees of the company had asked his uncle (“Bosch”) to transport him and some of his work colleagues to their places of employment in his panel van. After Bosch had dropped off the said passengers, his van broke down. He called the respondent, a motor mechanic, for assistance. The respondent was busy taking steps to tow the van when the police arrived at the scene. Despite his explanation about how and why he had arrived at the scene he was arrested by the police. He and Bosch were taken to a police station where they were held in appalling conditions until 2 March 2004 when they appeared in the Magistrates’ Court and, together with 15 others, were charged with armed robbery. The magistrate postponed the case for 7 days during which Bosch and Du Plessis were held at another police station in similar conditions. On 11
March 2004, the charges against the respondent were withdrawn. He instituted action against the Minister of Police (“the minister”) and the National Director of Public Prosecutions (‘NDPP”) for damages sustained as a result of what was alleged to be an unlawful arrest and detention. The trial court held that the

arresting officer’s suspicions in the vicinity of the scene of the robbery were reasonable in respect of the arrest of both Bosch and the respondent, stating that at that stage there was evidence linking them to the robbery. However, the court stated that the police were required to apply themselves to whether or not it was justified to further detain the respondent once he had explained his presence at the scene. It found that his detention from about 2h00 on 29 February 2004 was unlawful. It awarded damages to the respondent. The minister and the NDPP appealed against that order.
Held that the police bear the onus to justify an arrest and detention. Our Constitution guards against intrusions upon personal liberty. Justification for the detention after an arrest until a first appearance in court continues to rest on the police. Thus, if shortly after an arrest, it becomes irrefutably clear to the police that the detainee is innocent, there would be no justification for continued detention.
In the present case, while a basis existed for the arrest, it was contended that a most cursory investigation by the police immediately thereafter would have resulted in them becoming aware of the respondent’s innocence, which should have led to his release. The respondent pleaded that the police owed him a legal duty and that in breach of that duty they failed to cause even the most perfunctory enquiries to have been made, which would have resulted in his release. The State contended that after his initial lawful arrest there was no duty on the police to consider whether the respondent’s further detention was justified. The evidence established that by 2:05am on 29 February 2004, the police were aware that the vehicle driven by the respondent bore no connection to the information provided by the informant. The respondent’s explanation for being present at the scene was corroborated by Bosch. Had the police properly considered all the information in their possession by that morning, they would have concluded that the respondent had played no part in the robbery. The first appellant’s case was therefore without merit.
The conclusion that the police were legally obliged to release the respondent before his appearance in court on the morning of 2 March 2004 had to negatively impact on the case for the NDPP. Once an arrestee is brought before a court, in terms of section 50 of the Criminal Procedure Act 51 of 1977, the police’s authority to detain, inherent in the power of arrest, is exhausted. Before the court makes a decision on the continued detention of an arrested person comes the decision of the prosecutor to charge such a person. A prosecutor has a duty not to act arbitrarily. A prosecutor exercises a discretion on the basis of the information before him. From all the information in the prosecutor’s docket it was clear that the respondent was merely an innocent bystander and that there was no basis for prosecuting him. The decision to prosecute therefore rightly attracted an award of damages against the NDPP.
The appeal was accordingly dismissed.
Duarte v Minister of Police
[2013] JOL 30687 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
201 / 24042
07 / 03 / 2013
South Africa
High Court
South Gauteng, Johannesburg
Spilg J
Keywords:
Delict – Claim for damages – Wrongful detention
Mini Summary:
In July 2010, the plaintiff was driving home from work when his motor vehicle struck a person who was either walking or running across the road. The plaintiff ran from the scene of the accident but was later arrested by the police. He was taken to a police station, but was later released. He sued the defendant for damages, alleging that his arrest and detention were unlawful.
Held that on the evidence presented by the defendant, and in material parts admitted by the plaintiff, the arresting officers had a reasonable suspicion that the plaintiff had been driving recklessly or negligently while under the influence of alcohol. The court was satisfied that those suspicions would have been heightened by the plaintiff’s failure to remain on the scene or to go to the police station to make a report.
The arrest was therefore lawful.
However, the same could not be said for the detention of the plaintiff at the police station. The police were found to have abused their power and failed to carry out their duties in a professional manner in the time between the taking of a blood sample from the plaintiff, until his release. The plaintiff was entitled to damages for that period on the grounds of unlawful detention.
The Court also found corroboration for an allegation by the plaintiff that he was assaulted whilst in detention.

The plaintiff was awarded R75 000 for wrongful detention including psychological trauma and contumelia and R60 000 for assault, and pain and suffering including psychological trauma and contumelia.
Motau v Minister of Safety & Security & others
[2012] JOL 29014 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
30024 / 05
30 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
PZ Ebersohn AJ
Keywords:
Delict – Personal injury – Assault by police – Claim for damages
Mini Summary:
The plaintiff sued the defendants for damages, alleging that the second and third defendants (both police officers) had assaulted him, leading to his sustaining serious injuries.
Held that the evidence established before the Court led to the Court’s condemnation of the actions of the various police officers involved in the incident. According to the plaintiff, he had been injured as a result of an assault by the second and third defendants. He was then taken to the police station, where the station commander noticed his injuries and had him taken to the hospital. The plaintiff denied that he had been drinking in public when accosted by the police officers. The defendants however, introduced into evidence two statements purportedly made by the plaintiff. The said statements were found to have been forged, and the defendants did not attempt to try to prove the authenticity thereof before the Court. In light of evidence to the contrary, the Court found that the captain was clearly committing perjury when he testified that the plaintiff was not injured when he delivered him to the police station to be charged.
Expressing concern at the various transgressions committed by the police in this matter, the Court requested that the matter be investigated.
The plaintiff’s claim for damages was upheld.
Hlomza v Minister of Safety & Security & another
[2011] JOL 26706 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1548 / 07
20 / 01 / 2011
South Africa
High Court
Eastern Cape, Mthatha
Griffiths J
Keywords:
Delict – Personal injury – Loss of support – Claim for damages – Causation
Mini Summary:
The plaintiff sued the defendants, both in her personal capacity and in her representative capacity on behalf of her four minor children, for damages arising out of an incident in which her husband ("the deceased") shot her in her upper jaw and neck and then shot and killed himself with the same firearm.
Personal damages were claimed for the plaintiff, and damages for loss us support was claimed for herself and her children.
It was common cause that the deceased had at all material times been in possession of a police issue regulation firearm which he had in his possession whilst he was not on duty.
Held that the plaintiff had to establish a causal link between the failure of the police to remove the firearm and the claim for loss of support.
When dealing with causation in the law of delict it is necessary to deal with two distinct problems. The first aspect is the question of factual causation and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. The second aspect is whether or not the omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether the harm is too remote.
In light of the background to the matter, the defendants ought to have foreseen as a reasonable possibility that the deceased might have shot the plaintiff with the firearm. The court that causation had not been established for any of the claims other then that for personal damages.

Kruger v Minister of Safety & Security & another
[2012] JOL 29003 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
34070 / 2009
13 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
BR du Plessis J
Keywords:
Delict –– Claim for damages – Arrest and detention
Mini Summary:
The plaintiff was arrested by members of the police in 2008. The police officers were acting within the course and scope of their employment with the first defendant. Arising from his arrest and subsequent detention, the plaintiff claimed damages from the two defendants.
Held that the evidence of the plaintiff was that he and two friends were in his shop, behind the counter having a drink at closing time when the police officers stormed in without warning, and tackled the plaintiff. On the other hand, the second defendant claimed that he had spotted the plaintiff outside the shop, without his firearm tucked into his belt at the back, upholstered and exposed. The second defendant stated that he followed the plaintiff back into the shop, to ask for his firearm licence. According to the second defendant, the plaintiff was aggressive from the start, and the incident culminated in this arrest.
The Court found the defendants’ evidence to be preferred. Something prompted the police officers to interrupt their journey, to park and to enter the plaintiffs shop. The plaintiff’s version did not explain what that something was, while the defendants offered a cogent explanation.
Examining the bases upon which the plaintiff claimed damages, the Court found that his having been pushed and shoved by the police officers was a direct result of his resisting arrest as he had. It could not be found that he was arrested with unnecessary force.
The onus was on the defendants to prove that the arrest was lawful. The second defendant testified that he had harboured a reasonable suspicion that the plaintiff had no licence for his firearm. He requested the plaintiff to produce the licence, but was ignored. The Court concluded that the second defendant was in terms of section 40(1)(b) of the Criminal Procedure Act 51 of 1977, entitled to arrest the plaintiff without a warrant on a reasonable suspicion that he was in possession of a firearm without a licence.
The plaintiff’s claim was dismissed.
Basdew NO v Minister of Safety & Security
[2011] JOL 28066 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14271 / 2007
04 / 11 / 2011
South Africa
High Court
KwaZulu-Natal, Durban
Steyn J
Keywords:
Delict – Loss of support – Shooting of claimants’ mother – Claim against police – Negligent omission –
Liability for damages
Mini Summary:
The plaintiff was an adult female advocate, acting as, and suing in her capacity as curator-ad-litem to the minor children of a woman who was shot and killed by her ex-husband. The deceased was killed at a time when she sought protection from the South African Police.
The action was for loss of support. At the present stage, the Court was called upon to decide on the issue of liability only.
Held that the case involved an alleged omission by the police. The critical issue was the wrongfulness of the omission in circumstances where there was a positive duty on the police officers to act in accordance with their duties. The Court had to consider the reasonableness of the conduct of the police. It was also necessary to determine whether there was a factual causation between the police’s omission and the deceased’s death. The most common test used in determining factual causation is the sine qua non test.
In determining wrongfulness, it was also necessary to consider whether the omission of the officers in not seizing the firearm of the deceased’s ex-husband would have led to the foreseeable harm, ie the death of the deceased as caused by him.

There were clear warning signs to the police that the ex-husband of the deceased posed a serious threat to her physical safety. She was fearful and informed them that her ex-husband was in possession of a firearm. Under those circumstances it was reasonable to expect that the police officers would have done more than just putting one question to the ex-husband, ie whether he was in possession of a firearm.
Reasonable policemen would have guarded the husband and not let him out of sight, given the earlier information relayed to them by the deceased. The failure on that regard rendered the defendant liable for all such damages as might be proven by the plaintiff.
Hoco v Mtekwana A O 2010 (2) SACR 536 (ECP)
The plaintiff was arrested, in terms of a warrant, at around 12 noon on Wednesday 13
February 2008 in Port Elizabeth and held until 18 February. He was then transported to
Gugulethu in Cape Town, held overnight, and released on 19 February. It was common cause that the plaintiff's arrest and his detention from 13 to 15 February, having been authorised by a warrant, was lawful; the plaintiff contended, however, that his further detention up to 19 February was unlawful, and he sued for damages in that regard. His uncontested evidence was that he had been arrested in connection with a dispute regarding one of his minor children. After 48 hours had expired he was informed that he was to appear in court in Cape Town, but that, as the police from that city had not arrived to fetch him, he would be held over the weekend of 16 - 17 February in
Port Elizabeth.
He was then fetched on Monday 18 February, driven to Cape Town, together with his child, held overnight and released the following day. The defendants chose not to lead evidence, but in argument on their behalf it was submitted that it was impossible for the police to have caused the plaintiff to appear before a court on 16 or 17
February, as that was a weekend; that he could in any event not appear in a Port Elizabeth court, as the warrant specified that he was to appear in Cape Town; and that, in terms of s
50(1)(d)(iii) of the Criminal Procedure Act 51 of 1977, when a person was outside the court's area of jurisdiction and was in transit to such court, the period of 48 hours after arrest was deemed to expire only at the end of the court day next succeeding the day on which the person was brought into the court's area of jurisdiction.
Held, that there was no evidence to support the submissions made on behalf of the defendants.
It was incumbent on the police, having arrested the plaintiff, to make arrangements to bring him before court within the prescribed period. In any event, the defendants could not rely on s 50(1)(d)(iii), as the plaintiff had not been in transit at the time of expiry of the 48 hour period - he was still in detention in Port
Elizabeth. Furthermore, if the plaintiff's detention during 16 and 17 February was unlawful, it could not have become lawful again on Monday 18 February without a fresh warrant having been issued. Accordingly, the plaintiff's detention from 12 noon on Friday
15 February until his release on 19 February was unlawful.
Held, further, concerning the quantum of damages, that the police's conduct gave the impression that they had failed to appreciate the seriousness of depriving the plaintiff of his liberty. They had also failed to take reasonable and necessary steps to protect his interests and to comply with the law relating to arrest and detention. The plaintiff had suffered embarrassment by being transported as a criminal, and the continued detention must have lowered the esteem in which he was held by his minor child. He had been exposed to the squalor of prison cells, taken away from his home and business, released from custody hundreds of kilometres away from home, and left to pay for his own transport back. An award of R80 000 was appropriate in the circumstances. As to costs, even though the amendment of the plaintiff's particulars of claim (to exclude the first two

days of detention) had placed the probable quantum of damages within the jurisdiction of a magistrates' court, it had been agreed between the parties that the matter would remain in the High Court. It would accordingly not be just, as urged by the defendants, to award costs on the magistrates' court scale.
Judgment in favour of plaintiff in the amount of R80 000 with costs.
Case Information
Mzileni v Minister of Safety & Security
[2010] JOL 26065 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
488 / 09
03 / 09 / 2009
South Africa
High Court
Eastern Cape, Mthatha
Miller J
Keywords:
Delict – Claim for damages – Unlawful arrest – Detention – claim for damages
Mini Summary:
The plaintiff sued the defendant for damages for unlawful arrest and detention and deprivation of liberty.
She testified that she had been visited by the police at her home, and informed that she had to accompany them to the police station as a certain police officer had a case against her.
Held that the court found the plaintiff not to be a satisfactory witness. Her description of the events surrounding the incident, and the duration of her stay at the police station did not add up.
Accepting certain aspects of the plaintiff's evidence, the court still found that the request by the police for the plaintiff to go to the police station did not in itself constitute an arrest or a deprivation of the plaintiff's freedom. However, the insistence by the police officers that the plaintiff immediately go with them in the police van to the police station was both unnecessary and unreasonable in the circumstances. By causing the plaintiff to get into the back of the police van the police officers assumed control over her movements and accordingly arrested her and deprived her of her freedom unlawfully.
The plaintiff was awarded R15 000 as damages.
Ziaur & another v Minister of Home Affairs & another; Matiwos v Minister of Home Affairs &
another
[2010] JOL 25923 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
687 / 10; 688 / 10
12 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
MR Madlanga AJ
Keywords:
Immigration – Deportation – Arrest and detention pending deportation – Lawfulness – Exercise of discretion
Mini Summary:
The applicants in each of the two cases before court were seeking their release from detention. They were detained pending their deportation to their countries of origin.
Held that the opposing affidavit filed by the Minister did not address an important question regarding the deprivation of liberty namely, must it always follow as a matter of course that somebody who has been refused asylum must be arrested and detained pending deportation?
The court did not agree with the above supposition. It held that there must still be a proper exercise of discretion on the question of whether or not there should be an arrest and detention prior to deporting.
The court emphasised that it was mindful of the risks associated with not detaining persons who are to be deported. However, it remained of the view that the lawfulness of the deprivation of liberty had to be established by showing that there was a proper exercise of discretion.
The applications were postponed, and the release of the applicants ordered, subject to their paying bail.

De Koker v Minister of Safety & Security
[2010] JOL 25954 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5676 / 07
13 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
Keywords:
Delict – Arrest and detention – Unlawfulness – Claim for damages – Liability
Mini Summary:
The plaintiff claimed damages from the defendant for unlawful arrest and detention, which resulted in emotional shock and distress and for damages to his vehicle.
The background facts were as follows. The plaintiff had been driving with his son, his niece and her boyfriend, when he was approached at speed by another vehicle. That vehicle was joined by another, and the plaintiff, who thought he was being hijacked, was forced to stop. The vehicles were not marked as police vehicles, and the occupants were in civilian clothing. Police identification was only produced after the plaintiff had been forced to stop his vehicle. The officer informed the plaintiff that he was arresting him for drunken driving, despite the plaintiff informing him that he was a teetotaller. The plaintiff was arrested and detained, and charges were later withdrawn.
Held that the defendant bore the onus of proving the lawfulness of the arrest.
The court examined the conduct of the police officers during the incident, in order to determine if their conduct was reasonable. It found that the rejection of the plaintiff's explanation that he had not stopped when chased by the police, was due to the fact that he believed he was being hijacked, was not reasonable. The plaintiff's fear that he was being hijacked was a reasonable one caused by the actions of the police. Instead of apologising for the mutual misunderstanding triggered by their conduct and trying to remedy the damages, the police officers compounded their liability by arresting the plaintiff on a spurious suspicion of drunken driving. The conduct of the police was held to be unlawful, and the defendant was held liable for plaintiff's damages.
Jordaan v Minister of Safety & Security
[2010] JOL 25919 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2012 / 08
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
R Pillay J
Keywords:
Delict – Shooting by police – Claim for damages – Onus of proof
Mini Summary:
After being shot and injured by members of the South African Police Services, the plaintiff sued the defendant for damages. The cause of action was based on an alleged deliberate and intentional assault by shooting, alternatively reckless or negligent shooting by a member of police, acting within the course and scope of his employment of the defendant.
Only the issue of the defendant's liability was required to be determined.
Held that the defendant bore the onus of proving that the shooting was justified. The versions of the parties differed drastically, and the court found that the overall probabilities favoured the version of the plaintiff. His version was accepted as being probably true and that of the defendant rejected as improbable.
The defendant, having failed to discharge the onus as set out above, was held liable for plaintiff's damages arising out of the incident.

Pretorius and another v Transnet Second Defined Benefit Fund and others
[2014] JOL 32121 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
25095/ 2013
31 / 07 / 2014
South Africa
High Court
North Gauteng, Pretoria
EM Makgoba J
Keywords:
Civil procedure – Class action – Leave to institute – Certification of class action – Requirements
Mini Summary:
The applicants sought leave to institute a class action.
The matter dated back to 1990, when the fourth respondent (Transnet) came into being. The State guaranteed that employees’ service benefits would not be changed. On April 1 1990, the obligation of
Transnet’s predecessor-in-title to the second respondent (“TPF”) the successor to a number of pension funds in existence at the time, was calculated as being R18,180 billion. In order to redeem the amount of
R18,180 billion, Transnet issued T011 stocks to the TPF in the amount of R10,394 billion. The said T011 stocks had a coupon of 16,5%, was payable monthly in advance and would expire on 31 March 2010. On
1 November 2000 the first respondent (“the TSDBF”) was established by the commencement of section
14B of the Transnet Pension Fund Act of 1990 and the pensioner members of the TPF were transferred from the TPF to the TSDBF. In February 2000, Transnet cancelled the T011 stocks which were issued to the TPF to redeem the amount of the legacy debt and replaced the cancelled stock with 75 million MTN shares to be held in trust to the value of R1,4 billion. The applicants averred that the portion of the legacy debt outstanding and due and payable to the TPF as at 31 March 2013 amounted to R34,211 billion. They averred further that the portion of the legacy debt outstanding and due and payable to the TSDBF as at 31
March 2013 amounted to R45,752 billion. The total legacy debt allegedly owed was thus R79,963 billion.
Challenging the failure to redeem the debt towards the funds, the applicants contended that the rights of the members of the class were materially and adversely affected. They also averred that the unilateral cancellation of the TO 11 stocks and the swap thereof with 75 million M-Cell shares was unconstitutional and unlawful.
Held that the issues to be determined were whether the applicants had made out a case for the certification of a class action to be instituted against any one or more or all of the respondents; and whether the applicants had established the factors and/or requirements for certification of a class action for the court to make a finding that it was in the interest of justice to certify such a class action.
A class action is one where a party brings an action on behalf of a class of persons, each member of which is bound by the action’s outcome. Such an action is available where a constitutional or non-constitutional right is involved. Section 38(c) of the Constitution permits class actions to be brought.
The Court set out the requirements for the bringing of a class action.
It concluded that the applicants did have locus standi to bring the application, and that there was a triable issue between the parties (excluding the fifth and sixth respondents). Leave to institute the class action was granted.
Fortuin v Cobra Promotions CC
[2010] JOL 26142 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Request for information – Access to information – Requirements
Mini Summary:
1658 / 09
17 / 06/ 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JC Grogan AJ

The applicant claimed to be a member of the respondent, a closed corporation ("the CC"). He averred that in terms of an agreement with the other member of the CC, a 50% members interest was to be transferred to him. He alleged that the other member had reneged on that agreement. However, the other member alleged that the agreement had been cancelled by mutual consent.
In terms of section 78 of the Promotion of Access to Information Act 2 of 2000, the applicant sought an order directing the respondent to furnish him with copies, inter alia, of its balance sheet, financial statements, asset register, VAT returns, lists of debtors and creditors and current management accounts.
The respondent sought to resist disclosure on two bases. It alleged, first, that the applicant failed to comply with the procedural requirements stipulated in the Act; and second, that the record is not required for the exercise or protection of any of the applicant's rights.
Held that the Information Act requires both public bodies and private persons to disclose information in specified circumstances. The Act requires the requester of information to provide certain details. As the applicant had not fulfilled that requirement in all respects, it had to be determined whether there was substantial compliance.
The court considered whether the failure to complete the sections of one of the forms requiring the requester to identify the right the applicant sought to protect and the reasons for which the information was required was fatal. It was significant that in the correspondence leading up to the request, the applicant had made such information clear to the respondent. The respondent could therefore not insist on strict compliance with the requirement.
Requesters do not have to establish the rights they seek to exercise or protect; they need do no more than satisfy the court that the information requested is for the exercise or protection of the right claimed.
However, the information must indeed be "required". In this case, the right sought to be exercised or protected was that flowing from the agreement referred to above, as read with the applicable legislation.
If proved, that right would entitle the applicant to claim a half share of the members' interest of the respondent. Apart from a general allegation that the information requested was irrelevant for the applicant's purposes, the respondent had not stated why it resisted disclosing the information. It had therefore failed to demonstrate why it was entitled to ignore the applicant's request to disclose the requested information.
The respondent was directed to make available for inspection by the applicant copies of the documents listed in the order.
Wakefields Real Estate (Pty) Ltd v Attree & others
[2011] JOL 27977 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
666 / 10
28 / 09 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, MS Navsa, VM Ponnan, NZ Mhlantla, MJD Wallis JJA
Keywords:
Property – Estate agents – Sale of property – Claim for commission – Dispute as to effective cause of sale
– Whether estate agent who introduces a purchaser to a property, where sale is concluded through another agent, is effective cause of the sale and entitled to commission – Where, but for agent’s introduction of property to buyer, the latter would not have been aware of the property’s existence, that agent was entitled to commission
Mini Summary:
The first two respondents (“the Attrees”) sold their property to the third respondent. The present dispute was about the appellant was the effective cause of the sale, and was therefore entitled to commission.
In 2004, an agent employed by the appellant learnt that the Attrees were possibly selling their property.
Although at that stage unsure about their plans, the Attrees did tell agents that they could bring potential purchasers to view the property. The agent working for the appellant listed the property on the appellant’s books and advertised it. During the course of 2005, another of the appellant’s employees took prospective purchasers to view the property. One of those was the third respondent. However, the third respondent eventually indicated that she could not afford to purchase the property, and the agent ceased showing her properties.

Shortly thereafter, the third respondent fortuitously encountered an agent employed by another agency
(“Pam Golding Properties”). The third respondent mentioned the Attrees’ property to that agent, indicating that although she liked the property, it was too expensive.
In April 2005, the Attrees lowered the price on the property, and gave yet another agency (“Remax”) a sole mandate to sell it. Despite the sole mandate to Remax, Mr Attree phoned two other agents, one of whom was the Pam Golding agent, and told them that he had agreed to lower the price. That agent recalled the third respondent’s expression of interest in the property, and phoned her to tell her that the price had been reduced. The third respondent made an offer on the property, which offer was accepted by the Attrees. The commission of R150 000 was shared by Remax, which had the sole mandate, and Pam
Golding which claimed that it was the effective cause of the sale.
Adjudicating the appellant’s claim for commission, the high court held that the appellant had not been given a mandate by the Attrees and also that they had not been the effective cause of the sale. It dismissed the appellant’s claim.
On appeal, the Attrees did not persist in the argument that the appellant had no mandate, accepting that the property had been listed for sale by them and that they had had dealings with the Attrees and brought potential purchasers to view it. What the appellants sought to challenge on appeal was the high court’s finding that the Pam Golding agent was the effective cause of the sale. In reaching that conclusion the trial court had regard to the following factors. At the time when the appellant’s agent took the third respondent to the property, she could not afford the asking price. The Pam Golding agent did more than the appellant’s employee to secure the sale. The Attrees had been persuaded by the Remax agent to reduce the price. The cumulative effect of these factors, said the judge, outweighed the effect of the initial introduction by the appellant’s agent. The high court concluded that the first introduction by the appellant had been outweighed by intervening factors.
Held that but for the appellant’s employee’s introduction of the house to the third respondent, the latter would not have been aware of the existence of the property. If the third respondent had herself approached the Attrees, and persuaded them to sell the property to her at a lower price (that is, assuming there was no intervention at all by the Pam Golding agent), the appellant would undoubtedly have been entitled to commission. Similarly, had the Attrees approached the third respondent directly and offered to sell to her at a lower price, the appellant would likewise have been entitled to commission, as the appellant’s employee was the effective cause of the sale.
The Pam Golding agent had, as stated above, learned that the third respondent was interested in the property quite fortuitously. Had the third respondent not been introduced to the property by the appellant, she would not have mentioned it to the Pam Golding agent, who would then not have found a willing and able purchaser before Remax’s show day. Thus, the Court found that despite the Pam Golding agent’s later intervention, the appellant’s introduction was the effective cause of the sale. Accordingly, the appellant was entitled to commission at the rate agreed to be applicable. That the Attrees found themselves liable to pay more than one agent was of their own making.
The appeal was upheld with costs.
Trustees for the time being of the Delsheray Trust and others v ABSA Bank Limited
[2014] JOL 32417 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 504 / 13
09 / 10 / 2014
South Africa
High Court
Western Cape, Cape Town
Blignault et Henney, Goliath JJ
Keywords:
Evidence – Verifying affidavit – Deponent’s personal knowledge – Reliance on computerised records –
Presumption of reliability
Mini Summary:
The trustees of a trust were cited in this matter as the first appellant. In the court a quo, the respondent sued the trustees as principal debtor, and the second and third appellants as sureties in respect of first appellant’s debt. The cause of action was a breach of an agreement of loan between it and first appellant.
The appellants filed a notice of intention to defend the action, whereupon respondent applied for summary judgment. The present appeal was against the granting of summary judgment.

Held that in terms of rule 32(2) of the Uniform Rules of Court, a plaintiff seeking an order of summary judgment is required to file an affidavit in support of the application made by himself or by any person who can swear positively to the facts verifying the cause of action and the amount claimed and stating that in his opinion there is no bona fide defence to the action. The central issue was whether the verifying affidavit by an employee of the respondent which affidavit was founded exclusively on respondent’s computerised records, complied with the provisions of rule 32(2). The first appellant argued that in relying exclusively on respondent’s computerised records the deponent to the affidavit did not purport to have any direct first-hand knowledge of respondent’s cause of action or the quantum of its claim. The verifying affidavit, according to the argument, did therefore not comply with the provisions of rule 32(2). The central issue in this case was therefore whether the verifying affidavit which was founded exclusively on respondent’s computerised records, complied with the provisions of rule 32(2).
The Court referred to a line of judgments of the high courts which are to the effect that the deponent of a verifying affidavit in summary judgment proceedings cannot rely exclusively on a perusal of records and documents of the plaintiff for purposes of that affidavit. In dealing with the evidentiary problems likely to arise in cases such as this, the court endorsed the presumption of reliability. Applying that presumption, the court concluded that the computer generated information of first appellant’s financial standing with respondent that was available to the deponent of the verifying affidavit, was sufficient to allow him to depose to a valid and adequate affidavit.
The appeal was dismissed with costs.
Pearl v ABSA Bank Limited and others
[2014] JOL 31729 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7264 / 2013
16 / 08 / 2013
South Africa
High Court
South Gauteng, Johannesburg
Modiba AJ
Keywords:
Civil procedure – Default judgment – Application for rescission – Late filing – Condonation
Mini Summary:
The first respondent obtained default judgment against the applicant who then applied for rescission thereof. The rescission application was filed late, and condonation was sought in that regard. The court now provided its reasons for dismissing the application for condonation. The application for rescission was filed approximately 34 months after the default judgement was granted.
Held that rule 31(5)(d) in terms of which the rescission application was brought requires that a rescission application for a default judgment granted under that rule be brought within 20 days after the applicant acquired knowledge of the judgment. The date on which the applicant filed the rescission application was approximately 34 months after the earliest date on which she possibly knew of the default judgment and approximately 3 months after the latest date on which she possibly knew of the default judgment. Where rescission was sought out of time, the applicant is required to file an application for condonation, the court will only grant condonation on good cause shown for the delay. Reasons for the delay must be provided with sufficient detail to enable the court to understand the cause for the delay and to assess the applicant’s motive for bringing the application.
In this case, the applicant did not make a formal application seeking condonation. The court had to consider whether it was appropriate for it to consider the condonation application brought orally from the bar. It found that it was in the interest of the parties that the condonation application be heard as doing so would bring finality to the matter with the required urgency.
In assessing whether the applicant had shown good cause for the delay, the court had to consider the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of its judgment, and the avoidance of unnecessary delay in the administration of justice. The applicant failed to properly explain the significant delay, and failed to satisfy the court that she had a bona fide defence. Condonation was thus refused.

Harris & others v Rees & others
[2010] JOL 25745 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 32226
25/ 06 /2010
South Africa
High Court
South Gauteng, Johannesburg
JP Horn J
Keywords:
Civil procedure – Order ad confirmandum iurisdictionem – Court's discretion
Mini Summary:
In 2009, in terms of a court order first respondent's rights, title and interest in a claim he had on loan account for repayment of monies lent and advanced by him to a trust were attached. The order was in the form of an order ad fundandem alternatively ad confirmandum iurisdictionem. The first respondent sought the discharge of the order, while the applicant sought to file a further affidavit.
The first respondent had left South Africa during mid-2009 to take up residence in Switzerland – having abandoned his legal practice in South Africa and resigned as director from various corporate entities in which he was involved. He had thus effectively placed himself outside the jurisdiction of the present court.
The applicant labelled the first respondent a fugitive from justice – allegedly due to his involvement if a fraudulent scheme.
Held that although the question of whether or not the first respondent was fugitive from justice was not crucial to the determination of the application to found jurisdiction, it was a relevant factor. The court found that the applicants had made out a case for the relief sought, and that the application by the first respondent should be dismissed.
Barko Financial Services (Pty) Limited v National Credit Regulator and another
[2014] JOL 32315 (SCA)
Case Number: 415 / 13
Judgment Date: 18 / 09 / 2014
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
VM Ponnan, JB Shongwe, MJD Wallis, BH Mbha JJA, BC Mocumie AJA
Keywords:
Corporate and Commercial Law – Consumer protection – Compliance notice in terms of section 55 of the
National Credit Act 34 of 2005 – Consumer paying service fee in excess of the maximum prescribed by the
Act pursuant to a supplementary agreement – Where credit provider induced consumer to sign supplementary agreement, compliance agreement was justified – Corporate and Commercial Law –
Consumer protection – Credit agreements – Section 91(a) of the National Credit Act 34 of 2005 providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement – “induce” – Section 91(a) of the National Credit Act 34 of 2005 providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement – To “induce”, according to the Shorter Oxford English Dictionary 6 ed, is to succeed in persuading or leading someone to do something
Mini Summary:
The appellant (Barko) was a credit provider, and the first respondent, the National Credit Regulator (“the
NCR”). In June 2010, the NCR issued Barko with a compliance notice in terms of section 55 of the National
Credit Act 34 of 2005 (“the NCA”). The NCR’s concern was whether it was legitimate in terms of the NCA for persons to whom Barko lent money to agree to pay, in addition to the statutorily prescribed fees and interest, a further fee for the successful processing of the repayments of their indebtedness. The NCR regarded that as a breach of the NCA. Barko contended that this additional fee was paid to a third party
(NuPay) in terms of a separate agreement and did not contravene the NCA.

Barko lodged an objection to the compliance notice with the second respondent, the National Consumer
Tribunal, but the Tribunal declined to set aside the compliance notice, modifying it instead. Barko’s appeal to the High Court was dismissed, but leave to appeal to the present court was granted.
Held that section 55(1)(a) of the NCA authorises the NCR to issue a compliance notice in the prescribed form to a person or association of persons whom the NCR on reasonable ground believes has failed to comply with a provision of the NCA or is engaging in an activity in a manner that is inconsistent with the
NCA.
Two broad issues arose for determination. The first was whether there was an agreement between NuPay and the consumer as contended by Barko; and the second was whether the Tribunal had the power under the NCA to order Barko to repay to the respective consumers the NuPay service provider fee.
Barko’s case was that in each instance three distinct agreements, each with its own purpose, found application, namely: a credit agreement between it and a consumer (the credit agreement); a service level agreement between it and NuPay (the SLA); and an alleged agreement concluded between NuPay and the consumer (referred to in the judgment as “Annexure D5”). Those agreements had to be construed in order to determine the correctness of the parties’ respective contentions. The SLA determined the relationship between Barko and NuPay. The credit agreement set out the relationship between Barko and the consumer. The key issue was the nature and status of Annexure D5 and whether it was part of the agreement between Barko and the consumer or was a separate transaction between the consumer and
NuPay. The Court questioned Barko’s description of Annexure D5 as a contract between NuPay and the consumer because on the face of it, Annexure D5 did not purport to be an agreement between the consumer and NuPay. The Court found that Annexure D5 was an agreement between Barko and the consumer in which the consumer authorised the fee payable in terms of the SLA by Barko to NuPay to be met from the consumer`s bank account. Consequently, the purpose of that agreement was not to enable
Barko`s customers to discharge their obligations to NuPay, but to enable Barko to ensure that its obligations to NuPay were discharged by its customers. Even if Annexure D5 could rightly have been characterised as an agreement between NuPay and the consumer it would be hit by the provisions of section 91(a) of the NCA, which provided that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement. Barko took issue with whether it could be said that it had induced the consumer to conclude Annexure D5, and whether Annexure D5 contained a provision that would be unlawful if it were included in the credit agreement. The Court stated that to “induce”, according to the Shorter Oxford English Dictionary 6ed, is to succeed in persuading or leading someone to do something. The manner in which Annexure D5 was presented to the consumer satisfied the Court that the consumer was induced to sign the agreement. The court found further that
Annexure D5 contained a provision that would be unlawful if it were included in the credit agreement.
The appeal was dismissed with costs.
Qwelane v Minister of Justice and Constitutional Development and others
[2015] JOL 33112 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
36314 / 13
21 / 11 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
FHD Van Oosten J
Civil procedure – Consolidation of actions – Power of High Court to order consolidation of High Court proceedings based on constitutional challenge and Equality Court proceedings for hearing before High
Court judge in dual capacity
Mini Summary:
The second respondent (the South African Human Rights Commission (SAHRC)) instituted proceedings in terms of section 20(1)(f) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000 (the Equality Act) against the applicant and another entity (Media 24) in the Equality Court sitting in the Magistrate’s Court, Johannesburg. The complaint lodged by the SAHRC was that the content of a newspaper article, written by the applicant and published by Media 24, amounted to hate speech against and harassment of homosexuals. The applicant filed an opposing affidavit in which a constitutional

challenge to sections 10(1) and 11 of the Equality Act was raised. The equality court proceedings were subsequently, by consent of all parties, transferred to the high court.
The SAHRC brought an application for consolidation of the equality court proceedings and the constitutional challenge.
Held that the first issue requiring determination was whether this Court was empowered to order the consolidation of the proceedings as sought. The purpose of consolidation of actions before the high court is to provide for a single hearing of substantially similar issues in order to avoid a multiplicity of trials.
However, the present application concerned the novel question of whether it is competent for a judge of the high court to hear equality court proceedings and high court proceedings based on a constitutional challenge in one consolidated case, in the dual capacity of high court judge and duly designated Equality
Court Judge.
The paramount test in regard to consolidation of actions in terms of Uniform Rule of Court 11 is convenience. In the exercise of the court’s wide discretion within the context of convenience, considerations such as similarity of the factual and legal issues, expedience, fairness to the parties, absence of prejudice and saving in costs are taken into account. In the circumstances of this case, the requirement of convenience fell to be considered in the light of the general rule of practice laid down by the Constitutional Court that, where possible, cases should be decided without reaching a constitutional issue.
The Court found the application for consolidation to be well-founded, and granted the relief sought.
Glenister v President of the RSA & others (Helen Suzman Foundation as amicus curiae)
[2011] JOL 26915 (CC)
Case Number: CCT 48 / 10
Judgment 17 / 03 / 2011
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Ngcobo CJ, Moseneke DCJ et Cameron J, Mogoeng, Yacoob, Froneman, Nkabinde,
Skweyiya JJ, Brand JA
Keywords:
Constitutional law – Crime fighting – National prosecuting authority – Independent anti-corruption unit –
Duty on State
Mini Summary:
The present application for leave to appeal was a continuation of a series of litigation regarding the constitutional validity of the National Prosecuting Authority Amendment Act 56 of 2008 (the “NPAA Act”) and the South African Police Service Amendment Act 57 of 2008. The gravamen of the applicant’s complaint related to the disbanding of the Directorate of Special Operations (“DSO”), a specialised crime fighting unit that was located within the National Prosecuting Authority (“NPA”), and its replacement with the Directorate of Priority Crime Investigation (“DPCI”), which is located within the South African Police
Service (“SAPS”). The impugned laws were responsible for that.
The DSO was established in 2001 under section 7(1) of the National Prosecuting Authority Act 32 of 1998.
Its purpose was to supplement the efforts of existing law enforcement agencies in addressing organised crime. The DSO was vested with powers to investigate and institute criminal proceedings relating to organised crimes or other specified offences.
Held that the main issues on appeal were whether the impugned laws were irrational, whether the impugned laws ran afoul of constitutional provisions dealing with the powers and the functioning of the
National Prosecuting Authority, whether the Constitution requires Parliament to establish an independent anti-corruption unit, and, if so, whether Parliament complied, whether the impugned laws otherwise infringed any of the rights in the Bill of Rights, and in the event of the applicant succeeding on any of these grounds, what was the appropriate relief.
The challenge based on rationality was dismissed as the laws were found to serve a legitimate governmental purpose.
In the main, the Court found that the Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime. There is a duty on the state to set up a concrete, effective and independent mechanism to prevent and root out corruption. The unit created in the form of the DPCI did not meet that requirement as it lacked the necessary independence.

The majority of the Court therefore upheld the appeal.
Magidiwana and Other Injured and Arrested Persons and others v President of the Republic of
South Africa and others (Black Lawyers Association as amicus)
[2013] JOL 30695 (CC)
Case Number: CCT 100 / 13
Judgment 19 / 08 / 2013
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Mogoeng CJ, Moseneke DCJ, Cameron, Froneman, Jafta, Nkabinde, Skweyiya, Van der
Westhuizen, Zondo JJ, Mhlantla AJ
Keywords:
Civil procedure – Interim order – Application for leave to appeal
Mini Summary:
Unrest at a mine during August 2012 culminated in the shooting of a number of people by members of the
South African Police Service. A Commission of Inquiry (the Commission) was established by the President to investigate and report on the events of that day. As members of the class of persons who were arrested or injured after the shooting, the applicants participated in the Commission’s proceedings. To cover their legal expenses, the applicants initially procured funding from a non-governmental entity. However, that covered only the first six months of the Commission’s proceedings. The applicants sought further funding but were unsuccessful in that regard. They therefore brought an urgent application before the High Court for an interim order compelling the temporary provision of legal aid at State expense, pending a full review of the State’s obligations to provide legal aid. The High Court dealt only with the application for urgent and temporary relief and dismissed the applicants’ claim on the basis that it was constitutionally inappropriate for a court, in interim proceedings, to direct the executive on how to expend public resources in the absence of proof of unlawfulness, fraud or corruption. The applicants now sought leave to appeal against that ruling.
Held that the narrow question before the Court was whether there was any legal basis for interfering with the High Court’s interim ruling.
It was decided that the application for leave to appeal should be dismissed, because there are no reasonable prospects of success in relation to challenging the dismissal of the application for interim relief in the High Court, and because it is not in the interests of justice to grant leave in the particular circumstances of this case where the disputed issues still had to be determined in the main review application.
Mkhize v Umvoti Municipality & others
[2011] JOL 27891 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
628 / 2010
30 / 09 / 2011
South Africa
Supreme Court of Appeal
Navsa, Lewis, Snyders, Malan JJA and Meer AJA
Keywords:
Constitutional law – Constitutional remedies – Reading in of words – Purpose of reading in as a constitutional remedy is to render the legislation compliant with the provisions of the Constitution – Where a court has found a particular statutory provision not in compliance with the Constitution, its function is to find a means to remedy the constitutional defect but, at the same time, remain consistent with the legislative scheme – Constitutional law – Right to adequate housing – Effect of section 66(1)(a) of the
Magistrates’ Court Act 32 of 1944, after reading in of words in Jaftha v Schoeman & others; Van Rooyen v
Scholtz & others – Judicial oversight introduced so as to protect the right to adequate housing – However, where the right to adequate housing is not engaged, invalidity does not necessarily follow
Mini Summary:
In the Constitutional Court case of Jaftha v Schoeman & others; Van Rooyen v Scholtz & others, section
66(1)(a) of the Magistrates’ Court Act 32 of 1944 was held to be unconstitutional in some respects. The
Court remedied the defects by reading words into the subsection, providing for judicial oversight of the process of execution against immovable property. The order of unconstitutionality made in Jaftha was not qualified and is retrospective from the date of commencement of the Constitution. The present appeal concerned the construction of the judgment and order of the Constitutional Court in the Jaftha case.

With the words read, section 66(1)(a) provides that a judgment for payment of money shall be enforceable by execution against the movable property and, if there is insufficient movable property to satisfy the judgment, then a court, after consideration of all relevant circumstances, may order execution against the immovable property of the party against whom such judgment has been given (the italicised words being those which were read into the section).
The court a quo found that the order in Jaftha was ambiguous because it was capable of two constructions, that is as being applicable to all cases of execution against immovable property, and as being applicable only to execution against immovable property infringing the debtor’s right of access to adequate housing in terms of section 26(1) of the Constitution. As the order was wide and affected also sales in execution which did not suffer from any constitutional defect, the court a quo construed it as applying only to cases where the immovable property in respect of which execution is sought is the debtor’s home.
The facts of the present appeal were as follows. The appellant owned the immovable property which was the subject of the action. He was indebted to the first respondent, a municipality, in respect of rates and other charges relating to the immovable property. The municipality instituted action against the appellant, who did not defend the action. Judgment by default was entered against the appellant by the clerk of the
Magistrates’ Court. A warrant of execution was issued against his movable property leading to a nulla
bona return of service. The clerk thereupon issued a warrant to execute against immovable property, the property was attached and the sale in execution advertised. In 2003, the property was sold in execution by the sheriff to the second respondent as a “principal for the benefit of a third party”, who subsequently transferred to his brother (the third respondent). the latter later sold the property to the fourth and fifth respondents.
The appellant contended that the judicial oversight envisaged in Jaftha was required in all cases of execution against immovable property in the magistrates’ court, whether or not the right to adequate housing was impaired. However, the respondents’ stance was that the words read in into section 66(1) should be confined to cases where execution is sought against immovable property and the property constitutes the home of the person concerned.
Held that the purpose of reading in as a constitutional remedy is to render the legislation compliant with the provisions of the Constitution. Where a court has found a particular statutory provision not in compliance with the Constitution, its function is to find a means to remedy the constitutional defect but, at the same time, remain consistent with the legislative scheme. Courts should go only as far as is required to protect the entrenched right.
The question arising from Jaftha was thus not whether the court ventured into the legislative domain, as the court a quo approached the matter, but whether the order, that is the specific constitutional remedy employed to protect the entrenched right to adequate housing, was necessary for that protection. It should go no further. The purpose of the judicial oversight ordered in Jaftha was to protect the right to adequate housing. But it does not follow that the absence of judicial oversight will render the procedures followed invalid in all cases. Where, as in this case, the right to adequate housing was not engaged, invalidity does not necessarily follow. This is so because the judgment and subsequent sale in execution stand until set aside.
In the present matter, the immovable property concerned was not the appellant’s home, nor was it suggested that he did not have access to adequate housing or that his right to adequate housing was compromised. The appeal was therefore dismissed.
President of the RSA & others v M&G Media Ltd
[2011] JOL 27836 (SCA)
Case Number: 570 / 2010
Judgment Date: 14 / 12 / 2010
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
RW Nugent, BJ van Heerden, MML Maya, A Cachalia JJA, Bertelsmann AJA
Keywords:
Constitutional law – Access to information held by State – Refusal of access to report commissioned by
President – Promotion of Access to Information Act 2 of 2000, section 78(2) providing recourse to requester for information who may apply to court in application proceedings – Where no evidentiary basis existed for refusal of access, the refusal could not be sanctioned
Mini Summary:
Shortly before the general elections in Zimbabwe in 2002, two senior South African judges visited the country and prepared a report on their return. The report having never been released to the public at

large, became the subject of the present dispute. The respondent was the publisher of a weekly newspaper, and sought access to the report. However, the South African President (the first appellant) refused to disclose it. As a result, the respondent approached the high court under the provisions of the
Promotion of Access to Information Act 2 of 2000 (“the Act”) for an order compelling the President to disclose the report. The present appeal was directed at the granting of the application.
Held that the Act creates a mechanism for access to be had to recorded information that is in the possession of a public body, and lays down various formalities that need to be complied with. Those formalities were complied with in this case.
The constitutional imperatives of accountability and transparency are the notions that underpin the Act.
Thus, no more than a request for information that is held by a public body obliges the information officer to produce it unless he can justify withholding it. A refusal of a request means that adequate reasons for the refusal must be stated. An applicant is entitled to an internal appeal against a refusal, and if that also failes, then the applicant may apply to a court under section 78(2) for appropriate relief. The proceedings that are contemplated by section 78(2) are not a review of or an appeal from the decision of the information officer or the internal appeal. They are original proceedings for the enforcement of the requester’s right to be given access to a record in the absence of grounds for refusing it. The proceedings must be commenced on application. The approach to evidence in application proceedings will therefore apply in section 78(2) applications. Nevertheless, the Court found it necessary to mention some aspects of such proceedings. Firstly, true disputes of fact will seldom arise because the material facts will generally be within the peculiar knowledge of the public body. Secondly, it can be expected that an information officer, or other officials of a public body, will most often not have direct knowledge of facts that are material to justifying secrecy, and will necessarily be reliant upon documents and other hearsay sources.
Section 3 of the Law of Evidence Amendment Act 45 of 1988 gives a court a wide discretion to admit hearsay evidence, and may be used to overcome difficulties that might be encountered by a public body in that regard.
In support of the refusal of access to the report, the respondents filed affidavits setting out the conclusions reached by the deponents, without any evidential basis to support such conclusions. That approach was unsatisfactory and contrary to the requirements of the Act. The Act requires a court to be satisfied that secrecy is justified and that calls for a proper evidential basis to justify the secrecy.
Some provisions of the Act make secrecy mandatory and others make it discretionary. The sections relevant to the present matter were both discretionary. Section 41(1)(b) permits access to a record to be refused if its disclosure “would reveal information supplied in confidence by or on behalf of another state or an international organisation”. Examining the reasons given by the second appellant in refusing the respondent’s request, the court could not accept his conclusion that the report contained information that had been given by either another state or by an international organisation. The second section relied on by the second appelant was section 44, which he stated entitled him to refuse access if the record fell within its terms. The Court could not see why he thought that section to be relevant in the absence of a factual finding that the report fell within its terms. However, even if a report fell within the terms of either of the sections, then the information officer has a discretion to allow or to refuse access. There was no indication in the second appellant’s reply that he exercised a discretion at all.
The Court also found no merit in the appellants’ attempts to describe the judges who prepared the report as diplomats on a diplomatic mission. The Court held that diplomacy is an executive and not a judicial function. Clear and substantiated evidence would be needed to persuade the Court that judges would assume that role, or that it would be approved by the Chief Justice. Again, there was no evidential basis for the appellants’ bald assertions.
The conclusion was therefore that the report was refused without any acceptable basis, and the appeal was accordingly dismissed.
Magidiwana and Other Injured and Arrested Persons and others v President of the Republic of
South Africa and others (Black Lawyers Association as amicus)
[2013] JOL 30695 (CC)
Case Number: CCT 100 / 13
Judgment 19 / 08 / 2013
Date:
Country: South Africa
Jurisdiction: Constitutional Court

Division:
Bench: Mogoeng CJ, Moseneke DCJ, Cameron, Froneman, Jafta, Nkabinde, Skweyiya, Van der
Westhuizen, Zondo JJ, Mhlantla AJ
Keywords:
Civil procedure – Interim order – Application for leave to appeal
Mini Summary:
Unrest at a mine during August 2012 culminated in the shooting of a number of people by members of the
South African Police Service. A Commission of Inquiry (the Commission) was established by the President to investigate and report on the events of that day. As members of the class of persons who were arrested or injured after the shooting, the applicants participated in the Commission’s proceedings. To cover their legal expenses, the applicants initially procured funding from a non-governmental entity. However, that covered only the first six months of the Commission’s proceedings. The applicants sought further funding but were unsuccessful in that regard. They therefore brought an urgent application before the High Court for an interim order compelling the temporary provision of legal aid at State expense, pending a full review of the State’s obligations to provide legal aid. The High Court dealt only with the application for urgent and temporary relief and dismissed the applicants’ claim on the basis that it was constitutionally inappropriate for a court, in interim proceedings, to direct the executive on how to expend public resources in the absence of proof of unlawfulness, fraud or corruption. The applicants now sought leave to appeal against that ruling.
Held that the narrow question before the Court was whether there was any legal basis for interfering with the High Court’s interim ruling.
It was decided that the application for leave to appeal should be dismissed, because there are no reasonable prospects of success in relation to challenging the dismissal of the application for interim relief in the High Court, and because it is not in the interests of justice to grant leave in the particular circumstances of this case where the disputed issues still had to be determined in the main review application.
Head of Department, Department of Education, Free State Province v Welkom High School and
others (Equal Education and another as amici curiae)
[2013] JOL 30547 (CC)
Case Number: CCT 103 / 12
Judgment 10 / 07 / 2013
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Mogoeng CJ, Moseneke DCJ, Khampepe, Froneman et Skweyiya, Zondo, Jafta, Nkabinde,
Van der Westhuizen JJ
Keywords:
Constitutional law – Education – Rights of learners – School policy – Exclusion of pregnant learners –
Powers of Head of Education Department – Overruling of school policy
Mini Summary:
In 2008 and 2009 respectively, the governing bodies of the respondent schools adopted pregnancy policies for their respective schools providing for the automatic exclusion of any learner from school in the event of her falling pregnant. When each of the schools excluded a pregnant learner in terms of the policies, the applicant ordered the schools to readmit the learners who had been excluded. The schools successfully approached the High Court to interdict the applicant from interfering with the implementation of the policies. On appeal to the Supreme Court of Appeal, the award of the interdict was, in both cases, upheld by that court, subject to certain limitations not imposed by the High Court. The applicant now sought to appeal to the present Court.
Held that the first question was whether leave to appeal should be granted. If it was concluded that leave ought to be granted, there were two material issues for determination. The first was whether the Head of a Provincial Education Department (HOD) has the power to instruct principals of public schools to ignore policies adopted by the governing bodies of those schools, in the light of his powers under the Schools Act, his authority as the principals’ employer or his responsibilities under section 7(2) of the Constitution. The second question related to the manner and extent to which this Court may address the concerns raised regarding the unconstitutionality of the pregnancy policies.
Leave to appeal is granted where the dispute raises a constitutional issue and where it is in the interests of justice to do so. Those requirements were satisfied in this case.

The Court then turned to the question of the HOD’s power to instruct principals of public schools to ignore policies adopted by the governing bodies of those schools. It held that in addressing his concerns regarding the content of the pregnancy policies, the HOD was obliged to act in accordance with the relevant provisions of the Schools Act or to approach the courts for appropriate relief. That was not done.
While the HOD exercises executive control over the respondent schools, that executive authority does not entitle him to superimpose his own policies and countermand those of the school by fiat, simply because he is of the opinion that the latter are unconstitutional. While acknowledging that the respondent schools’ pregnancy policies at face-value infringed upon the constitutional rights of pregnant learners, including the rights to human dignity, to freedom from unfair discrimination and to receive a basic education, the court held that in failing to follow the relevant procedures set out in the Schools Act, the HOD acted unlawfully.
The appeal therefore had to be dismissed. However, the Court ordered the schools to review the policies in the light of the requirements of the Constitution, the Schools Act and the considerations set out in the judgment, and to engage with the HOD in the process.
Ziaur & another v Minister of Home Affairs & another; Matiwos v Minister of Home Affairs &
another
[2010] JOL 25923 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
687 / 10; 688 / 10
12 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
MR Madlanga AJ
Keywords:
Immigration – Deportation – Arrest and detention pending deportation – Lawfulness – Exercise of discretion
Mini Summary:
The applicants in each of the two cases before court were seeking their release from detention. They were detained pending their deportation to their countries of origin.
Held that the opposing affidavit filed by the Minister did not address an important question regarding the deprivation of liberty namely, must it always follow as a matter of course that somebody who has been refused asylum must be arrested and detained pending deportation?
The court did not agree with the above supposition. It held that there must still be a proper exercise of discretion on the question of whether or not there should be an arrest and detention prior to deporting.
The court emphasised that it was mindful of the risks associated with not detaining persons who are to be deported. However, it remained of the view that the lawfulness of the deprivation of liberty had to be established by showing that there was a proper exercise of discretion.
The applications were postponed, and the release of the applicants ordered, subject to their paying bail.
Growthpoint Properties Ltd v SACCAWU & others
[2010] JOL 26099 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6467 / 10
03 / 09 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
Keywords:
Public law – Nuisance – Constitutional rights – Picketing – Infringement of rights
Mini Summary:
The applicant was the owner of s shopping mall, where striking workers made up of the first and further respondents, were picketing during a strike. The applicant obtained an interim interdict against the striking employees, on the ground that their conduct amounted to a nuisance.
Held that the dispute involved balancing the constitutional rights of owners and occupiers to their property, to the environment and to trade on the one hand, and the right of strikers to freedom of expression, to bargain collectively, to picket, protest and demonstrate peacefully on the other hand.
The first question was whether the High Court had jurisdiction over what the first respondent submitted was a labour matter. The court held that its jurisdiction depended on what the cause of action was and

how it was framed. The applicant based its case on the common law of nuisance and its constitutional rights to property, to trade and to a healthy environment. Those causes of action fell squarely within the jurisdiction of High Court.
The second question was whether the applicant had locus standi in the matter. The court held that the applicant had an interest as the owner of the premises and the landlord of the tenants conducting businesses on its property to apply to court to protect and enforce its rights. The rights in question were its rights to peaceful and undisturbed occupation of its property, to trade and to a healthy environment.
Next, the court considered the conflicting rights of the parties. The court held that the workers could exercise their rights reasonably without interfering with the applicant, its tenants and the public.
Interference with their rights to the extent that tenants could not conduct business was an unacceptable and unjustifiable limitation on their right to their property, to trade and to a healthy environment.
The interim order was confirmed.
Barko Financial Services (Pty) Limited v National Credit Regulator and another
[2014] JOL 32315 (SCA)
Case Number: 415 / 13
Judgment Date: 18 / 09 / 2014
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
VM Ponnan, JB Shongwe, MJD Wallis, BH Mbha JJA, BC Mocumie AJA
Keywords:
Corporate and Commercial Law – Consumer protection – Compliance notice in terms of section 55 of the
National Credit Act 34 of 2005 – Consumer paying service fee in excess of the maximum prescribed by the
Act pursuant to a supplementary agreement – Where credit provider induced consumer to sign supplementary agreement, compliance agreement was justified – Corporate and Commercial Law –
Consumer protection – Credit agreements – Section 91(a) of the National Credit Act 34 of 2005 providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement – “induce” – Section 91(a) of the National Credit Act 34 of 2005 providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement – To “induce”, according to the Shorter Oxford English Dictionary 6 ed, is to succeed in persuading or leading someone to do something
Mini Summary:
The appellant (Barko) was a credit provider, and the first respondent, the National Credit Regulator (“the
NCR”). In June 2010, the NCR issued Barko with a compliance notice in terms of section 55 of the National
Credit Act 34 of 2005 (“the NCA”). The NCR’s concern was whether it was legitimate in terms of the NCA for persons to whom Barko lent money to agree to pay, in addition to the statutorily prescribed fees and interest, a further fee for the successful processing of the repayments of their indebtedness. The NCR regarded that as a breach of the NCA. Barko contended that this additional fee was paid to a third party
(NuPay) in terms of a separate agreement and did not contravene the NCA.
Barko lodged an objection to the compliance notice with the second respondent, the National Consumer
Tribunal, but the Tribunal declined to set aside the compliance notice, modifying it instead. Barko’s appeal to the High Court was dismissed, but leave to appeal to the present court was granted.
Held that section 55(1)(a) of the NCA authorises the NCR to issue a compliance notice in the prescribed form to a person or association of persons whom the NCR on reasonable ground believes has failed to comply with a provision of the NCA or is engaging in an activity in a manner that is inconsistent with the
NCA.
Two broad issues arose for determination. The first was whether there was an agreement between NuPay and the consumer as contended by Barko; and the second was whether the Tribunal had the power under the NCA to order Barko to repay to the respective consumers the NuPay service provider fee.
Barko’s case was that in each instance three distinct agreements, each with its own purpose, found application, namely: a credit agreement between it and a consumer (the credit agreement); a service level agreement between it and NuPay (the SLA); and an alleged agreement concluded between NuPay and the consumer (referred to in the judgment as “Annexure D5”). Those agreements had to be construed in order to determine the correctness of the parties’ respective contentions. The SLA determined the

relationship between Barko and NuPay. The credit agreement set out the relationship between Barko and the consumer. The key issue was the nature and status of Annexure D5 and whether it was part of the agreement between Barko and the consumer or was a separate transaction between the consumer and
NuPay. The Court questioned Barko’s description of Annexure D5 as a contract between NuPay and the consumer because on the face of it, Annexure D5 did not purport to be an agreement between the consumer and NuPay. The Court found that Annexure D5 was an agreement between Barko and the consumer in which the consumer authorised the fee payable in terms of the SLA by Barko to NuPay to be met from the consumer`s bank account. Consequently, the purpose of that agreement was not to enable
Barko`s customers to discharge their obligations to NuPay, but to enable Barko to ensure that its obligations to NuPay were discharged by its customers. Even if Annexure D5 could rightly have been characterised as an agreement between NuPay and the consumer it would be hit by the provisions of section 91(a) of the NCA, which provided that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement. Barko took issue with whether it could be said that it had induced the consumer to conclude Annexure D5, and whether Annexure D5 contained a provision that would be unlawful if it were included in the credit agreement. The Court stated that to “induce”, according to the Shorter Oxford English Dictionary 6ed, is to succeed in persuading or leading someone to do something. The manner in which Annexure D5 was presented to the consumer satisfied the Court that the consumer was induced to sign the agreement. The court found further that
Annexure D5 contained a provision that would be unlawful if it were included in the credit agreement.
The appeal was dismissed with costs.
Barko Financial Services (Pty) Limited v National Credit Regulator and another
[2014] JOL 32315 (SCA)
Case Number: 415 / 13
Judgment Date: 18 / 09 / 2014
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
VM Ponnan, JB Shongwe, MJD Wallis, BH Mbha JJA, BC Mocumie AJA
Keywords:
Corporate and Commercial Law – Consumer protection – Compliance notice in terms of section 55 of the
National Credit Act 34 of 2005 – Consumer paying service fee in excess of the maximum prescribed by the
Act pursuant to a supplementary agreement – Where credit provider induced consumer to sign supplementary agreement, compliance agreement was justified – Corporate and Commercial Law –
Consumer protection – Credit agreements – Section 91(a) of the National Credit Act 34 of 2005 providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement – “induce” – Section 91(a) of the National Credit Act 34 of 2005 providing that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement – To “induce”, according to the Shorter Oxford English Dictionary 6 ed, is to succeed in persuading or leading someone to do something
Mini Summary:
The appellant (Barko) was a credit provider, and the first respondent, the National Credit Regulator (“the
NCR”). In June 2010, the NCR issued Barko with a compliance notice in terms of section 55 of the National
Credit Act 34 of 2005 (“the NCA”). The NCR’s concern was whether it was legitimate in terms of the NCA for persons to whom Barko lent money to agree to pay, in addition to the statutorily prescribed fees and interest, a further fee for the successful processing of the repayments of their indebtedness. The NCR regarded that as a breach of the NCA. Barko contended that this additional fee was paid to a third party
(NuPay) in terms of a separate agreement and did not contravene the NCA.
Barko lodged an objection to the compliance notice with the second respondent, the National Consumer
Tribunal, but the Tribunal declined to set aside the compliance notice, modifying it instead. Barko’s appeal to the High Court was dismissed, but leave to appeal to the present court was granted.
Held that section 55(1)(a) of the NCA authorises the NCR to issue a compliance notice in the prescribed form to a person or association of persons whom the NCR on reasonable ground believes has failed to comply with a provision of the NCA or is engaging in an activity in a manner that is inconsistent with the
NCA.
Two broad issues arose for determination. The first was whether there was an agreement between NuPay and the consumer as contended by Barko; and the second was whether the Tribunal had the power under the NCA to order Barko to repay to the respective consumers the NuPay service provider fee.

Barko’s case was that in each instance three distinct agreements, each with its own purpose, found application, namely: a credit agreement between it and a consumer (the credit agreement); a service level agreement between it and NuPay (the SLA); and an alleged agreement concluded between NuPay and the consumer (referred to in the judgment as “Annexure D5”). Those agreements had to be construed in order to determine the correctness of the parties’ respective contentions. The SLA determined the relationship between Barko and NuPay. The credit agreement set out the relationship between Barko and the consumer. The key issue was the nature and status of Annexure D5 and whether it was part of the agreement between Barko and the consumer or was a separate transaction between the consumer and
NuPay. The Court questioned Barko’s description of Annexure D5 as a contract between NuPay and the consumer because on the face of it, Annexure D5 did not purport to be an agreement between the consumer and NuPay. The Court found that Annexure D5 was an agreement between Barko and the consumer in which the consumer authorised the fee payable in terms of the SLA by Barko to NuPay to be met from the consumer`s bank account. Consequently, the purpose of that agreement was not to enable
Barko`s customers to discharge their obligations to NuPay, but to enable Barko to ensure that its obligations to NuPay were discharged by its customers. Even if Annexure D5 could rightly have been characterised as an agreement between NuPay and the consumer it would be hit by the provisions of section 91(a) of the NCA, which provided that a credit provider must not directly or indirectly require or induce a consumer to enter into a supplementary agreement, or sign any document, that contains a provision that would be unlawful if it were included in a credit agreement. Barko took issue with whether it could be said that it had induced the consumer to conclude Annexure D5, and whether Annexure D5 contained a provision that would be unlawful if it were included in the credit agreement. The Court stated that to “induce”, according to the Shorter Oxford English Dictionary 6ed, is to succeed in persuading or leading someone to do something. The manner in which Annexure D5 was presented to the consumer satisfied the Court that the consumer was induced to sign the agreement. The court found further that
Annexure D5 contained a provision that would be unlawful if it were included in the credit agreement.
The appeal was dismissed with costs.
Perumal v Bhyat and others
[2015] JOL 33015 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2013 / 33567
25 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
MA Makume J
Keywords:
Civil procedure – Court order – Non-compliance – Application for contempt of court
Mini Summary:
The present Court had set aside an order granted in this matter, which required the first respondent to provide a detailed and comprehensive statement as to how the original court order was replaced by the new order in the absence of a rule 42 application.
In the present application, the applicant sought to hold the first respondent in contempt of court for not complying with the order.
Held that for an applicant in contempt proceedings to succeed he must, inter alia, prove mala fides. It is not an offence to disobey a false court order. A person’s disobedience of a court order must not only be wilful but also mala fide. The first respondent, as an attorney, knew that the court order in question was defective and rightfully disobeyed same.
Insofar as the applicant sought an order to compel first respondent to comply with an order which had been set aside, there was nothing to compel him to comply with. The application was dismissed and the applicant was ordered to pay first respondent’s taxed party and party costs.
Meadow Glen Home Owners Association and others v City of Tshwane Metropolitan Municipality
and another
[2015] JOL 32608 (SCA)
Case Number: 767 / 2013
Judgment Date: 01 / 12 / 2014
Country: South Africa

Jurisdiction:
Division:
Bench:
Keywords:
Supreme Court of Appeal
MJD Wallis JA et I Schoeman AJA, A Cachalia, DH Zondi JJA, NC Dambuza AJA
Civil procedure – Court orders – Non-compliance – Contempt of court – Appropriateness of incarceration of municipal official for failure by municipality to comply with court order – Order inappropriate where official was not the person responsible for all the obligations not complied with
Mini Summary:
A piece of land owned by the first respondent municipality had since some time before 2006, been occupied by poor people who had constructed thereon rudimentary homes for themselves. The settlement was called Woodlane Village.
The appellants were home owner associations, having concerns arising from the proximity of the settlement to their own properties. They wished to prevent the settlement from expanding from the present nearly 900 homes and to arrive at a situation where a more formal residential area was established for the residents of the settlement. To that end they had instituted various proceedings against the municipality, resulting in a number of orders in their favour against the municipality, usually by consent.
Alleging that the municipality made no proper attempt to comply with the terms of the orders, the appellants attempted to have the Municipality’s Director: Housing Resource Management (the second respondent) committed to prison for contempt of court arising from an alleged failure by the municipality to comply with one of the orders. The dismissal of the application by the High Court led to the present appeal.
Held that although some punitive element is involved, the main objectives of contempt proceedings are to vindicate the authority of court and coerce litigants into complying with court orders.
Bringing a suspended order of committal into operation requires proof of a wilful breach of the conditions of suspension to a similar standard. As the committal order in relation to the second respondent was made by consent, the Court did not know on what factual basis the order was made. A further difficulty was that it was unclear on what basis the second respondent became the subject of the order in the first place. He was the person responsible for only some of the obligations imposed by the court orders. Other officials were responsible for the rest of the obligations. It was thus not appropriate to hold him responsible for the failures of others.
Although there was clearly non-compliance with the court orders by the municipality, that was insufficient to hold the second respondent personally in wilful non-compliance with the provisions of the order – warranting imprisonment. The appeal therefore failed.
SANTS Private Higher Education Institution v MEC for Department of Education KZN and others
[2015] JOL 32804 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Court order – Non-compliance – Contempt of court
Mini Summary:
5374 / 2014
18 / 06 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
D Pillay J
The applicant sought an order holding the second respondent in contempt of two orders of court. The first respondent was the MEC for the Department of Education in the Province of KwaZulu-Natal and the second respondent was the Head of the Department. It was common cause that both orders were not complied with as directed, or at all. All that remained for determination was whether such partial compliance as there was, and the non-compliance, was wilful or mala fide.
Held that contempt of court arising from a failure or refusal to comply with an order of court is a criminal offence. The offence violates the dignity, repute and authority of the court. In so doing, it trenches on the rule of law, the maintenance of which is constructed on the dignity, authority and capacity of the courts to execute their functions. For committal, the non-compliance must be wilful, reckless or in bad faith. Once the applicant proves the order, its service and the non-compliance, the onus shifts to the respondent to prove that the non-compliance was not wilful, reckless or in bad faith.
The first order obliged the first respondent to make payment of all student fees due by students who had been granted bursaries from the KwaZulu-Natal Department of Education. In refusing to pay the amount claimed, the respondents alleged for the first time that the applicant was not accredited by the South

African Qualifications Authority (“SAQA”) and that it was not enough for the applicant’s courses to be registered with SAQA. Despite their allegations to the contrary, it was apparent from the papers that the respondents knew or ought to have known the status of the applicant vis-à-vis SAQA long before the application was brought. The respondents also failed to substantiate their bald allegation that accreditation by the applicant with SAQA was a prerequisite for payment. The Court also questioned the respondents’’ assertion that they wished to conduct an audit of the applicant’s student enrolment. There was no evidence to support that allegation, and the Court described it as another red herring.
The second order directed the second respondent to publish a letter on the Department’s website, informing all students with bursaries from the Department that they were entitled to enrol and study with the applicant. The circular which was published was found by the Court to be misleading and dishonest.
It was found that there was no compliance with the court orders, and that none of the defences raised against non-compliance were genuine.
The Court issued an order in terms of a draft handed in by the applicant’s
Arvum Exports (Pty) Limited and others v Costa NO and others
[2013] JOL 31023 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
18979 / 2013
20 / 11 / 2013
South Africa
High Court
Western Cape, Cape Town
AG Binns-Ward J
Civil procedure – Contempt of court application – Urgency
Mini Summary:
The applicants and the first to third respondents were parties to a principal case concerning contracts bearing on the production and marketing of fruit and a loan associated therewith. The matter was pending, and interim relief had been granted to the applicants. The applicants alleged that the first, second and third respondents were refusing to comply with the interim order and made application for them to be sanctioned for contempt of court. In the contempt of court application, the respondents delivered a preliminary answering affidavit raising procedural objections to the manner in which the application had been brought. They contended that the application lacked urgency, that proper notice of it was not given and that they were afforded an inadequate opportunity to prepare answering papers on the merits of the matter.
Held that the appropriateness in the circumstances of the structure of the application had to be questioned. Nothing more was sought from the Court than the issue of a rule to facilitate the hearing of the matter on certain directions. The involvement of the Court for that purpose was an unnecessary imposition on judicial resources and on the respondents in the circumstances. Urgency was not established by the applicants. In the circumstances the proper course was either to strike the contempt application from the roll or to send it, with directions, for hearing on the semi-urgent roll. The Court decided on the latter course.
Democratic Alliance v Acting National Director of Public Prosecutions and others
[2013] JOL 30675 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
19577 / 09
16 / 08 / 2013
South Africa
High Court
North Gauteng, Pretoria
RS Mathopo J
Constitutional law – National prosecuting authority – Failure to comply with court order
Mini Summary:
In 2009, pursuant to confidential and without prejudice representations made by the third respondent
(“the President”) to the first respondent, the first respondent decided to withdraw pending criminal charges against the President. That led to the applicant launching review proceedings in respect of the first respondent’s decision. It also sought to be provided with a reduced record of the first respondent’s decision not to prosecute the President. That was to include transcripts of phone calls and tape recordings referred to by the President in his representations to the first respondent. The Supreme Court of appeal granted the latter order, but the first respondent did not comply with the request for the record. In explaining its failure to hand over the tapes, the first respondent stated that it was obliged to consult with

the President’s legal team to consider whether there was any objection to the disclosure. The President claimed that the release of the tapes as well as other relevant material would breach his confidentiality and would threaten his right to a fair trial.
The present application was to compel the first respondent to produce the missing tapes.
Held that the President’s averment that his confidentiality would be breached was not explained or corroborated. In any event, on a proper construction of the SCA order, confidentiality did not extend to the transcripts. The President also failed to provide any arguments or evidence why he would be prejudiced if the tapes were released, or why his right to a fair trial would be affected if the tapes were made public.
The Court pointed out that the first respondent was a party to the SCA order, and could not be the final arbiter in respect of which documents had to be produced. It is not appropriate for a court exercising its powers of scrutiny and legality to have its powers limited by the ipse dixit of one party.
The first respondent was directed to comply with the SCA order.
Eisenberg & Associates and others v Director-General, Department of Home Affairs and others
[2013] JOL 29900 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10043 / 11
27 / 11 / 2012
South Africa
High Court
Western Cape, Cape Town
KM Savage AJ
Keywords:
Civil procedure – Court order – Non-compliance – Application for contempt of court
Mini Summary:
The respondents’ failure to determine 110 applications for permanent residence lay at the heart of this matter. In terms of an order granted on 18 May 2012, the first respondent was required to determine and deliver certain listed applications to the first or fourth applicants within two months of the order; and to determine and deliver other applications within three months of the date of the order.
In the present application, the applicants sought an order declaring the first respondent to be in contempt of court for non-compliance with the order referred to above.
Held that it is a crime to unlawfully and intentionally disobey a court order, thereby violating the dignity, repute or authority of the court. The present Court may grant declaratory relief in accordance with the provisions of section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959. Two requirements must be met for a declaration to be made under section 19(1)(a)(iii). First, a court must be satisfied that the applicant is a person interested in an existing, future or contingent right or obligation. If this is shown, the Court must decide whether the case is a proper one for the exercise of the discretion conferred on it. As the applicants were interested persons who possessed certain rights in terms of the court order, the first leg of the requirement for declaratory relief was met.
While it was clear that the first respondent had failed to comply with the court order, he averred that the non-compliance was not wilful or mala fide. However, the Court found that he should have done more in an attempt to comply with the order. It was deemed appropriate that an order be made declaring that the first respondent had failed to comply with the order of court and directing him to comply with such order within a period of two weeks.
Dlamini v Dlamini Mulangaphuma Mathopo Moshimane Inc & others
[2010] JOL 26417 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Courts – Court order – Alleged non-compliance – Contempt of court – Test
Mini Summary:
10 / 221
03 / 11 / 201005 / 05 / 2009
South Africa
High Court
South Gauteng, Johannesburg
R Mokgoatlheng J
The applicant sought an order declaring that the respondents are in contempt of a court order in that they had failed to comply with a settlement agreement that was made an order of court. The respondents

alleged that they had fully complied with the terms of the settlement agreement, and were not in contempt of the court order as alleged or at all.
Held that as set out in case law, contempt of court is a crime unlawfully and intentionally to disobey a court order. The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction.
Thus, to determine whether the applicant had proved beyond reasonable doubt that the respondents had failed to comply fully with the court order, it had to be established that the respondents failure was wilful and mala fide.
The court found that the respondents had discharged the evidentiary burden resting upon them. The application was accordingly dismissed.
Master of the High Court, North Gauteng High Court, Pretoria v Motala NO & others
[2012] JOL 28554 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
172 / 11
01 / 12 / 2011
South Africa
Supreme Court of Appeal
VM Ponnan, FR Malan, MJD Wallis JJA
Keywords:
Civil procedure – Contempt of court – Where order giving rise to alleged contempt of court is a nullity, it is of no force and effect, and need not be set aside before a party can refuse to comply with it – Company law – Judicial management – Power to appoint judicial manager – Section 429 of the Companies Act 61 of
1973 clothes the Master of the High Court with the exclusive power to make such appointments – It is not permissible for the court to appoint judicial managers
Mini Summary:
On 5 August 2010, the high court issued an order placing the fourth respondent under provisional judicial management in terms of the Companies Act 61 of 1973. Although the court appointed two judicial managers, the appellant (the Master of the North Gauteng High Court) declined to issue a certificate of appointment to one of those managers (Van Vuuren), appointing the first three respondents instead. A day later another judge issued a rule nisi interdicting the master from appointing any other judicial managers save in terms of the court order dated of August 2010. In September 2010, in response to an application by the first three respondents, the Court interdicted Van Vuuren from carrying out any of the functions of a provisional judicial manager. Van Vuuren then approached the high court seeking to discharge the interdict. The Court faced with that application mero motu raised the issue of the master's possible contempt of the order of 5 August. Despite an explanation from the appellant as to the reasons for refusing to appoint Van Vuuren, the powers of the master in that regard, and the role of the high court in making such orders, an order was issued finding the Acting Master and Deputy Master to be in contempt. That led to the present appeal.
Held that our insolvency administration is wholly a creature of statute, and section 429 reserved to the master the power to appoint a judicial manager. The master has the sole discretion in that regard, which may not be usurped by the courts. It was thus not permissible for the Court to appoint the provisional judicial managers of the fourth respondent.
It remained for the Court to consider the rule nisi interdicting the master from appointing any other judicial managers save in terms of the court order dated of August 2010, as referred to above. By the time that rule nisi was issued, the officials in the employ of the master's office had already acted in terms of section 429. There was therefore no disobedience of the order. In rejecting the master’s reasons for the decision not to appoint Van Vuuren, the Court misconceived the legal position, which quite simply, is that the matter is left entire to the master’s discretion.
In issuing the contempt order, the Court proceeded from the premise that all court orders whether correctly or incorrectly granted have to be obeyed until they are properly set aside. However, in casu, the order appointing Van Vuuren was a nullity insofar as the judge in question had usurped for himself a power that he did not have. It is a fundamental principle of our law that a thing done contrary to a direct prohibition of the law is void and of no force and effect. Being a nullity a pronouncement to that effect was unnecessary. Nor did the order first have to be set aside by a court of equal standing.
The appeal was upheld, and the order of contempt set aside.
NUM & another v H&S Oprigters (GK) & another
[2010] JOL 26383 (LC)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
J 2031 / 07
22 / 06 / 2010
South Africa
Labour Court
Johannesburg
R Lagrange J
Keywords:
Practice and Procedure – Contempt of court – Test for – Test is whether accused failed to comply with court order knowingly and in bad faith – Employer who handed all labour matters to consultant not guilty of contemptPractice and Procedure – Contempt of court – When applicable – Contempt procedure available only for non-compliance with reinstatement order, not for recovery of back pay – Latter to be recovered by writ of execution
Mini Summary:
An award, subsequently made an order of court, reinstated the applicant employees to their employment with the first respondent in 2007. Despite numerous requests from the union, the respondents failed to comply with the award. The applicants launched an application to commit the respondents for contempt.
The respondents explained that, being a small business, all its labour relations affairs were routinely handed over to a labour consultant, who had assured them that he was dealing with the matter.
The Court noted that, once it is established that a court order has been served on the party bound thereby and that the order had not been complied with, an evidentiary burden (as opposed to an overall evidentiary onus), falls on that party to establish a reasonable doubt that the failure to comply was neither deliberate nor male fide. The Court accepted that the evidence gave rise to a reasonable doubt that the respondents had not wilfully defied the order. Moreover, they had demonstrated their good faith by tendering to comply with the order. The second respondent could not accordingly be convicted of contempt of court.
The Court rejected the argument that the respondents’ failure to pay the back pay that went with the order was further evidence of their contempt. Contempt proceedings may be used only in relation to orders ad factum praestandum. Orders providing for payment of a sum of money must be enforced by attachment, not by contempt proceedings. That the back pay was linked to the employees’ reinstatement did not change its essential character; it remained a debt.
The respondents were ordered to reinstate the employees, and to pay the applicants’ costs in the contempt application.
Bitter NO (obo de Pontes) v Bobroff & Partners Inc and another
[2014] JOL 32456 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
11069 / 13
25 / 04 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Mayat J
Keywords:
Professions – Attorneys – Attorney’s fees – Contingency fee agreement – Lawfulness
Mini Summary:
The applicant was an advocate who brought this application nomine officio, in his capacity as curator ad
litem to a person (“Anthony”) injured in a car accident and rendered a quadriplegic. The first respondent was Anthony’s erstwhile attorney in respect of his claim for damages against the second respondent (“the
RAF”).
The relief sought by the applicant against the first respondent was in consequence of two full bench judgments in which it was held that so-called common law contingency agreements between legal practitioners and their clients were unlawful, invalid and unenforceable. The full bench held in both those cases that the Contingency Fees Act 66 of 1997 (“the Act”) left no room for contingency fee agreements, which did not comply with the limitations of the Act. As such, the full bench found that contingency agreements of the kind concluded by the first respondent and other attorneys generally were unlawful and invalid. Based on those judgments the primary relief, which the applicant initially sought in the present application, was an order to the effect that an agreement relating to contingency fees between the first respondent and Anthony be declared to be invalid and unenforceable. The applicant averred that the fee

charged by the first respondent for the successful settlement of Anthony’s claim was shockingly excessive and amounted to gross overreaching. He also asserted that the first respondent’s entitlement to a fair and reasonable fee due for work actually done could only be determined on the basis of an attorney and client bill drawn and taxed by the Taxing Master.
Pursuant to a concession by the first respondent that the contingency agreement was unlawful, the Court had to decide two preliminary points which remained in issue. The first was an application by the first respondent in terms of rule 30(1), seeking relief on the basis that setting down the present application for hearing was irregular, pending the determination of an application for leave to appeal under another case number. The second point related to the applicant’s locus standi.
Held that the application in terms of rule 30(1) was clearly motivated by the ulterior purpose of not paying a debt to Anthony, which debt had been outstanding for more than three years. As such, the said application constituted an abuse of the Court process, and fell to be dismissed.
On the issue of the applicant’s standing, the Court noted that both Anthony and his parents explained that the appointment of the applicant, an advocate, as curator was sought with the consent and knowledge of
Anthony, given Anthony’s physical limitations. The appointment being approved by Anthony and his parents, it was not open to the first respondent to make such challenge averring a violation of Anthony’s constitutional right to dignity. Given Anthony’s permanent physical limitations, and his complete dependence on his parents, the assertion by an attorney in the first respondent’s firm in her affidavit that
Anthony was “undoubtedly able to manage his own affairs” was not only untenable, but also insensitive.
Therefore, the point in limine relating to the locus standi of the applicant was also dismissed.
The applicant was held to be entitled to the relief sought, which included an accounting by the first respondent, and payment of the contingency fee of R2 101 871,80 retained by the first respondent.
Mofokeng v Road Accident Fund and other cases
[2012] JOL 29301 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2009 / 22649; 2011 / 19509; 2010 / 24932; 2011 / 2
22 / 08 / 2012
South Africa
High Court
South Gauteng, Johannesburg
PM Mojapelo DJP
Keywords:
Delict – Motor vehicle accidents – Settlement offer – Contingency fee agreements – Statutory requirements – Compliance with
Mini Summary:
In the four cases before the Court, the defendant (the Road Accident Fund) had made an offer of settlement, which incorporated into the offer the term that where a plaintiff had concluded a contingency fees agreement with his attorney, such settlement would be deemed to denote that the plaintiff and his attorney had complied with section 4 of the Contingency Fees Act 66 of 1997 through having filed required affidavits.
Held that the judgment dealt with the nature of proceedings before a court of law when an order is sought to confirm the settlement of a claim where one of the parties has entered into a contingency agreement in relation to the proceedings.
The Contingency Fees Act 66 of 1997 encourages legal practitioners to undertake speculative actions for their clients. This is in keeping with the right, enshrined in section 34 of the Constitution of the Republic of
South Africa Act 108 of 1996, to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. However, the intention of the legislature is to regulate such agreements by providing requirements which must be complied with for the protection of the parties. The court has a role in ensuring that those requirements are met.
In the present matters, the Court ordered that three of the matters stand down until counsel could confirm that the contingency fee agreements had been read, and that the requirements of the Act were complied with. The contingency fee agreement in the fourth case was declared invalid.
Adventure Golf Bruma CC v Redefine Properties Limited and another
[2015] JOL 33070 (GJ)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6836 / 2013
02 / 09 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
I Opperman AJ
Keywords:
Contract – Lease agreement – Interpretation
Mini Summary:
A written lease agreement was concluded between the applicant and the first respondent, in terms of which the applicant took occupation of the leased property from 1 August 2010. The agreement specified charges over and above rental, for which the applicant would be liable. According to the applicant, on a proper interpretation of the relevant clause, the first respondent was not entitled to calculate the consumption of electricity, gas and water by the utilisation of installed sub-meters and was obliged to calculate the consumption of electricity, gas and water on a pro-rata basis calculated on an agreed area of the kiosk of 100 square metres. The respondent on the other hand, contended that on a proper interpretation of the lease agreement they were entitled to calculate the consumption of electricity, gas and water by means of sub-meters and to charge the applicant for such consumption accordingly.
The Court invited argument on the question of what role, if any, the canons of interpretation as developed in our common law, now play in interpreting agreements. That request came about primarily by virtue of applicant’s counsel relying on deleted portions of the lease agreement for purposes of interpreting the relevant clause and by virtue of respondents’ counsel wishing to have certain matter struck out due to such matter offending the parol evidence rule.
Held that the applicant placed much reliance on the deletion of the first sentence of the clause. The question was whether a court can have any regard to such deleted portion in interpreting the agreement – and whether the expunged portions of the agreement was matter which should be included in interpreting the agreement ie matter which could well resort under the rubric “context” and which a court would be obliged to consider having regard to the recent developments in our law.
The Court established that the “new” approach to interpretation is such that interpretation is an exercise in ascertaining the objective meaning of the language of the provision itself – and not the intention of the parties. Interpretation is a matter of law and not of fact. The meaning of a provision is determined with reference to its language and in the light of its factual context, which includes what has previously been referred to as “background circumstances”. The factual context is ascertained by reading the provision having regard to the document as a whole and the circumstances attendant upon its coming into existence. Consideration must be given to the language used in the light of the ordinary rules of grammar and syntax, the context in which the provision appears; the apparent purpose to which the provision is directed, and the material known to those responsible for its production. Although extrinsic evidence of a provision’s context, purpose and material known to those responsible for its production is admissible, one must use it as conservatively as possible. A sensible meaning should be preferred to one “that leads to insensible or unbusinesslike results.
Having regard to the integration rule, the Court held that deleted portions of a contract cannot be regarded as part of its content.
Ultimately, the Court concluded that the agreement did not prohibit the first respondent from charging the applicant for its actual consumption of electricity, gas and water on the readings of sub meters.
Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and another
[2015] JOL 32555 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
725 / 13
21 / 11 / 2014
South Africa
Supreme Court of Appeal
Lewis, Cachalia, Bosielo, Swain JJA and Mocumie AJA
Keywords:
Contract – Non-variation clause – Requirement that cancellation be in writing and signed by parties –
Whether cancellation by e-mail was valid – Section 13(3) of the Electronic Communications and
Transactions Act 25 of 2002 being applicable, the typewritten names of the parties at the foot of the emails, which were used to identify the users satisfied the requirement of a signature and had the effect of authenticating the information contained in the emails
Mini Summary:

The respondent’s business involved washing cars in the parking lots of shopping malls, office parks, hotels and hospitals. In terms of a written agreement concluded with the appellant, the respondent appointed the appellant as its operating agent. The agreement contained a non-variation clause providing that no variation or consensual cancellation would be effective unless reduced to writing and signed by both parties. Subsequently, the parties concluded four subsidiary rental agreements all of which were subject to the respondent’s standard terms of business as set out in the master agreement.
When the appellant was unable to meet its rental commitments under the rental agreements, the parties discussed the way forward. One of the options discussed by e-mail was to cancel the agreements. The appellant chose that option and communicated its election by return e-mail, but continued operating its car washing business at the locations covered by the rental agreements, claiming that it was entitled to do so as both the master and rental agreements between it and the respondent had been cancelled. The respondent denied that the agreements were validly cancelled. It therefore sought and was granted interdictory relief. Its case was that the emails did not comply with section 13(1) of the Electronic
Communications and Transactions Act 25 of 2002 because the section requires an advanced electronic signature to be used on an email when a signature is required by law – as specified by the non-variation clause in this case – and no such signature appeared on the emails.
The present appeal was against the High Court’s granting of the interdict as sought by the respondent.
Held that the e-mails stated unambiguously that once the appellant settled the arrear rental and returned the respondent’s equipment it could walk away without any further legal obligation. As the appellant had complied with the above requirements, a consensual cancellation had occurred. It then had to be considered whether the cancellation by email fulfilled the requirements of the non-variation clauses to be in writing and signed by both parties. That required a consideration of the relevant provisions of the Act.
The real dispute was about whether or not the names of the parties at the foot of their emails constituted signatures as contemplated in sections 13(1) and (3).
The Act distinguishes between instances where the law requires a signature and those in which the parties to a transaction impose this obligation upon themselves. Where a signature is required by law and the law does not specify the type of signature to be used, section 13(1) says that this requirement is met only if an “advanced electronic signature” is used. Where, however, the parties to an electronic transaction require this but have not specified the type of electronic signature to be used, the requirement is met if a method is used to identify the person and to indicate the person’s approval of the information communicated. In this case, the non-variation clauses were agreed upon by the parties and were not imposed by law. Having regard to the purpose for which an advanced electronic signature was required, it was apparent that it did not apply to the private agreements between these parties. The Court held section 13(1) to be inapplicable and section 13(3) to be applicable. The typewritten names of the parties at the foot of the emails, which were used to identify the users satisfied the requirement of a signature and had the effect of authenticating the information contained in the emails.
The appeal was upheld with costs.
Holm Jordaan & Partners CC v City of Tshwane Metropolitan Municipality
[2014] JOL 32244 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
830 / 2013
03 / 09 / 2014
South Africa
Supreme Court of Appeal
CH Lewis, MML Maya, MJD Wallis, NP Willis JJA, NC Dambuza AJA
Keywords:
Contract – Existence of – Where right to be commissioned as architect on a project was conditional on other factors, and material terms of contract were not agreed, no contract came into existence and no repudiation occurred when project was abandoned
Mini Summary:
The appellant was a firm of architects that had won a competition run by the council of the respondent municipality, entitling it to design a new municipal building. The respondent subsequently abandoned the project and advised the appellant thereof. The appellant regarded that as a repudiation of the contract between it and the respondent accepted the repudiation through a letter sent by its attorneys, and sued the respondent for damages. The dismissal of its claim in the High Court resulted in its appealing to the present Court.
Held that the issues for determination were whether a contract between the appellant and the respondent ever came into existence, and if so, whether it was repudiated.
The High Court found that the right to be commissioned as architect for the remaining stages of the project was conditional on funding being found, and was also conditional on the respondent proceeding

with the project. On appeal, the appellant contended that the right may have been conditional on the decision by the respondent to proceed, but that that condition was fulfilled – and the decision made – when the respondent passed the resolution to appoint the appellant as the architect. However, that resolution was itself conditional on the appellant entering into a joint venture partnership with a BEE entity and it was implicit in the resolutions passed and the letter communicating to them that funding for the project had still to be found. No BEE entity was ever identified. So a party to the alleged contract was not known and other material terms of the contract were not agreed. The Court was satisfied that the respondent regarded the terms that had still to be determined as crucial to the conclusion of the contract.
The parties simply could not have intended that material terms of the contract would be negotiated in the future. The conclusion was that no contract had come into existence. The appeal was therefore dismissed.
Spenmac (Pty) Limited (Formerly Bobcart (Pty) Limited) v Tatrim CC
[2014] JOL 31714 (SCA)
Case Number: 216 / 2013
Judgment Date: 01 / 04 / 2014
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
KK Mthiyane DP, CH Lewis, JB Shongwe, XM Petse JJA, BC Mocumie AJA
Keywords:
Contract – Validity – Effect of an innocent misrepresentation by the representative on agreement between parties – Court finding that the error precluded the parties from reaching consensus ad idem – As agreement was concluded on the basis of a justus error, contract was void ab initio –
Mini Summary:
In October 2010, the parties entered into an agreement in terms of which the respondent agreed to purchase a sectional title property from the appellant. The respondent later sought cancellation of the agreement, alleging that the appellant’s representative had misrepresented that the remaining unit in the scheme was not capable of being subdivided without the consent of the owner of the unit being bought by the respondent. According to the respondent, that misrepresentation induced it to enter into the agreement. It was on discovering that the other unit could in fact be sub-divided, that the respondent sought to resile from the agreement.
The representation alleged by the respondent was not denied. It was also not denied that the question of sub-division formed part of the discussion between the parties. However, the evidence adduced was that the seller had forgotten that he had signed his approval for the sub-division of the other unit in the scheme. The High Court therefore found that the appellant’s misrepresentation had not been made intentionally, and that there was no scope for a finding that the respondent had established the requisites of fraudulent misrepresentation upon which its case was based.
Held on appeal that it was not necessary to enquire into whether the High Court was correct in concluding that fraudulent misrepresentation on the part of the appellant’s representative had not been established.
What the Court was required to consider was the effect of an innocent misrepresentation by the representative on the agreement between the parties. The correct enquiry was whether the error had precluded the parties from reaching consensus ad idem and secondly, whether it was reasonable for the resiling party to labour under a misapprehension. The respondent’s mistake in this matter was as to the true nature of the merx and as such no consensus was established in concluding the contract. That induced by the misrepresentation made by the appellant’s representative. The fact that the seller had forgotten about the resolution signed in 2007 approving the sub-division and that the misrepresentation was therefore not fraudulent was irrelevant. Regardless of the nature of the misrepresentation, the respondent concluded the agreement on the basis of a justus error. The contract was thus void from the outset.
In those circumstances, the appeal had to fail.
Parow Motorhandelaars (Pty) Limited v Parker
[2014] JOL 32190 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
17638 / 2012
18 / 08 / 2014
South Africa
High Court
Western Cape, Cape Town
AG Binns-Ward J

Contract – Loan agreement – Validity – Disguised agreement – Voidness
Mini Summary:
The plaintiff was a credit provider in terms of the National Credit Act 34 of 2005. It instituted action against the defendant, claiming payment of an amount allegedly owed to it by the defendant in terms of a credit agreement transaction.
In a claim in reconvention, the defendant sought repayment of all or part of the payments made by him to the plaintiff in terms of the transaction, based on the alleged voidness of the credit transaction.
Held that the summons indicated that a loan of R550 000 was advanced by the plaintiff to the defendant.
The defendant denied having received a loan in the sum of R550 000. He alleged that only the amount of
R400 000 had been advanced to him. Although the evidence adduced on behalf of the plaintiff confirmed that an amount considerably less than R550 000 had been advanced, the actual amount lent remained in dispute. According to the defendant, the difference was explained to him by the plaintiff as a benefit for the plaintiff, as credit provider, in consideration for making the credit available. Such consideration is required by the National Credit Act to be separately identified in a credit agreement of the nature concluded between the plaintiff and the defendant. It was also a consideration that, when it is permissible, is limited in amount in terms of the National Credit Regulations, 2006. The plaintiff accordingly acted in fraud of the National Credit Act by disguising the consideration as part of the loan ostensibly made to the defendant.
The Court considered the basis on which it may determine whether a credit agreement that is noncompliant with the statute is void for illegality. Section 164(1) appears to vest a discretion in the court whether to declare a non-compliant contract (other than one identified in section 89(2)) void or not. An agreement that would in substance materially frustrate the purpose of the statute would fall to be declared unlawful and void. The Court held that it would be inconsistent with upholding the apparent intention of the legislature manifested in the provisions of the statute to recognise the validity of a contract that tends to undermine and frustrate the purpose of the Act to the material extent that the contract in this case did.
The agreement was declared unlawful and void ab initio, and the plaintiff’s claim was dismissed with costs.
Plaaskem (Pty) Limited v Nippon Africa Chemicals (Pty) Limited
[2014] JOL 32251 (SCA)
Case Number: 574 / 13
Judgment Date: 29 / 05 / 2014
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
KK Mthiyane, DP, NZ Mhlantla, JB Shongwe, NP Willis JJA, SPB Hancke AJA
Keywords:
Contract – Duration of – Unspecified duration – Whether subject to tacit term that contract was terminable on reasonable notice – Question is a matter of construction and intention of parties – Finding that parties could not have intended to be bound in perpetuity, court importing tacit term into contract, that agreement was terminable by either party on reasonable notice
Mini Summary:
In February 2005, the parties entered into a written agreement. The issue was whether, as pleaded by the appellant, the contract contained a tacit term to the effect that it was terminable by either party on reasonable notice.
The High Court found that the contract did not have a tacit or implied term that the agreement was terminable on a reasonable notice. The purported notice of cancellation of the agreement by the appellant with effect from 30 June 2010, was thus held to have been invalid and of no effect. The appellant was held to be obliged to render a statement and debatement of account to the respondent in respect of all sales it made in keeping with the agreement, for a stipulated period.
Held that it has been stated by the courts that the law regarding a contract of unspecified duration is a matter of construction of the agreement according to the ordinary principles of construction. Concern has been raised regarding the fact that parties could be bound in perpetuity. In the present case, having regard to the wording of the contract it was clear that there was no indication that the parties intended to be bound in perpetuity. The next enquiry concerned the intention of the parties, having regard to the nature of the relationship between the parties, as well as the surrounding circumstances. The Court noted that the contract required the parties to form and maintain a close working relationship with regular contact and interaction between them. It also covered a wide spectrum of products in respect of both existing and new products. It was therefore assumed that the nature of the relationship might change over time. That commercial reality strongly suggested an intention by the parties not to be and remain

bound in perpetuity. Taking the surrounding circumstances into account and in view of the fact that the contract was silent as to its duration, it was necessary that a tacit term be imported. That term was that the contract could be terminated by either party on reasonable written notice.
The appeal was accordingly upheld.
Ellerine Brothers (Pty) Limited v McCarthy Limited
[2014] JOL 31793 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
245 / 13
01 / 04 / 2014
South Africa
Supreme Court of Appeal
MS Navsa, NZ Mhlantla, LE Leach, X Petse JJA, D van Zyl AJA
Contract – Lease agreement – Cancellation of – Validity of cancellation – Whether liquidation of lessee and consequent establishment of consursus creditrium operated to prevent lessor from claiming further performance from the lessee under the lease until liquidator had elected to abide by lease – Cancellation of lease confirmed as valid, as lessor acquired right to cancel lease when it gave lessee written notice to remedy its breach of the agreement and lessee failed to comply therewith – Insolvency – Effect on lease agreement – Insolvency of lessee – Following on insolvency of lessee the position is governed by the ordinary principles of the common law which apply when a party to an executory contract goes insolvent –
Creation of concursus creditorum does not terminate the continuous operation of a lease agreement to which the insolvent is a party
Mini Summary:
In 2006, the appellant entered into a lease agreement with a company (“the insolvent”), in terms of which it let business premises to the insolvent. The latter then entered into a sub-lease agreement with the respondent in respect of a portion of the property. The insolvent failed to timeously pay the agreed rental, and the appellant sent it notification that should it not remedy the breach within seven days, the appellant would take steps to cancel the lease agreement. The insolvent did not comply with the demand, and the appellant cancelled the lease. In the meantime, the insolvent was finally wound up. The appellant and the liquidators of the insolvent entered into a cession agreement whereby, as consideration for the rental payable by the insolvent to the appellant under the lease, the liquidator ceded to the appellant the insolvent’s rights to the rental payable by the respondent under the sub-lease.
Relying on the cession, the appellant issued summons against the respondent in the High Court claiming the rental and other amounts allegedly due in terms of the sub-lease. The respondent denied liability for the amounts claimed and defended the action. At the hearing of the matter the parties agreed that the only issue in dispute was whether the appellant could validly cancel the lease after the commencement of the proceedings for the winding-up of the insolvent. The respondent’s argument was that the sub-lease was terminated when the appellant advised the insolvent that it had elected to cancel the lease, and that there were no rights in existence which the liquidator could cede to it.
The respondent’s defence was consistent with the legal nature of a sub-lease. A sub-lessee cannot acquire more rights from the lessee than that which the lessee himself has. The appellant’s response was that by reason of the winding-up of the insolvent and the interruption of the required time period by the
concursus creditorum, it could not validly cancel the lease when it purported to do so. The concursus operated, it was argued, to prevent the appellant from claiming further performance from the lessee under the lease until the liquidator had elected to abide by the lease.
The High Court found that the lease was validly cancelled, as the appellant acquired the right to cancel the lease when it gave the insolvent written notice to remedy its breach of the agreement and the insolvent failed to comply therewith.
Held that the High Court was correct in its conclusion. The appellant’s argument ignored the fact that the insolvency of the lessee has no effect on the lease. Following on the insolvency of the lessee the position is governed by the ordinary principles of the common law which apply when a party to an executory contract goes insolvent. The liquidator inherits the lease in its entirety. The creation of the concursus
creditorum therefore does not terminate the continuous operation of a lease agreement to which the insolvent is a party. The concursus neither alters nor suspends the rights and obligations of the parties thereunder and the liquidator, as the universal successor, steps into the shoes of the insolvent and does not acquire any rights greater than those of the insolvent. Therefore, the liquidator must perform whatever is required of the insolvent in terms of the lease, including unfulfilled past obligations of the lessee.

The Court distilled the critical issue as simply being whether there was an effective and enforceable right at the critical time – the time of the cancellation. In this case, the appellant had such a right and its cancellation was valid. The appeal was thus dismissed.
Road Accident Fund v Myhill NO (Swalibe Minors)
[2014] JOL 31791 (SCA)
Case Number: 505 / 2012
Judgment Date: 29 / 05 / 2013
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
LE Leach, FDJ Brand, JB Shongwe JJA, NP Willis, CHG van der Merwe AJJA
Keywords:
Contract – Contract concluded on behalf of minors – Rescission of – A contract may be set aside under the restitutio in integrum if it is shown that it was prejudicial to the minor at the time it was concluded – Delict
– Motor vehicle accidents – Claims for compensation – Settlement agreements – Rescission of – Where amounts offered in settlement of claims of minors were wholly inadequate and resulted in prejudice to the minors, the agreements could not be allowed to stand
Mini Summary:
In March 1997, a mother (“the plaintiff”) and her two children sustained injuries when they were run down by a motor vehicle. The plaintiff instructed an attorney to claim compensation from the appellant. The claim forms were posted to the appellant in August 1998. They were forwarded for assessment by a senior claims handler at the relevant branch of the appellant. The claims handler authorised a claims assistant to commence settlement negotiations. R8 000 was offered in respect of one child and R7 000 in respect of the other, with a 30% reduction of each amount to cater for the plaintiff’s contributory negligence. An additional sum of R1 350 per claim was offered as a contribution towards the plaintiff’s costs. The offer was accepted, and the amounts concerned were paid to the plaintiff’s attorney. The children derived no benefit from the payout as the attorney vanished with the money.
Ten years later, the respondent was appointed as curator ad litem to represent the children in civil proceedings against the appellant. He issued summons, seeking an order setting aside the settlements and claiming substantial damages for the two children arising out of their injuries. One of the contentions advanced in support of the relief sought was that the settlement agreements were prejudicial to the interests of the two children. The court a quo upheld that argument, and that was the sole issue on appeal.
Held that the principles relating to the rescission of a contract concluded on behalf of a minor are well established. A contract may be set aside under the restitutio in integrum if it is shown that it was prejudicial to the minor at the time it was concluded. It is necessary to show that the prejudice suffered was serious or substantial. In considering the issue of prejudice in a case such as this, a court must guard against taking into account factors unknown at the time the claims were settled. In the present case, at the time the claims were compromised the only medical information available in regard to the nature and severity of the children’s injuries and the sequelae thereof was that contained in the medical report section of the prescribed claim forms and the children’s hospital records. The evidence showed that the claims handler appeared not to understand the nature and extent of some of the injuries, and that there was a real possibility that the children had developed post-traumatic epilepsy. The Court found that the offers of settlement made to the children were wholly inadequate.
The failure to take epilepsy into account was also significant in that the compromise made no allowance in respect of future medical expenses. In actions arising out of bodily injuries involving prospective loss, a plaintiff is not required to prove on a preponderance of probability that such loss will in fact occur and a court in assessing future loss may make a contingency allowance for the possibility of it occurring.
The Court further took issue with the 30% reduction applied to the already parsimonious amounts offered.
The basis on which the appellant had concluded the plaintiff had been 30% to blame for the collision was unclear. The evidence did not support such a conclusion. While not deciding that issue finally, the court turned to consider whether the appellant was entitled to apply an apportionment against the children’s damages. The general principle is trite that in order for set-off to operate between two parties there should be reciprocal indebtedness which, if both debts are equal, leads to their mutual discharge or, if they are not equal, to the larger being reduced by the amount of the smaller. Individuals in their personal capacities are treated as different persons from when they act in representative capacities. Consequently a debt owed by or to a person in his individual capacity cannot be set-off against a debt owed to or by the same person in a representative capacity such as custodial parent. Nevertheless, the appellant argued that it had been permissible as an exception to the general rule for it to set-off any amount it could recover from the plaintiff in her personal capacity from what it owed her in her capacity as mother and natural guardian of her two minor children. The Court rejected that argument. It held that it was

impermissible to reduce the appellant’s liability to the minor children by way of setting off against their claims the alleged personal liability of the plaintiff to it arising from contributory negligence on her part, and the two children were clearly prejudiced by it having done so.
Concluding that there was such substantial prejudice suffered by the children that the agreements could not be allowed to stand, the Court agreed with the court below that the agreements had to be rescinded.
The appeal was dismissed.
Vicki Momberg t/a Homes & Properties v Shellwell NO and others
[2014] JOL 31609 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7863 / 2009
06 / 12 / 2012
South Africa
High Court
KwaZulu-Natal, Durban
Lopes J
Keywords:
Contract – Oral agreement – Terms of – Onus of proof
Mini Summary:
The plaintiff conducted business as an estate agent. In 2005, the owner of certain property asked her to find a purchaser for the property. As a result of her efforts, the property was sold to a trust. The defendants were trustees in the trust.
According to the plaintiff, it was orally agreed that the trust accepted liability for, and agreed to pay, the plaintiff estate agent’s commission. She also alleged that the defendants undertook to give her a sole mandate to sell sectional title units to be erected on the property in settlement of her commission claim.
Alleging that the trust repudiated its obligations in terms of the oral agreement by failing to give her the sole mandate, the plaintiff alleged that she had suffered damages in the amount of the commission which she should have been paid.
While admitting that the plaintiff was the effective cause of the sale of the property, and that there was an oral agreement with her, the defendants averred that they had agreed that the trust would pay the plaintiff R15 000 as commission.
Held that the plaintiff was not a satisfactory witness, as opposed to three sound witnesses for the defendants. The Court was not satisfied that the plaintiff had established, on a balance of probabilities, the contractual basis on which she was entitled to be paid by the trust. Her version as pleaded was not only improbable but not in accordance with her evidence. She did not seek to amend her pleadings to accord with her evidence.
The defendant was absolved from the instance.
Table of Contents
Contract :: sale agreement
Kadwa NO and others v Standard Bank of South Africa Limited and others
[2014] JOL 31633 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8054 / 2011
30 / 10 / 2013
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Sishi J
Keywords:
Contract – Sale agreement – Suspensive condition – Non-fulfilment – Lapsing of agreement – Civil procedure – Interim interdict – Requirements
Mini Summary:
In December 2009, the applicants concluded a purchase and sale agreement with the first respondent.
The applicants were the purchasers and the first respondent was the seller of the immovable property in question. The purchase and sale agreement contained a suspensive clause that the applicants would pay a deposit of R90 000 and raise a guarantee in the sum of R810 000 within 14 days of signature of the agreement. That condition was not fulfilled by the applicants within the set time. However, the first respondent received a letter from a bank advising that there were sufficient funds in an account held with it by the first applicant. The first respondent then instructed its attorneys to proceed with the sale.
The applicants sought interim relief, interdicting the first two respondents from transferring the property pending the final determination of an action to be instituted by the applicants for transfer of the said property into the name of the trust of which the applicants were the trustees.

Held that the issue for determination was whether the agreement of sale was extant or whether it was void ab initio with effect from fourteen days of signature of the agreement.
The respondents were correct in submitting that there was no evidence that the suspensive condition was waived by the parties or that the fulfilment period was extended beyond the 14 day period when the agreement was still extant. The letter from the bank was not in the form of a guarantee and did not pertain to the trust but was rather a financial disclosure of the first applicant in his personal capacity.
Non-fulfilment of a suspensive condition renders an agreement void.
The onus was on the applicants to show that they had established the requirements for an interim interdict. They had to show a prima facie right; a balance of convenience in their favour; apprehension of reasonable harm; and the absence of a satisfactory alternative remedy. As the agreement had lapsed and was of no force and effect after the non-fulfilment of the suspensive condition, the applicants had failed to establish any right, prima facie or otherwise, as a requirement for an interim interdict.
The application was dismissed with costs.
Nedbank Limited v Lotter
[2014] JOL 32416 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
50216 / 13
16 / 09 / 2014
South Africa
High Court
Gauteng, Pretoria
Mabuse J
Keywords:
Corporate and Commercial Law – Consumer protection – Loan agreement – Application for payment –
Section 129, National Credit Act 35 of 2005 – Notice requirements – Persons – Marriage – Out of community of property – Failure to register antenuptial contract – Consequences
Mini Summary:
As a registered bank, the applicant was a credit provider. In 2007, it entered into a loan agreement with the respondent in terms of which the applicant, as the credit provider, lent the respondent R1 134 000 subject to certain conditions and upon the security of a mortgage bond. The respondent’s obligations were to repay the loan together with finance charges in regular monthly instalments, and to hypothecate the property as security for her obligations under the loan agreement. However, she failed to comply with her contractual obligations, and fell into arrears with her repayments.
In the present application, the bank sought payment of the amount due, as well as an order declaring the property specially executable for the said sum plus costs.
Held that the respondent, in resisting the application, first relied upon a restructuring agreement in terms of which her repayments were rearranged. She therefore objected to the subsequent bringing of the present application. However, the Court found that the respondent had failed to pay what was due in terms of the restructured agreement, entitling the applicant to bring the application.
The respondent stated in her next defence that the proceedings were instituted in accordance with the provisions of the National Credit Act 34 of 2005 and that the applicant had failed to comply with the requirements of sections 127, 129, 130 and 131 of the Act. She claimed furthermore that she was informed that the application was premature in that it was issued before the applicant had complied with the provisions of section 129(1)(a)(b) of the Act. She alleged that she never received the notice referred to in section 129 of the Act. The Court found that the section 129 notice was sent by registered mail to the address chosen by the respondent, and that a tracking number was obtained. The post office had sent the respondent a notification that she had to collect the item from the post office. In those circumstances, section 129 was complied with.
The main defence was that although the respondent had believed that she was married out of community of property, she had later discovered that her antenuptial contract was never registered, with the result that her marriage was one in community of property with a joint estate. It was submitted that the mortgage bond registered over the property and the loan agreement entered into by the respondent were a nullity because her husband’s consent had never been obtained at the time nor did he ratify the transactions.
In terms of section 86 of the Deeds Registries Act 47 of 1937, an ante-nuptial contract must be notarially executed and registered in the Deeds Office within three months after the date of its execution or within such extended period as the court may on application allow. An ante-nuptial contract which has not been property prepared before a notary or which, having been so properly executed, but has not been registered as required by the provisions of section 87, may be perfectly valid inter partes but not binding on third parties. What that means is that the marriage may be out of community of property as far as the spouses are concerned but in community of property as far as third parties are concerned. On the facts

placed before the Court, the respondent’s marriage was in community of property and of profit and loss, and her failure to obtain her husband’s consent rendered the loan agreement a nullity.
Sandown Travel (Pty) Limited v Cricket South Africa
[2014] JOL 31732 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
42317 / 2011
07 / 12 / 2012
South Africa
High Court
South Gauteng, Johannesburg
Wepener J
Keywords:
Contract – Repudiation – Rights of innocent party – Election
Mini Summary:
The plaintiff, a travel agency, sought damages from the defendant pursuant to the alleged repudiation by the defendant of an agreement between the parties and which repudiation the plaintiff accepted. The agreement was for the provision of travel services by the plaintiff to the defendant. The alleged repudiation was said to be evident in the defendant’s giving notice of termination of the agreement, and its ceasing to use the plaintiff’s service.
Held that objectively, the defendant repudiated the agreement on 6 April 2011, when it addressed a letter to the plaintiff indicating that it no longer considered itself bound by the agreement. Subsequent to the repudiation of the agreement on 6 April 2011 the plaintiff elected to keep the defendant to the terms of the agreement, and changed that stance only in October 2011 when it accepted the defendant’s repudiation of the agreement.
The legal position regarding the remedies available for an innocent party in circumstances where the other commits an anticipatory breach or repudiation of an agreement was set out by the court. The innocent party must elect either to treat the contract as binding or terminate it. Once an election has been made, however, that person is bound by that election. He is bound to enforce the remedies available to him pursuant to the election and he is not at liberty to seek redress against the defaulting party by way of remedies inconsistent with the election. The plaintiff would ordinarily be bound by its election to enforce the agreement and it could therefore not later cancel the agreement, unless there was another ground upon which it could rely.
The Court referred to the principle that the innocent party may, when the defaulting party commits an anticipatory breach, change his mind if the defaulting party persists with its repudiation when the date for performance arrives. That principle is limited to cases of anticipatory breach of an agreement, ie a breach of the agreement before the date on which performance is due. On that basis, the plaintiff was entitled to succeed with its claim against the defendant, based on the acceptance of the repudiation at the time when performance was due by the defendant.
Judgment was granted in plaintiff’s favour.
Northern Estate and Trust Administrators (Pty) Limited v Agricultural and Rural Development
Corporation
[2014] JOL 31220 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
117 / 13
28 / 11 / 2013
South Africa
Supreme Court of Appeal
CH Lewis, MML Maya, LE Leach JJA, PA Meyer, KGB Swain AJJA
Contract – Cancellation of contract – Consensual cancellation by conduct – A party alleging a tacit contract must set out the unequivocal conduct and circumstances from which the contract is to be deduced –
Contract – Cession – Where debtor, in ignorance of prior cession, and cedent agreed to a cancellation of the sale of shares agreement, agreement to cancel remains valid in absence of notice of cession to debtor
– Contract – Tacit agreement – A party alleging a tacit contract must set out the unequivocal conduct and circumstances from which the contract is to be deduced
Mini Summary:
In May 2005, the respondent sold shares that he held in a company to a third party (“Boyes”). Although the latter paid the full purchase price, the shares were not transferred to him. Subsequently the appellant

instituted action against the respondent alleging that Boyes had ceded his rights, title and interest in a claim against the respondent for transfer of the shares, and claiming an order directing the respondent to transfer such shares to it. The high court found that the cession relied on by the appellant had indeed taken place, but dismissed the appellant’s claim, finding that Boyes and the respondent had agreed to cancel the sale of the shares.
Held on appeal that consensual cancellation is simply an agreement to terminate another contract. In this case, the consensual cancellation was said to be express, alternatively, by conduct. The question on appeal was whether the court a quo correctly accepted that the respondent had discharged the onus of proving consensual cancellation of the sale agreement.
The evidence established that a dispute had arisen between the respondent and Boyes about the validity of their sale agreement. A meeting was held, attended by Boyes and three people from the respondent.
That was the meeting at which the express agreement of cancellation was alleged to have been concluded. It was not shown that cancellation of the agreement was discussed at that meeting. The Court therefore concluded that the respondent had failed to establish the conclusion of an express agreement in terms of which the sale agreement was terminated or the dispute between Boyes and the respondent compromised.
Turning to the issue of cancellation by conduct, the Court pointed out that a party alleging a tacit contract must set out the unequivocal conduct and circumstances from which the contract is to be deduced.
Examining the conduct of the parties, the Court found that the conduct of the respondent in repaying the purchase price that Boyes had paid pursuant to the conclusion of the sale agreement, and that of Boyes in accepting and retaining the repayment, seen against the background of the dispute between them and the respondent’s refusal to transfer the shares to Boyes, established unequivocally an intention on their part to cancel the sale agreement. That was the only reasonable inference to be drawn from their conduct.
The appellant sought to get around that by arguing that the agreement of Boyes and the respondent to cancel the sale can have no legal effect since the cession of Boyes’s rights under the sale to the appellant had not been impugned and the cession was fully operative at the time when the sale agreement was cancelled. That argument overlooked the fact that the respondent had received no notice of the cession prior to the institution of the action. Protection is afforded to a debtor who deals with a cedent without notice of a cession. Therefore, the prior cession of Boyes’ right to claim transfer of the shares constituted no impediment to the validity of the cancellation of the sale agreement subsequently concluded between the respondent and Boyes.
As the appellant had no right to claim transfer of the disputed shares, the appeal was dismissed.
Table of Contents
Kingswood Golf Estate (Pty) Limited v Witts-Hewinson and another
[2014] JOL 31219 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
223 / 2013
29 / 11 / 2013
South Africa
Supreme Court of Appeal
LO Bosielo, FDJ Brand, VM Ponnan, A Cachalia, JB Shongwe JJA
Keywords:
Contract – Contractual clause – Interpretation of – Clause found to be void for vagueness and not legally enforceable – Evidence – Parol evidence rule – Court a quo having regard to post-contractual newsletter in effort to establish meaning of contractual clause – When a contract has once been reduced to writing no evidence may be given of its terms except the document itself, nor may the contents of such document be contradicted, altered, added or varied by oral evidence –
Mini Summary:
In March 2004, the parties herein entered into a sale agreement in terms of which the respondents purchased immovable property from the appellant. Attached to the deed of sale was an addendum which contained some representations made by the appellant, most importantly, that a clubhouse furnished to a certain standard, would be erected on the property by the appellant. The deed of sale contained so-called non-variation and non-representation clauses. In terms thereof, no variation of the agreement would be valid unless reduced to writing and signed by both parties, and the respondents acknowledged that no representations or warranties were made by the seller or any party acting on its behalf.
A clubhouse was built on the property, but the respondents objected that it was not one as contemplated by the relevant clause on the addendum to the deed of sale. They therefore took to court, alleging that the appellant had failed to construct a clubhouse as agreed in the deed of sale.
Held that the clause relied on by the respondents stated that “a clubhouse, duly furnished in accordance with the upmarket quality and nature of the proposed development” would be erected. The narrow issue for the Court to determine on appeal was whether a reasonable person, reading the clause as it stood, would be able to determine what “a clubhouse, duly furnished in accordance with the upmarket quality

and nature of the proposed development” was. The clause contained no indications, specifications, benchmarks, characteristics or particulars to assist in such a determination. The only document which contained some specifications or indications as to the kind of clubhouse which was envisaged in the addendum was a post-contractual newsletter sent out on behalf of the appellant in November 2004. The question was whether the newsletter was admissible to add content to a clause which was admittedly vague. The court below not only admitted the newsletter, but granted judgment in the respondents’ favour in accordance with its terms. On appeal, the appellant argued that the court below had erred, and that the clause was void for vagueness. The present Court held that the lower court was wrong to admit into evidence, post-contractual extrinsic material. In so doing, it also infringed upon the parol evidence rule.
The court a quo was also found to have erred in finding that the deed of sale clothed the appellant with a fettered discretion based on the arbitrio boni mori principle, and in granting an order for specific performance, as such an order would be impractical to implement.
The appeal was accordingly upheld.
De Klerk and another v Steven-Lee Properties (Pty) Limited and another
[2013] JOL 30854 (SCA)
Case Number: 297 / 12
Judgment Date: 04 / 04 / 2013
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
KK Mthiyane DP, FDJ Brand, CH Lewis JJA, H Saldulker, Van der Merwe AJJA
Keywords:
Contract – Terms and conditions – Whether a clause in a sale agreement constituted a suspensive condition – Clause requiring purchaser to make arrangements to the satisfaction of the appropriate local authority for the provision of essential services to the property was merely a term of the agreement and not a suspensive condition Suspensive condition – The most important characteristic of a condition is that it relates to a future uncertain event
Mini Summary:
In March 2007, the appellants and the first respondent entered into two sale agreements for the purchase of two properties. Pursuant to the obligations arising from the sale agreements, the immovable properties were registered in the names of the appellants on 31 May 2007 and 8 June 2007. A clause in the agreement containing special conditions, required the first respondent to make arrangements to the satisfaction of the appropriate local authority for the provision of essential services to the street border of the property. The appellants contended that the clause constituted a suspensive condition which had not been met. It approached the High Court for an order to that effect. The application was dismissed with costs, and the present appeal was noted.
Held that the first issue for determination was whether the clause in question constituted a suspensive condition. The most important characteristic of a condition is that it relates to a future uncertain event. In this case, the sale agreements were concluded in 2007 and the planned township on the properties was proclaimed in 2006. Whatever conditions there might have been no longer existed at the time of the transfer of the properties into the appellant’s names in 2007. It was a past event. There was also nothing conditional about the formulation of the provisions of the clause. It was simply a term of the agreement which requires the developer to do whatever it could to get the approval from the local authority.
The appellants contended that the first respondent had failed to make arrangements to the satisfaction of the appropriate local authority for the provision of essential services to the street border of the property.
However, the first respondent provided proof in the form of a letter from the Water Services Unit of the municipality confirming that all criteria in regard to the water and sanitation services have been met. The appellants’ disputed that the relevant authority contemplated in the clause was the municipality, contending instead that it was Rand Water Board. The latter was a statutory public water authority which exercised its authority in terms of section 84 of the Water Services Act 108 of 1997. It could not be regarded as a municipal structure, and was therefore not a local authority.
It was concluded that there was nothing more the first respondent could do in terms of its contractual obligations. It was not in breach of any of its contractual obligations, and therefore no valid cancellations of the sale agreements could follow.
The appeal was dismissed with costs.
Table of Contents
Contract :: Unjust enrichment
Trustees of the Insolvent Estate of Grahame Ernest John Whitehead v Dumas and another
[2013] JOL 30865 (SCA)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
323 / 12
20 / 03 / 2013
South Africa
Supreme Court of Appeal
A Cachalia, CH Lewis, VM Ponnan, LV Theron, XM Petse JJA
Keywords:
Contract – Unjust enrichment – Agreement induced through fraudulent misrepresentation – Where A transfers money from his bank account to B’s bank account pursuant to an agreement induced by B’s fraudulent misrepresentation, B’s personal right to the credit falls to his insolvent estate on sequestration
Mini Summary:
The first respondent had paid an amount of R3 million into the bank account of a fraudster (Whitehead), in the hope of participating in the latter’s illegal financial scheme. Whitehead’s estate was subsequently sequestrated and its administration placed in the hands of the trustees, the appellant. Dumas laid claim to the money on the ground that it was obtained from him fraudulently, and therefore could not form part of the insolvent estate. The trustees, on the other hand, contended that the funds became part of the estate on sequestration, and were thus subject to the concursus creditorum.
Dumas was duped through representations made by an agent acting on Whitehead’s behalf into believing that Whitehead’s scheme was legitimate, and that his investment would yield a lucrative return of a third of his investment within a year. Upon hearing of Whitehead’s arrest, Dumas attempted to recover the money paid by him. However, in terms of a provisional sequestration order against Whitehead’s estate, the money was transferred to an attorney’s trust account. Upon the appointment of the trustees of the estate, the attorney paid the money into the trust account operated by the trustees. That account was held with the second respondent.
In May 2009, Dumas instituted a vindicatory application for the return of the moneys in the High Court.
The claim was later amended so as to be premised on enrichment – the condictio ob turpem vel iniustam
causam – a remedy available to a plaintiff who innocently transfers money to a defendant under an agreement which, to the knowledge of the defendant, is illegal. The Court upheld Dumas’ claim, holding that as he had caused the transfer of the money into Whitehead’s bank account to the credit of Whitehead through a fraud and theft perpetrated on him by Whitehead, Whitehead had no entitlement, and thus no claim against the second respondent, to the money. The Court concluded that the money therefore fell outside Whitehead’s estate, was not subject to the concursus creditorum and the bank, which would be enriched if it kept the money, had to repay the amount to Dumas. That led to the present appeal.
Held that generally, where money is deposited into a bank account of an account-holder it mixes with other money and, by virtue of commixtio, becomes the property of the bank regardless of the circumstances in which the deposit was made or by whom it was made. Where, as in this case, A causes the transfer of money from his bank account to the account of B, no personal rights are transferred from A to B. What occurs is that A’s personal claim to the funds that he held against his bank is extinguished upon the transfer and a new personal right is created between B and his bank. Ownership of the money – insofar as money in specie is involved – is transferred from the transferring bank to the collecting bank, which must account to B in accordance with their bank-customer contractual relationship. That is the case even where A was induced to enter into an agreement through B’s fraudulent misrepresentation.
The enquiry in this case therefore turned on whether or not Whitehead acquired a personal right to the credit when Dumas caused the money to be transferred to Whitehead’s account. If he did, then the funds accrued to Whitehead’s estate upon sequestration. However, if Whitehead himself did not acquire a personal right to the funds, neither would his estate have upon sequestration. The funds then remained the property of the bank with Whitehead’s estate having no claim to its payment. And the bank would be unjustly enriched, at Dumas’ expense, if it retained the funds without incurring an obligation to release it to the trustees. Whitehead, as a customer of the bank, immediately acquired the new right to the money in his account, which was enforceable against the bank when ownership passed to it, despite the absence of valid causa – ie a valid underlying agreement. The bank then had both a duty to account and a corresponding liability to its customer, Whitehead, and on his sequestration two weeks later, to the trustees of the insolvent estate. The bank was therefore not enriched and no enrichment action lay against it.
The appeal was accordingly upheld.
Donald & Richard Currie (Pty) Limited and another v Growthpoint Properties Limited
[2013] JOL 30226 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
572 / 11
13 / 09 / 2012
South Africa
Supreme Court of Appeal

Division:
Bench:
Keywords:
CH Lewis, NZ Mhlantla, LO Bosielo, LE Leach, ZLL Tshiqi JJA
Contract – Offer and acceptance – Acceptance of offer to convert shares in an entity to cash – Offeree cannot argue iustus error to avoid contract, where error is his own
Mini Summary:
The second appellant and a company in which and his family held the shares owned equities in a property fund (“Paramount”). In December 2006, the respondent made an offer to all Paramount Linked
Unitholders and B Debenture Holders to exchange what they held in Paramount for either linked units in the respondent, or for cash. The second appellant filled in the requisite forms, intending to accept the mass offer both for himself and for the company. The completed forms indicated that the second appellant and the company accepted the offers for their equities and the consideration they elected to take was the cash amount stipulated per unit. When he received cheques for the amounts payable for his and the company’s units he immediately sought to change what he had elected and insisted that he had really wanted linked units instead. When he was unable to persuade the respondent to reverse the transactions, he and the company instituted separate actions for declarations that the acceptances had been pro non
scripto, and for delivery of the linked units that had been offered and the dividends that would have accrued had the linked units been transferred to them at the relevant time. The actions were consolidated at the start of the trial. The High Court found that the second appellant and the company were not entitled to the linked units. They had claimed that their acceptances were null because of errors made in their completion of the forms and that they could thus not claim performance since there were no contracts.
Leave to appeal to the present Court was granted by the High Court.
Held that the essence of the argument on appeal was, that the acceptance of the mass offer was not void, that only the election to accept cash was affected by iustus error (that of the second appellant), and that it was, or should have been plain that he had elected, for himself and the company, to accept the offer of linked units in the respondent.
Factually, the appellants’ argument (that their true intention should have been apparent because the election to accept a cash payment was a financially unwise one) was unsound. Although the value of the linked units turned out to be considerably greater than was the cash consideration, there were many reasons why a shareholder might wish to realise shares, and it was not for the respondent to second guess that choice.
The legal argument, based on iustus error, was also unsound. In order to avoid a contract, the person seeking to escape what appears to be a binding contract must show reasonable reliance on the other party’s conduct in making the mistake. The three-fold enquiry is whether there was a misrepresentation as to the non-mistaken party’s intention; who made the misrepresentation; and whether the other party was misled. The application of that test was fatal to the second appellant’s argument.
The Court then addressed the question of whether the acceptance of the respondent’s mass offer was unequivocal. The Court confirmed the High Court’s finding that the second appellant and the company were bound by their acceptances of the mass offer.
The appeal was dismissed.
Wakefields Real Estate (Pty) Ltd v Attree & others
[2011] JOL 27977 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
666 / 10
28 / 09 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, MS Navsa, VM Ponnan, NZ Mhlantla, MJD Wallis JJA
Keywords:
Property – Estate agents – Sale of property – Claim for commission – Dispute as to effective cause of sale
– Whether estate agent who introduces a purchaser to a property, where sale is concluded through another agent, is effective cause of the sale and entitled to commission – Where, but for agent’s introduction of property to buyer, the latter would not have been aware of the property’s existence, that agent was entitled to commission
Mini Summary:
The first two respondents (“the Attrees”) sold their property to the third respondent. The present dispute was about the appellant was the effective cause of the sale, and was therefore entitled to commission.
In 2004, an agent employed by the appellant learnt that the Attrees were possibly selling their property.
Although at that stage unsure about their plans, the Attrees did tell agents that they could bring potential

purchasers to view the property. The agent working for the appellant listed the property on the appellant’s books and advertised it. During the course of 2005, another of the appellant’s employees took prospective purchasers to view the property. One of those was the third respondent. However, the third respondent eventually indicated that she could not afford to purchase the property, and the agent ceased showing her properties.
Shortly thereafter, the third respondent fortuitously encountered an agent employed by another agency
(“Pam Golding Properties”). The third respondent mentioned the Attrees’ property to that agent, indicating that although she liked the property, it was too expensive.
In April 2005, the Attrees lowered the price on the property, and gave yet another agency (“Remax”) a sole mandate to sell it. Despite the sole mandate to Remax, Mr Attree phoned two other agents, one of whom was the Pam Golding agent, and told them that he had agreed to lower the price. That agent recalled the third respondent’s expression of interest in the property, and phoned her to tell her that the price had been reduced. The third respondent made an offer on the property, which offer was accepted by the Attrees. The commission of R150 000 was shared by Remax, which had the sole mandate, and Pam
Golding which claimed that it was the effective cause of the sale.
Adjudicating the appellant’s claim for commission, the high court held that the appellant had not been given a mandate by the Attrees and also that they had not been the effective cause of the sale. It dismissed the appellant’s claim.
On appeal, the Attrees did not persist in the argument that the appellant had no mandate, accepting that the property had been listed for sale by them and that they had had dealings with the Attrees and brought potential purchasers to view it. What the appellants sought to challenge on appeal was the high court’s finding that the Pam Golding agent was the effective cause of the sale. In reaching that conclusion the trial court had regard to the following factors. At the time when the appellant’s agent took the third respondent to the property, she could not afford the asking price. The Pam Golding agent did more than the appellant’s employee to secure the sale. The Attrees had been persuaded by the Remax agent to reduce the price. The cumulative effect of these factors, said the judge, outweighed the effect of the initial introduction by the appellant’s agent. The high court concluded that the first introduction by the appellant had been outweighed by intervening factors.
Held that but for the appellant’s employee’s introduction of the house to the third respondent, the latter would not have been aware of the existence of the property. If the third respondent had herself approached the Attrees, and persuaded them to sell the property to her at a lower price (that is, assuming there was no intervention at all by the Pam Golding agent), the appellant would undoubtedly have been entitled to commission. Similarly, had the Attrees approached the third respondent directly and offered to sell to her at a lower price, the appellant would likewise have been entitled to commission, as the appellant’s employee was the effective cause of the sale.
The Pam Golding agent had, as stated above, learned that the third respondent was interested in the property quite fortuitously. Had the third respondent not been introduced to the property by the appellant, she would not have mentioned it to the Pam Golding agent, who would then not have found a willing and able purchaser before Remax’s show day. Thus, the Court found that despite the Pam Golding agent’s later intervention, the appellant’s introduction was the effective cause of the sale. Accordingly, the appellant was entitled to commission at the rate agreed to be applicable. That the Attrees found themselves liable to pay more than one agent was of their own making.
The appeal was upheld with costs.
Lekup Prop Co No 4 (Pty) Ltd v Wright
[2012] JOL 29311 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
286 / 11
23 / 05 / 2012
South Africa
Supreme Court of Appeal
TD Cloete, A Cachalia, S Snyders, LE Leach JJA, XM Petse AJA
Keywords:
Contract – Doctrine of fictional fulfilment – A condition is deemed to have been fulfilled as against a person who would, subject to its fulfilment, be bound by an obligation, and who has designedly prevented its fulfilment, unless the nature of the contract or the circumstances show an absence of dolus on his part
– The doctrine focuses on intention rather than motive, and negligence will not suffice
Mini Summary:
The appellant owned immovable property which it sold to the respondent in April 2004. The sale agreement contained an acknowledgment by the respondent as purchaser, that he was aware that the property was not yet sub-divided and that the agreement of sale was subject to sub-division being formally approved and registered by not later than

31 October 2004. It was further agreed that in the event of sub-division not being registered by 31
October 2004, the agreement would be cancelled. The date was subsequently extended, but the subdivision was still not approved by the agreed date. The case was conducted on the basis that despite the reference to cancellation in the agreement, the meaning of the clause was that if the condition had not been fulfilled on the date specified, the agreement would lapse.
In the High Court, the appellant brought an application for a declaratory order that the agreement had indeed lapsed. By consent, the matter was later referred to trial.
In his plea, the respondent alleged that the appellant had deliberately and intentionally failed to procure the required rezoning and subdivision of the property. It was contended further that based on the doctrine of fictional fulfilment, the relevant terms of the contract should, for purposes of the allegation that the agreement had lapsed, be deemed to have been fulfilled. The High Court found in favour of the respondent and declared that the agreement of sale had not lapsed and the suspensive condition was deemed to have been fulfilled.
Leave was granted to the appellant to appeal to the present Court.
Held that the remedy of fictional fulfilment has been described in case law as follows. In our law, a condition is deemed to have been fulfilled as against a person who would, subject to its fulfilment, be bound by an obligation, and who has designedly prevented its fulfilment, unless the nature of the contract or the circumstances show an absence of dolus on his part. Dolus in this context does not carry its usual meaning of deliberate wrongdoing or fraudulent intent but a more specific meaning, namely, the deliberate intention of preventing the fulfilment of the condition in order to escape the obligation subject to it. The doctrine focuses on intention rather than motive, and negligence will not suffice.
The appellant in this case accepted that he had a tacit contractual duty to take all reasonable steps to ensure that the property was sub-divided and the sub-division registered. The doctrine of fictional fulfilment is an equitable doctrine and equity demands that in certain cases a contracting party should be held to a bargain where it has deliberately not performed an obligation for the purpose of avoiding the contract. Therefore in the present matter, in order to successfully invoke the doctrine of fictional fulfilment, the respondent bore the onus of proving that the appellant, by deliberate commission or omission, prevented the sub-division from taking place, with the intention of avoiding its obligations under the agreement.
Examining the evidence, the Court was not convinced that the appellant was actuated by dolus. It could not be found that the appellant was prompted by a desire to escape the obligations it had under the agreement. The respondent accordingly did not discharge the onus on him and the relief based on the doctrine of fictional fulfilment sought by him and granted by the court a quo, should have been refused.
Upholding the appeal, the Court held that the agreement between the parties had lapsed.
Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga & others
[2012] JOL 29042 (SCA)
Case Number: 456 / 2011
Judgment Date: 25 / 05 / 2012
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
KK Mthiyane DP, MJD Wallis, IG Farlam JJA, F Kroon, P Boruchowitz AJJA
Keywords:
Property – Land – Eviction order – Appeal against setting aside of eviction order on review – Termination of right of residence of occupier in terms of Extension of Security of Tenure Act 62 of 1997 – Section 8(1) of the Extension of Security of Tenure Act provides that termination of a right of residence must be both lawful and just and equitable having regard to the factors specified in the section, and section 8(2) provides that an occupier’s right of residence where the occupier is an employee whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act 66 of 1995 – Respondents’ contact of employment expressly providing that their right of residence derived from their employment agreements and terminated when those agreements were terminated – Eviction of respondents in those circumstances confirmed as just and equitable –
Mini Summary:
During their employment by the appellant, the respondents resided in a hostel on the appellant’s premises. Despite having been dismissed from employment in 2004, the respondents continued to reside in the rooms previously occupied by them in the hostel. After their attempts to challenge the fairness of their dismissals had been exhausted, they were given notice of termination of their right of residence in the rooms in January 2008. Between May and December 2008 the notices required by section 9(2)(d) of the Extension of Security of Tenure Act 62 of 1997 (“the Act”) were served and published requiring the

former employees to vacate, but they declined to do so. Consequently, the appellant applied to the
Magistrates’ Court for an order for their eviction. The eviction order was granted by that court, but on review in the Land Claims Court, the order was set aside. The present appeal was directed at the Land
Claims Court decision.
Held that the Act provides statutory protection against eviction for occupiers of agricultural land. An occupier is defined in section 1 of the Act as referring to a “person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so”. In terms of section 3(1) of the Act, consent to an occupier to reside on or use land shall only be terminated in accordance with the provisions of section 8. That section refers to the termination of an occupier’s “right of residence” on the land in question. That refers to the right to occupy that arises from the express or tacit consent of the owner of the land. The Act does not describe an occupier as a person occupying land in terms of an agreement or contract, but as a person occupying with the consent of the owner. Persons claiming the Act’s protection must show that the owner of the land has consented to their being in occupation, irrespective of whether that occupation flows from any agreement or has its source elsewhere. Whatever its origins, it is the right of residence flowing from that consent that must be terminated in terms of section 8 before an eviction order can be obtained.
The appellant’s case was that the respondents’ right to reside in the hostel flowed from their contracts of employment and, with the termination of the latter, their right to occupy those rooms terminated.
Section 8(1) of the Act provides that termination of a right of residence must be both lawful and just and equitable having regard to the factors specified in the section. Section 8(2) provides that a “right of residence for an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act”. The purpose of the section was to ensure that eviction orders could not be obtained against dismissed workers in these areas until all disputes about the validity of the termination of their employment had been resolved through the mechanisms of the Labour
Relations Act.
The Act contemplates two stages before an eviction order can be made. First, the occupier’s right of residence must be terminated in terms of section 8 of the Act. Once the right of residence has been terminated, before an eviction order can be sought, not less than two months’ notice of the intention to seek the occupier’s eviction must be given to the occupier, the local municipality and the head of the relevant provincial office of the Department of Land Affairs in terms of section 9(2)(d) of the Act. That notice is required to be in a form prescribed by regulations made in terms of section 28 of the Act.
From the outset, it was made clear to the former employees that their right of residence had derived from their employment agreements and that it terminated when those agreements were terminated.
Accordingly, the obligation to vacate the hostel on termination of the contracts of employment of the former employees was one that was explicitly embodied in the obligations of the former employees under those contracts. The employment contracts further required the employees to observe and comply with the employer’s rules. Those rules included the rules in regard to residence in the hostel, and provided that the right of residence would terminate on termination of the employment contracts. In the premises, the appeal had to succeed.
Sandlundlu (Pty) Ltd v Shepstone & Wylie Inc
[2010] JOL 26565 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
63 / 10
02 / 12 / 2010
South Africa
Supreme Court of Appeal
S Snyders, RW Nugent, JA Heher JJA, R Pillay, K Pillay AJJA
Keywords:
Contract – Breach of contract – Claim for damages – Factual causation – A plaintiff who enforces a contractual claim arising from the breach of a contract needs to prove, on a balance of probability, that the breach was a cause of the loss –Contract – Breach of contract – Contractual damages – General rule in relation to contractual damages is that the claimant is entitled to be put in the position it would have been in if the respondent executed its mandate properly
Mini Summary:
As owner of immovable property on which a hotel was situated, the appellant wished to develop a vacant part of the property adjacent to the hotel, but required funding to do so. The appellant’s shareholders accordingly entered into negotiations with an Austrian investor who was interested in the development.
They started negotiating an involved series of transactions. At all material times an attorney
(“Breytenbach”) from the respondent’s firm acted for the appellant.

As a first step in the execution of the envisaged transactions the appellant leased to its hotel to the investor. A lease was drafted by the investor’s attorney. Although the parties had orally agreed on a monthly rental of R50 000 which was to escalate at a rate of 12 per cent per annum, when the respondent presented the draft lease the appellant for signature, the monthly rental was reflected as R4 500 with an escalation of 10 per cent per annum. One of the appellant’s shareholders (“Reardon”) noticed the mistake and pointed it out to Breytenbach. He was assured that he could sign the agreement, and that the attorney would correct the error before the investor signed it. Reardon obliged, signed the lease and initialled next to the rental amount and escalation that Breytenbach had undertaken to amend. However,
Breytenbach never amended the document, and the written agreement of lease signed by both parties therefore reflected a monthly rental of R4 500 with a 10 per cent per annum escalation and not for the orally agreed rental of R50 000 with a 12 per cent per annum escalation.
After November 2000, no further rental was paid by the investor. Arbitration proceedings were launched by the appellant to effect a rectification of the lease agreement to reflect the rental orally agreed. The appellant then cancelled the lease due to non-payment of rentals, and eventually successfully evicted the investor from the property. The investor’s company was liquidated and no rental was ever recovered.
The appellant then successfully sued the respondent for damages flowing from the respondent’s conceded negligent failure to insert the orally agreed monthly rental in the written lease agreement signed by the parties thereto. The court below granted the appellant damages for the loss of rental income restricted to the likely date upon which registration of transfer of the property in terms of the sale would have been effected. It awarded the appellant interest at 15.5 per cent per annum as damages calculated, not monthly, but from the date of service of summons. In the appeal, the appellant sought to increase the damages awarded to include rental for the full period until the eviction of the lessee, and interest calculated from each month as the rental became due, owing and payable.
In a cross-appeal, the respondent contended that the factual cause of the loss was the dishonest conduct of the lessee’s attorney and not the negligence of Breytenbach. It sought the replacement of the order of the court below with an order that the appellant’s claim be dismissed with costs.
Held that a plaintiff who enforces a contractual claim arising from the breach of a contract needs to prove, on a balance of probability, that the breach was a cause of the loss.
The court agreed that the lessee and his attorney had dishonestly attempted to use the error in the document to their advantage. However, if Breytenbach had not failed to execute his mandate there would not have been the opportunity for the lessee to rely on the written lease agreement in support of its dishonest contention. It was therefore probable that Breytenbach’s failure did cause loss to the appellant.
That did not mean that the appellant was entitled to all of the damages it suffered. The general rule in relation to contractual damages is that the claimant is entitled to be put in the position it would have been in if the respondent executed its mandate properly. The general rule suggests that a line needs to be drawn to ensure that the respondent should not be caused undue hardship. Examining the facts, the court found that when the relationship between the appellant and the lessee soured as it had, future dealings between themn became unlikely. In those circumstances the appellant would have been successful in recovering rental of R50 000 per month until 2006. The evidence did not establish as a probability that damages were sustained after the period fixed by the trial court.
Thus, the appeal and the cross-appeal were dismissed.
Eldacc (Pty) Ltd v Bidvest Properties (Pty) Ltd
[2011] JOL 27990 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
682 / 10
26 / 09 / 2011
South Africa
Supreme Court of Appeal
TD Cloete, BJ van Heerden, A Cachalia, WL Seriti JJA, C Plasket AJA
Keywords:
Contract – Stipulatio alteri – Effect of non-variation clause – Nominee in stipulatio alteri not having to be substituted as party to contract in writing – Nominee’s acceptance of offer not amounting to a variation of agreement, with result that non-variation clause did not come into play
Mini Summary:
The appellant entered into a lease agreement, which incorporated an option to purchase the leased property. The option was granted by the appellant to the lessee (“Rennies”) or its nominee. The clause contained a stipulatio alteri in favour of such nominee. The nominee in question was the respondent, which exercised the option as provided for the in the lease agreement.

When the appellant purported to cancel the resulting agreement, the respondent brought motion proceedings in the high court for specific performance and ancillary relief. The court granted the relief sought and refused leave to appeal, which was subsequently granted by this Court.
On appeal, the appellant’s only argument was based on a non-variation clause in the agreement. In terms thereof, any variation to the agreement would be of no effect unless reduced to writing.
Held that the appellant was correct in describing its undertaking to Rennies as an offer to sell the property on defined terms to Rennies or its nominee; and an agreement to keep the offer open for acceptance until the date specified. However, it argued further that acceptance by the respondent of the offer could not take place until it had acquired Rennies' right to have the option kept open. According to the appellant, the acquisition of that right required it to be substituted for Rennies in the agreement between the appellant and Rennies, and as that substitution involved a variation, it had to be in writing and signed by at least the appellant and Rennies because of the non-variation clause. Those contentions were unsound in law. Rennies had the right to compel the appellant to abide by its undertaking to keep the offer open in favour of its nominee, both before and after the nomination. But the right that the respondent had to accept the offer was independent of such right. For that very reason, it was unnecessary for the respondent to acquire Rennies' right to protect the offer before the respondent exercised its right to accept the offer. Acquisition of the former was not a precondition for the exercise of the latter.
There was no variation of the agreement between the appellant and Rennies. What happened was exactly what was envisaged in the agreement. Rennies nominated the respondent, which accepted the offer made by the appellant. There was thus a resulting sale by the appellant to the respondent on the terms contained in the agreement.
The appeal was dismissed with costs.
ABSA Bank Ltd v SACCAWU National Provident Fund (under curatorship)
[2011] JOL 27997 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
697 / 10
27 / 09 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, VM Ponnan, A Cachalia, LO Bosielo, JB Shongwe JJA
Keywords:
Contract – Lease agreements – Authority – Whether principal officer of provident fund had authority to bind fund – Fund’s rules requiring meeting of trustees and contracts to be signed by three trustees for contracts entered into on behalf of fund – Where such requirement was not complied with, resulting agreements not binding on fund
Mini Summary:
The respondent had entered into fifteen contracts for the lease of office equipment to it. The lessor ceded its rights under the agreements to the appellant which instituted action against the respondent for payment of arrears in respect of each of the leases. Defending the claims, the respondent averred that its principal officer did not have the authority to conclude the contracts. a stated case was placed before the high court on that issue alone, and the high court found that the principal officer was not authorised to enter into contracts on behalf of the respondent and that the contracts were thus ultra vires and not binding. That led to the present appeal.
The respondent’s argument was that in order for it to be bound by the rental agreements, the agreements had to have been executed in a particular fashion prescribed by the respondent’s rules. The rule in question provided that all documents or contracts effected by the respondent would be binding upon the respondent provided that they were signed by the chairperson and another two trustees at a duly constituted meeting, or after such a meeting, provided that authorisation for the signing of these documents or contracts was granted at such meeting.
Held that the principal question was whether, notwithstanding non-compliance with the relevant rule, the respondent was nonetheless bound by the lease agreements.
The appeal turned upon the interpretation to be placed on the respondent’s rules. It was necessary in interpreting the rules, to examine the general framework according to which the respondent had been constituted.
The Pension Funds Act 24 of 1965 read together with the regulations and the rules defined the limits of the respondent’s contractual capacity. The regulations promulgated under the Act stated that the rules should provide for the manner in which contracts and other documents binding the respondent should be executed. That rule in the respondent’s rules was the one referred to above. It constituted the only

effective overriding control over the legal capacity of the respondent to enter into written contracts. It was common cause that it had not been complied with.
While it might be desirable that there should be a provision in the rules that would enable the principal officer to enter into written contracts with regard to the day-to-day functioning of the respondent, there was no such express provision. The question that then arose was whether it could be inferred by necessary implication from the rules. The court emphasised that it would be slow to imply a term into the rules, and found no basis for doing so.
The appeal was therefore dismissed by the majority of the court.
In the dissenting judgment, it was held that the issue was whether there was compliance with the peremptory formalities laid down by the respondent’s rules. That raised the question of whether the rule referred to above was applicable to the contracts that the principal officer had concluded.
The rules had to be examined having regard to their purpose and the context in which they operated.
Although the respondent’s rules did not indicate what contracts had to comply with the rule, nor why the trustees, as non-executive officers, should be burdened with the daily administration of the respondent’s business, the judge pointed out that rules must be given a sensible meaning in interpreting them. It was not sensible or reasonable to require that at least 13 trustees should meet and authorise the hiring of office equipment. That was the function of the principal officer.
The rules provided for the conclusion of investment contracts, the prime business of the respondent, to be delegated to a subcommittee of members or a financial institution. If such contracts that were crucial to the respondent could be concluded by other bodies, it made no sense for contracts for the rental of office equipment to have to comply with unnecessary and burdensome procedures. That was not a reasonable or sensible interpretation of the rules. And it undercut the role of a principal officer who was the only executive employed by the respondent and who, in the preamble to the rules, was expressly said to represent the respondent in the acquisition and holding of property.
Satisfied that the principal officer was charged with the administration of the office of the respondent, the dissenting judge would have upheld the appeal.
Laynes v Coco Haven 1100 CC and another
[2014] JOL 32047 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
25220 / 2013
10 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Mashile J
Keywords:
Contract – Sale agreement – Cancellation of – Novation
Mini Summary:
The applicant sought an order compelling the first respondent to do all things necessary and to sign all documents to enable the second respondent to register a Sectional Scheme in terms of the Sectional Titles
Act 95 of 1986 and register transfer of the relevant unit in the said sectional scheme into the applicant’s name.
In terms of a sale agreement, the first respondent had sold the unit to the applicant. The registration of transfer of the property was to be effected by the second respondent within a reasonable time after the applicant complied with the relevant clauses of the agreements and made payment of transfer duty, stamp duty and all other costs of transfer and matters incidental thereto. The agreement also had a nonvariation clause. About three months after the agreement referred to above, the parties concluded another deed of sale largely containing similar provisions as the earlier agreement except for a change in the purchase price. The parties then resolved to cancel the second deed of sale. Following that, the first respondent entered into a deed of sale with the applicant’s father. The agreement was once again similar in most respects except that the purchase price was again changed.
The first respondent argued that the first agreement was replaced when the second agreement was entered into.
Held that the Court had to decide, what effect, if any at all, the conclusion of the second agreement had on the first agreement; what the result of the mutual cancellation of the second agreement was; and which of the two agreements, the first or the third, should be operative for purposes of the sale.
Novation means replacing an existing obligation by a new one, the existing obligation being thereby discharged, but novation is not to be regarded as a form of payment. It requires the presence of intention and consensus of the contracting parties. The evidence pointed to the conclusion that the parties meant to proceed with the first agreement. The conclusion and the subsequent cancellation of the second

agreement would have had no effect on the validity of the first agreement as there was no novation and the parties had not cancelled the first agreement.
The application succeeded.
Ryton Estates (Edms) Bpk & andere v Land & Landbou Ontwikkelings Bank van SA
[2012] JOL 28600 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
33482 / 2010
09 / 03 / 2012
South Africa
High Court
North Gauteng, Pretoria
WRC Prinsloo J
Keywords:
Contract – Loan agreements – Charging of interest – Rate of interest – Method of computation
Mini Summary:
The plaintiffs were farmers who had loan accounts with the Land Bank (the defendant). They were concerned that the bank had debited their loan accounts with too much interest. In essence, the plaintiffs complained that the defendant had debited their accounts with compound as opposed to simple interest, and that it had also wrongly imposed various charges.
The parties were in agreement that the Land Bank Act 13 of 1944 was applicable to their dispute.
Held that the issues in dispute between the parties related specifically to the rate of interest and the method used to calculate such interest.
On the first issue, the plaintiffs bore the onus of proving that the defendant failed to properly exercise its discretion to adjust the rate of interest charged. That onus was not discharged, and the court resolved the first issue in the defendant’s favour.
On the second issue, the Court held that the loan agreements made provision for simple interest, which does not allow for interest on interest. The defendant was therefore not allowed to charge compound interest, nor were the administrative charges complained of by the plaintiffs permissible. The defendant was ordered to repay the amounts charged in that regard.
Nedbank Ltd v Euro Blitz 21 (Pty) Ltd & others
[2010] JOL 26446 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
10 / 10766
04 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
NP Willis J
Civil procedure – Return of property – Dispute of fact – Court’s approach
Mini Summary:
In 2006, the applicant sold an aircraft to the fifth respondent. The agreement provided that ownership would remain vested in the applicant until all amounts were paid by the buyer. When the fifth respondent fell into arrears, the applicant cancelled the agreement. The fifth respondent failed to return the aircraft to the applicant, leading to the latter obtaining an order confirming cancellation of the instalment sale agreement, ordering the fifth respondent to return the aircraft to the applicant, and authorising the sheriff to attach and remove the aircraft from the fifth respondent’s premises. However, the aircraft turned out to be in the possession of the first respondent, and that is where the sheriff attached it.
In the interim, the second respondent obtained judgment against the fifth respondent, and caused the aircraft to be judicially attached. The aircraft was then sold to the third respondent at a sale in execution.
The sale took place in the absence of the applicant notwithstanding that the aircraft had been previously attached as a result of the applicant’s judgment.
The applicant obtained an urgent interdict restraining the respondents from dealing with the aircraft in any way, pending the finalisation of the present application. This application was for an order directing the third and/or fourth respondents to return the aircraft to the applicant failing which the sheriff would be authorised to attach and remove the aircraft and deliver it to the applicant; declaring that the applicant was the lawful owner and possessor of the aircraft; declaring the sale in execution of the aircraft to be null

and void and for the sheriff to repay any funds received from the third and/or fourth respondent in respect of the sale in execution to the execution creditor.
A dispute arose as to whether the third respondent had bought the aircraft in good faith and without any knowledge of any defects pertaining to the sale in execution when the sale in execution took place. The court referred the dispute for oral evidence.
Held that to come to a conclusion on dispute of issues, a court must make findings on the credibility of the various factual witnesses; their reliability; and the probabilities.
Applying the above, the court found for the applicant.
AloeCap (Pty) Ltd v Nthwese Investment Holdings (Pty) Ltd
[2010] JOL 24976 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
30722 / 08
30 / 10 / 2009
South Africa
High Court
South Gauteng, Johannesburg
NP Willis J
Keywords:
Contract – Claim for payment – Breach of contract
Mini Summary:
In terns of a written agreement entered into by the parties, in terms of which the plaintiff was appointed as transaction advisor to a client. Part of its mandate was to obtain refinancing of a loan. It alleged in its particulars of claim that the defendant, after for the conclusion of the agreement, concluded a funding agreement on its own, without disclosing same to the plaintiff, thereby precluding the plaintiff from concluding the raising of the third party funding as contemplated in the agreement.
The plaintiff's claim was for payment for four months.
Held that the defendant claimed that the plaintiff had not performed its obligations by the time contemplated by the parties. However, the court found that the alleged time frame was not what was contemplated by the parties, as it was not reasonable. It must have been within the contemplation of the parties and at least implicit, that the plaintiff would be allowed a reasonable time in order to perform his mandate in terms of the agreement. If the defendant believed that a reasonable time had elapsed, he should have put the plaintiff on terms to comply.
The plaintiff's claim was upheld.
GC Property Developers CC v Watt
[2012] JOL 28794 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
35025 / 2011
30 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
Mokgoatlheng J
Keywords:
Contract – Sale of property – Contractual terms – Implied terms
Mini Summary:
In 2007, the applicant and the respondent concluded a written deed of sale in terms of which the applicant purchased certain land from the respondent with a view to establishing a townhouse and sectional title unit development.
In terms of section 11 of the Sectional Title Act 95 of 1986, an application to the Deeds Registrar for the opening of a sectional title register had to be accompanied by the respondent’s consent, as a mortgagee.
The applicant alleged that the respondent unreasonably refused to grant her consent as the mortgagee in terms of the mortgage bond over the property, in order that it might comply with the relevant requirements in respect of the sectional title development. An order was sought, compelling the respondent to provide consent.
Held that the applicant submitted that when the contract was concluded, it was within the contemplation of the parties that the respondent would readily consent to the opening of a sectional title register and that an implied term had to be inferred from the contract that payment of the balance of the purchase

price could be paid by a reasonable tender (of three of the sectional title units). The Court could not uphold that argument. An implied term is a term presumed by law and is normally imported into a contract to give it business efficacy for its execution. The importation of an implied term to the effect that the balance of the purchase price may be paid by tender could not pass muster because such interpretation was in conflict with the terms of the agreement. It could never have been in the contemplation of the parties when they concluded the deed of sale that tenders would be offered by the applicant as payment of the balance of the purchase price. The express terms deliberately excluded the possibility of importing such implied terms.
The Court questioned the bona fides of the applicant, and held further that as the matter was in fact pending before another court, the present application was an abuse of the Court’s process.
The application was dismissed with costs.
Muller v BOE Bank Ltd & others
[2010] JOL 25642 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8723 / 98
25 / 05 / 2010
South Africa
High Court
Western Cape
AG Binns-Ward J
Keywords:
Contract – Rectification – Claims for payment – Prescription– Evidence – Photocopy of affidavit –
Admissibility
Mini Summary:
At a time when he was an insolvent, the plaintiff instituted action against the defendants. The second, third and fourth defendants were the joint trustees of his insolvent estate. Between the institution of action and the commencement of the trial, the plaintiff became automatically rehabilitated in terms of the
Insolvency Act. The trial related therefore only the first defendant (a bank).
The plaintiff's claims against the bank arose from an agreement in terms of which the bank would purchase the plaintiff's shares in his company, so as to enable him to settle his debts to the bank as well as his other creditors.
The court decided to deal with three of the claims separately and prior to any of the other issues in dispute. Thus the issues for determination were the plaintiff’s claim for rectification of the agreement; the proper meaning of the agreement; whether the bank was liable to the plaintiff in terms of the third claim; and whether the plaintiff's money claims in terms of the second and third claims were extinguished by prescription as contended in the bank's special plea.
Before the trial commenced, the bank sought to introduce into evidence the content of an affidavit made by a person who had since died. The bank sought to introduce the affidavit as evidence in terms of section 34 the Civil Evidence Proceedings Act 25 of 1965; alternatively, in terms of section 3 of the Law of
Evidence Amendment Act 45 of 1988.
Held that the document that the bank sought to introduce was a photocopy of the one actually signed by the deponent. Section 34(2) of the Civil Evidence Proceedings Act affords the court a discretion to admit a copy of the document proven to be a true copy of the original or the part thereof relied upon if, having regard to all the circumstances of the case, the presiding officer is satisfied that undue delay or expense would otherwise be caused, and that the copy sought to be introduced has been proved to be a true copy of the original. All that is required is that the copy in question be proved to be a true copy. There is no prescription of what evidence should constitute such proof. The court pointed out that the measure of proof would be proof on a balance of probabilities. Based on the evidence of three witnesses, the court was satisfied that the photocopy of the affidavit was a true copy of the original document. It was also satisfied that the affidavit fell to be admitted in evidence in terms of Part VI of the Civil Proceedings
Evidence Act.
Regarding the claim for rectification, the plaintiff bore the onus of proving that the agreement fell to be rectified in the respects claimed. He was unable to discharge that onus, and the claim was dismissed.
The court found further that the second and third claims were extinguished by prescription as contended by the bank.
Voltex (Pty) Ltd v Chenleza CC & others
[2010] JOL 25886 (KZP)
Case Number: 14833 / 08

Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
19 / 03 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MI Madondo J
Keywords:
Contract – Sale agreement – Claim for payment – Defence – Credit agreement – Exception
Mini Summary:
In terms of agreements of sale, the plaintiff sold and delivered goods to the first defendant. The second and third defendants signed a contract of suretyship as the sureties and co-principal debtors for the obligations of the first defendant to the plaintiff. Relying on those agreements, the plaintiff sued the defendants for payment of the amounts due under the sale agreements.
The defendants raised the defence that the agreements of sale upon which the plaintiff relied were credit agreements as defined by the National Credit Act 34 of 2005. It argued that the plaintiff was not registered as a credit provider, and that accordingly the agreements entered into between the plaintiff and the defendants were void in terms of section 40(4) read with section 89 of the Act.
The plaintiff excepted to the defendants' plea on the grounds that it lacked averments necessary to sustain a defence to the claim. The plaintiff alleged that the agreements of sale were not credit agreements as defined in the Act. Accordingly, the plaintiff was not a credit provider in terms of section
40(1) and section 42(1) of the Act and did not need to be registered with the National Credit Regulator as a credit provider.
Held that the issue raised by the facts in this matter was whether the agreements of sale, where the purchase price was payable within 30 days of the delivery of the goods, constituted credit agreements as defined in the Act.
The court found that as the agreements of sale did not satisfy all the criteria set out in section
8(1)(3)(4)and (5) of the Act, they could not be said to be credit agreements as defined in the Act. In the premises, there was no obligation on the plaintiff to register as a credit provider.
The exception was upheld, and judgment granted in favour of the plaintiff.
Nyandeni Local Municipality v MEC, Local Government & Traditional Affairs & another
[2010] JOL 25870 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA 68 / 09
12 / 11 / 2009
South Africa
High Court
Eastern Cape, Mthatha
Alkema, Pillay JJ, Ndengezi AJ
Keywords:
Contract – Non-variation clause – Shifren principle – Public policy
Mini Summary:
The appellant ("the municipality") was a local authority, and the second respondent ("the manager") was at all material times employed by it as its municipal manager in terms of a written employment agreement.
Two months after the manager signed his employment contract, an audit revealed certain financial irregularities concerning, inter alia, him. In 2008, the municipality suspended the manager, following which he was called to attend a disciplinary enquiry. At the end of that process, he was found guilty. At that point, the manager handed in his resignation. The municipality did not accept it, and proceeded to dismiss him. The manager challenged that decision, alleging that he should have been allowed to make representations before the decision to dismiss was taken. He had been allowed to make representations throughout the process until then.
The manager's employment contract provided that should a dispute arise, any party would be entitled to require, by written notice to the other, that the dispute be submitted to arbitration. The municipality claimed that, by his conduct, the municipal manager consented to the procedure which was followed and therefore, by implication, agreed to the departure therefrom and to the variation of the relevant clause.
The court a quo found that the municipal manager by his conduct did agree to the variation of the clause, but that by virtue of an entrenchment clause (requiring variations of the agreement to be in writing) and the operation of the Shifren principle, the municipality was, in law, not entitled to rely on any variation of the agreement unless it was in writing and signed by the parties.

Held that the "Shifren" principle, binds contracting parties to the entrenchment clause under their written agreement to the effect that no variation thereof shall be binding unless agreed to in writing and signed by both parties.
The court found that the facts of the case supported a finding that, by his conduct, the municipal manager consented to the variation.
The essential question on appeal was whether the enforcement of the entrenchment clause as required by
Shifren in the circumstances of this case offended public policy. The principle that public policy may in certain circumstances trump a contractual term concluded animo contrahendi, remains firmly established and recognised in our law. The power to declare contracts contrary to public policy should be exercised sparingly and only in the clearest of cases. The court believed that the facts and circumstances of this case justified a departure from the Shifren principle.
The appeal was upheld.
S v Prandini
[2010] JOL 26031 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 94 / 10
02 /06 / 2010
Zimbabwe
High Court
Harare
Kudya, Chitakunye JJ
Keywords:
Contract – illegality – contract agreement understating purchase price so as to avoid tax and stamp duty – contract otherwise genuine and mostly carried out – court entitled to declare true purchase price so as to reflect true agreement
Mini Summary:
The first and second respondents sold a house to the applicant. The price stated in the agreement of sale was Z$70 million, but it was also agreed that the total price to be paid was Z$130 million, including the transfer fees. The applicant paid this larger sum, over an agreed period, and moved into the house. The respondents subsequently tried to have the sale set aside on the grounds that the agreement of sale that applicant sought to rely on was contra legem and was ipso facto unenforceable. They contended that it was entered into and signed solely for the purpose of reducing capital gains tax and stamp duty and that what the parties had concluded was an illegal contract which was void or at least voidable at law.
Held that an agreement concluded for the sole purpose of avoiding payment of the capital gains tax and stamp duty is illegal and ipso facto null and void ab initio: section 44 of the Stamp Duties Act [Chapter
23:09]. An illegal agreement which has not yet been performed, either in whole or in part, will never be enforced by the courts. Here, however, the agreement of sale was almost complete. It had been performed in part, as the applicant had paid the purchase price and was given vacant possession of the house. The sale was a genuine one and could not have been made for the sole purpose of evading payment of tax. What was illegal in the agreement of sale was the portion where the parties stated the purchase price. The court was at liberty to properly declare to true purchase price so as to reflect the true agreement between the parties.
Geodis Wilson SA (Pty) Ltd v ACA (Pty) Ltd & others
[2010] JOL 25956 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
08 / 41609
30 / 08 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Civil procedure – Contractual claim – Claim for payment – National Credit Act 34 of 2005 – Applicability
Mini Summary:
The plaintiff and first defendant had entered into a contract in terms of which the plaintiff undertook to render certain services and make disbursements on behalf of the first defendant. The remaining defendant bound themselves as sureties for the debts of the first defendant under the agreement.

In the present action, the plaintiff sued for payment in respect of services rendered and disbursements made. As the first defendant was placed in liquidation, the matter proceeded against the remaining defendants only.
Held that the issues for determination at this stage were whether or not the provisions of the National
Credit Act 34 of 2005 were applicable to the proceedings between the plaintiff and the defendants in the main action; and whether or not the plaintiff was obliged to give notice to the second and third defendants in terms of section 129 of the Act, prior to the institution of the action. It was common cause that the plaintiff did not give a notice in terms of section 129(1) of the Act to any of the defendants.
The court found that the provisions of the National Credit Act were not applicable to the proceedings between the plaintiff and the defendants, and that the plaintiff was not obliged to give notice to the second defendant and third defendant in terms of section 129.
Seti v South African Rail Commuter Corporation Limited
[2013] JOL 30676 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Personal injury – Negligence
10026 / 2009
08 / 08 / 2013
South Africa
High Court
Western Cape, Cape Town
Samela J
Mini Summary:
The plaintiff sustained injury when he fell while attempting to board a train operated by the defendant.
The train had left the station with the doors of the carriage open. The plaintiff sued for damages. The defendant denied liability and raised the defences of volenti non fit injuria; disclaimer and alternatively, contributory negligence.
Held that the Court had to decide whether the plaintiff was negligent in attempting to board a moving train with its doors open; whether the defendant was negligent in allowing the train to depart the station with its doors open; whether the defendant’s defences of volenti non fit injuria and disclaimer were to be regarded as complete justification; and whether there was contributory negligence between the plaintiff and the defendant.
The well-known test for negligence is that of the diligens paterfamilias. Applying that test, the Court found that the defendant owed it to the public or its commuters to take reasonable steps to provide a safe and secure rail for all its passengers. The guard was duty bound in accordance with the general operating rules of the defendant to ensure or make certain the train doors were closed before its departure. The defendant could have taken reasonable steps to guard against the possibility of the train departing with its doors open. Therefore, the defendant, by allowing the train to leave the station with its doors open, was guilty of negligence as that was an invitation to commuters to board the train. The defendant should have taken reasonable steps to guard against such possibility. The evidence clearly showed that the defendant failed to do so.
However, the plaintiff was guilty of contributory negligence in attempting to board the moving train. He was therefore entitled to recover only 50% of his proven damages from the defendant.
Kebethana v RAF
[2010] JOL 25815 (ECB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Liability for damages
Mini Summary:
78 / 09
02 / 07 / 2010
South Africa
High Court
Eastern Cape, Bhisho
LD Kemp AJ

The plaintiff sustained injury when a motor vehicle collided into him while he was a pedestrian. The defendant denied that the collision had taken place, but pleaded in the alternative that if a collision was found to have taken place, that the collision occurred solely as a result of the negligence of the plaintiff.
At the present stage, the matter was confined to the merits.
Held that the evidence before the court suggested that the plaintiff was drunk at the time, and that the insured driver had not noticed him in the road until he was right in front of the car.
The court concluded from its assessment of the evidence that each party might have been able to avoid the collision if they had kept each other under observation. The insured driver carried the greater portion of responsibility for the collision and the defendant was therefore held liable for 80% of the damages proven by the plaintiff.
Lambert v RAF
[2010] JOL 26414 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 12892
05 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Negligence – Mutually destructive versions
Mini Summary:
As a result of injuries sustained in a motor vehicle accident, the plaintiff sued the defendant fund for damages. His claim was based on the negligence of the insured driver.
The defendant denied that the insured driver was negligent at all or that he contributed to the cause of the collision, and averred that it was the plaintiff who was the sole cause of the collision.
By agreement between the parties the matter proceeded only on the question of liability.
Held that the court was faced with two mutually destructive versions as to who caused the accident.
The plaintiff always bears the onus of proving negligence on a balance of probabilities. In arriving at a decision, the court has to view the evidence which was led during the trial in toto.
Assessing the evidence, the court found that the insured driver had negligently caused the collision.
However, although the insured driver was substantially to be blamed for the collision, on the evidence, the plaintiff could not be absolved of any blame. He was held liable for contributory negligence.
The defendant was held liable for 70% of the plaintiff’s proven or agreed damages.
Deale v Padongelukfonds
[2011] JOL 27865 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
21484 / 2008
16 / 09 / 2011
South Africa
High Court
North Gauteng, Pretoria
J Hiemstra J
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Loss of support – Reduction of damages –
Contributory negligence
Mini Summary:
The dispute in this case concerned the question of whether damages in respect of loss of support should be reduced due to the fact that the plaintiff’s husband (the deceased) was contributorily negligent in not wearing a helmet while driving a motorcycle.
Held that the deceased had died in a motor vehicle collision, due to injuries to his skull. His failure to wear a helmet was shown to have increased his risk of such injury in a collision.
Having regard to expert evidence, the Court concluded that the damages awarded to the plaintiff should be reduced by 30%.

Full Swing Trading 403 CC v 3G On Morris Home Owners Association (Pty) Limited and others
[2015] JOL 33078 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
35817 / 2013
10 / 06 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Swartz AJ
Keywords:
Civil procedure – Settled litigation – Liability for costs
Mini Summary:
The applicant, a close corporation, was the developer of a residential complex. The first respondent was the relevant homeowners’ association, with the second to fourth respondents as its directors. The sole member of the applicant, as well as the second to fourth respondents, resided in units in the complex.
At its first general meeting, the first respondent’s members, registered homeowners of properties located in the complex, voted and unanimously approved the rules of conduct which were then binding upon all members. The rules could be changed from time to time by the homeowners at an annual general meeting or special general meeting. The rules prescribed the procedure to be followed to, inter alia, effect changes to the rules and levies applicable to members. The procedures prescribed in the rules were peremptory and not discretionary.
The applicant approached the Court to obtain urgent interim relief against the second, third and fourth respondents from passing and or implementing a special levy called for, as they were in violation of the procedures set out in the Companies Act as well as the adopted conduct rules. The matter was set down for hearing, and the respondents filed their answering affidavits contrary to the filing times set out in the notice of motion. This resulted in the parties agreeing to postpone the matter sine die in order to allow the applicant an opportunity to file its replying affidavit. The matter was subsequently settled and the only remaining issue to be resolved was the question of costs – which costs the respondents refused to pay.
Held that the Court received evidence from the applicant regarding the procedural irregularities involved in the respondents’ attempts to implement the special levy. It emerged that the first respondent did not in fact have the funds to finance the various projects forming part of the special levy. On behalf of the respondents, it was argued that the second, third and fourth respondents had no experience in running a homeowners association and were simply volunteering their services. They contended that they should not be punished for simply doing a duty for which they had volunteered.
The Court noted that all the issues between the parties became resolved only after the applicant had instituted court proceedings. It was clear that the respondents had irregularly attempted to increase the levies and in so doing did not comply with the rules of conduct agreed to by the members of the first respondent. This was a unilateral variation of the rules. Although the irregularities were brought to the attention of the respondents, it took the applicant’s institution of court proceedings to settle the dispute.
Ordinarily, costs are awarded to a successful party in order to indemnify him for the expense which he has been put through to initiate litigation. The award for costs is in the discretion of the Court and must be exercised judicially. Generally the award for costs follows the event. The applicant was clearly the successful party in this case. The second to fourth respondents were therefore ordered to pay the applicants party and party costs on the magistrate’s court scale.
Lushaba v Member of the Executive Council for Health, Gauteng
[2015] JOL 32431 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
17077 / 2012
26 / 11 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
RM Robinson AJ

Civil procedure – Costs – Costs de bonis propriis – When applicable
Mini Summary:
After making an order declaring the defendant 100% liable for the plaintiff's damages arising out of the birth of her son, with a disability, and ordering the defendant to pay costs on an attorney and client scale, the Court issued a rule, calling upon the defendant to show cause why she should not be held personally liable de bonis propriis on the attorney and client scale, jointly and severally with the defendant, for the costs.
Held that costs de bonis propriis are not easily awarded – usually being ordered when there is negligence to a serious degree. Such costs are awarded for conduct which substantially and materially deviates from the standard expected of the legal practitioner, such that his clients, the actual parties to the litigation, cannot be expected to bear the costs, or because the court feels compelled to mark its profound displeasure at the conduct of an attorney in any particular context. The authorities caution that cost orders de bonis propriis should only be awarded in exceptional circumstances. A legal advisor or legal representative is not to be punished with such a cost order for every mistake or error of interpretation.
However, the line is crossed when one encounters the degree of indifference and incompetence evidenced in this case. The Court was severely displeased with the manner in which the two lawyers and one medical professional performed their duties. Highlighting the duty on the state in litigation, the Court held that the state should not conduct a case as if it were at war with its own citizens. In this case, the lethargy and lack of co-operation by the state led to unnecessary costs being incurred.
Cost orders de bonis propriis against State Attorneys and public officials are drastic measures. The court was in this case, faced with state employees who could not be bothered to do their work. The three officials referred to in the court’s order were ordered to pay de bonis propriis 50% of the costs jointly and severally with the defendant on the attorney and client scale. The conduct of the relevant attorney was referred to the Law Society.
Phillips v SA Reserve Bank & others
[2012] JOL 28805 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
221 / 2011
29 / 03 / 2012
South Africa
Supreme Court of Appeal
KK Mthiyane DP, IG Farlam, SA Majiedt JJA, XM Petse, Ndita AJJA
Civil Procedure – Appeals – Appeal against order that appellant pay wasted costs of application –
Appealability of order in proceedings which have not yet terminated – Whether or not the order is definitive of the rights being contended in the main proceedings, and whether it disposes of any relief claimed are factors which are not decisive of the issue of appealability – Civil procedure – Constitutional litigation – Rule 16A of the Uniform Rules of Court – Requirements – Rule 16A requires any person raising a constitutional issue in a matter to give notice thereof to the registrar at the time of filing the relevant affidavit or pleading, and on receiving such notice, the registrar must place it on a notice board designated for that purpose – Sufficient for notice to simply set out statutory provisions being challenged, and that the challenge is based on inconsistency with the Constitution without specifying the grounds of the alleged inconsistency – Duty to place notice on notice board is that of registrar
Mini Summary:
In February 2008, foreign currency in the appellant’s possession was seized from him at Oliver Tambo
International Airport. The South African Reserve Bank (the first respondent) made a decision not to return the money to the appellant, who then approached the high court seeking the review of that decision. He also sought orders declaring that the Exchange Control Regulations promulgated in Government Notice R
1111 of 1 December 1961, as amended, alternatively certain provisions in the Regulations were inconsistent with the Constitution and invalid.
On the date of set down, the matter was postponed sine die and the appellant was ordered to pay the first and second respondents’ wasted costs, because in the judge’s view, the appellant had not complied with rule 16A of the Uniform Rules of Court. Rule 16A requires any person raising a constitutional issue in a matter to give notice thereof to the registrar at the time of filing the relevant affidavit or pleading. On receiving such notice, the registrar must place it on a notice board designated for that purpose. The court
a quo found that there was no indication that the rule 16A notice was filed or, if it was filed with the

registrar, that it was put on the notice board as required by the rule. It held that the appellant had a duty to ensure that the rule was complied with, and that non-compliance could not be condoned. The postponement of the matter was to allow for the rule to be complied with, and as stated above, the appellant had to pay wasted costs.
Held that the issues for determination on appeal were whether the court a quo’s findings were appealable; whether the notice compiled by the appellant’s attorney complied with rule 16A(1); whether the appellant or the registrar bore the duty to ensure that a rule 16A notice is placed on the notice board for a period of 20 days; whether it was appropriate for an organ of state to raise any alleged noncompliance with rule 16A at a time when it was too late to correct the defect and then to require an applicant to pay the costs of the resultant postponement; and whether the general rule in constitutional litigation that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs applies also to costs orders relating to what were called ancillary matters.
The appealability of an order made in proceedings which have not yet terminated has generally been assessed against the question of whether or not the order is definitive of the rights being contended in the main proceedings, and whether it disposes of any relief claimed. However, the present Court referred with approval to case authority for the proposition that those factors are not decisive.
On the question of compliance with rule 16A, the Court had to be interpreted in the light of the purpose for which it was enacted, namely to bring cases involving constitutional issues to the attention of persons who may be affected by or have a legitimate interest in such cases so that they may take steps to protect their interests by seeking to be admitted as amici curiae with a view to drawing the attention of the Court to relevant matters of fact and law to which attention would not otherwise be drawn. The question to be addressed in casu was whether a notice which correctly specifies the statutory provisions being attacked complies with the rule if it simply states that the attack is based on inconsistency with the Constitution without specifying the grounds of the alleged inconsistency. The point in issue in this case was the constitutional invalidity of the Exchange Control Regulations. It was not necessary for the point to be elaborated by specifying, as the judge held, the grounds of the challenge. That would go beyond the purpose for which the rule was created as referred to above. The Court was accordingly satisfied that the notice drawn up by the appellant’s attorney complied with the rule.
The next question was whether it was the appellant or the registrar who bore the duty to ensure that the rule 16A notice was placed on the notice board for a period of 20 days. The Court found that the rue was clear that the duty in question was that of the registrar. The appellant was therefore entitled to assume that the registrar’s staff would do what the rule enjoined them to do with the notice.
Although the above finding meant that the remaining two points fell away, the Court dealt with them so as to provide guidance in future litigation.
The first of the remaining two issues was whether the first and second respondents, by raising the rule
16A(1) point at a stage when it was not possible to remedy it and by seeking to put the appellant to the choice of either abandoning his constitutional challenge or paying the costs of the necessary postponement, had acted inappropriately. The second issue related to costs, as referred to above. The
Court found on the first issue that attorneys acting for departments or organs of state which are respondents in such cases should follow the practice of checking as soon as the papers are received that the rule has been complied with and, if it appears not to have been, of bringing the omission to the attention of the applicant’s attorney. On the issue of costs, the Court stated that the general principle applicable in constitutional litigation that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs does not only apply to orders on the merits in constitutional cases but also to ancillary points. The appellant should therefore not have been ordered to pay wasted costs.
In the premises, the appeal was allowed.
Magidiwana and Other Injured and Arrested Persons and others v President of the Republic of
South Africa and others (Black Lawyers Association as amicus)
[2013] JOL 30695 (CC)
Case Number: CCT 100 / 13
Judgment 19 / 08 / 2013
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Mogoeng CJ, Moseneke DCJ, Cameron, Froneman, Jafta, Nkabinde, Skweyiya, Van der
Westhuizen, Zondo JJ, Mhlantla AJ
Keywords:
Civil procedure – Interim order – Application for leave to appeal
Mini Summary:
Unrest at a mine during August 2012 culminated in the shooting of a number of people by members of the
South African Police Service. A Commission of Inquiry (the Commission) was established by the President

to investigate and report on the events of that day. As members of the class of persons who were arrested or injured after the shooting, the applicants participated in the Commission’s proceedings. To cover their legal expenses, the applicants initially procured funding from a non-governmental entity. However, that covered only the first six months of the Commission’s proceedings. The applicants sought further funding but were unsuccessful in that regard. They therefore brought an urgent application before the High Court for an interim order compelling the temporary provision of legal aid at State expense, pending a full review of the State’s obligations to provide legal aid. The High Court dealt only with the application for urgent and temporary relief and dismissed the applicants’ claim on the basis that it was constitutionally inappropriate for a court, in interim proceedings, to direct the executive on how to expend public resources in the absence of proof of unlawfulness, fraud or corruption. The applicants now sought leave to appeal against that ruling.
Held that the narrow question before the Court was whether there was any legal basis for interfering with the High Court’s interim ruling.
It was decided that the application for leave to appeal should be dismissed, because there are no reasonable prospects of success in relation to challenging the dismissal of the application for interim relief in the High Court, and because it is not in the interests of justice to grant leave in the particular circumstances of this case where the disputed issues still had to be determined in the main review application.
Zietsman v Electronic Media Network Ltd & another
[2011] JOL 28023 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
771 / 2010
29 / 09 / 2011
South Africa
Supreme Court of Appeal
KK Mthiyane, BJ van Heerden, LO Bosielo, LE Leach JJA, Meer AJA
Keywords:
Civil procedure – Application for security for costs – Defence of res judicata – Underlying ratio of the doctrine of res judicata is that where a cause of action has been litigated to finality between the same parties on a previous occasion, a subsequent attempt by one party to proceed against the other party on the same cause of action should not be permitted –– Where cause of action differed and the decision made in the first application was not one on the merits, defence of res judicata not applicable
Mini Summary:
In 2004, the appellant instituted action against the first and second respondents and three other entities for the alleged infringement of his patent. In terms of Uniform rule 47(1), the respondents requested security for costs, and the Commissioner of Patents ordered the appellant to furnish security. The appellant appealed against the order and the present court upheld the appeal. The respondents’ application was dismissed on the basis that they had not disclosed a defence and because evidence relating to their defence and their prospects of success in the main action had not been tendered.
In June 2008, the respondents again requested security for costs in terms of Uniform rule 47(1). This time the notice under Uniform rule 47(1) contained, inter alia, statements indicating that the respondents had good prospects of success in their defence of the main action. The appellant’s refusal to furnish security led to second application to court being made. The appellant’s answer to the application was that, in light of the judgment in the appeal against the order made in the first application for security, the respondents were precluded from seeking further security from the appellant as the matter was res judicata. However, the Commissioner of Patents was ordered to furnish security for the costs of the first and second respondents jointly in the amount of R100 000. That led to the present appeal.
Held that the issue for decision on appeal was whether the second application for security for costs should have been refused by the court a quo because of the operation of res judicata or issue estoppel.
The underlying ratio of the doctrine of res judicata is that where a cause of action has been litigated to finality between the same parties on a previous occasion, a subsequent attempt by one party to proceed against the other party on the same cause of action should not be permitted. The constituent elements of the defence are an earlier judicial decision; which is final and definitive of the merits of the matter; involving the same parties; where the cause of action in both cases is the same; and the same relief is sought.
Where a defendant raises the defence that the same parties are bound by a previous judgment on the same issue, that has come to be referred to as the defence of “issue estoppel”. The essential requirements of issue estoppel are: an earlier judicial decision; which is final and definitive of the merits of the matter; involving the same parties; and which involves an issue of fact or law which was an essential element of the judgment on which reliance is placed.

Contending that the defence of res judicata was not established, the respondents disputed that the previous judgment was a final and definitive judgment on the merits of the first application for security for costs and averred further that the causes of action in both applications for security for costs were not the same.
In order for the defence of res judicata to be sustained it must be shown that the earlier judicial decision on which reliance is placed was a decision on the merits. The ratio for the decision in the previous appeal was that insufficient evidence had been placed before the Court and the respondents had not disclosed a defence. Neither the respondents’ defence, nor their prospects of success in the main action were dealt with in the first application. The Court agreed with the respondents that the effect of the judgment was that it only granted absolution from the instance, and did not deal with the merits. Accordingly, the doctrine of res judicata could not be relied on by the appellant to prevent adjudication of the respondents’ second application for security for costs. It was also found that the cause of action in the second application did differ from that in the first application as new evidence was tendered. The evidence now showed that the respondents had good prospects of success in the main action and that there was therefore a good possibility of an adverse costs order being made against the appellant at the termination of the main action.
The plea of res judicata could not be upheld and was correctly rejected by the Commissioner of Patents.
The appeal was accordingly dismissed.
Cart Blanche Marketing CC and another v N & X Transport CC and others
[2013] JOL 30801 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3919 / 2011
16 / 05 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson J
Keywords:
Civil procedure – Litigation – Withdrawal of action – Costs
Mini Summary:
The respondent had instituted action against the applicant and another for payment of damages arising from a collision. The action was later withdrawn by the respondent without a consent to pay costs. In the present application, the applicant sought payment by the respondent for the costs of that action.
Held that the respondent filed an affidavit explaining the circumstances in which the action was withdrawn. The respondent was trying to avoid losing the business of the applicant, who was a client. The
Court found that the applicant exerted pressure on the respondent to withdraw the action, in a manner akin to blackmail. Had it not been for the applicant’s warnings and the termination of the business relationship, the action would not have been withdrawn. The applicant’s conduct was an unconscionable attempt to thwart the respondent’s right to have a dispute decided in a court. In the exercise of its discretion, the Court was therefore of the view that it would not be fair in the circumstances to order the respondent to pay the costs of the action.
Joytech SA (Pty) Ltd & others v Tetraful 1060 CC
[2011] JOL 27927 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8229 / 10
20 / 10 / 2011
South Africa
High Court
KwaZulu – Natal, Durban
Lopes J
Keywords:
Civil procedure – Security for costs – Court’s approach
Mini Summary:
Alleging that the applicants had stolen, misappropriated or fraudulently removed money from the business of the respondent, the latter instituted action against them for payment of the amount in question.
In terms of rule 47(1) of the Uniform Rules of Court, the applicants delivered a notice requiring the respondent to provide security for the costs of the action pursuant to the provisions of section 8 of the
Close Corporations Act, 1984. The matter came before the present court as an opposed application on the question of the provision of such security.

Held that section 8 of the Close Corporations Act provides that where a corporation in any legal proceedings is a plaintiff or applicant, if it appears that there is reason to believe that the corporation would be unable to pay the costs of the defendant or respondent, the court may at any time during the proceedings require security to be given for those costs, and may stay all proceedings until the security is given.
The correct approach to an application for security is as follows. The court should not fetter its own discretion in any manner, and must decide each case upon a consideration of all the relevant features.
Carrying out a balancing exercise, the court must weigh the injustice to the plaintiff if prevented from pursuing a proper claim by an order for security. Against that, it must weigh the injustice to the defendant if no security is ordered and at the trial the plaintiff’s claim fails and the defendant finds himself unable to recover from the plaintiff the costs which have been incurred by him in his defence of the claim.
The main issue in this case was whether the applicants had demonstrated that the respondent would be unable to pay any costs order which might be awarded against it. Finding that such a case had been made, the Court ordered the respondent to furnish security as requested.
Mzingisi Development Trust & others v Nelson Mandela Metropolitan Municipality
[2010] JOL 26113 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Costs – Liability for
939 / 10
17 / 08 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Mini Summary:
The first applicant was a trust, established as a community based trust having as its principle purpose community led development and large scale housing and other development projects in and around Port
Elizabeth. The remaining applicants were trustees in the trust. They launched an application against the respondent for a variety of relief all of which had its foundation in a Land Availability and Services
Agreement concluded between the applicants and the respondent. all the relief having been conceded by the respondent, the court had only to decide on the issue of costs.
Held that in terms of the agreement between the parties, the applicants had irrevocably bound themselves to have disputes of this nature decided on arbitration. They were therefore not entitled to approach the court.
Each party was ordered to pay its own costs.
Heidelberg Graphic Systems SA (Pty) Ltd v Bureau Digital Media (Pty) Ltd
[2012] JOL 28809 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3522 / 2012
26 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J
Keywords:
Contract – Claim for payment – Counterclaim
Mini Summary:
The applicant sold and provided servicing repairs to the respondent in respect of printing equipment and in the present application, claimed payment of six amounts in that regard. The respondent in defending the application, relied on a counterclaim in excess of the amount claimed by the applicant and further disputed liability for payment of the claims made. The respondent’s alleged counterclaim arose from an admitted agreement between the parties which the respondent contended had come to an end in 2008, as a result of the applicant’s alleged repudiation thereof. A further agreement was alleged to have been concluded regarding future repairs to be affected by the applicant to certain printing equipment. The

equipment in fact did break down in July 2010, but the applicant was said to have failed to honour its obligations resulting in the respondent suffering damages in the sum of R280 000.
The applicant disputed the counterclaim.
Held that the respondent’s failure, from the point when its claim for the alleged damages arose, to take any further steps for the enforcement thereof, was significant. Instead, it continued to instruct the applicant to provide services as usual. The Court was therefore not satisfied that the counterclaim relied upon by the respondent ought to be heard in the same action. It was clear that the respondent considered the counterclaim as an entirely separate issue, and the court believed that that should continue to be the case.
The applicant’s claims succeeded.
Perumal v Bhyat and others
[2015] JOL 33017 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
19691 / 2013; 19059 / 2013
25 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
MA Makume J
Keywords:
Civil procedure – Default court order – Rescission of
Mini Summary:
The applicants sought the rescission and setting aside of an order granted against them.
In June 2013, the respondent had served two urgent applications on the applicants, seeking an order declaring an earlier judgment a nullity. On receipt of the applications, the applicant wrote to the respondent disputed that the respondent’s applications were urgent, and pointed out that the time limits imposed by the respondent did not allow the applicants sufficient time within which to file answering affidavits. They requested that the applications be removed from the roll, and that the normal time limits prescribed for the filing of affidavits in terms of the Uniform Rules of Court be applied. The respondent was asked to confirm that he would agree to the request, failing which the applicants indicated that they would attend court to oppose the applications and to seek a punitive costs order against the respondent.
The respondent replied by serving on the applicants two notices of withdrawal under both cases – indicating that he was removing the matters from the urgent court roll.
However, when the Court dealt with the matter, there was no notice of withdrawal of the applications from the urgent roll neither was the applicants’ notice of intention to oppose before the judge. Led to believe that the matter was unopposed, the Court accordingly proceeded to grant the order by default.
Held that a request for default judgment is in the nature of an ex parte application therefore requiring an applicant to make full disclosure of all relevant factors. The respondent did not inform the Court that he had notified the applicants that he was withdrawing the applications from the roll, and accordingly misled the Court. Had the Court been made aware that a notice to oppose had been filed followed by a notice of withdrawal, it would not have granted the order that it did. The order was accordingly erroneously granted in the absence of the applicants and stood to be set aside in terms of rule 42(1)(a).
The respondent was ordered to pay the applicants’ taxed costs on an attorney and client scale.
Perumal v Bhyat and others
[2015] JOL 33015 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Court order – Non-compliance – Application for contempt of court
Mini Summary:
2013 / 33567
25 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
MA Makume J

The present Court had set aside an order granted in this matter, which required the first respondent to provide a detailed and comprehensive statement as to how the original court order was replaced by the new order in the absence of a rule 42 application.
In the present application, the applicant sought to hold the first respondent in contempt of court for not complying with the order.
Held that for an applicant in contempt proceedings to succeed he must, inter alia, prove mala fides. It is not an offence to disobey a false court order. A person’s disobedience of a court order must not only be wilful but also mala fide. The first respondent, as an attorney, knew that the court order in question was defective and rightfully disobeyed same.
Insofar as the applicant sought an order to compel first respondent to comply with an order which had been set aside, there was nothing to compel him to comply with. The application was dismissed and the applicant was ordered to pay first respondent’s taxed party and party costs.
Finishing Tough 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Limited & others
[2012] JOL 29082 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
363 / 2011
30 / 03 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, NZ Mhlantla, LO Bosielo, SA Majiedt JJA, C Plasket AJA
Keywords:
Civil procedure – Court order – Interpretation of – Whether order requiring review application to be initiated by certain date was complied with where sheriff had not served review application on any of the respondents by relevant date, and had only served it on their attorney – Court finding proper service to have been effected in terms of rule 4(1)(aA) of Uniform Rules of Court
Mini Summary:
At the centre of the litigation in this matter was a dispute about the true ownership of a mining right. The first respondent was the holder of an old order mining right in respect of certain properties. when the
Mineral and Petroleum Resources Development Act 28 of 2002 (“the Act”) came into operation on 1 May
2004, an application by the first respondent (“BHP”) for a prospecting permit in terms of the Minerals Act
50 of 1991 was pending. BHP then had to apply for the conversion of the old order mining right into a new order mining right. However, it was informed that its application in that regard had been refused on the grounds that the granting thereof would result in an exclusionary act, prevent fair competition or result in the concentration of the mineral resources in question under the control of BHP.
Claiming an interdict in the high court, BHP sought an order preventing the Minister of Mineral Resources and the relevant officials in her department from granting any prospecting rights to a third party, pending the finalisation of review proceedings for the setting aside of the decision to refuse its application for prospecting rights to be launched by it. The interdict was granted, on condition that such review proceedings had to be initiated by no later than 25 January 2006. On 25 January 2006, BHP launched the review application referred to above. The Court granted an order reviewing and setting aside the refusal of
BHP's application for prospecting rights and granted the application itself.
In September 2010, BHP discovered that two prospecting rights had, on 19 and 22 September 2006 respectively, been granted to the appellant despite the terms of the interdict. The prospecting rights were over properties which overlapped to a great extent with the properties on which BHP had been granted the prospecting rights. BHP instituted an urgent application in the court below for an order interdicting the appellant from applying for mining rights pending the finalisation of the internal appeal and/or review proceedings. In a counter-application, the appellant sought a declaration that no prospecting rights were awarded to BHP on 3 October 2006; the rescission of the order reviewing and setting aside the refusal of
BHP's application for prospecting rights; and a declaration that the appellant was the legal holder of the prospecting rights awarded to it on 19 September 2006.
The question that arose for determination when the matter came before the court below, was whether
BHP had initiated the review proceedings by 25 January 2006. Counsel for BHP submitted that the application had been initiated upon its issue by the office of the registrar. The primary argument on behalf of the appellant rested on the proposition that an application could only be initiated when it was properly served by the sheriff as envisaged in Uniform rule 4. The Court reasoned that the lodging, filing and the issue of application documents by the office of the registrar had to be regarded as the initiation of the proceedings envisaged in the order granting the Interim Interdict (referred to as “the Preller J order”). It held that the service of such process was a further step to get the respondent involved in the litigation, and that the interdict proceedings were incidental to the review proceedings and that BHP's attorneys were, by virtue of the provisions of Uniform rule 4(1)(aA), entitled to serve the review proceedings on the

state attorney, who had been on record in the interdict proceedings and who had, upon enquiry from
BHP's attorneys, confirmed that they were still on record and that they would accept service on behalf of the state respondents. The Court accordingly granted an Interim Interdict. In the counter-application, the court dismissed the prayers for a declaration that no prospecting rights were awarded to BHP on 3 October
2006, and for a declaration that the appellant was the legal holder of the prospecting rights awarded to it on 19 September 2006. That led to the present appeal.
Held that the determination of this appeal depends on the proper interpretation of the Preller J order.
The starting point is to determine the manifest purpose of the order. In interpreting a judgment or order, the court's intention is to be ascertained primarily from the language of the judgment or order in accordance with the usual rules relating to the interpretation of documents. As in the case of a document, the judgment or order and the court's reasons for giving it must be read as a whole in order to ascertain its intention. The critical question was what Preller J meant when he ordered BHP to initiate the review proceedings by 25 January 2006. The appellant contended the Preller J order meant that the review application had to be served on the state respondents by the sheriff and filed or lodged with the registrar by 25 January 2006 as both those acts were necessary to initiate the proceedings. It was submitted that there was no proper service in terms of the Uniform Rules of Court by the end of the day on 25 January
2006. The court was satisfied that Preller J intended that the review should effectively proceed by 25
January 2006. It could never have been intended for BHP to have an application issued and a case number allocated by the registrar and thereafter for it to remain supine. In ordering that the review proceedings had to be initiated by no later than Wednesday, 25 January 2006, Preller J intended that notice of the application be given to the registrar and the application served on the affected parties by 25 January
2006. Accordingly the finding of the court below that the filing of the application papers with the registrar and the issue thereof had to be regarded as the initiating of proceedings, could not be sustained.
The next issue was whether the review application was properly served in terms of the Uniform Rules of
Court. Rule 4(1)(a) provides that service of any process of the court directed to the sheriff may be effected by the sheriff in one or other of a number manners. The review application was not served by the sheriff on 25 January 2006 on any of the state respondents. It was only served by hand on the state attorney representing them. BHP relied on the provisions of rule 4(1)(aA) which provide that “Where the person to be served with any document initiating application proceedings is already represented by an attorney of record, such document may be served upon such attorney by the party initiating such proceedings”. That contention was sound. The conclusion was that there was proper service of the review application by 25 January 2006.
The appeal was thus dismissed.
Eisenberg & Associates and others v Director-General, Department of Home Affairs and others
[2013] JOL 29900 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10043 / 11
27 / 11 / 2012
South Africa
High Court
Western Cape, Cape Town
KM Savage AJ
Keywords:
Civil procedure – Court order – Non-compliance – Application for contempt of court
Mini Summary:
The respondents’ failure to determine 110 applications for permanent residence lay at the heart of this matter. In terms of an order granted on 18 May 2012, the first respondent was required to determine and deliver certain listed applications to the first or fourth applicants within two months of the order; and to determine and deliver other applications within three months of the date of the order.
In the present application, the applicants sought an order declaring the first respondent to be in contempt of court for non-compliance with the order referred to above.
Held that it is a crime to unlawfully and intentionally disobey a court order, thereby violating the dignity, repute or authority of the court. The present Court may grant declaratory relief in accordance with the provisions of section 19(1)(a)(iii) of the Supreme Court Act 59 of 1959. Two requirements must be met for a declaration to be made under section 19(1)(a)(iii). First, a court must be satisfied that the applicant is a person interested in an existing, future or contingent right or obligation. If this is shown, the Court must decide whether the case is a proper one for the exercise of the discretion conferred on it. As the applicants were interested persons who possessed certain rights in terms of the court order, the first leg of the requirement for declaratory relief was met.
While it was clear that the first respondent had failed to comply with the court order, he averred that the non-compliance was not wilful or mala fide. However, the Court found that he should have done more in an attempt to comply with the order. It was deemed appropriate that an order be made declaring that the

first respondent had failed to comply with the order of court and directing him to comply with such order within a period of two weeks.
Dlamini v Dlamini Mulangaphuma Mathopo Moshimane Inc & others
[2010] JOL 26417 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10 / 221
03 / 11 / 201005 / 05 / 2009
South Africa
High Court
South Gauteng, Johannesburg
R Mokgoatlheng J
Keywords:
Courts – Court order – Alleged non-compliance – Contempt of court – Test
Mini Summary:
The applicant sought an order declaring that the respondents are in contempt of a court order in that they had failed to comply with a settlement agreement that was made an order of court. The respondents alleged that they had fully complied with the terms of the settlement agreement, and were not in contempt of the court order as alleged or at all.
Held that as set out in case law, contempt of court is a crime unlawfully and intentionally to disobey a court order. The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed deliberately and mala fide. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction.
Thus, to determine whether the applicant had proved beyond reasonable doubt that the respondents had failed to comply fully with the court order, it had to be established that the respondents failure was wilful and mala fide.
The court found that the respondents had discharged the evidentiary burden resting upon them. The application was accordingly dismissed.
Master of the High Court, North Gauteng High Court, Pretoria v Motala NO & others
[2012] JOL 28554 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
172 / 11
01 / 12 / 2011
South Africa
Supreme Court of Appeal
VM Ponnan, FR Malan, MJD Wallis JJA
Keywords:
Civil procedure – Contempt of court – Where order giving rise to alleged contempt of court is a nullity, it is of no force and effect, and need not be set aside before a party can refuse to comply with it – Company law – Judicial management – Power to appoint judicial manager – Section 429 of the Companies Act 61 of
1973 clothes the Master of the High Court with the exclusive power to make such appointments – It is not permissible for the court to appoint judicial managers
Mini Summary:
On 5 August 2010, the high court issued an order placing the fourth respondent under provisional judicial management in terms of the Companies Act 61 of 1973. Although the court appointed two judicial managers, the appellant (the Master of the North Gauteng High Court) declined to issue a certificate of appointment to one of those managers (Van Vuuren), appointing the first three respondents instead. A day later another judge issued a rule nisi interdicting the master from appointing any other judicial managers save in terms of the court order dated of August 2010. In September 2010, in response to an application by the first three respondents, the Court interdicted Van Vuuren from carrying out any of the functions of a provisional judicial manager. Van Vuuren then approached the high court seeking to discharge the interdict. The Court faced with that application mero motu raised the issue of the master's possible contempt of the order of 5 August. Despite an explanation from the appellant as to the reasons for refusing to appoint Van Vuuren, the powers of the master in that regard, and the role of the high court in making such orders, an order was issued finding the Acting Master and Deputy Master to be in contempt. That led to the present appeal.
Held that our insolvency administration is wholly a creature of statute, and section 429 reserved to the master the power to appoint a judicial manager. The master has the sole discretion in that regard, which

may not be usurped by the courts. It was thus not permissible for the Court to appoint the provisional judicial managers of the fourth respondent.
It remained for the Court to consider the rule nisi interdicting the master from appointing any other judicial managers save in terms of the court order dated of August 2010, as referred to above. By the time that rule nisi was issued, the officials in the employ of the master's office had already acted in terms of section 429. There was therefore no disobedience of the order. In rejecting the master’s reasons for the decision not to appoint Van Vuuren, the Court misconceived the legal position, which quite simply, is that the matter is left entire to the master’s discretion.
In issuing the contempt order, the Court proceeded from the premise that all court orders whether correctly or incorrectly granted have to be obeyed until they are properly set aside. However, in casu, the order appointing Van Vuuren was a nullity insofar as the judge in question had usurped for himself a power that he did not have. It is a fundamental principle of our law that a thing done contrary to a direct prohibition of the law is void and of no force and effect. Being a nullity a pronouncement to that effect was unnecessary. Nor did the order first have to be set aside by a court of equal standing.
The appeal was upheld, and the order of contempt set aside.
NUM & another v H&S Oprigters (GK) & another
[2010] JOL 26383 (LC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
J 2031 / 07
22 / 06 / 2010
South Africa
Labour Court
Johannesburg
R Lagrange J
Keywords:
Practice and Procedure – Contempt of court – Test for – Test is whether accused failed to comply with court order knowingly and in bad faith – Employer who handed all labour matters to consultant not guilty of contemptPractice and Procedure – Contempt of court – When applicable – Contempt procedure available only for non-compliance with reinstatement order, not for recovery of back pay – Latter to be recovered by writ of execution
Mini Summary:
An award, subsequently made an order of court, reinstated the applicant employees to their employment with the first respondent in 2007. Despite numerous requests from the union, the respondents failed to comply with the award. The applicants launched an application to commit the respondents for contempt.
The respondents explained that, being a small business, all its labour relations affairs were routinely handed over to a labour consultant, who had assured them that he was dealing with the matter.
The Court noted that, once it is established that a court order has been served on the party bound thereby and that the order had not been complied with, an evidentiary burden (as opposed to an overall evidentiary onus), falls on that party to establish a reasonable doubt that the failure to comply was neither deliberate nor male fide. The Court accepted that the evidence gave rise to a reasonable doubt that the respondents had not wilfully defied the order. Moreover, they had demonstrated their good faith by tendering to comply with the order. The second respondent could not accordingly be convicted of contempt of court.
The Court rejected the argument that the respondents’ failure to pay the back pay that went with the order was further evidence of their contempt. Contempt proceedings may be used only in relation to orders ad factum praestandum. Orders providing for payment of a sum of money must be enforced by attachment, not by contempt proceedings. That the back pay was linked to the employees’ reinstatement did not change its essential character; it remained a debt.
The respondents were ordered to reinstate the employees, and to pay the applicants’ costs in the contempt application.
Nkume v Firstrand Bank Limited t/a First National Bank
[2013] JOL 30221 (ECM)
Case Number:
Judgment Date:
Country:
2743 / 11
15 / 03 / 2012
South Africa

Jurisdiction:
Division:
Bench:
High Court
Eastern Cape, Mthatha
ZM Nhlangulela J
Keywords:
Consumer law – Rights of consumer – Right to information – Section 62 of National Credit Act 34 of 2005
Mini Summary:
In October 2011, the applicant applied for a credit facility with the respondent. She was told that information obtained from the credit bureau showed that she had an adverse credit record. Aggrieved with such information the applicant requested to be furnished with reasons for a refusal of her application incorporating the name, address and the contact particulars of the credit bureau. The respondent refused to give written reasons and/or disclose to the applicant the particulars of the credit bureau in question. In the present application, the applicant sought an order of specific performance in terms of section 62 of the
National Credit Act 34 of 2005.
Held that the only issue for determination by the time the matter came to court, was that of costs.
Section 62 of the Act makes it clear that the applicant was entitled to make the request she did and that the respondent was obliged to do what the applicant wanted. An order of a mandamus or specific performance of a statutory obligation in terms of section 62 of the Act is enforceable in law. In this case, there was no reason why the information which was readily available in the computer of the respondent should have been withheld by the respondent, and released only later.
The applicant was awarded costs of the application.
SA Taxi Securitisation (Pty) Ltd v Nako & others
[2010] JOL 25653 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
19, 21, 22, 77, 89, 104 & 842 / 2010
08 / 06 / 2010
South Africa
High Court
Eastern Cape, Bhisho
LD Kemp AJ
Keywords:
Civil procedure – Summary judgment – Credit agreements – Financing of vehicles – Non-repayment
Mini Summary:
Summary judgment was sought by the applicant against all the respondents.
The applicant had financed motor vehicles which were supplied to the respondents, to be used as taxis.
When the respondents variously fell into arrears, they each applied to be placed under debt review in terms of the National Credit Act 34 of 2005. However, the 60-day period relating thereto had lapsed and after waiting for the 10-day period referred to in section 130(1)(a) of the Act, the applicant cancelled the agreements and issued summons against the respondents, seeking confirmation of the cancellation of the agreements, return of the vehicles, damages and costs.
In defending the actions, the respondents alleged that they were protected from the relief sought on two main grounds, namely that the lease agreements constituted reckless credit agreements and secondly, that applications in terms of section 87 were pending before a magistrate's court.
Held that the issues were whether the credit provider's rights in respect of the subject matter of the agreement would be limited by a finding that the credit provider extended credit recklessly; notwithstanding the valid termination of the debt review process by a proposal by the debt counsellor to a magistrate in terms of section 87.
The court was not satisfied that the respondents had raised a defence on the papers. It was of the view that the applicant had validly cancelled the agreements in terms of the Act, and was entitled to the subject matter of the agreements, ie the motor vehicles.
Summary judgment was granted.
Voltex (Pty) Ltd v Chenleza CC & others
[2010] JOL 25886 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
14833 / 08
19 / 03 / 2010
South Africa
High Court

Division:
Bench:
KwaZulu-Natal, Pietermaritzburg
MI Madondo J
Keywords:
Contract – Sale agreement – Claim for payment – Defence – Credit agreement – Exception
Mini Summary:
In terms of agreements of sale, the plaintiff sold and delivered goods to the first defendant. The second and third defendants signed a contract of suretyship as the sureties and co-principal debtors for the obligations of the first defendant to the plaintiff. Relying on those agreements, the plaintiff sued the defendants for payment of the amounts due under the sale agreements.
The defendants raised the defence that the agreements of sale upon which the plaintiff relied were credit agreements as defined by the National Credit Act 34 of 2005. It argued that the plaintiff was not registered as a credit provider, and that accordingly the agreements entered into between the plaintiff and the defendants were void in terms of section 40(4) read with section 89 of the Act.
The plaintiff excepted to the defendants' plea on the grounds that it lacked averments necessary to sustain a defence to the claim. The plaintiff alleged that the agreements of sale were not credit agreements as defined in the Act. Accordingly, the plaintiff was not a credit provider in terms of section
40(1) and section 42(1) of the Act and did not need to be registered with the National Credit Regulator as a credit provider.
Held that the issue raised by the facts in this matter was whether the agreements of sale, where the purchase price was payable within 30 days of the delivery of the goods, constituted credit agreements as defined in the Act.
The court found that as the agreements of sale did not satisfy all the criteria set out in section
8(1)(3)(4)and (5) of the Act, they could not be said to be credit agreements as defined in the Act. In the premises, there was no obligation on the plaintiff to register as a credit provider.
The exception was upheld, and judgment granted in favour of the plaintiff.
Standard Bank of SA Ltd v Deepchun Siamnath Maharaj t/a Sanrow Transport
[2010] JOL 26042 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2216 / 10
06 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
KGB Swain J
Keywords:
Civil procedure – Credit transaction – National Credit Act 34 of 2005 – National Credit Act 34 of 2005, section 129 – Sending of notice
Mini Summary:
In terms of a credit transaction, the applicant financed the purchase by the respondent of a truck tractor.
The vehicle was to be owned by the applicant, until the respondent had paid in full, the amount owed by the respondent to the applicant. The agreement provided that the respondent would be in default if he failed to pay any of the monthly instalments payable on the due date.
It was common cause that by October 2008, the respondent was in arrears with payments and in consequence, the applicant sought an order directing the respondent to return the vehicle to the applicant, to be held by the applicant, pending the final decision of the Magistrates' Court in the action instituted by the applicant against the respondent, for the return of the vehicle.
The applicant sent the respondent a notice in terms of section 129(1) of the National Credit Act 34 of 2005
(the Act) by pre-paid registered post to the domicilium address chosen by the respondent. The defences raised by the respondent related to that notice. He argued that the notice was defective in that it did not contain a "proposal" as required by section 129 of the Act and that he did not receive the notice.
Held that what is intended in section 129(1)(a) is that the first objective is to bring to the attention of the consumer the default complained of. The second objective is to propose to the consumer that the consumer seeks the assistance of one of the entities enumerated in the section, in order to attain the third objective, being a resolution of the dispute under the agreement, or the development and agreement of a plan to bring the payments under the agreement up to date.
The section 129 notice, in the present case, set out clearly the requirements of the section. In the premises there was no basis for the first ground of defence.
The court also rejected the second defence, as the applicant had sent the relevant notice by way of prepaid registered post to the respondent's chosen address.

The application accordingly succeeded.
JMV Textiles (Pty) Ltd v De Chalain Spareinvest 14 CC & others
[2010] JOL 25907 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
15136 / 09
20 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
MJD Wallis J
Keywords:
Contract – Credit agreement – Claim for payment – Registration as credit provider
Mini Summary:
In terms of an agreement entered into between the two, the plaintiff and first defendant agreed that the plaintiff would sell fabric to the defendant on credit. The second and third defendants bound themselves as sureties and co-principal debtors with the first defendant for its obligations in terms of the agreement.
In the present action, the plaintiff sued for payment of the purchase price of goods that it claimed to have supplied. As the first defendant had gone into liquidation, the action proceeded only against the sureties.
The defendants raised various defences in terms of the provisions of the National Credit Act 34 of 2005.
They argued that the plaintiff was obliged to be registered as a credit provider in terms of section 40 of the Act and as it was not registered the credit agreement was unlawful and void; that a notice in terms of section 129(1)(a) of the Act given to the defendants before the commencement of proceedings was defective; that a consent to the jurisdiction of the Magistrates' Court in terms of the conditions of sale was unlawful in terms of section 90(2)(k)(vi)(aa) of the Act and accordingly that this court had no jurisdiction to hear the matter; and that a provision in the deed of suretyship that the sureties waived the benefits of excussion and division was unlawful and void in terms of section 90(2)(c) and that the sureties were entitled to rely upon those benefits.
Held that the principal issue related to the question of the plaintiff's obligation to register as a credit provider. If it was obliged to register and did not do so then any credit agreement concluded by it was an unlawful agreement, and it would be precluded from recovering the purchase price of goods supplied. In terms of section 40(1), a person is obliged to register as a credit provider if it was the credit provider under at least one hundred credit agreements, other than incidental credit agreements; or the total principal debt owed to that credit provider under all outstanding credit agreements, other than incidental credit agreements, exceeded the threshold of R500 000. A person who enters into incidental credit agreements is not obliged to register and does not run the risk of the agreements being rendered void for lack of registration. Thus, an incidental credit agreement cannot also be a credit facility. The court found the plaintiff's agreement with the defendants to be an incidental agreement, thereby eliminating the need to register as a credit provider.
The court also found the remaining defences to be bad, and dismissed them.
Nkume v Firstrand Bank Limited t/a First National Bank
[2013] JOL 30221 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2743 / 11
15 / 03 / 2012
South Africa
High Court
Eastern Cape, Mthatha
ZM Nhlangulela J
Keywords:
Consumer law – Rights of consumer – Right to information – Section 62 of National Credit Act 34 of 2005
Mini Summary:
In October 2011, the applicant applied for a credit facility with the respondent. She was told that information obtained from the credit bureau showed that she had an adverse credit record. Aggrieved with such information the applicant requested to be furnished with reasons for a refusal of her application incorporating the name, address and the contact particulars of the credit bureau. The respondent refused

to give written reasons and/or disclose to the applicant the particulars of the credit bureau in question. In the present application, the applicant sought an order of specific performance in terms of section 62 of the
National Credit Act 34 of 2005.
Held that the only issue for determination by the time the matter came to court, was that of costs.
Section 62 of the Act makes it clear that the applicant was entitled to make the request she did and that the respondent was obliged to do what the applicant wanted. An order of a mandamus or specific performance of a statutory obligation in terms of section 62 of the Act is enforceable in law. In this case, there was no reason why the information which was readily available in the computer of the respondent should have been withheld by the respondent, and released only later.
The applicant was awarded costs of the application.
Voltex (Pty) Ltd v Chenleza CC & others
[2010] JOL 25886 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Contract – Sale agreement – Claim for payment – Defence – Credit agreement – Exception
Mini Summary:
14833 / 08
19 / 03 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MI Madondo J
In terms of agreements of sale, the plaintiff sold and delivered goods to the first defendant. The second and third defendants signed a contract of suretyship as the sureties and co-principal debtors for the obligations of the first defendant to the plaintiff. Relying on those agreements, the plaintiff sued the defendants for payment of the amounts due under the sale agreements.
The defendants raised the defence that the agreements of sale upon which the plaintiff relied were credit agreements as defined by the National Credit Act 34 of 2005. It argued that the plaintiff was not registered as a credit provider, and that accordingly the agreements entered into between the plaintiff and the defendants were void in terms of section 40(4) read with section 89 of the Act.
The plaintiff excepted to the defendants' plea on the grounds that it lacked averments necessary to sustain a defence to the claim. The plaintiff alleged that the agreements of sale were not credit agreements as defined in the Act. Accordingly, the plaintiff was not a credit provider in terms of section
40(1) and section 42(1) of the Act and did not need to be registered with the National Credit Regulator as a credit provider.
Held that the issue raised by the facts in this matter was whether the agreements of sale, where the purchase price was payable within 30 days of the delivery of the goods, constituted credit agreements as defined in the Act.
The court found that as the agreements of sale did not satisfy all the criteria set out in section
8(1)(3)(4)and (5) of the Act, they could not be said to be credit agreements as defined in the Act. In the premises, there was no obligation on the plaintiff to register as a credit provider.
The exception was upheld, and judgment granted in favour of the plaintiff.
JMV Textiles (Pty) Ltd v De Chalain Spareinvest 14 CC & others
[2010] JOL 25907 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
15136 / 09
20 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
MJD Wallis J
Keywords:
Contract – Credit agreement – Claim for payment – Registration as credit provider
Mini Summary:
In terms of an agreement entered into between the two, the plaintiff and first defendant agreed that the plaintiff would sell fabric to the defendant on credit. The second and third defendants bound themselves as sureties and co-principal debtors with the first defendant for its obligations in terms of the agreement.

In the present action, the plaintiff sued for payment of the purchase price of goods that it claimed to have supplied. As the first defendant had gone into liquidation, the action proceeded only against the sureties.
The defendants raised various defences in terms of the provisions of the National Credit Act 34 of 2005.
They argued that the plaintiff was obliged to be registered as a credit provider in terms of section 40 of the Act and as it was not registered the credit agreement was unlawful and void; that a notice in terms of section 129(1)(a) of the Act given to the defendants before the commencement of proceedings was defective; that a consent to the jurisdiction of the Magistrates' Court in terms of the conditions of sale was unlawful in terms of section 90(2)(k)(vi)(aa) of the Act and accordingly that this court had no jurisdiction to hear the matter; and that a provision in the deed of suretyship that the sureties waived the benefits of excussion and division was unlawful and void in terms of section 90(2)(c) and that the sureties were entitled to rely upon those benefits.
Held that the principal issue related to the question of the plaintiff's obligation to register as a credit provider. If it was obliged to register and did not do so then any credit agreement concluded by it was an unlawful agreement, and it would be precluded from recovering the purchase price of goods supplied. In terms of section 40(1), a person is obliged to register as a credit provider if it was the credit provider under at least one hundred credit agreements, other than incidental credit agreements; or the total principal debt owed to that credit provider under all outstanding credit agreements, other than incidental credit agreements, exceeded the threshold of R500 000. A person who enters into incidental credit agreements is not obliged to register and does not run the risk of the agreements being rendered void for lack of registration. Thus, an incidental credit agreement cannot also be a credit facility. The court found the plaintiff's agreement with the defendants to be an incidental agreement, thereby eliminating the need to register as a credit provider.
The court also found the remaining defences to be bad, and dismissed them.
Minister of Safety and Security A O v Mhlana 2011 (1) SACR 63 (WCC) The respondent was awarded R50 000 damages for unlawful arrest and detention, arising from an altercation with a municipal traffic officer. The appellants appealed against the award, while the respondent cross-appealed against the upholding of the appellants' special plea, that, since the traffic officer was not their employee, they should not have been joined in the second part of his claim, which was for malicious prosecution.
Held , that the magistrate had correctly found that the evidence given by the traffic officer and the arresting police officer established the probability that the respondent had indeed assaulted the traffic officer. Their testimony had withstood rigorous cross-examination, unlike that of the respondent, which was at times evasive and aggressive. Section 40(1)
(a) of the Criminal Procedure Act 51 of 1977 authorised a peace officer to arrest, without a C warrant, a person who committed or attempted to commit a crime in his presence. All that was necessary for reliance on s 40(1) (a) was observance of behaviour which was prima facie criminal, and it could not be doubted that the police officer had honestly and reasonably come to the conclusion that the respondent was committing a crime in his presence. In order for a peace officer to rely on s 40(1) (a) it was not necessary that a crime in fact be committed, or that the arrested person be later charged and convicted of the suspected offence. In casu the arresting officer had observed what he considered to be riotous behaviour and assault, and the fact, that the respondent's behaviour might not have complied with the requirements for a charge of riotous behaviour, did not deprive him of reliance on s 40(1) (a) . In addition, the magistrate had erred in distinguishing between an unlawful arrest for riotous behaviour on the one hand, and a lawful arrest for assault on the other. Accordingly, the respondent's arrest had been lawful.

Held , further, regarding the cross-appeal, that the special plea had been correctly upheld.
The respondent ought to have instituted malicious prosecution procedures against the traffic officer's employer, a municipality, and not against the first appellant. In any event, the prosecution could not, in all the circumstances, be viewed as malicious. Appeal upheld with costs. Cross-appeal dismissed with costs.
Case Information - Appeal against an order and award for unlawful arrest. Cross-appeal against the upholding of a special plea. The facts appear from the judgment of Meer J, in which Koen AJ concurred.
Mbhele v Mbhele & others
[2010] JOL 25651 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Maintenance – Maintenance of major – Need for curator bonis
Mini Summary:
AR 118 / 10
03 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
K Pillay, P Koen and K Swain JJ
In 2003, the Maintenance Court granted an order by consent directing the first respondent to pay maintenance for his minor child. The applicant was the child's guardian. In 2008, the applicant obtained a rule nisi preventing the second respondent (a bank) from paying out any pension benefit to the first respondent. In terms of the rule nisi the bank was called upon to show cause why it should not be ordered to determine the net amount owing to the first respondent and to pay the said amount to the Master of the High Court, to be held in the Guardian's Fund, for the future maintenance of the first respondent's son who was disabled.
On the return date, the magistrate discharged the rule and granted an order in terms of which the first respondent was interdicted from using the sum of R50 000 for his benefit. He was ordered to pay that amount to the master, to be held in trust in the Guardian's Fund and payment thereof to be made to the child in accordance with any order of the Maintenance Court or any competent court. As the child was a major by the time the application was heard, the master refused to accept a cheque from the bank for payment into the Guardian's Fund. The cheque was paid into the trust account at the Magistrates' Court, but the Area Court Manager then advised that the Department of Justice had no accounting system that allows for the receipt of lump sums of money, to be dispensed monthly to third parties.
The magistrate sought to refer the problem to the high court, by way of a special review, to resolve the issue of how provision could be made for the retention of money in a fund, and the periodical payments therefrom, to provide for the maintenance of a major.
Held that the solution to the impasse lay in the common law, rendering it unnecessary and inappropriate to decide whether the Guardian's Fund was the appropriate, or permissible, receptacle for the receipt of monies to provide for the needs of a major, who is in need of maintenance.
A major child who is incapable of supporting himself, is entitled to support from a parent who is able to do so. If such a major is incapable of managing his affairs, a curator bonis can be appointed to administer such affairs and provide the necessary maintenance from funds made available to the curator. The applicant was advised to launch an application in the appropriate forum for the appointment of herself, or a suitable person, as a curator bonis to the child if the evidence revealed that he was unable to administer his own affairs.

Mtsi v Stephen (neé Nota) & others
[2010] JOL 25416 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Customary law – Tribal authority – Appointment of chief
Mini Summary:
433 / 09
12 / 02 / 2010
South Africa
High Court
Eastern Cape, Mthatha
ZM Nhlangulela J
Stating that he was the acting chief of a certain tribe and chairperson of the council of the tribe, the applicant indicated that he intended to vacate those offices once the tribal royal family had appointed somebody else to take over from him. He therefore sought the review and setting aside of the appointment of the first respondent as the chieftainess of the tribal authority and chairperson of the traditional council. He also sought payment of a salary for his having acted in the position.
The second and third respondents raised special points in limine that firstly the applicant resigned from the tribe and council voluntarily with effect from 31 July 2006 and, therefore he breached the principle of utmost good faith when he failed to mention in his founding affidavit that he had resigned. Secondly, it was contended that the application was lis pendens under another case. Thirdly, it was argued that the application had to be dismissed because it did not comply with section 7 of the Promotion of
Administrative Justice Act 3 of 2000.
Held that the applicant had ceased to act as a chief of the tribe and chairperson of the council with effect from 31 July 2006. The relief sought for payment of salaries was, therefore, baseless and was dismissed.
The court found no basis for granting the relief sought and dismissed the application.
Smit NO & others v His Majesty King Goodwill Zwelithini Kabhekuzulu & others
[2010] JOL 25699 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10237 / 09
02 / 12 / 2009
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
ND van der Reyden J
Keywords:
Constitutional law – Religious and cultural beliefs – Protection of
Mini Summary:
The applicants were trustees of a trust operating on a non-profit basis for the general benefit of animals and the environment. The first respondent was the Zulu monarch for the Province of KwaZulu-Natal.
In the present application, the applicants sought an interdict preventing the slaughtering of a bull or any animal at a festival to take place at one of the first respondent's palaces.
South Africa is a signatory to the Terrestrial Animal Health Code ("the Code") of the World Organisation for Animal Health, and is therefore bound by the provisions of the Code. The applicants argued that the methods of slaughter employed during the ritual fell foul of the provision of the Code.
Held that the entire application was based upon the applicants' unsubstantial belief regarding what happens during the ritual. Their belief was derived from unauthenticated material based on hearsay, and the application was based upon unreliable information that the applicants had accessed from the internet.
The court found the applicants to have displayed a lack of understanding for cultures different from their

own, and that their attitude was incompatible with the development of a democracy based upon tolerance and promoting diversity.
The court was presented with two conflicting versions of what happens at the Zulu festival in question.
Only the respondent adduced eye-witness evidence. Applying the approach to be adopted in those circumstances, the court accepted the respondents' version.
The application was dismissed.
Maloba v Dube & others
[2010] JOL 25852 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
08 / 3077
23 / 06 / 2008
South Africa
High Court
South Gauteng, Johannesburg
Mokgoatlheng J
Keywords:
Customary law – Marriage – Validity
Mini Summary:
The applicant sought a declaration that her late husband ("the deceased") was never married to the first respondent in accordance with customary law or the Recognition of Customary law Marriages Act 120 of
1998, and that the certificate of registration of the customary marriage issued by the Department of Home
Affairs was invalid.
Essentially, the applicant averred that the posthumous registration of the customary marriage between the first respondent the deceased was not valid, as no customary marriage in accordance with customary law was ever concluded.
According to the applicant, after lobolo negotiations between the deceased's family and the first respondent's family, the deceased informed his mother that he no longer wished to marry the first respondent, and his family formally informed the first respondent's family that a marriage would not be concluded.
Held that it was clear that lobolo was agreed upon by the deceased and the first respondent's family. The question was whether or not the marriage was entered into or celebrated in accordance with customary law. The objective facts showed that the marriage was negotiated and entered into in accordance with customary law. A customary marriage can only be dissolved by a competent court. When the deceased or his family purported to withdraw his consent to the customary marriage, after the payment of lobolo or part payment thereof, a valid customary marriage had already come into being. The purported withdrawal of consent would have been a nullity and would not have lawfully dissolved the customary marriage.
The application was dismissed with costs
Minister of Police v Lewies
[2015] JOL 32807 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
CA13 / 2014
20 / 06 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson, M Makaula JJ
Delict – Wrongful arrest and detention – Award of damages – Appeal
Mini Summary:
The respondent was arrested without a warrant at a police station, on a charge of assault with intent to do grievous bodily harm. He was taken to court the next day and the charge was withdrawn against him. He

sued the appellant for damages. In his plea the appellant denied that the arrest and detention were unlawful, and did not specifically plead the ground of justification. It became apparent during the trial that the appellant relied on section 40(1)(b) of the Criminal Procedure Act 51 of 1977 (“the Act”), in that the arresting officer reasonably suspected that the respondent had committed an offence referred to in
Schedule 1 of the Act.
The trial court found for the respondent and awarded damages payable by the appellant. The present appeal was against that judgment.
Held that the constable in charge at the police station did not have solid grounds for suspecting that the complainant in the charge had suffered injuries which endangered his life or his use of a limb or organ. A reasonable person in the constable’s position would not have considered that there were sufficient grounds for suspecting that the respondent had committed an assault involving the infliction of a dangerous wound. The appellant therefore failed to discharge the onus of proving that respondent’s arrest was justified and the magistrate correctly gave judgment in favour of the plaintiff.
The appeal was dismissed.
Sher and another v Vermaak
[2014] JOL 32477 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 197 / 13
25 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Ploos van Amstel, Pillay JJ, Poyo-Dlwati AJ
Keywords:
Delict – Defamation – Claim for damages – Test for defamation
Mini Summary:
The respondent had sued the appellants for damages arising from their defamation of him. The trial court found in his favour and ordered the appellants jointly and severally, to pay him a sum of R50 000 together with the costs of the action. The present appeal before the court was against the order relating to liability and the quantum of the award. There was also a cross appeal in which the respondent sought interest on the judgment.
The defamation consisted of a letter written by the first appellant and sent to the second appellant. The appellants and the respondent belonged to an athletics club. The letter contained various statements about the respondent, two of which were found by the trial court to be defamatory of him. The first ground of appeal was that the judge erred in finding that the expressed opinions that the respondent was arrogant and that he had poached runners was defamatory. The remaining grounds of appeal referred to the defences of protected comment, absence of malice and quantum.
Held that the first step in determining whether a particular statement is defamatory is to determine its meaning. The second is whether that meaning is defamatory. The test to be applied is an objective one. In accordance with that objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying the test, it is accepted that the reasonable reader would understand the statement in its context and that he or she would have regard not only to what is expressly stated but also to what is implied.
The Court found that in the context of the letter, the terms used, to which the respondent objected, were not defamatory. The appeal was thus upheld, and the appellants were absolved from the instance.
Motsei v Minister of Police; Phefadu v Minister of Police
[2014] JOL 32178 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
65356 / 2012; 65249 / 12
23 / 05 / 2014
South Africa
High Court
Gauteng Division, Pretoria
SAM Baqwa J
Keywords:
Delict – Arrest and detention – Assault in detention – Claim for damages
Mini Summary:

Suing the defendant tin his capacity as head of the police service, the plaintiffs claimed damages for wrongful arrest, detention and assault by the police.
Due to a separation of issues, the matter proceeded only on the issue of the defendant’s liability.
The facts underlying the charges were as follows. During a patrol, the police stopped a group of persons to conduct a search. Whilst the search was being carried out, a car arrived on the scene and three men alighted. A confrontation occurred, and the plaintiffs obstructed the police in their efforts to carry out their duties.
Held that section 40 of the Criminal Procedure Act 51 of 1977 deals with the circumstances in which a police officer may effect an arrest without a warrant. The officer must entertain a suspicion, based on reasonable grounds, that the arrestee committed an offence referred to in Schedule 1. Section 12 of the
Constitution guarantees the right to an individual’s liberty. Arrest and detention is therefore prima facie unlawful, and the defendant bears the onus of proving the lawfulness thereof. The court was not satisfied with the explanation given by the police officers, for the arrest of the plaintiffs. It was therefore concluded that the element of lawfulness was not proved.
The evidence of the plaintiffs’ injuries also pointed to their assault.
The defendant was held liable for 100% of the plaintiffs’ proven damages.
Minister of Safety and Security & another v Johannes Francois Swart
[2012] JOL 28772 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
194 / 11
22 / 03 / 2012
South Africa
Supreme Court of Appeal
Mthiyane DP, LO Bosielo, FDJ Brand, TD Cloete JJA, Ndita AJA
Keywords:
Criminal law – Arrest without warrant – Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 –
Jurisdictional facts which have to be present to justify an arrest without a warrant – Arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1 of Criminal Procedure Act 51 of 1977 – In absence of reasonable grounds for suspicion, arrest was unlawful
Mini Summary:
In May 2007, the second appellant (a police constable) arrested the respondent without a warrant, on suspicion of driving a motor vehicle on a public road whilst under the influence of intoxicating liquor. He was detained at the police station, but the criminal charges against him were withdrawn the next day after the tests revealed that his blood alcohol level at the time of driving was below the permissible legal limit.
The respondent then sued for damages arising from his unlawful arrest and detention. Although the trial court dismissed the claim, the respondent succeeded on appeal, where the high court awarded him damages in the amount of R50 000 plus interest and costs. The appellants appealed against that order.
The second appellant, and the police officer with whom he was doing patrols when they encountered the respondent, were colleagues of the respondent at the same police station. The respondent was their senior, and it appeared to be common cause that the relationship between the respondent and the second appellant was stormy. On the day in question, the second appellant was flagged down by the respondent, whose vehicle had gone off the road. The arrest was effected after the second appellant detected alcohol on the respondent’s breath.
Held that the issues raised on appeal were whether, based on the facts known to the second appellant at the time when he observed the respondent at the scene, it could be found that the respondent was the driver of the vehicle that went off the road and whether the second appellant’s suspicion that the respondent was at the time under the influence of intoxicating liquor, was reasonable.
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 regulates arrest without a warrant by a police officer. The essential jurisdictional facts which have to be present to justify an arrest without a warrant are that the arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1. The essence of the dispute in this matter was whether the second appellant’s suspicion was based on reasonable grounds.
The key question was whether the mere smell of alcohol was sufficient to give rise to a reasonable suspicion on part of the second appellant that the respondent was under the influence of intoxicating liquor and that for that reason he could not drive a vehicle.
The onus rests on the arresting officer to prove the lawfulness of the arrest. The reasonableness of the suspicion of any arresting officer acting under section 40(1)(b) must be approached objectively. The

question is whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a Schedule 1 offence.
The only evidence on which the second appellant decided to arrest the respondent, was the fact that he smelt of alcohol and that his vehicle had left the road and landed in a ditch. There was no evidence that the respondent was unsteady on his feet, that his speech was slurred, that he could not walk in a straight line or that his eyes were bloodshot. As the respondent had not behaved in a manner which suggested that he was drunk, the second appellant’s conclusion could not be regarded as reasonable. The arrest and detention were therefore unlawful.
In awarding the quantum of damages which it did, the high court committed no misdirection.
The appeal was accordingly dismissed with costs.
Modiri v Minister of Safety and Security & others
[2011] JOL 27867 (SCA)
Case Number: 581 / 2010
Judgment Date: 28 / 09 / 2011
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
FDJ Brand JA, MML Maya JA, NZ Mhlantla JA, SA Majiedt JA, Meer AJA
Keywords:
Delict – Defamation – Wrongfulness – Defence – Truth and public benefit – Court finding gravamen of article to be substantially true and the publication thereof to be in the public benefit Hardaker v Phillips
2005 (4) SA 515 (SCA) – Referred to Le Roux v Dey (Freedom of Expression Institute and Restorative
Justice Centre as amici curiae) 2011 (3) SA 274 (CC) – Referred to National Media Ltd v Bogoshi 1998 (4)
SA 1196 (SCA) – Referred to Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA) –
Referred to Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) – Referred to Le Roux v Dey 2011 (3) SA 274 (CC) – Referred to Johnson v Rand Daily Mails 1928 AD 190 – Discussed
Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA) – Confirmed Basner v Trigger
1945 AD 22 at 32; Sindani v Van der Merwe 2002 (2) SA 32 (SCA) – Referred to Times Media Ltd v
Niselow [2005] 1 All SA 567 (SCA) – Confirmed; Applied Manyatshe v M & G Media Ltd [2009] ZASCA 96
– Referred to Khumalo v Holomisa 2002 (5) SA 401 (CC) – Referred to
Mini Summary:
In 2004, an article appeared in a newspaper, regarding the crackdown on crime in the Bloemfontein area.
The third to fifth respondents were respectively the editor, the owner and the publisher of the newspaper, while the sixth respondent was the writer of the impugned article.
In the course of the article, a senior police officer (the second respondent) was quoted as stating that the appellant was involved in drug dealing, cash-in-transit heists and car theft. The first respondent was the second respondent’s employer (the Minister of Safety and Security). The first and second respondents, who were referred to as “the police respondents”, denied that the second respondent ever made the statements ascribed to him by the writer of the article. However, the remaining respondents (“the media respondents”) insisted that the second respondent had made the statements, and denied that the article was either defamatory, wrongful or published with the intent to defame.
The trial court found that no criticism could legitimately be levelled against the witnesses who testified on behalf of the police respondents, and it was thus accepted that the second respondent never made the statements defamatory of the appellant that were ascribed to him in the article. Consequently, the appellant’s action against the police respondents was dismissed with costs. On appeal, the appellant did not contend that the court a quo had erred in dismissing his claim against these respondents but submitted that it should have ordered the media respondents to pay their costs. In the result, the police respondents took no part in the appeal proceedings. In this Court the only remaining issue with regard to the police respondents therefore related to whether it was the appellant or the media respondents who should be held liable for their costs in the court a quo.
In respect of the media respondents, the trial court found that the gist of the defamatory part of the article was substantially true and its publication for the public benefit. In the result, the defence of justification (generally known as the defence of truth and public benefit) raised by the media respondents was upheld. The appellant’s claim against the media respondents was thus also dismissed with costs. The present appeal was against that judgment.
Held that as, on appeal, the media respondents no longer disputed that the article included statements that were per se defamatory of the appellant, the presumption that the statements were both wrongful and published with the intent to injure was raised. The media respondents therefore bore the onus to

establish a defence which excluded either wrongfulness or intent. The onus to rebut the presumption, is not only a duty to adduce evidence, but a full onus that must be discharged on a preponderance of probabilities. Although the media respondents denied both intent to defame and wrongfulness, in the absence of any evidence on their behalf to rebut the presumption of the former, the court found that intent to injure had to be regarded as having been established. The outcome of the appeal thus turned exclusively on the element of wrongfulness. Thus, the only question was whether the media respondents had succeeded in establishing any of the various grounds of justification that they raised. The grounds which found favour with the trial court were truth and public benefit.
In contending that the court a quo had erred in upholding the defence of truth and public benefit, the appellant’s first argument was that the media respondents did not lead any evidence in rebuttal of the presumption of wrongfulness. That contention appeared to confuse the element of wrongfulness with that of intent. Though both the presumption of intent and that of wrongfulness arise from a single event, that is, the publication of a defamatory statement, the two presumptions are essentially different in character.
The presumption of intent to injure relates to the defendant’s subjective state of mind. By contrast, the presumption of wrongfulness relates to a combination of objective fact, on the one hand, and considerations of public and legal policy, on the other. Both elements of the defence of truth and public benefit can in principle be established on the basis of facts not deriving from the defendant’s own witnesses. The failure by the media respondents in this case to call any witnesses did not automatically preclude them from relying on this defence.
The appellant’s second argument was that inaccuracies in the article precluded any reliance on the defence under consideration. The Court pointed out that a defendant is not required to prove that the defamatory statement is true in every detail. What the defence requires is proof that the gravamen of the statement was true. Inaccuracies in peripheral detail do not rule out the defence. The gravamen of a statement is determined with reference to the legal construct of a reasonable reader. It is the meaning that the reasonable reader of ordinary intelligence would attribute to the statement. The test is thus an objective one. Evidence of how the plaintiff, or for that matter, any actual reader of the article understood the statement is of no consequence.
According to the appellant, the assertions made in the article would lead the reasonable reader to believe that the appellant was guilty of serious criminal activity. The Court disagreed. Though, generally speaking, it is per se defamatory to say of a person that he or she is suspected of criminal conduct, it is not the same as to say that he or she is guilty of that crime. In terms of that line of thinking, the Court a quo rightly found that the gist of the article was objectively true.
Addressing those parts of the article which were not true, the Court found the relevant statements not to be part of the main sting of the article.
On the element of public benefit, the Court took into account the views of Marais JA on behalf of the majority in Independent Newspapers Holdings Limited v Suliman [2006] 3 SA 137 (SCA), that, as a general rule and save for exceptional circumstances, it will not be for the public benefit or in the public interest to publish the identity of a person suspected of criminal conduct, unless and until that person has actually been charged in open court. However, the present Court did not believe that the above was meant to be set down as an immutable rule. The Court must therefore decide the public benefit issue with specific reference to the facts of the case before it. Applying that to the facts of the present case, the
Court found that the defence of truth and public benefit had been rightly upheld and that the defendant’s claim based on defamation was therefore rightly dismissed by the court a quo.
Turning to the issue of costs, the court noted that the appellant was ordered to pay the costs of all the defendants, including the police. The critical finding in this regard was that the fact that publication of the defamatory statements in the end proved to be justified, provided no excuse for the media respondents’ reliance on a factual version that their information derived from the police, which proved to be untrue.
Since it was that untrue version which led to the involvement of the police respondents in the action and the costs resulting from that involvement, there was no reason why the media respondents should not be liable for those costs, which were solely attributable to them. The media respondents were also held liable for the costs of the appeal.
Minister of Safety and Security & another v Johannes Francois Swart
[2012] JOL 28772 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
194 / 11
22 / 03 / 2012
South Africa
Supreme Court of Appeal
Mthiyane DP, LO Bosielo, FDJ Brand, TD Cloete JJA, Ndita AJA
Keywords:
Criminal law – Arrest without warrant – Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 –
Jurisdictional facts which have to be present to justify an arrest without a warrant – Arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the

arrestee) committed an offence referred to in Schedule 1 of Criminal Procedure Act 51 of 1977 – In absence of reasonable grounds for suspicion, arrest was unlawful
Mini Summary:
In May 2007, the second appellant (a police constable) arrested the respondent without a warrant, on suspicion of driving a motor vehicle on a public road whilst under the influence of intoxicating liquor. He was detained at the police station, but the criminal charges against him were withdrawn the next day after the tests revealed that his blood alcohol level at the time of driving was below the permissible legal limit.
The respondent then sued for damages arising from his unlawful arrest and detention. Although the trial court dismissed the claim, the respondent succeeded on appeal, where the high court awarded him damages in the amount of R50 000 plus interest and costs. The appellants appealed against that order.
The second appellant, and the police officer with whom he was doing patrols when they encountered the respondent, were colleagues of the respondent at the same police station. The respondent was their senior, and it appeared to be common cause that the relationship between the respondent and the second appellant was stormy. On the day in question, the second appellant was flagged down by the respondent, whose vehicle had gone off the road. The arrest was effected after the second appellant detected alcohol on the respondent’s breath.
Held that the issues raised on appeal were whether, based on the facts known to the second appellant at the time when he observed the respondent at the scene, it could be found that the respondent was the driver of the vehicle that went off the road and whether the second appellant’s suspicion that the respondent was at the time under the influence of intoxicating liquor, was reasonable.
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 regulates arrest without a warrant by a police officer. The essential jurisdictional facts which have to be present to justify an arrest without a warrant are that the arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1. The essence of the dispute in this matter was whether the second appellant’s suspicion was based on reasonable grounds.
The key question was whether the mere smell of alcohol was sufficient to give rise to a reasonable suspicion on part of the second appellant that the respondent was under the influence of intoxicating liquor and that for that reason he could not drive a vehicle.
The onus rests on the arresting officer to prove the lawfulness of the arrest. The reasonableness of the suspicion of any arresting officer acting under section 40(1)(b) must be approached objectively. The question is whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a Schedule 1 offence.
The only evidence on which the second appellant decided to arrest the respondent, was the fact that he smelt of alcohol and that his vehicle had left the road and landed in a ditch. There was no evidence that the respondent was unsteady on his feet, that his speech was slurred, that he could not walk in a straight line or that his eyes were bloodshot. As the respondent had not behaved in a manner which suggested that he was drunk, the second appellant’s conclusion could not be regarded as reasonable. The arrest and detention were therefore unlawful.
In awarding the quantum of damages which it did, the high court committed no misdirection.
The appeal was accordingly dismissed with costs.
Minister of Safety and Security v Venter & another
[2011] JOL 26949 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
570 / 2009
29 / 03 / 2011
South Africa
Supreme Court of Appeal
L Mpati P, A Cachalia and SA Majiedt JJA
Delict – Claim for damages – Failure by police to inform respondents of their rights under the Domestic
Violence Act 116 of 1998 – Such failure amounting to a breach of the duties of the police in affording maximum protection to victims of doemstic violence –Delict – Claim for damages – Failure by police to inform respondents of their rights under the Domestic Violence Act 116 of 1998 – Contributory negligence
– Court confirming that respondents were negligent in failing to obtain a common law interdict and that that contributed to the harm
Mini Summary:
After the second respondent’s divorce from her husband (“the deceased”) he became threatening when he heard of her relationship with the first respondent. As a result of the deceased’s increasingly erratic and threatening behaviour the first respondent approached the police during June 2002 to seek advice on how

he could deter the deceased from coming to his house. They told him that they could only act if the deceased physically tried to enter the house.
Subsequently, the respondents approached the police for assistance on several occasions, but nothing came of their complaints. Eventually, in October 2002, the deceased arrived at the respondents’ house and after threatening her, raped her. He then lay in wait for the return of the first respondent. Upon arriving home, the latter grew alarmed upon realising that the deceased was inside the house, and therefore attempted to enter the house despite knowing the deceased was there. The deceased shot and injured the first respondent. The police arrived and arrested the deceased, who later committed suicide whilst in custody.
The respondents sued the appellant for damages based on the failure of the police to perform their legal duty to assist the respondents to take steps to protect themselves under the Domestic Violence Act 116 of
1998 (“the Act”). The appellant did not dispute that the Act imposes a legal duty to take steps to protect the respondents in the circumstances of this case. Nor did he dispute that the police were negligent in failing to assist the respondents in accordance with the Act’s provisions. However, he contended that the respondents had failed to prove that such negligence caused their damages, because they would probably not have taken steps to protect themselves even if the police had assisted them or, at the very least, that their own negligence contributed to what happened.
Held that the Act and the National Instructions on Domestic Violence (the Instructions) require the police to advise persons of their rights and to assist them in asserting these rights, where necessary. Section
12(1) of the Constitution imposes a duty on the police to protect the right of everyone to be free from private or domestic violence. The preamble to the Act declares that its objective is to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide. Section 2 imposes a duty to assist and inform complainants of their rights under the Act.
On receipt of a domestic violence complaint, wide-ranging duties are imposed on both the station commander and the member receiving the complaint. These include the duty to investigate a complaint and to collate all information in connection with it.
The respondents contended that had they been aware of and understood their rights under the Act – in particular their right to apply for a protection order – they would have taken the appropriate steps to protect themselves. That was disputed by the appellant.
The court pointed out that the wide ranging remedies available to persons in the position of the respondents would be rendered meaningless if the police, as first point of contact in giving effect to these rights and remedies, remained distant and aloof to them, as the facts of this case appear to suggest.
The test for causation in delict, consists of two legs, namely factual and legal causation. Factual causation is to be determined by application of the “but for” test. The high court found that the evidence had established that the police’s failure to advise the respondents of their remedies under the Act was the critical cause for why they had not pursued this course. The present court could not fault the high court’s reasoning. The respondents had therefore established factual causation. Concerning legal causation the appellant did not advance any grounds to suggest that there were any policy considerations that stood in the way of a finding against the appellant. Our courts have in the recent past consistently held the police liable for failure to perform their statutory duty to protect citizens resulting in harm being suffered through such failure. Legal causation was clearly established in this case.
The next question was whether the respondents were contributorily negligent. The appellant’s main contention was that they were negligent in two main respects: first, by failing to obtain a common law interdict and second, by the first respondent’s not leaving his firearm in a locked safe and also by attempting to gain entry to the house when contacting the police would have been the more prudent course of action. In the second resondent’s case it was contended that she was additionally negligent in permitting the deceased to enter the house. The court held that it was not unreasonable for the first respondent to have left his firearm accessible for the second respondent to protect herself int he face of threats from the deceased - or for him to have attempted to gain entry to the house when he perceived that the second respondent and, possibly her children, whom he thought were at home, were in danger.
The second respondent explained that she let the deceased into the house because she believed that it would antagonise him if she did not. Her conduct in that regard was not unreasonable.
In considering whether the respondents were negligent in failing to obtain the common law interdict, the court emphasised two considerations in assessing contributory negligence. The first is that reasonable conduct cannot be judged with the benefit of hindsight and one must guard against the drawing of conclusions from ex post facto knowledge. Secondly, care must be taken not to conflate separate elements of a delictual action such as causation and negligence.
The court’s conclusion was that the respondents were negligent in failing to obtain the interdict and that that contributed to the harm. Comparing the respective degrees of negligence, it was clear that the negligence of the appellant was far greater than that of the respondents. It was confirmed that the appellant was liable for 75% of the respondents’ proven damages.
The appeal was, but for a minor aspect, dismissed.

Minister of Correctional Services v Lee
[2012] JOL 28823 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
316 / 11
23 / 03 / 2012
South Africa
Supreme Court of Appeal
Mpati P, RW Nugent, MS Navsa, S Snyders JJA, Ndita AJA
Keywords:
Delict – Claim for damages – Prison inmate diagnosed with tuberculosis whilst in prison – Whether state liable for damages – Where element of causation established – No proof that infection would have been avoided but for negligent omission to ensure risk of contagion was eliminated – Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could not be found that but for the systemic omission he probably would not have contracted the disease
Mini Summary:
The respondent was arrested on charges including counterfeiting, fraud and money laundering, and was in prison for over four years before his acquittal and release. He was 54 years old and in reasonable health when he entered prison. After about three years in prison, he was diagnosed with pulmonary tuberculosis.
The condition was treated and he was declared to be cured after about six months.
Upon his release from prison, the respondent sued the appellant in the high court, claiming damages on the basis that the prison authorities had failed to take adequate precautions to protect him against contracting tuberculosis, that he had contracted the illness in consequence of their omission, and that the omission violated his right to protection of his physical integrity under the common law, the Correctional
Services Act 8 of 1959 and the Constitution.
Dealing only with the issue of liability, the high court held that the state was indeed liable. The present appeal was directed at that finding.
Held that the three elements of a delictual claim that is founded on negligence are a legal duty in the circumstances to conform to the standard of the reasonable person, conduct that falls short of that standard, and loss consequent upon that conduct.
In respect of the first element, negligent conduct will attract liability only if it is wrongful. In other words, considerations of public and legal policy require that the negligent act or omission should be held actionable for damages. The present Court agreed with the high court that negligent failure on the part of the authorities to have reasonably adequate precautions against contagion, which was the foundation of the respondent’s claim, ought to be categorised as wrongful. When a person becomes a prisoner, he is at the mercy of the state, which bears the concomitant obligation to see to the physical welfare of its prisoner.
Turning to the question of negligence, the Court referred to the classic test which states that a person is negligent if he or she fails to take reasonable steps to guard against harm occurring if the harm is reasonably foreseeable and a reasonable person in his or her position would have taken those steps. In the present case, the Court agreed that the prison authorities failed to maintain an adequate system for management of the disease and in that respect they were negligent.
Remaining for determination was the issue of causation. To succeed in an action for damages, a plaintiff must establish that it is probable that the negligent conduct caused the harm. The test in that regard is whether but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred. The application of the test is simple where the negligent conduct is a positive act. However, where the conduct takes the form of an omission, it means that the defendant was obliged to initiate reasonable action, and the question then is what would have happened if that had occurred?
The Court accepted that the respondent was probably infected whilst in prison. That however, was not the end of the matter. The remaining question was whether he would have been infected if there had been reasonable management of the disease. Whether harm would have occurred if reasonable action had been taken to avoid it entails a two-stage enquiry of fact. The first question is what a reasonable person in the position of the defendant would have done to avoid the occurrence of the harm. The second stage of the enquiry, is whether the harm would have been avoided had that been done. The law does not demand that a defendant must guarantee that foreseeable harm does not occur – only that he must take reasonable steps to avoid it.
While it was clear that the prison authorities had no adequate system in place for managing the outbreak of contagion, that proof was not sufficient for determining whether the harm was caused by the omission.
The problem for the respondent in this matter, was that the source of his infection was not established.
Without proof that a reasonable system would have altogether eliminated the risk of contagion, it could

not be found that but for the systemic omission he probably would not have contracted the disease. The appeal was upheld, and the appellant was absolved from the instance.
Motau v Minister of Safety & Security & others
[2012] JOL 29014 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
30024 / 05
30 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
PZ Ebersohn AJ
Keywords:
Delict – Personal injury – Assault by police – Claim for damages
Mini Summary:
The plaintiff sued the defendants for damages, alleging that the second and third defendants (both police officers) had assaulted him, leading to his sustaining serious injuries.
Held that the evidence established before the Court led to the Court’s condemnation of the actions of the various police officers involved in the incident. According to the plaintiff, he had been injured as a result of an assault by the second and third defendants. He was then taken to the police station, where the station commander noticed his injuries and had him taken to the hospital. The plaintiff denied that he had been drinking in public when accosted by the police officers. The defendants however, introduced into evidence two statements purportedly made by the plaintiff. The said statements were found to have been forged, and the defendants did not attempt to try to prove the authenticity thereof before the Court. In light of evidence to the contrary, the Court found that the captain was clearly committing perjury when he testified that the plaintiff was not injured when he delivered him to the police station to be charged.
Expressing concern at the various transgressions committed by the police in this matter, the Court requested that the matter be investigated.
The plaintiff’s claim for damages was upheld.
Naidoo v Birchwood Hotel
[2012] JOL 28826 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2010 / 47765
03 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
CEH Nicholls J
Keywords:
Delict – Personal injury – Negligence – Onus of proof
Mini Summary:
The defendant was a hotel, on whose premises the plaintiff was injured when a gate at one of the hotel entrances fell on him. As a result of the injuries he sustained, the plaintiff sued the defendant for damages. With the consent of the parties, the Court granted an order in terms of rule 33(4) that the merits be separated from the quantification of the plaintiff’s damages. Accordingly the only issue for determination at this stage was whether the defendant was liable for the bodily injuries sustained by the plaintiff. The defendant pleaded that the hotel had been negligent in that it had failed to take adequate steps to prevent the incident from occurring by not properly maintaining the gate; not ensuring that it was safe for public usage and failing to warn the public of the potential danger created by the state of repair of the gate.
Although not disputed that the hotel owed its customers a duty of care to maintain its premises in a safe condition, the defendant denied that its employees were negligent and pleaded that the plaintiff contributed to, or was the cause of, the incident by interfering with the operation of the gate. Essentially, the hotel’s case was based on disclaimers, which it contended exempted it from liability for any damages that the plaintiff might have suffered as a result of its negligence.
Held that the issues to be determined were, firstly whether such disclaimers were displayed at the time, and secondly whether they would exempt the hotel from liability.
The plaintiff’s claim being delictual in nature, he bore the onus of proving negligence on the part of the defendant. The hotel, insofar as its defence was based on a contract in terms of which liability for

negligence was excluded, bore the onus of establishing the terms of the contract and that it did everything reasonably necessary to bring these terms to the attention of the plaintiff.
The main issue in dispute in respect of the incident was whether the plaintiff had merely approached the gate when it fell on him or whether he was pushing the gate at the time.
The test for determining negligence is that of the diligens paterfamilias.
It was common cause that the hotel owed its guests a duty of care. In assessing whether there had been negligence on the part of the hotel, the plaintiff had to show that the harm was reasonably foreseeable and that reasonable steps could have been taken to avert it.
The evidence established that the gate was malfunctioning at the material time, and that the security guard employed by the hotel had attempted to push it open. Had the gate not been as heavy, no-one would have been injured in the event of it falling. The plaintiff had discharged the onus of proving that the standard of care of the defendant fell short of that required of a reasonable person in the position of the defendant. No contributory negligence was found.
As far as the exemption clause was concerned, the Court doubted that it would pass constitutional muster, and in any event, was of the view that in the circumstances of this particular case to enforce the exemption clause would be unfair and unjust.
The plaintiff was found to have discharged the onus of proving his delictual claim against the hotel.
. De Koker v Minidter of Safety and Security 2010 (2) SACR 595 (KZD)
The plaintiff sued the defendant for damages for unlawful arrest and detention, and for damages caused to his vehicle and that of a third party, with which he had collided. The suit arose from an incident in which the plaintiff, believing himself to be the victim of a hijacking, drove away from a group of police officers before coming to a halt after colliding with another car in an intersection. He was arrested on suspicion of driving under the influence of alcohol, released the same night on bail, and appeared the following day in court, whereupon all charges were withdrawn. A number of issues arose for determination: had the plaintiff proceeded through a red traffic light and almost collided with the defendant's vehicle; had the police officers identified themselves to the plaintiff when they initially stopped him; had the plaintiff then driven through several red traffic lights before colliding with the third party's vehicle; was the police officers' suspicion, that the plaintiff was under the influence of alcohol, reasonable; was their rejection of his explanation, that he had believed that he was being hijacked, reasonable; and was the police's conduct at all times reasonable and justifiable?
Held, that the police officers who had testified on behalf of the defendant had contradicted themselves and each other in several material respects, particularly between their statements and their oral testimony. None of the statements mentioned the fact - stressed in oral evidence - that the plaintiff had driven through red traffic lights. This allegation was an embellishment aimed at criminalising the plaintiff's conduct and thereby justifying the police's behaviour once they had realised that the drunken driving charge would not hold. As to whether the plaintiff had almost collided with the defendant's vehicle, only one officer mentioned this; at best for the defendant, the question was inconclusive. However, despite the weaknesses in the defendant's case, it was clear that the plaintiff's driving, at the point where the police had first seen him, was such as to cause them to be suspicious of him. And it was to be accepted that they had a duty to pursue the plaintiff and to investigate his conduct.
Held, further, that, at the point where the police first stopped the plaintiff, two of them had identified themselves as police officers, but they had failed to communicate this clearly to him; their conduct had instilled fear, instead of reassurance. Furthermore, the fact, that the police had boxed in the plaintiff's vehicle with their own vehicles, had fortified his belief that he was being hijacked.

Held, further, that it was common cause that the plaintiff had manifested none of the typical signs of having consumed alcohol. Furthermore, the hesitant tone in which the police had testified about the plaintiff having been under the influence signalled that they knew that their suspicion had been baseless. Their rejection of the plaintiff's explanation - that he had believed he was being hijacked - was unreasonable. The explanation was consistent with his conduct preceding the crash, and it had appeared to one officer that the plaintiff had been heading to a police station. It had not been reasonable or proportional for three unmarked police cars to pursue an old sedan through suburban streets to effect an arrest for drunken driving; such a 'car chase' was probably as risky as drunken driving itself. Furthermore, they could have employed less risky procedures, such as summoning help from a marked police vehicle. After stopping the plaintiff they could have been in no doubt that he had honestly believed that he was being hijacked; and they could not have remained under the impression that he was drunk. However, instead of apologising and trying to remedy the damages, they had compounded their liability by arresting and detaining him on spurious charges. With the exception of their initial suspicion and their pursuit up to the point where the plaintiff had first stopped, the police's conduct had been unreasonable and disproportionate, and the arrest, detention and charging of the plaintiff had been unlawful.
Plaintiff's claim upheld with costs.
Case Information
Action for damages for unlawful arrest and detention. The facts appear from the judgment of D Pillay J.
Minister of Safety and Security v Sekhoto A O 2010(1) SACR 388 FB
The Constitution of the Republic of South Africa, 1996, provides that a court, when interpreting legislation (eg s 40 of the Criminal Procedure Act 51 of 1977), must promote the spirit, purport and objects of the Bill of Rights. A person's right not to be deprived of freedom arbitrarily or without just cause is a basic right (s 12(1)(a) of the Constitution).
Section 205(3) of the Constitution makes it clear that members of the police service must protect and secure the inhabitants of the Republic and uphold and enforce the law
(including the Constitution). Rather than a weighing up of the interests of the community against the rights of citizens, the investigation should turn on the question whether the rights of persons have been infringed in the circumstances of the particular case. An arrest should be considered in the light of the circumstances of the specific case. As stated by the Constitutional Court, 'the constitutionality of an arrest will almost invariably be heavily dependent upon its factual circumstances'. In assessing the lawfulness of an arrest made without a warrant the enquiry entails the following:
(a) Were the jurisdictional facts required by s 40 present? The jurisdictional \ facts are: (1) The arrestor must be a peace officer. (2) The arrestor must entertain a suspicion. (3) It must be that the arrestee committed an offence referred to in Schedule 1
(other than escaping). (4) That suspicion must rest on reasonable grounds.
(b) Was the purpose of the arrest to bring the arrested person before court?
Or: (i) To frighten or harass such person; (ii) to prove to colleagues that the arrestor is not a racist; (iii) to punish the plaintiff by means of arrest; (iv) to force the arrestee to abandon the right to silence in s 35(3)(h) of the Constitution. If the arrest was made for

any of these reasons, or for another purpose not falling within the jurisdictional ambit of s
40, the arrest will for that reason alone be unlawful.
(c) The lawfulness of an arrest is fact-specific.
(d) Did the arrestor appreciate that an arresting officer has a discretion whether to arrest without a warrant or not, and did the arrestor consider and apply that discretion? An arresting officer must investigate explanations offered by the suspect.
(e) Were there grounds for infringing upon the constitutional rights as to security of the person, which every person has under s 12 of the Constitution? If a suspect: (i) does not present a danger to society; (ii) will not abscond; (iii) will not harm him/herself or others; (iv) is not in danger of being harmed by others; (v) may be able and be keen to disprove the police allegations, arrest will ordinarily not be the appropriate way of ensuring the suspect's presence in court.
(f) Did the arrestor consider other means of bringing the suspect before court?
Section 38 of the Criminal Procedure Act refers to means of securing attendance of the accused in court, and refers to arrest, summons, written notice and indictment.
(g) The need for further investigation after the suspect has been arrested is a subsidiary factor which can be borne in mind. Although arrest should be made for the purpose of assuring the accused's presence in court, and not for some ulterior motive, one must not lose sight of the fact that the effect of arrest is detention for up to 48 hours before bringing the accused before court (s 50 of Act 51 of 1977). The legislature contemplated that further investigations subsequent to arrest could lead to the arrestee's release or prosecution. An arrest without a warrant is not unlawful merely because the arrestor intends to make further investigations before deciding to release the arrestee or to proceed with a prosecution contemplated by s 50(1) of Act 51 of 1977. However, if obtaining information from the arrestee is the main purpose, s 205 of the Criminal
Procedure Act 51 of 1977 should be used, not an arrest without a warrant.
(h) The fact that two or more persons are involved in the criminal activity being investigated is a relevant factor. When members of a gang or syndicate or racketeering enterprise are sought because of a suspicion against them, it can be important, from a crime investigation point of view, that they be arrested simultaneously, also if they are at separate places, so as not to be able to communicate with each other, which communication could prejudice the investigation. Evidence may be destroyed or alibis fabricated. The fact that persons are arrested on related charges is a relevant consideration in assessing the lawfulness of the arrest.
(i) The possibility that exhibits can be destroyed or hidden is a relevant factor.
There is not an onus on a person to prove a constitutional right: the duty is on the court to enforce such right. Courts have the duty to enforce constitutional rights, as provided in s
39(2) of the Constitution. The arrestor must show that constitutional rights were not infringed by the arrest. That entails, at the stage before arrest, to make enquiries whether arrest is necessary and whether the arrest will infringe upon the arrestees' constitutional rights. There is a duty on the arrestor to adduce such evidence and such evidence forms part of the onus on the arrestor to prove lawfulness of the arrest.
Hoco v Mtekwana A O 2010 (2) SACR 536 (ECP)

The plaintiff was arrested, in terms of a warrant, at around 12 noon on Wednesday 13
February 2008 in Port Elizabeth and held until 18 February. He was then transported to
Gugulethu in Cape Town, held overnight, and released on 19 February. It was common cause that the plaintiff's arrest and his detention from 13 to 15 February, having been authorised by a warrant, was lawful; the plaintiff contended, however, that his further detention up to 19 February was unlawful, and he sued for damages in that regard. His uncontested evidence was that he had been arrested in connection with a dispute regarding one of his minor children. After 48 hours had expired he was informed that he was to appear in court in Cape Town, but that, as the police from that city had not arrived to fetch him, he would be held over the weekend of 16 - 17 February in
Port Elizabeth.
He was then fetched on Monday 18 February, driven to Cape Town, together with his child, held overnight and released the following day. The defendants chose not to lead evidence, but in argument on their behalf it was submitted that it was impossible for the police to have caused the plaintiff to appear before a court on 16 or 17
February, as that was a weekend; that he could in any event not appear in a Port Elizabeth court, as the warrant specified that he was to appear in Cape Town; and that, in terms of s
50(1)(d)(iii) of the Criminal Procedure Act 51 of 1977, when a person was outside the court's area of jurisdiction and was in transit to such court, the period of 48 hours after arrest was deemed to expire only at the end of the court day next succeeding the day on which the person was brought into the court's area of jurisdiction.
Held, that there was no evidence to support the submissions made on behalf of the defendants.
It was incumbent on the police, having arrested the plaintiff, to make arrangements to bring him before court within the prescribed period. In any event, the defendants could not rely on s 50(1)(d)(iii), as the plaintiff had not been in transit at the time of expiry of the 48 hour period - he was still in detention in Port
Elizabeth. Furthermore, if the plaintiff's detention during 16 and 17 February was unlawful, it could not have become lawful again on Monday 18 February without a fresh warrant having been issued. Accordingly, the plaintiff's detention from 12 noon on Friday
15 February until his release on 19 February was unlawful.
Held, further, concerning the quantum of damages, that the police's conduct gave the impression that they had failed to appreciate the seriousness of depriving the plaintiff of his liberty. They had also failed to take reasonable and necessary steps to protect his interests and to comply with the law relating to arrest and detention. The plaintiff had suffered embarrassment by being transported as a criminal, and the continued detention must have lowered the esteem in which he was held by his minor child. He had been exposed to the squalor of prison cells, taken away from his home and business, released from custody hundreds of kilometres away from home, and left to pay for his own transport back. An award of R80 000 was appropriate in the circumstances. As to costs, even though the amendment of the plaintiff's particulars of claim (to exclude the first two days of detention) had placed the probable quantum of damages within the jurisdiction of a magistrates' court, it had been agreed between the parties that the matter would remain in the High Court. It would accordingly not be just, as urged by the defendants, to award costs on the magistrates' court scale.
Judgment in favour of plaintiff in the amount of R80 000 with costs.
Case Information

Reynolds & another v Minister of Safety & Security
[2011] JOL 26775 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5023 / 08; 5024 / 08
08 / 02 / 2011
South Africa
High Court
Western Cape, Cape Town
LJ Bozalek J
Keywords:
Delict – Claim for damages – Arrest and detention – Lawfulness
Mini Summary:
Two actions were consolidated for purposes of the present judgment. The first plaintiff was the second plaintiff’s mother. Both sued the defendant for damages arising from their alleged unlawful arrest and detention.
In July 2006, a domestic dispute between the first plaintiff and her husband (the complainant) led to the police arresting the first plaintiff. They also arrested the second plaintiff for allegedly obstructing them in the execution of their duties, more particularly for trying to prevent them from arresting the first plaintiff.
While the plaintiffs challenged the lawfulness of the arrests and detentions, the police defended their actions, claiming that the arrests and detentions were lawful.
Held that the court had to consider the jurisdictional requirements for a valid arrest in terms of section
40(1) of the Criminal Procedure Act 51 of 1977, the nature of the discretion to be exercised by the arresting officer and the onus of proof in such matters.
Once the jurisdictional facts for an arrest are present a discretion arises, since it is clear from the wording of the section that the officer is not obliged to effect an arrest. The court proceeded to analyse the nature of that discretion.
The jurisdictional facts required to be proved by the defendant in relation to the arrest of the first plaintiff were that the arrestor must have been a peace officer; the arrestor must have entertained a suspicion that the arrestee committed an act of domestic violence as contemplated in section 1 of the Domestic
Violence Act 1998 and that act had to constitute an offence in respect of which violence was an element; and the suspicion must have rested on reasonable grounds.
In the case of second plaintiff the jurisdictional facts were that the arrestor must have been a peace officer; and the arrestee must have been wilfully obstructing the arrestor in the execution of his duty.
The defendant was unsuccessful in establishing the relevant jurisdictional facts, and was accordingly held liable for the plaintiffs’ proven damages.
Kogana v SBV Services (Pty) Ltd
[2012] JOL 29058 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
384 / 11
23 / 03 / 2012
South Africa
Supreme Court of Appeal
RW Nugent, MS Navsa, A Cachalia, ZLL Tshiqi JJA, XM Petse AJA
Keywords:
Contract – Breach of contractual obligations – Claim for damages – Causation – Whether causal link was established between the breach and the loss sustained – Respondent not proving that robbery would not have occurred had the breach not occurred
Mini Summary:
Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) – Referred to
AB Ventures Ltd v Siemens Ltd 2011 (4) SA 614 (SCA) – Referred to
International Shipping Co (Pty) Ltd v Bentley, 1990 (1) SA 680 (A) – Referred to
The respondent was a security company that delivered cash to automated teller machines on behalf of banks. The money was delivered in specially protected vehicles manned by an armed crew. During one such delivery in 2007, the relevant crew was robbed by an armed gang. The respondent sued the appellant, as the supervisor of the crew, alleging that the money had been stolen because he had neglected his duties. The present appeal was against the court a quo’s upholding of the claim.
Although the respondent’s claim started off being delictual in nature, by the time the appeal came before the present court the respondent sought to found its claim instead upon an alleged breach by the appellant of his contractual obligations.

Held that assuming that a contractual claim was properly before the Court, and that the appellant was indeed liable for damages in contract if he failed properly to perform his duties, it remained for the respondent to establish a causal link between his failure and the loss. The question to be answered in this case was whether the respondent had shown that the money probably would not have been stolen had the appellant properly performed his duties. According to the respondent, the appellant’s negligence was manifest in his not ensuring that the armed guard on the crew was strategically placed before the money was removed from the vehicle, and in failing to ensure that the driver did not leave the vehicle. Instead, of remaining in the vehicle, the driver and the relevant crew member attended to a leaking fuel cap. While it might have been the respondent’s duty to do what was alleged by the respondent, the question was whether the robbery would have been averted had he fulfilled that duty.
A major hurdle for the respondent was that there was insufficient evidence to determine what might have been encountered had the crew resisted the robbery. The robbery was clearly well-planned, and there was no justification for the notion that the robbers’ plans would have been thwarted had the armed crew member and the driver done what they were supposed to do. As the respondent could not discharge the onus of satisfying the court that the theft would have been averted, its claim had to fail. The appeal was accordingly upheld, and the court a quo’s order was replaced with one in terms of which the appellant was absolved from the instance with costs.
Sandlundlu (Pty) Ltd v Shepstone & Wylie Inc
[2010] JOL 26565 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
63 / 10
02 / 12 / 2010
South Africa
Supreme Court of Appeal
S Snyders, RW Nugent, JA Heher JJA, R Pillay, K Pillay AJJA
Contract – Breach of contract – Claim for damages – Factual causation – A plaintiff who enforces a contractual claim arising from the breach of a contract needs to prove, on a balance of probability, that the breach was a cause of the loss –Contract – Breach of contract – Contractual damages – General rule in relation to contractual damages is that the claimant is entitled to be put in the position it would have been in if the respondent executed its mandate properly
Mini Summary:
As owner of immovable property on which a hotel was situated, the appellant wished to develop a vacant part of the property adjacent to the hotel, but required funding to do so. The appellant’s shareholders accordingly entered into negotiations with an Austrian investor who was interested in the development.
They started negotiating an involved series of transactions. At all material times an attorney
(“Breytenbach”) from the respondent’s firm acted for the appellant.
As a first step in the execution of the envisaged transactions the appellant leased to its hotel to the investor. A lease was drafted by the investor’s attorney. Although the parties had orally agreed on a monthly rental of R50 000 which was to escalate at a rate of 12 per cent per annum, when the respondent presented the draft lease the appellant for signature, the monthly rental was reflected as R4 500 with an escalation of 10 per cent per annum. One of the appellant’s shareholders (“Reardon”) noticed the mistake and pointed it out to Breytenbach. He was assured that he could sign the agreement, and that the attorney would correct the error before the investor signed it. Reardon obliged, signed the lease and initialled next to the rental amount and escalation that Breytenbach had undertaken to amend. However,
Breytenbach never amended the document, and the written agreement of lease signed by both parties therefore reflected a monthly rental of R4 500 with a 10 per cent per annum escalation and not for the orally agreed rental of R50 000 with a 12 per cent per annum escalation.
After November 2000, no further rental was paid by the investor. Arbitration proceedings were launched by the appellant to effect a rectification of the lease agreement to reflect the rental orally agreed. The appellant then cancelled the lease due to non-payment of rentals, and eventually successfully evicted the investor from the property. The investor’s company was liquidated and no rental was ever recovered.
The appellant then successfully sued the respondent for damages flowing from the respondent’s conceded negligent failure to insert the orally agreed monthly rental in the written lease agreement signed by the parties thereto. The court below granted the appellant damages for the loss of rental income restricted to the likely date upon which registration of transfer of the property in terms of the sale would have been effected. It awarded the appellant interest at 15.5 per cent per annum as damages calculated, not monthly, but from the date of service of summons. In the appeal, the appellant sought to increase the damages awarded to include rental for the full period until the eviction of the lessee, and interest calculated from each month as the rental became due, owing and payable.

In a cross-appeal, the respondent contended that the factual cause of the loss was the dishonest conduct of the lessee’s attorney and not the negligence of Breytenbach. It sought the replacement of the order of the court below with an order that the appellant’s claim be dismissed with costs.
Held that a plaintiff who enforces a contractual claim arising from the breach of a contract needs to prove, on a balance of probability, that the breach was a cause of the loss.
The court agreed that the lessee and his attorney had dishonestly attempted to use the error in the document to their advantage. However, if Breytenbach had not failed to execute his mandate there would not have been the opportunity for the lessee to rely on the written lease agreement in support of its dishonest contention. It was therefore probable that Breytenbach’s failure did cause loss to the appellant.
That did not mean that the appellant was entitled to all of the damages it suffered. The general rule in relation to contractual damages is that the claimant is entitled to be put in the position it would have been in if the respondent executed its mandate properly. The general rule suggests that a line needs to be drawn to ensure that the respondent should not be caused undue hardship. Examining the facts, the court found that when the relationship between the appellant and the lessee soured as it had, future dealings between themn became unlikely. In those circumstances the appellant would have been successful in recovering rental of R50 000 per month until 2006. The evidence did not establish as a probability that damages were sustained after the period fixed by the trial court.
Thus, the appeal and the cross-appeal were dismissed.
Pitzer v Eskom
[2010] JOL 26505 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 24486
29 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
DSS Moshidi J
Keywords:
Delict – Claim for damages – Personal injury – Electrocution – Negligence
Mini Summary:
The plaintiff sued the defendant for damages after he sustained an electrical shock at the defendant’s substation.
By agreement between the parties, and in terms of rule 33(4) of the Uniform Rules of Court, the court ruled that the merits of the plaintiff’s claim be first adjudicated upon and that the question of the quantum of the claim be dealt with later.
Held that it was common cause that the plaintiff sustained injury when he was shocked by high voltage electric current at the defendant’s premises.
Section 26 of the Electricity Act 41 of 1987 is such that the onus rested on the defendant to prove on a balance of probabilities that it was not negligent, or if it was, that there was no causal connection between such negligence and the injuries sustained by the plaintiff.
The classical test for negligence is that liability in delict based on negligence will be established against a defendant if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his personal property and causing him patrimonial loss; would take reasonable steps to guard against such occurrence, and that the defendant failed to take such steps.
Examining the evidence, the court found no negligence on the part of the defendant. The defendant proved, on a balance of probabilities, that the plaintiff knew of the risk, appreciated the ambit of the risk, and in fact consented to the risk.
The plaintiff’s claim was dismissed with costs.
Wells v Atoll Media (Pty) Ltd & another
[2010] JOL 25639 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
11961 / 2006
09 / 11 / 2009
South Africa
High Court
Western Cape, Cape Town
Davis J

Delict – Defamation – Publication of picture – Invasion of privacy – Claim for damages
Mini Summary:
As guardian of her minor child, the plaintiff sued the defendants for damages arising out of the publication of a photograph of the child in a magazine in respect of which first defendant was the owner and publisher and second defendant was the editor. The cause of action was based, firstly, on defamation and further on an invasion of the privacy of the child.
At the relevant time, the child was 12 years old, and her picture was published in a surfing magazine without the plaintiff's authority or consent. The photograph, as it was published, was stamped bearing the word "filth" as well as a description at the foot of the photograph "all-natural Eastern Cape honey".
Held that it was common cause that the pictures were of the plaintiff's daughter. The key questions for determination were, whether the child could be recognised by reasonable readers of the magazine, whether the language used to describe the photo bore a non-defamatory meaning and whether the defendants acted animo iniuriandi. The dispute also extended to whether the child's dignity and rights to privacy had been infringed and finally to the amount of damages which she had suffered.
The court held that it was certainly foreseeable that taking so provocative a photograph of a young girl who was a member of a small community would result in her being the subject of both speculation and identification - particularly a photograph which was described as "a pinup photo".
The manner in which the photograph was published without any regard to the context or implications for a twelve year old girl did not satisfy the test of reasonable publication.
Finding the picture together with the words contained in the magazine to be wrongful and defamatory, the court awarded damages in the amount of R10 000.
Coetzee v Steenkamp
[2010] JOL 25798 (NCK)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
579 / 09
18 / 06 / 2010
South Africa
High Court
Northern Cape, Kimberley
FD Kgomo JP
Keywords:
Delict – Claim for damages – nemo ex suo delicto meliorem suam conditionem facere potest
Mini Summary:
During a hunting trip, the vehicle in which plaintiff was a passenger capsized and he sustained various injuries. He claimed damages from the defendant, on the basis of his alleged negligent or reckless driving.
The defendant denied negligent culpability, and alleged contributory negligence by the plaintiff; relied on the principle of volenti no fit iniuria or voluntary assumption of risk or that which is done with consent, within legal limits, is not wrongful or injurious; and on the basis that the hunting trip was an illegal one, argued that the plaintiff was precluded in law from claiming from the defendant in terms of the principle
nemo ex suo delicto meliorem suam conditionem facere potest (Nemo ex suo delicto) or no one can improve his or her own condition by means of a crime or through a crime.
Held that that the plaintiff could not invoke his professed ignorance of the law to excuse his illegal hunting.
The court found that the plaintiff was not a passive partner to the illegal trip. It therefore decided the issue of nemo ex suo delicto meliorem suam conditionem facere potest in favour of the defendant.
The action was dismissed with costs.
Comac v Sahaye & another
[2010] JOL 25799 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14546 / 08
28 / 04 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
TR Gorven J
Keywords:
Delict – Personal injury – Claim for damages – Negligence – Assessment of evidence

Mini Summary:
Whilst attending the second defendant's premises, the plaintiff was injured when part of a machine he was about to use burst. He sued the defendants for damages, alleging that they had a duty of care to ensure the safety of the property of persons visiting and that machinery in use was adequately mounted and secured. He argued that the defendants were negligent in failing to take steps to ensure that such an accident did not happen.
Held that the factual scenarios sketched by the plaintiff and the defendants were mutually destructive in many material respects. The court had to accordingly assess whether the plaintiff had proved his version of the events on a balance of probabilities, and whether the facts found proved gave rise to liability of the defendants on the separated issues.
The plaintiff did not impress the court as a good witness. The first defendant, in contrast, was an excellent witness. The court found that the plaintiff had failed to prove the facts contended for by him, and that the defendants' version was preferable and more probable. It rejected the plaintiff's version as incorrect where the versions conflicted with each other.
Even on the plaintiff's own version, there was no factual causation proved.
The defendants were absolved from the instance with costs.
Nkosi v Mbatha
[2010] JOL 25884 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 20 / 10
06 / 07 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MI Madondo, JB Mnguni JJ
Keywords:
Delict – Claim for damages – Doctrine of subrogation
Mini Summary:
The present appeal was noted against the Magistrate's Court's dismissal of the appellant's claim against the respondent for the payment of damages. The claim arose out of a motor vehicle collision between the appellant's vehicle and respondent's vehicle. The damages the appellant sought related to fair, reasonable and necessary costs to restore her motor vehicle to its pre-collision condition.
At the hearing, the appellant had informed the court that she had already been fully indemnified for the loss she had suffered by her insurer. She was proceeding against the respondent on behalf of her insurer for the recovery of the amount her insurer had paid to her as costs of repair to her vehicle.
Held that the wronged party is entitled to be compensated for the consequences of the unlawful conduct.
The wronged party is to be placed in the position that he or she would have been in had the wrongful and negligent conduct had not occurred. The litigant who sues in delict sues to recover the loss which he had sustained because of the wrongful conduct of another. The plaintiff's damages must be assessed at the time of the injury done to him.
The general principle in cases of this nature is that a person who has more than one claim to indemnity is not entitled to be paid more than once for the same loss. One of the exceptions to the general principle is where the defendant had a contract with an insurer to repair the motor vehicles that had been involved in collision and as a result of such contract the defendant had repaired the plaintiff's vehicle.
In the present case the insurer having fully compensated the plaintiff, it had a subrogated claim against the defendant, whose negligence caused the loss in respect of which compensation was paid, for the recovery of the amount it paid to the plaintiff as the costs of repairs.
The prerequisites for the doctrine of subrogation are that payment or reinstatement has been made, secondly, a valid and subsisting policy, and thirdly, that the insured must have had right to claim compensation from a third party.
The appellant had not satisfied the requirements set out above, and the appeal was thus dismissed.
Jansen & another v RAF
[2010] JOL 26116 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
1737 / 09
25 / 03 / 2010
South Africa
High Court

Division:
Bench:
Keywords:
Eastern Cape, Port Elizabeth
JW Eksteen J
Civil Procedure – Motor vehicle accidents – Claim for damages – Assessment of evidence – General damages – Loss of earning capacity
Mini Summary:
At a time when he was still a minor, the second plaintiff was injured in a motor vehicle accident. The plaintiffs accordingly sued the defendant fund for damages.
Held that the issue of liability having previously been decided in their favour, the court had to consider the issue of general damages, loss of earnings/ earning capacity and costs.
The evidence satisfied the court that the second plaintiff demonstrated a good work ethic and a desire to better himself. That led the court to apply a contingency deduction of 25% to the damages awarded for loss of earning capacity. Assessing the medical reports and having regard to case law, the court awarded
R4 717 117 as damages.
Smith v SAA Flight-Deck Crew Provident Fund & another
[2010] JOL 25963 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
PFA/KZN/24462/2008/TD
20 / 05 / 2010
South Africa
Pensions Fund Tribunal
Durban North
Charles Pillai
Pensions – Death benefits – Distribution of – Payment of death benefits by a pension fund is regulated by section 37C of the Pension Funds Act 24 of 1956 – Main aim of the section is to ensure that those persons who were dependant on the deceased during his lifetime, irrespective of whether the deceased was legally required to maintain them or not, are not left without support after his deathPensions – Death benefit –
Distribution of – Trustees duties – Trustees must identify and trace the circle of beneficiaries; effect an equitable distribution of the death benefit; and determine an appropriate mode of payment of the benefitPensions – Death benefit – Distribution of – Trustees powers – Section 37C of the Pension Funds
Act 24 of 1956 gives the trustees of a fund a discretion insofar as the distribution of death benefits is concerned
Mini Summary:
The complainant's father was a member of the first respondent pension fund until his suicide in 2007. At the time of his death, the deceased was cohabiting with the second respondent.
The deceased left a suicide note in which he purported to give his house to the second respondent, and authorised his bank to give her immediate access to cash in a savings account. He also advised her of money he kept in his safe.
In distributing the death benefit payable by the fund upon the death of the deceased, the fund's trustees awarded 50% of the benefit to the second respondent and 50% to the complainant. The complainant was dissatisfied with the trustees' decision to allocate 50% of the death benefit to the second respondent, alleging that the second respondent was not a dependant of the deceased.
Held that the question for determination was whether or not the tribunal should set aside the trustees' decision to distribute the death benefit payable following the passing away of the deceased in equal shares between the complainant and the second respondent.
The payment of death benefits by a pension fund organisation as defined in section 1 of the Pension Funds
Act 24 of 1956 is regulated by section 37C of the Act. In terms of section 37C, any such benefit shall not normally form part of the assets in the estate of the deceased, but shall be dealt with in terms of the section. Section 37C gives the trustees discretion insofar as the distribution of death benefits is concerned.
The main aim of the section is to ensure that those persons who were dependant on the deceased during his lifetime, irrespective of whether the deceased was legally required to maintain them or not, are not left without support after his death. Section 37C imposes three primary duties on the trustees when they consider the distribution of a death benefit. They have to first identify and trace the circle of beneficiaries, ie all the dependants and nominated beneficiaries of the deceased. Once the circle of beneficiaries is identified, the trustees have to effect an equitable distribution of the death benefit; and finally the trustees

must determine an appropriate mode of payment of the benefit. In doing the above, the trustees must consider all the relevant factors to the exclusion of all the irrelevant factors and must not fetter their discretion in any way. Where it is found that the trustees failed to take into account relevant factors, or took into account irrelevant factors, the trustees' decision shall be reviewable on the grounds that they have exceeded their power or that the decision constituted an improper exercise of their powers.
In the present case, the trustees found the complainant to fall squarely within the definition of a
"dependant", while the second respondent was found to be a factual dependant. Examining the factors taken into account by the trustees, the adjudicator found no improper exercise of their discretion. The distribution of the death benefit was not unreasonable, and the complaint was accordingly dismissed.
Bornman v National Credit Regulator
[2014] JOL 31367 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
798 / 12
26 / 09 / 2013
South Africa
Supreme Court of Appeal
FR Malan, CH Lewis, VM Ponnan, JB Shongwe, H Saldulker JJA
Keywords:
Consumer law – Debt counsellor – Cancellation of registration – Where debt counsellor acted in contravention of his conditions of registration and the provisions of section 86 of the National Credit Act
34 of 2005 read with regulation 24, National Consumer Tribunal entitled to cancel his registration –
Mini Summary:
The National Credit Act 34 of 2005 introduced new provisions into South African law aimed at affording consumers who are over-committed financial relief by being declared over-indebted and rescheduling their commitments. The Act created the concept of a debt counsellor and established the National Consumer
Tribunal.
In this case, the tribunal conducted a hearing into the conduct of the appellant, an attorney who was a debt counsellor. At the end of the hearing, the appellant was found to have contravened a number of his conditions of registration, as well as various provisions of the Act and its regulations. His registration as a debt counsellor was cancelled in terms of section 150(g) of the Act. He was ordered to refund all of his past and current clients, or consumers, all amounts taken from his trust account as collection commission, or retainer, or legal fees, or under any other description as well as any other charge not provided for in terms of the fee guidelines.
The appellant appealed against the decision of the tribunal to the High Court. Both his appeal and his application for leave to appeal to this court were dismissed but leave to appeal was subsequently granted by this court.
Held that the statutory provisions and regulations allegedly contravened by the appellant were section
86(6) read with regulation 24(6); section 86(7) and section 86(8) read with regulations 24(7) and (8); section 86(8) read with regulation 24(10); and regulation 24(9). Section 86 read with regulation 24 prescribes the procedure to be followed when a consumer applies for debt review. On applying to be declared over-indebted, a consumer must provide the debt counsellor with the information set out in regulation 24(1)(b). The duties of the debt counsellor are then to deliver a completed Form 17.1 to all credit providers and the credit bureau within 5 days. He must verify the information provided by the consumer and must determine, within 30 days, whether the consumer appears over-indebted. Once a determination is made, the debt counsellor must submit Form 17.2 to all affected credit providers and credit bureaux.
The appellant deviated from the procedure required by section 86, using an expedited process. His actions constituted a contravention of section 86 and regulation 24. The court confirmed that the tribunal was correct in declaring that the appellant had been in repeated breach of his conditions of registration and sections 86(6), (7), and (8) read with regulations 24(6),(7), (8), (9) and (10) and in finding that the said conduct was prohibited by the Act.
The appellant’s conditions of registration as a debt counsellor required him not to engage in any activity which would conflict with the interests of consumers to whom debt counselling services were provided, and not to enter into any agreement or engage in any activity which may prevent him from acting in the best interests of the consumers to whom these services were provided. One of the conditions requires him to charge or recover fees only as provided for in the Act and Regulations, and not to receive fees,

commission or any other remuneration where such income may compromise his independence as a debt counsellor. However, ten per cent of the monthly payments made by consumers was deducted and paid into the appellant’s trust account as a collection fee. In accepting the collection fee, the appellant acted in clear contravention of his conditions of registration. The court concluded by confirming the validity of the order requiring the appellant to repay all amounts deducted as collection commission, or retainer, or legal fees.
The appeal was dismissed.
Firstrand Bank Ltd v Collett
[2011] JOL 26642 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1819 / 10
02 / 09 / 2010
South Africa
High Court
Eastern Cape, Grahamstown
JW Eksteen J
Keywords:
Civil procedure – Summary judgment – Defence – Debt review – Credit agreement
Mini Summary:
In an action in which the plaintiff sought payment in terms of a contract with the defendant, the plaintiff applied for summary judgment. While admitting being in arrears with payments, the defendant contended that she had applied for debt review in terms of the provisions of section 86 of the National Credit Act 34 of 2005 (“the Act”) and that the plaintiff was duly notified of such debt review.
After the matter had been referred to the Magistrate’s Court for a hearing, the plaintiff served notice in terms of provisions of section 86(10) of the Act, terminating the debt review process.
The narrow issue raised for consideration was whether the plaintiff could validly give notice to terminate the debt review process in terms of section 86(10) after the debt counsellor had lodged an application with the Magistrate’s Court, and whilst such application was pending, for an order as envisaged in section
86(7)(c).
Held that in seeking to interpret the provisions of section 86 it is trite that regard should be had to the context in which the words are used in the Act as a whole and the surrounding circumstances relating to the apparent scope, purpose and limits of the Act as well as its background.
Section 86 provides for a process whereby the consumer may apply in accordance with section 86(1) of the Act to be declared to be over indebted and to have his debts rearranged. The debt counsellor is then required to carry out a debt review in accordance with the provisions of section 86. The debt review process is subject to the judicial oversight of the Magistrate’s Court. When a debt counsellor makes a finding that a consumer is over indebted, as he did in the present matter, the debt counsellor is required to refer the matter to the Magistrate’s Court. Where a notice in terms of section 86(10) terminating the process is then issued, the consumer is afforded a remedy in section 86(11).
The court’s conclusions were that a credit provider is entitled to give notice in terms of section 86(10) after the proposal of the debt counsellor in terms of section 86(7)(c) or 86(8)(b) has been referred to the
Magistrate’s Court. If a credit provider has given notice in terms of section 86(10) of the Act and he proceeds to attempt to enforce his credit agreement the consumer is entitled to approach the Magistrate’s
Court to which the matter has been referred for hearing to seek an urgent order that the credit review process resume.
No defence being made out, the court granted summary judgment.
Changing Tides 17 (Pty) Ltd v Grobler & another
[2012] JOL 29053 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
9226 / 2010
08 / 06 / 2011
South Africa
High Court
North Gauteng, Pretoria
JR Murphy J

Consumer credit – Debt review – Termination of – Resumption – Summary judgment application
Mini Summary:
The respondents fell into arrears with payments in respect of an indemnity bond agreement. They applied for debt review in terms of the National Credit Act of 34 of 2005 on two different occasions to two different debt counsellors.
Held that section 86 of the act provides that a consumer may apply to a debt counsellor to be declared over-indebted. The debt counsellor conducts a debt review and an assessment, at the end of which he will decide whether the consumer is or over-indebted. If over-indebtedness is found, the counsellor may recommend that the consumer’s obligations be re-arranged. That recommendation is made to the magistrate’s court which may make an order in terms of section 87, re-arranging the obligations or may reject the recommendation. Where the debt counsellor decides that the consumer is not over-indebted, the consumer is entitled to make application himself to the magistrate’s court for a re-arrangement order.
In terms of section 130(4)(c), if a court determines that a credit agreement is subject to a pending debt review, it must adjourn proceedings to enforce the agreement until final determination of the debt review; and in terms of section 130(4)(e), if the agreement is subject to a debt re-arrangement order and the consumer is in compliance with that order, the court must dismiss any action or application to enforce the agreement.
The facts set out in the Respondents’ Opposing Affidavit were incomplete. Details of the debt review process were not provided.
In the recent case of Collett v Firstrand Bank (766/2010) [2011] ZASCA 78 (27 May 2011),[also reported at Collett v Firstrand Bank Ltd (National Credit Regulator as amicus curiae) [2011] JOL 26642 (SCA) – Ed] the Supreme Court of Appeal drew an important distinction between cases where the consumer is in default under the credit agreement and when not. Where the consumer is not in default he may apply for review and the credit provider may not terminate the review under section 86(10), because section
86(10) gives the right to terminate the debt review only where the consumer “is in default”. Where the consumer is in default then the credit provider may enforce the agreement, once the debt review has been terminated in terms of section 86(10). The enforcement of a credit agreement should not be postponed indefinitely once steps have been taken to seek a re-arrangement order. The purpose of the act will best be served by allowing the consumer a 60-day period of grace during which alternative means of resolving the dispute may be attempted and thereafter for the enforcing court to exercise the discretion to resume the debt review on the basis of more complete evidence regarding the earlier debt review process. The enforcing court is required to decide whether there would be any benefit or meaningful prospect of a better outcome in the event of the debt review resuming. The court will take into consideration the history of the dispute, the good faith participation of both parties in any prior negotiations designed to result in responsible debt re-arrangement, and the prospect of any satisfactory re-arrangement and compliance with it.
In the present matter, a debt re-arrangement order which had been made was incompetent as the court which made the order was not the enforcing court. It therefore had no jurisdiction to resume a debt review which had previously been terminated. In those circumstances, the application for summary judgment was postponed sine die, and the respondents were directed to bring an application for resumption of the debt review within 10 days of this order, failing which the applicants could set the application down without further notice to the respondents.
Zokufa v Compuscan (Credit Bureau)
[2010] JOL 25756 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1751 / 08
01 / 07 / 2010
South Africa
High Court
Eastern Cape, Mthatha
S Alkema J
Keywords:
Civil procedure – National Credit Act 34 of 2005 – Credit information – Right of access – Jurisdiction
Mini Summary:
The applicant was an incola of the present court. The respondent carried on business as a credit bureau, and was a peregrinus of the court.
The applicant had, in 2008, been refused credit facilities for which she had applied, based on adverse credit reports obtained from the respondent. that led the applicant to request information relating to her credit profile, as possessed by the respondent. The respondent refused to release the report unconditionally, and the applicant instituted the present application. Essentially, the applicant sought an

order directing the respondent to make available the credit record, file and information concerning applicant in terms of the National Credit Act 34 of 2005.
Opposing the application, the respondent argued that the present court lacked jurisdiction to entertain the application; that the prerequisites for its release of the report were necessary; and that the failure by the applicant to exhaust alternative remedies available to her under Chapter 7 of the Act, and in particular her failure to refer her complaint to the National Credit Regulator in terms of section 136 thereof was fatal to her case. The latter point was abandoned in argument.
Held that the issue on the first point was whether the legal proceedings in the application could be said to have arisen within the area of jurisdiction of the present court.
The court found that the applicant essentially sought to enforce a right guaranteed by the constitution and that such right vested within the area of jurisdiction of the present court, and that the breach affected her constitutional rights in the area of jurisdiction of the court. Thus, every consideration of convenience, fairness and common sense indicated that she should be able to enforce her rights where she was most affected by the infringement.
The conclusion was the responded was obliged to deliver the requested information to the applicant, and that the court had jurisdiction to entertain the application.
Stow v Firstrand Bank Ltd (formerly First National Bank of Southern Africa Ltd) & another
[2010] JOL 25921 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
536 / 10
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
N Dambuza J
Keywords:
Credit agreements – Loan agreement – Default judgment – Rescission application – Debt review –
Cancellation of – Reinstatement of debt review
Mini Summary:
In terms of a loan agreement, the first respondent ("the bank") lent money to the applicant. The loan was secured by a mortgage bond registered over immovable property owned by the applicant. Arising from the agreement, the bank obtained default judgment against the applicant. The applicant now sought rescission thereof on the ground that the judgment was erroneously sought by the applicant and erroneously granted by the court as envisaged in rule 42 (1) of the Rules of this Court.
In October 2008, the applicant applied to be placed under debt review in terms of the provisions of the
National Credit Act 34 of 2005 ("the Act"). In February 2009, the bank notified the applicant that it was terminating the debt review as provided in section 86(10) of the Act, and it served summons on the applicant for recovery of the debt. The applicant's debt review was cancelled in August 2009, and the bank obtained the judgment which was the subject of this application. Subsequent thereto, the applicant obtained an order that the debt review resume in terms of section 86 (11) of the National Credit Act, as if uninterrupted. The applicant contended that the effect of the order was to place the application for default judgment within the ambit of section 88(3) of the Act, effectively prohibiting the granting of the judgment.
Held that the applicant's contention was incorrect as section 88(3) had no application in this case.
Reinstatement of a debt review process has no effect on valid judgments granted before such reinstatement.
The application for rescission was dismissed.
SA Securitisation (Pty) Ltd v Matlala
[2010] JOL 26095 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Summary judgment – Debt review – Termination of
Mini Summary:
6359 / 10
29 / 07 / 2010
South Africa
High Court
South Gauteng, Johannesburg
Kathree-Setiloane AJ

In an application for summary judgment, the plaintiff sought the return of a motor vehicle which it leased to the defendant in terms of an agreement of lease.
The defendant had applied for debt relief in terms of section 86(1) of the National Credit Act 34 of 2005, and the debt counsellor had communicated with the plaintiff in respect of the rearrangement of the defendant's obligations. The plaintiff rejected the proposal, and gave notice to the defendant, the debt counsellor and the National Credit Regulator of its election to terminate the debt review in terms of section
86(10) of the Act.
Resisting summary judgment, the defendant argued that at the time of issue of the summons against him, he was "under debt review" in terms of section 86(1) of the Act; and that the debt review process was irregularly terminated by the plaintiff in terms of section 86(10) of the Act as the plaintiff had knowledge at the time, of the date for the hearing of the application before the magistrate's court in terms of section
87 of the Act.
Held that first issue for determination was whether or not the plaintiff was entitled to give notice to terminate the debt review process in terms of section 86(10) of the Act at the time that it did. Section
86(10) of the Act makes provision for a credit provider to give notice to terminate a debt review where a consumer is in default under a credit agreement that is being reviewed. By the time the referral to the magistrate's court was served on the plaintiff it had already given notice, in terms of section 86(10) of the
Act, to terminate the debt review process before the debt counsellor. Accordingly, in view of the absence of service of the referral on the plaintiff, the debt review was not yet before the magistrates court for a hearing in terms of section 87, and the plaintiff was thus entitled to give notice to terminate the review.
Summary judgment was granted.
Lambson's Hire a Sales (Pty) Ltd v Witbank Markagente & another
[2012] JOL 29010 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
15921 / 09
16 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
LI Vorster AJ
Contract – Deed of settlement – Failure to comply
Mini Summary:
The applicant sought an order in terms of which a written deed of settlement entered into between the parties would be made an order of court and an order for judgment in terms of the written deed of settlement. According to the applicant, the terms of the deed of settlement were not complied with in that the defendants had failed to collect and repair a crane which was the subject of the litigation between the parties.
The defendants alleged that they were prevented from complying with their obligation by the applicant’s employees. In a further point, the defendants stated that there was no allegation in the founding papers to the effect that the action between the parties which gave rise to the deed of settlement, had not been withdrawn.
Held that the question whether the action between the parties had been withdrawn or not was not a prerequisite for a valid application, in terms of rule 41(1) of the court’s rules, by a party requesting the court to make a written deed of settlement between the parties an order of court. When an action between parties is withdrawn the lis between them falls away. When that happens, there is no dispute remaining between the parties that can be settled between them. If an action has been withdrawn, an order of court making a written settlement between the parties entered into after such withdrawal would be of no consequence - the settlement would relate to issues between the parties which had ceased to exist when the action was withdrawn.
On the remaining issue, the Court found no merit in the defendants’ contention that the applicant’s employees had denied them access to the crane.
Judgment was granted in the applicant’s favour.

Commissioner, SARS v Metlika Trading Ltd & others
[2010] JOL 26102 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20827 / 02
05 / 08 / 2010
South Africa
High Court
North Gauteng, Pretoria
AP Ledwaba J
Keywords:
Tax – Transfer of assets – Improper purpose – Tax evasion
Mini Summary:
The issues involved in this matter involved only the plaintiff and the first two defendants. During
December 2000 and January 2001 the second defendant transferred most of its assets to the first defendant.
The plaintiff submitted that the alleged transfer was done with the intention of dissipating the assets of the second defendant to defraud the plaintiff who was the creditor of the second defendant. The plaintiff sought the lifting of the corporate veil of the first defendant or alternatively the reversal of the transfers in terms of the actio Pauliana.
Held that the court had to determine if the transfer of assets from the second defendant to the first defendant was done with dishonesty or improper motive to frustrate the plaintiff from getting tax monies due by the second defendant and to determine if the relief sought by the plaintiff was justified.
The court was satisfied that the transfer of assets was to stop the plaintiff from tracing and attaching assets of the first defendant for tax purposes. The transfer of assets was set aside and it was declared that the assets were those of the second defendant.
Calcutt (Born Hyde) & others v Maclean & others
[2010] JOL 26117 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
871 / 09
23 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Property – Subdivision – Consolidation of erven – Application to reverse
Mini Summary:
The second and third applicants were trustees of a trust ("the KB trust") which owned immovable property, and the seventh and eighth respondents were the trustees of another trust ("the KM trust"), which owned an adjacent property. A dwelling built on the latter property enjoyed sea views which were sought to be protected. The seventh and eighth respondents accordingly entered into negotiation with the second and third applicants to acquire a portion of their property together with an undertaking that they would not construct any building thereon which would impede the sea view from the balcony of the dwelling erected on the respondent's property. That culminated in a deed of donation entered into in July
2001. Six months later, the KB Trust entered into a deed of sale in terms of which it sold its entire property to the first applicant without any mention of the donation. At the same time the first applicant also purchased, from a third party, an adjoining property, with the intention of extending the dwelling which had previously been erected on that property onto portion of the KB trust's property.
When she learnt of the existence of the deed of donation, the first applicant attempted to challenge its validity, but an arbitration award was issued confirming its validity.
In 2002, the KM trust sold its property to the fourth and fifth respondents. Subsequent thereto, litigation around the donation was concluded, and a subdivision was effected. A new erf was created and a fresh deed of donation ("the second deed of donation") was entered into in terms of which the newly subdivided erf was donated directly from the KB trust to the fourth and fifth respondents. The new erf was consolidated with the KM trust's property, which was then sold to the first respondent.

In 2007, the first applicant discovered that a change had occurred in the boundary line of the property which had originally been donated, resulting in the remainder of the KB trust's property which had been transferred to her being smaller than anticipated. The applicants therefore sought to reverse the donation, the subdivision, the consolidation and the transfer of the property.
Held that the first deed of donation was not cancelled and was novated by the second deed of donation.
The second deed of donation substituted the first deed of donation as the instrument containing the obligation to pass transfer of the subdivided portion. By the signature of the second deed of donation fourth and fifth respondents accepted the KB Trust as its debtor in lieu of the KM Trust to pass transfer to it of the subdivided erf and the KB Trust accepted the obligation to fourth and fifth respondent. All that occurred with the agreement of the KM Trust. In the event of the second deed of donation being void ab
initio then the first deed of donation survived. It was accordingly necessary to consider the validity of the second deed of donation. The court found that it was valid.
The application was dismissed.
Sher and another v Vermaak
[2014] JOL 32477 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 197 / 13
25 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Ploos van Amstel, Pillay JJ, Poyo-Dlwati AJ
Keywords:
Delict – Defamation – Claim for damages – Test for defamation
Mini Summary:
The respondent had sued the appellants for damages arising from their defamation of him. The trial court found in his favour and ordered the appellants jointly and severally, to pay him a sum of R50 000 together with the costs of the action. The present appeal before the court was against the order relating to liability and the quantum of the award. There was also a cross appeal in which the respondent sought interest on the judgment.
The defamation consisted of a letter written by the first appellant and sent to the second appellant. The appellants and the respondent belonged to an athletics club. The letter contained various statements about the respondent, two of which were found by the trial court to be defamatory of him. The first ground of appeal was that the judge erred in finding that the expressed opinions that the respondent was arrogant and that he had poached runners was defamatory. The remaining grounds of appeal referred to the defences of protected comment, absence of malice and quantum.
Held that the first step in determining whether a particular statement is defamatory is to determine its meaning. The second is whether that meaning is defamatory. The test to be applied is an objective one. In accordance with that objective test the criterion is what meaning the reasonable reader of ordinary intelligence would attribute to the statement. In applying the test, it is accepted that the reasonable reader would understand the statement in its context and that he or she would have regard not only to what is expressly stated but also to what is implied.
The Court found that in the context of the letter, the terms used, to which the respondent objected, were not defamatory. The appeal was thus upheld, and the appellants were absolved from the instance.
Nolte v Minister of Safety and Security and another
[2014] JOL 32470 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3444 / 10
31 / 01 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
E Revelas J
Keywords:
Delict – Defamation – Claim for damages

Mini Summary:
The second defendant instituted criminal proceedings against the plaintiff by laying a criminal charge of alleged fraud against him. The plaintiff and the second defendant were both policemen appointed at the same station. Acting within the course and scope of his employment as a police officer, the second defendant had deposed to an affidavit in which he had accused the plaintiff of misappropriating departmental funds to finance an unauthorized air trip.
In the present action, the plaintiff claimed damages from the defendants, on the grounds of defamation.
Held that at common law, the delict of defamation is defined as the wrongful and intentional (in the case of a non-media defendant) publication of a defamatory statement concerning the plaintiff claiming he or she has been defamed or their reputation has been diminished. A statement is defamatory if a reader of ordinary intelligence might reasonably understand the words published in their ordinary sense to have a meaning which reduces the plaintiff in the estimation of the reader in question.
The Court found the statements made by the second defendant about the plaintiff in the paragraphs cited from his affidavit to be per se defamatory. The statements were also published. Accordingly, two presumptions arose, namely that the statements were unlawful, and that the statements were made
animo iniuriando. The onus then shifted to the defendants to rebut these presumptions. Unlawfulness could be rebutted by showing it was made in the public interest and therefore lawful.
The evidence satisfied the Court that the plaintiff’s actions in travelling by aeroplane did not warrant criminal proceedings being brought against him. Only a person whose actions were actuated by malice would have opted for criminal prosecution in the prevailing circumstances. Based on the evidence presented, the Court concluded that the second defendant’s conduct was actuated by such malice.
A successful plaintiff in a defamation action is entitled to an award for general damages. The Courts have a wide discretion in determining such awards ex aequo et bono, having regard to the circumstances of the case. It was decided that an award of R58 000 would be appropriate in the circumstances of this case.
Modiri v Minister of Safety and Security & others
[2011] JOL 27867 (SCA)
Case Number: 581 / 2010
Judgment Date: 28 / 09 / 2011
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
FDJ Brand JA, MML Maya JA, NZ Mhlantla JA, SA Majiedt JA, Meer AJA
Keywords:
Delict – Defamation – Wrongfulness – Defence – Truth and public benefit – Court finding gravamen of article to be substantially true and the publication thereof to be in the public benefit Hardaker v Phillips
2005 (4) SA 515 (SCA) – Referred to Le Roux v Dey (Freedom of Expression Institute and Restorative
Justice Centre as amici curiae) 2011 (3) SA 274 (CC) – Referred to National Media Ltd v Bogoshi 1998 (4)
SA 1196 (SCA) – Referred to Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA) –
Referred to Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) – Referred to Le Roux v Dey 2011 (3) SA 274 (CC) – Referred to Johnson v Rand Daily Mails 1928 AD 190 – Discussed
Independent Newspapers Holdings Ltd v Suliman [2004] 3 All SA 137 (SCA) – Confirmed Basner v Trigger
1945 AD 22 at 32; Sindani v Van der Merwe 2002 (2) SA 32 (SCA) – Referred to Times Media Ltd v
Niselow [2005] 1 All SA 567 (SCA) – Confirmed; Applied Manyatshe v M & G Media Ltd [2009] ZASCA 96
– Referred to Khumalo v Holomisa 2002 (5) SA 401 (CC) – Referred to
Mini Summary:
In 2004, an article appeared in a newspaper, regarding the crackdown on crime in the Bloemfontein area.
The third to fifth respondents were respectively the editor, the owner and the publisher of the newspaper, while the sixth respondent was the writer of the impugned article.
In the course of the article, a senior police officer (the second respondent) was quoted as stating that the appellant was involved in drug dealing, cash-in-transit heists and car theft. The first respondent was the second respondent’s employer (the Minister of Safety and Security). The first and second respondents, who were referred to as “the police respondents”, denied that the second respondent ever made the statements ascribed to him by the writer of the article. However, the remaining respondents (“the media respondents”) insisted that the second respondent had made the statements, and denied that the article was either defamatory, wrongful or published with the intent to defame.
The trial court found that no criticism could legitimately be levelled against the witnesses who testified on behalf of the police respondents, and it was thus accepted that the second respondent never made the statements defamatory of the appellant that were ascribed to him in the article. Consequently, the appellant’s action against the police respondents was dismissed with costs. On appeal, the appellant did

not contend that the court a quo had erred in dismissing his claim against these respondents but submitted that it should have ordered the media respondents to pay their costs. In the result, the police respondents took no part in the appeal proceedings. In this Court the only remaining issue with regard to the police respondents therefore related to whether it was the appellant or the media respondents who should be held liable for their costs in the court a quo.
In respect of the media respondents, the trial court found that the gist of the defamatory part of the article was substantially true and its publication for the public benefit. In the result, the defence of justification (generally known as the defence of truth and public benefit) raised by the media respondents was upheld. The appellant’s claim against the media respondents was thus also dismissed with costs. The present appeal was against that judgment.
Held that as, on appeal, the media respondents no longer disputed that the article included statements that were per se defamatory of the appellant, the presumption that the statements were both wrongful and published with the intent to injure was raised. The media respondents therefore bore the onus to establish a defence which excluded either wrongfulness or intent. The onus to rebut the presumption, is not only a duty to adduce evidence, but a full onus that must be discharged on a preponderance of probabilities. Although the media respondents denied both intent to defame and wrongfulness, in the absence of any evidence on their behalf to rebut the presumption of the former, the court found that intent to injure had to be regarded as having been established. The outcome of the appeal thus turned exclusively on the element of wrongfulness. Thus, the only question was whether the media respondents had succeeded in establishing any of the various grounds of justification that they raised. The grounds which found favour with the trial court were truth and public benefit.
In contending that the court a quo had erred in upholding the defence of truth and public benefit, the appellant’s first argument was that the media respondents did not lead any evidence in rebuttal of the presumption of wrongfulness. That contention appeared to confuse the element of wrongfulness with that of intent. Though both the presumption of intent and that of wrongfulness arise from a single event, that is, the publication of a defamatory statement, the two presumptions are essentially different in character.
The presumption of intent to injure relates to the defendant’s subjective state of mind. By contrast, the presumption of wrongfulness relates to a combination of objective fact, on the one hand, and considerations of public and legal policy, on the other. Both elements of the defence of truth and public benefit can in principle be established on the basis of facts not deriving from the defendant’s own witnesses. The failure by the media respondents in this case to call any witnesses did not automatically preclude them from relying on this defence.
The appellant’s second argument was that inaccuracies in the article precluded any reliance on the defence under consideration. The Court pointed out that a defendant is not required to prove that the defamatory statement is true in every detail. What the defence requires is proof that the gravamen of the statement was true. Inaccuracies in peripheral detail do not rule out the defence. The gravamen of a statement is determined with reference to the legal construct of a reasonable reader. It is the meaning that the reasonable reader of ordinary intelligence would attribute to the statement. The test is thus an objective one. Evidence of how the plaintiff, or for that matter, any actual reader of the article understood the statement is of no consequence.
According to the appellant, the assertions made in the article would lead the reasonable reader to believe that the appellant was guilty of serious criminal activity. The Court disagreed. Though, generally speaking, it is per se defamatory to say of a person that he or she is suspected of criminal conduct, it is not the same as to say that he or she is guilty of that crime. In terms of that line of thinking, the Court a quo rightly found that the gist of the article was objectively true.
Addressing those parts of the article which were not true, the Court found the relevant statements not to be part of the main sting of the article.
On the element of public benefit, the Court took into account the views of Marais JA on behalf of the majority in Independent Newspapers Holdings Limited v Suliman [2006] 3 SA 137 (SCA), that, as a general rule and save for exceptional circumstances, it will not be for the public benefit or in the public interest to publish the identity of a person suspected of criminal conduct, unless and until that person has actually been charged in open court. However, the present Court did not believe that the above was meant to be set down as an immutable rule. The Court must therefore decide the public benefit issue with specific reference to the facts of the case before it. Applying that to the facts of the present case, the
Court found that the defence of truth and public benefit had been rightly upheld and that the defendant’s claim based on defamation was therefore rightly dismissed by the court a quo.
Turning to the issue of costs, the court noted that the appellant was ordered to pay the costs of all the defendants, including the police. The critical finding in this regard was that the fact that publication of the defamatory statements in the end proved to be justified, provided no excuse for the media respondents’ reliance on a factual version that their information derived from the police, which proved to be untrue.
Since it was that untrue version which led to the involvement of the police respondents in the action and the costs resulting from that involvement, there was no reason why the media respondents should not be liable for those costs, which were solely attributable to them. The media respondents were also held liable for the costs of the appeal.

Cele v Avusa Media Limited
[2013] JOL 30154 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
08 / 10831
14 / 02 / 2013
South Africa
High Court
South Gauteng, Johannesburg
F Kathree-Setiloane J
Keywords:
Delict – Defamation – Infringement of dignity
Mini Summary:
The plaintiff sued the defendant who was the owner and publisher of a newspaper, after it published a digitally altered photograph of the plaintiff. Damages was claimed in the amount of R200 000 for defamation, and in the alternative infringement of dignity. The photograph complained of was linked to an article about the plaintiff’s advocating the use of deadly force in the fight against crime – and was in essence, a caricature of the plaintiff, portraying him as a crime-fighting agent.
Held that the law of defamation requires the balancing of two constitutional rights, neither of which can be regarded as being of greater a priori significance: the right to reputation, which forms part of the right to dignity, and the right to freedom of expression. The elements of an action for defamation are the wrongful and intentional publication of a defamatory statement concerning the plaintiff. The plaintiff is, however, not required to establish every one of these elements in order to succeed. If the plaintiff is able to prove at the outset that there has been publication of defamatory matter concerning him or her, it is then incumbent upon the defendant to raise a defence that excludes either wrongfulness or intent. The onus on the defendant to rebut these presumptions is a full onus that must be discharged on a preponderance of probabilities. Thus, in determining whether a statement is defamatory, the court must first determine the meaning of the words complained of. This is a question of construction and not of evidence. The enquiry is an objective one conducted through the lens of the ordinary reasonable reader of the particular publication. Once the meaning of the words has been established, the second stage of the test is to determine whether the meaning conveyed is defamatory of the plaintiff. The basic test is an objective one of whether a reasonable person of ordinary intelligence might reasonably understand the words to convey a meaning that tends to lower the plaintiff in the estimation of members of the community. Again, the test to be applied is that of the ordinary reasonable reader.
The Court found that a reasonable reader of the article would have understood the article to mean that the plaintiff was taking a tough stance on crime and that he was strongly advocating the use of deadly force by the police against criminals. There was no suggestion in the article that the plaintiff advocated indiscriminate use of force against members of the public by the police. Neither the article published, nor the image complained of was found to be defamatory of the plaintiff. Similarly, the plaintiff’s alternative claim based on dignity fell to be dismissed.
Van Rooyen v Vodacom Service Provider Company (Pty)
[2011] JOL 27127 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Defamation – Claim for damages
Mini Summary:
3652 / 10
24 / 03 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
A Andrews AJ
The plaintiff sought an order directing the defendant to firstly remove her name from any listing with the national credit bureau, and secondly, to pay her R200 000 as damages.
Held that the defendant did not enter an appearance to defend, and the court accepted the plaintiff’s evidence that the defendant had persisted in publishing defamatory, false and damaging statements about the plaintiff’s credit worthiness.
In turning to the damages to be awarded, the court found that the plaintiff had clearly suffered damage of a financial nature, and damage to his reputation as a lawyer. It considered an amount of R50 000 to be reasonable as compensation.

Wells v Atoll Media (Pty) Ltd & another
[2010] JOL 25639 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
11961 / 2006
09 / 11 / 2009
South Africa
High Court
Western Cape, Cape Town
Davis J
Keywords:
Delict – Defamation – Publication of picture – Invasion of privacy – Claim for damages
Mini Summary:
As guardian of her minor child, the plaintiff sued the defendants for damages arising out of the publication of a photograph of the child in a magazine in respect of which first defendant was the owner and publisher and second defendant was the editor. The cause of action was based, firstly, on defamation and further on an invasion of the privacy of the child.
At the relevant time, the child was 12 years old, and her picture was published in a surfing magazine without the plaintiff's authority or consent. The photograph, as it was published, was stamped bearing the word "filth" as well as a description at the foot of the photograph "all-natural Eastern Cape honey".
Held that it was common cause that the pictures were of the plaintiff's daughter. The key questions for determination were, whether the child could be recognised by reasonable readers of the magazine, whether the language used to describe the photo bore a non-defamatory meaning and whether the defendants acted animo iniuriandi. The dispute also extended to whether the child's dignity and rights to privacy had been infringed and finally to the amount of damages which she had suffered.
The court held that it was certainly foreseeable that taking so provocative a photograph of a young girl who was a member of a small community would result in her being the subject of both speculation and identification - particularly a photograph which was described as "a pinup photo".
The manner in which the photograph was published without any regard to the context or implications for a twelve year old girl did not satisfy the test of reasonable publication.
Finding the picture together with the words contained in the magazine to be wrongful and defamatory, the court awarded damages in the amount of R10 000.
Rudman v Claassen
[2010] JOL 26052 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
442 / 10
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
N Dambuza J
Keywords:
Delict – Claim for damages – Defamation
Mini Summary:
In a delictual action, the plaintiff sued the defendant for damages arising from certain words written by the defendant of and/or concerning the plaintiff – which words the plaintiff alleged were defamatory.
The words complained of were in an e-mail sent to the plaintiff by the defendant in the context of an exchange of e-mails between the parties about payment of an outstanding account by the defendant’s employer to the plaintiff's business. It was addressed to the plaintiff and was copied to the defendant's colleagues.
Held that the entire e-mail was defamatory. A person of reasonable intelligence reading it would gain the impression that the plaintiff was a stupid person and a person of low business acumen who did not deserve to occupy the position in business that she currently occupied. The insults were not justified.
The court accordingly awarded R50 000 as damages.

RGS Properties (Pty) Ltd v Ethekwini Municipality
[2010] JOL 25869 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6210 / 08
22 / 07 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Ngwenya AJ
Keywords:
Civil procedure – Default judgment – Rescission
Mini Summary:
The applicant sought rescission of a default judgment granted against it.
Held that the gravamen of the matter was whether the applicant had disclosed a defence in its papers or not. the parties were engaged in an ongoing perennial dispute about the actual rates the respondent should levy on the applicant's property.
The court found that the respondent had opened itself to challenge as to the exact rate amount owed by the applicant and how that was computed. The court was satisfied that applicant had satisfied the requirement of showing a prima facie defence. It was not for the present court seized with the application for rescission to delve into the merits of the defence.
Rescission was granted.
Zakade v Government of the RSA
[2010] JOL 25868 (ECB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
330 / 93
06 / 07 / 2010
South Africa
High Court
Eastern Cape, Bhisho
BC Hartle AJ
Keywords:
Civil procedure – Delay in prosecution – Court's discretion
Mini Summary:
In 1993, the plaintiff sued the government of the Republic of Ciskei for damages arising out of an alleged breach of agreement to reinstate him to a position which he held in the then Directorate of Planning.
In 2006, the defendant delivered a special plea contending that there had been an undue delay in the prosecution of the claim as a result of which the plaintiff should be barred from proceeding with the action.
One of the additional issues on which the court had to make a ruling was the admissibility of a relying affidavit which the plaintiff had filed out of time.
Held that the reply by the plaintiff was a critical pleading, as was the trial issue to be determined. It went to the heart of his right in terms of the provisions of section 34 of the Constitution to have any dispute decided in a fair public trial before a court. If the special plea is upheld, that would be the end of the matter for him. The court allowed the affidavit to be admitted into evidence.
The court then turned to the main application. It held that there is no rule of court or of practice which lays down a period that must elapse before a summons is regarded as being stale, and it is in the discretion of the court to allow proceedings on a stale summons to continue. In terms of section 173 of the Constitution, the High Court has an inherent jurisdiction to control its own proceedings which includes the power to dismiss an action on account of delay or want of prosecution. The discretion arises from the court’s inherent power to prevent an abuse of its process. The court will, however, exercise such powers sparingly and only in exceptional circumstances because the dismissal of an action seriously impacts on the constitutional and common law right of a plaintiff to have the dispute adjudicated in a court of law by means of a fair trial.
The court was satisfied that the evidence established, on a balance of probabilities, that the plaintiff intended, by way of dolus eventualis at least, to cause prejudice to the defendant by the delay. The claim was thus dismissed.

ERASMUS v MEC FOR TRANSPORT, EASTERN CAPE 2011 (2) SACR 367
(ECM)
Plaintiff was arrested at a roadblock by a traffic officer for driving a motor vehicle without a driver's licence, alternatively failing to carry her driver's licence in the vehicle which she was driving. After her arrest (without a warrant), plaintiff was taken into custody at a police station; this despite a colleague of hers indicating that he would fetch her driver's licence and bring it to the roadblock, which he did.
She was released, about five and half hours later, after paying an admission of guilt fine on the alternative offence. The arresting officer, during crossexamination, acknowledged that he had arrested plaintiff to 'educate' her, but insisted it was lawful to have done so.
Held, that, as was stated in Minister of Safety and Security v Sekhoto and
Another2011 (1) SACR 315 (SCA), 'an intention to bring the arrested to justice' was required for the purposes of s 40(1) (b) of the Criminal Procedure Act 51 of
1977; an arrest 'for an ulterior purpose' would not be 'bona fide, but in fraudem legis'. The professed purpose of plaintiff's arrest was to 'educate' her or, putting it more colloquially, to 'teach her a lesson'; bringing the plaintiff to justice was the last thing on the arrestor's mind.
Held, further, the effect of a written notice in terms of s 56(2) of the CPA was that, when it was handed to a person in custody, that person had to be released from custody forthwith and with a choice of appearing in court or paying an admission of guilt fine. The plaintiff was neither released nor allowed to exercise such choice — she had to remain in custody until the fine was paid. Such procedure was a complete abuse of s 56 of the CPA, the plaintiff's release effectively having had to be bought for a non-negotiable sum.
Held, further, that there was no exercise whatsoever of a discretion to arrest; the evidence showing that, even if a person's driving licence were eventually to be brought to the roadblock, as was the case with plaintiff, the traffic officers were

nonetheless determined to arrest the alleged perpetrators and take them to the police station. Such an absence of exercising discretion further underscores the illegal purpose of the plaintiff's arrest. The treatment of the plaintiff, from arrest to release, was therefore completely illegal. The defendant failed to establish, as it bore the onus to do, that the arrest and detention of the plaintiff were justified.
The plaintiff therefore succeeded in her action.
Case Information
Civil trial in an action for damages for wrongful arrest and detention. The facts appear from the reasons for judgment.
Butise v City of Johannesburg & others
[2011] JOL 23875 (GSJ)
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
01 / 08 / 2011
South Africa
High Court
South Gauteng, Johannesburg
Mokgoatlheng J
Keywords:
Delict – Personal injury – Hole in pavement – Liability
Mini Summary:
Whilst walking on a pavement, the plaintiff fell into an uncovered valve chamber. He sued the municipality for payment of the amount of R436 200, in respect of damages arising from a fracture sustained in the fall. He contended that the defendants and their servants were negligent in that a legal duty rested on them to install or ensure the installation of an inspection cover over the uncovered valve chamber or to warn the public of its absence, and the danger it posed.
Due to a separation of issues, the Court was required to decide only on the issue of liability at this stage.
Held that as set out in case law, the issue of negligence essentially involves a threefold enquiry. The first is whether the harm was reasonably foreseeable. The second is whether the diligens paterfamilias would have taken reasonable steps to guard against such occurrence. The third is whether the diligens
paterfamilias failed to take those steps.
It was common cause that the valve chamber into which the plaintiff fell was uncovered. The first defendant conceded that it owed a legal duty to the public to guard against such harm. Consequently, the first leg of the test (that of reasonable foreseeability) was established. The question was whether the second and third legs of the inquiry were satisfied in that the first defendant undertook reasonable steps to guard against the harm the uncovered chamber constituted to the public.
There was a positive legal duty on the first defendant to ensure that uncovered valve chambers did not constitute a danger to the public, and because of the endemic massive scale theft of inspection valve chamber covers, a greater duty rested on the first defendant to ensure the public’s safety through the regular consistent inspection of valve chambers. The Court found the defendants to have been remiss in the carrying out of their duties. They were therefore liable for the plaintiff’s proven damages.
Hlomza v Minister of Safety & Security & another
[2011] JOL 26706 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1548 / 07
20 / 01 / 2011
South Africa
High Court
Eastern Cape, Mthatha
Griffiths J

Keywords:
Delict – Personal injury – Loss of support – Claim for damages – Causation
Mini Summary:
The plaintiff sued the defendants, both in her personal capacity and in her representative capacity on behalf of her four minor children, for damages arising out of an incident in which her husband ("the deceased") shot her in her upper jaw and neck and then shot and killed himself with the same firearm.
Personal damages were claimed for the plaintiff, and damages for loss us support was claimed for herself and her children.
It was common cause that the deceased had at all material times been in possession of a police issue regulation firearm which he had in his possession whilst he was not on duty.
Held that the plaintiff had to establish a causal link between the failure of the police to remove the firearm and the claim for loss of support.
When dealing with causation in the law of delict it is necessary to deal with two distinct problems. The first aspect is the question of factual causation and relates to the question as to whether the negligent act or omission in question caused or materially contributed to the harm giving rise to the claim. The second aspect is whether or not the omission is linked to the harm sufficiently closely or directly for legal liability to ensue or whether the harm is too remote.
In light of the background to the matter, the defendants ought to have foreseen as a reasonable possibility that the deceased might have shot the plaintiff with the firearm. The court that causation had not been established for any of the claims other then that for personal damages.
Pitzer v Eskom
[2010] JOL 26505 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 24486
29 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
DSS Moshidi J
Keywords:
Delict – Claim for damages – Personal injury – Electrocution – Negligence
Mini Summary:
The plaintiff sued the defendant for damages after he sustained an electrical shock at the defendant’s substation.
By agreement between the parties, and in terms of rule 33(4) of the Uniform Rules of Court, the court ruled that the merits of the plaintiff’s claim be first adjudicated upon and that the question of the quantum of the claim be dealt with later.
Held that it was common cause that the plaintiff sustained injury when he was shocked by high voltage electric current at the defendant’s premises.
Section 26 of the Electricity Act 41 of 1987 is such that the onus rested on the defendant to prove on a balance of probabilities that it was not negligent, or if it was, that there was no causal connection between such negligence and the injuries sustained by the plaintiff.
The classical test for negligence is that liability in delict based on negligence will be established against a defendant if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his personal property and causing him patrimonial loss; would take reasonable steps to guard against such occurrence, and that the defendant failed to take such steps.
Examining the evidence, the court found no negligence on the part of the defendant. The defendant proved, on a balance of probabilities, that the plaintiff knew of the risk, appreciated the ambit of the risk, and in fact consented to the risk.
The plaintiff’s claim was dismissed with costs.
Jacobs v The Chairman of the Governing Body Rhodes High School & others
[2010] JOL 26376 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
7953 / 2004
04 / 11 / 2010
South Africa
High Court
Western Cape, Cape Town

Bench:
Keywords:
Moosa J
Delict – Personal injury – Attack on educator – Claim for damages – Legal duty – Negligence – Quantum of damages
Mini Summary:
The first defendant school, due to its location, drew learners from previously disadvantaged communities.
The fourth defendant’s son was a learner at the school. On the day of the incident underlying the case, the learner bludgeoned the plaintiff, an educator, with a hammer in the class in the presence of other learners. As a result of the incident, he was charged with and convicted of attempted murder and in terms of section 290(1)(d) of the Criminal Procedure Act 51 of 1977, he was referred to a Youth Centre as defined in the Child Care Act of 1983.
Arising from the incident, the plaintiff instituted action for damages against the defendants. The claim was subsequently confined to the second and third defendants (the principal of the school and the Member of the Executive Committee for Education, Western Cape).
Held that the issues for determination were whether there was a legal duty to take reasonable steps to ensure that the plaintiff was not harmed by the learner and if so, whether the defendants and/or their servants breached that duty; whether the conduct of the defendants or their servants was culpable, that is, whether they were negligent and whether there was a causal connection between such negligent breach of duty and the loss or damage suffered by the plaintiff; and whether the plaintiff suffered any loss or damage in consequence of any wrongful and negligent breach of duty and if so, what the quantum of such damages was.
Negligent conduct giving rise to damages will only be actionable if it is "wrongful". Liability does not usually arise from an omission in the strict sense of the word. There are, however, exceptions to the general rule. The court found that in this case, there was a legal duty on the part of the defendants and their servants, to act positively in order to ensure the security and safety of the plaintiff at the hands of the learner and that the culpable breach of such duty amounted to negligence, which was actionable in law.
The fact that the defendants were aware of the learner’s propensity for violence, and that he had a history of troublesome behaviour at school, made their failure to act negligent.
Going on to find that the plaintiff had established causation, the court awarded damages in the amount of
R1 114 685,53.
Coetzee v Steenkamp
[2010] JOL 25798 (NCK)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
579 / 09
18 / 06 / 2010
South Africa
High Court
Northern Cape, Kimberley
FD Kgomo JP
Keywords:
Delict – Claim for damages – nemo ex suo delicto meliorem suam conditionem facere potest
Mini Summary:
During a hunting trip, the vehicle in which plaintiff was a passenger capsized and he sustained various injuries. He claimed damages from the defendant, on the basis of his alleged negligent or reckless driving.
The defendant denied negligent culpability, and alleged contributory negligence by the plaintiff; relied on the principle of volenti no fit iniuria or voluntary assumption of risk or that which is done with consent, within legal limits, is not wrongful or injurious; and on the basis that the hunting trip was an illegal one, argued that the plaintiff was precluded in law from claiming from the defendant in terms of the principle
nemo ex suo delicto meliorem suam conditionem facere potest (Nemo ex suo delicto) or no one can improve his or her own condition by means of a crime or through a crime.
Held that that the plaintiff could not invoke his professed ignorance of the law to excuse his illegal hunting.
The court found that the plaintiff was not a passive partner to the illegal trip. It therefore decided the issue of nemo ex suo delicto meliorem suam conditionem facere potest in favour of the defendant.
The action was dismissed with costs.

Comac v Sahaye & another
[2010] JOL 25799 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14546 / 08
28 / 04 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
TR Gorven J
Keywords:
Delict – Personal injury – Claim for damages – Negligence – Assessment of evidence
Mini Summary:
Whilst attending the second defendant's premises, the plaintiff was injured when part of a machine he was about to use burst. He sued the defendants for damages, alleging that they had a duty of care to ensure the safety of the property of persons visiting and that machinery in use was adequately mounted and secured. He argued that the defendants were negligent in failing to take steps to ensure that such an accident did not happen.
Held that the factual scenarios sketched by the plaintiff and the defendants were mutually destructive in many material respects. The court had to accordingly assess whether the plaintiff had proved his version of the events on a balance of probabilities, and whether the facts found proved gave rise to liability of the defendants on the separated issues.
The plaintiff did not impress the court as a good witness. The first defendant, in contrast, was an excellent witness. The court found that the plaintiff had failed to prove the facts contended for by him, and that the defendants' version was preferable and more probable. It rejected the plaintiff's version as incorrect where the versions conflicted with each other.
Even on the plaintiff's own version, there was no factual causation proved.
The defendants were absolved from the instance with costs.
Judd v Nelson Mandela Bay Municipality
[2010] JOL 26010 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Personal injury – Fall on pavement – Negligence
Mini Summary:
2361 / 08
23 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
Chetty J
In July 2008, while walking to church, the plaintiff tripped on a pavement and fell, seriously injuring herself. She sued the defendant municipality for damages, alleging that she had tripped and fell over a raised and cracked portion of the sidewalk and that the defendant, who was responsible for the maintenance and upkeep of the sidewalk, owed her a duty of care. She alleged further that her fall was occasioned by the negligence of the defendant's employees who had failed to warn pedestrians of the danger posed by the cracked and raised pavement; failed to take any and/or adequate measures to prevent members of the public having access to the dangerous portion of the pavement; failed to maintain the pavement at a reasonable standard when consideration is had to the purpose of which it was used; and failed to take any and/or adequate measures to prevent the pavement from cracking and lifting thereby posing a danger to pedestrians.
Held that the case was concerned with delictual liability for an omission. The defendant's admission that it was under a legal duty to take reasonable precautions in order to avoid or minimise injury to pedestrians on the sidewalks carried with it the necessary corollary that if it was found to have negligently failed to take such precautions its conduct would not only be negligent but also wrongful.
The court held that in a large metropole such as that managed by the defendant no reasonable municipality could be expected to keep its roads and sidewalks in a perfect condition. The court took cognisance of the fact that the defendant's invitation to the general public to report defects in its roads and sidewalks network by utilising both the office and after hours telephone numbers was frequently made use of. That system did not cast an onerous burden upon the metropole's inhabitants.
Finding no negligence on the part of the defendant, the court dismissed the claim.

Rudman v Claassen
[2010] JOL 26052 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
442 / 10
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
N Dambuza J
Keywords:
Delict – Claim for damages – Defamation
Mini Summary:
In a delictual action, the plaintiff sued the defendant for damages arising from certain words written by the defendant of and/or concerning the plaintiff – which words the plaintiff alleged were defamatory.
The words complained of were in an e-mail sent to the plaintiff by the defendant in the context of an exchange of e-mails between the parties about payment of an outstanding account by the defendant’s employer to the plaintiff's business. It was addressed to the plaintiff and was copied to the defendant's colleagues.
Held that the entire e-mail was defamatory. A person of reasonable intelligence reading it would gain the impression that the plaintiff was a stupid person and a person of low business acumen who did not deserve to occupy the position in business that she currently occupied. The insults were not justified.
The court accordingly awarded R50 000 as damages.
Loureiro & others v Imvula Quality Protection (Pty) Ltd
[2011] JOL 27991 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 15228
30 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
K Satchwell J
Keywords:
Delict – Contract – Claim for damages – Duty of care – Negligence
Mini Summary:
The defendant was a security company hired by the plaintiffs to provide security services at their home. In
January 2009, the plaintiffs were robbed by persons who gained access to the plaintiff’s home, posing as members of the South African Police.
Held that the liability of the defendant essentially boiled down to the question of negligence. The robbers had gained access to the plaintiff’s property when the security guard employed by the defendant unlocked the gate to see what they wanted. The Court found that the reasonable security company would reasonably have foreseen the possibility inter alia of unlawful intruders attempting to gain access to the premises; that such intruders might use disguise and guile to facilitate such unlawful access; that the only point of access to the premises over which the company and its employee exercised control was the pedestrian gate which therefore required particular surveillance and management; the only means of communication from the guardhouse to the family home, the company and the outside world was through the intercom in the guardhouse which functionality required to be checked; that clear, understandable or accessible instructions must be given and remain available from the company to the employee; that the employee in the guardhouse would require means to contact a supervisor for guidance or backup. In all these instances the company failed to take the reasonably appropriate steps to eliminate or ameliorate problems arising therefrom and were therefore in breach of their contract with the first plaintiff, negligent in failing to meet the standards required of a security company and the duty of care which they had assumed.
The security guard’s failure to exercise the appropriate caution constituted breaches of contract, failure to meet the duty of care expected, failure to meet the standards required of both security company and security employee and therefore negligence.
The defendant was held liable in both contract and delict to the respective plaintiffs.
Sondag v Minister of Justice & Constitutional Development & another
[2010] JOL 26054 (ECP)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1865 / 09
07 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
VS Notshe AJ
Keywords:
Delict – Claim for damages – Exception to claim – Vicarious liability
Mini Summary:
The plaintiff sued the defendant for damages arising from his alleged unlawful detention in prison. He alleged that despite being granted bail after his first appearance in court, the relevant officials failed to indicate in his detention warrant that bail had been granted.
The first defendant raised three exceptions to the claim. The first was that the first defendant was not liable for the actions of the magistrate in executing his judicial functions. For purposes of the judgment, this was the only relevant exception.
Held that vicarious liability is the strict liability of one person for the delict of another. Such liability arises when there is a particular relationship between two persons – such as employee-employer. When magistrates execute their judicial functions, they do not do so as employees of the first defendant. The latter was therefore not vicariously liable for the actions of the magistrate, and the first exception was upheld.
De Koker v Minister of Safety & Security
[2010] JOL 25954 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5676 / 07
13 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
Keywords:
Delict – Arrest and detention – Unlawfulness – Claim for damages – Liability
Mini Summary:
The plaintiff claimed damages from the defendant for unlawful arrest and detention, which resulted in emotional shock and distress and for damages to his vehicle.
The background facts were as follows. The plaintiff had been driving with his son, his niece and her boyfriend, when he was approached at speed by another vehicle. That vehicle was joined by another, and the plaintiff, who thought he was being hijacked, was forced to stop. The vehicles were not marked as police vehicles, and the occupants were in civilian clothing. Police identification was only produced after the plaintiff had been forced to stop his vehicle. The officer informed the plaintiff that he was arresting him for drunken driving, despite the plaintiff informing him that he was a teetotaller. The plaintiff was arrested and detained, and charges were later withdrawn.
Held that the defendant bore the onus of proving the lawfulness of the arrest.
The court examined the conduct of the police officers during the incident, in order to determine if their conduct was reasonable. It found that the rejection of the plaintiff's explanation that he had not stopped when chased by the police, was due to the fact that he believed he was being hijacked, was not reasonable. The plaintiff's fear that he was being hijacked was a reasonable one caused by the actions of the police. Instead of apologising for the mutual misunderstanding triggered by their conduct and trying to remedy the damages, the police officers compounded their liability by arresting the plaintiff on a spurious suspicion of drunken driving. The conduct of the police was held to be unlawful, and the defendant was held liable for plaintiff's damages.
Jhamba & another v Mugwisi
[2010] JOL 26034 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HC 1428 / 09
11 / 02 / 2010
Zimbabwe
High Court
Bulawayo
Cheda J

Keywords:
Damages – assessment of – delictual – actio injuriarum – adultery
Mini Summary:
Damages for adultery are claimable on two entirely separate and distinct grounds: firstly, on the ground of the injury or contumelia inflicted upon the plaintiff; and, secondly, on the ground of the loss of comfort, society and services of the other spouse (consortium). It is wrong for a plaintiff to lump her claims in one, mixing both contumelia (injury) and loss of consortium.
Raliphaswa v Mugivhi & others
[2008] JOL 21570 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
236 / 07
27 / 03 / 2008
South Africa
Supreme Court of Appeal
Cameron, Combrinck JJA, S Snyders AJA
Keywords:
Delict – Iniuria – Claim for damages
Mini Summary:
His claim for damages having been dismissed by the court a quo, the appellant launched the present appeal.
The factual background was as follows. The appellant was accosted by the first two respondents, acting in the course of their duty as police officials, who proceeded to search him. He alleged that in the course of the search, he was humiliated by the words and actions of the policemen. The therefore sued the respondents for damages.
Held that in the absence of consent or a search warrant, police officers are entitled to search an individual only in circumstances authorised by section 22(b) of the Criminal Procedure Act 51 of 1977, namely when it is believed, on reasonable grounds, that a warrant will be issued if applied for and that the delay in applying for a warrant would defeat the object of the search.
In the present case, the appellant was subjected to an invasive and humiliating search which amounted to an iniuria, without probable cause. The court upheld the appeal, and awarded the appellant R25 000 as damages.
Nedbank Ltd v Euro Blitz 21 (Pty) Ltd & others
[2010] JOL 26446 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10 / 10766
04 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
NP Willis J
Keywords:
Civil procedure – Return of property – Dispute of fact – Court’s approach
Mini Summary:
In 2006, the applicant sold an aircraft to the fifth respondent. The agreement provided that ownership would remain vested in the applicant until all amounts were paid by the buyer. When the fifth respondent fell into arrears, the applicant cancelled the agreement. The fifth respondent failed to return the aircraft to the applicant, leading to the latter obtaining an order confirming cancellation of the instalment sale agreement, ordering the fifth respondent to return the aircraft to the applicant, and authorising the sheriff to attach and remove the aircraft from the fifth respondent’s premises. However, the aircraft turned out to be in the possession of the first respondent, and that is where the sheriff attached it.
In the interim, the second respondent obtained judgment against the fifth respondent, and caused the aircraft to be judicially attached. The aircraft was then sold to the third respondent at a sale in execution.
The sale took place in the absence of the applicant notwithstanding that the aircraft had been previously attached as a result of the applicant’s judgment.

The applicant obtained an urgent interdict restraining the respondents from dealing with the aircraft in any way, pending the finalisation of the present application. This application was for an order directing the third and/or fourth respondents to return the aircraft to the applicant failing which the sheriff would be authorised to attach and remove the aircraft and deliver it to the applicant; declaring that the applicant was the lawful owner and possessor of the aircraft; declaring the sale in execution of the aircraft to be null and void and for the sheriff to repay any funds received from the third and/or fourth respondent in respect of the sale in execution to the execution creditor.
A dispute arose as to whether the third respondent had bought the aircraft in good faith and without any knowledge of any defects pertaining to the sale in execution when the sale in execution took place. The court referred the dispute for oral evidence.
Held that to come to a conclusion on dispute of issues, a court must make findings on the credibility of the various factual witnesses; their reliability; and the probabilities.
Applying the above, the court found for the applicant.
Standard Bank of SA Ltd v Swartland Municipality & others
[2010] JOL 25968 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
11525 / 09
31 / 05 / 2010
South Africa
High Court
Western Cape, Cape Town
E Moosa J
Keywords:
Civil procedure – Demolition order – Interdict – Requirements
Mini Summary:
In terms of a default judgment obtained by the first respondent, the third respondent was ordered to demolish the unauthorised and illegal structures comprising a garage and a storeroom on his property. It was common cause that the third respondent had failed to get written approval from the first respondent prior to erecting the said structures.
The third respondent then applied for an interdict preventing the demolition order being effected, and setting aside of the order.
Held that the issues to be determined were firstly, whether the applicant had made out a case for a final interdict, alternatively an interim interdict; secondly, whether the applicant had made out a case for the setting aside of the demolition order; and thirdly, whether the judgment of the court for the foreclosure on two bonds on the property superseded the demolition order.
In order to succeed in respect of the main relief, the applicant had to show firstly, that it had a clear right; secondly, that such right had been infringed; and thirdly that it had no other suitable remedy. In order to succeed in respect of the alternative relief, the applicant had to show firstly, that it had a prima facie right; secondly, that it would suffer irreparable harm if the interim relief was not granted; thirdly, that the balance of convenience favoured the granting of the interim relief; and lastly, the absence of any other remedy.
The court that the applicant had failed at the first hurdle ie in not establishing a clear right in the case of a final interdict or a prima facie right in the case of an interim interdict.
The applicant also failed to establish a factual or legal basis to have the demolition order set aside by this court.
The application was dismissed.
Ndlambe Municipality v Lester & others
[2012] JOL 29036 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
92 / 2011
03 / 05 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
Alkema J

Keywords:
Administrative law – Building plans – Approval of– Neighbour law – Obstruction of view – Height restrictions – Violation of – Demolition order
Mini Summary:
The first respondent was the owner of property on which he has constructed a residential dwelling. The third respondent was the owner of the neighbouring property. Both properties were situated within the applicant’s municipal area.
At some point after the first respondent took ownership of his property, he erected a second home on the property. the second respondent objected to the building. Undeterred, the first respondent continued with the building operations pending the outcome of the objection. The second respondent then successfully applied for an interdict against continued building operations pending the outcome of review proceedings.
The first respondent obtained amended plans which addressed the prohibition against the “double
residence” restriction. Those plans were approved in November 2002. However, the first respondent then decided not to proceed with the construction under the said plans, but to construct a different building. He obtained the applicant’s approval of plans for the new building, but when the second respondent realised that the November 2002 plans were departed from, he brought a second application for the review of the plans. By then, the construction of the new dwelling was almost complete. The review court set aside the approval of the plans, but the applicant then approved the plans, conditionally. That led to a third application for review. By agreement between the parties, the plans were again set aside and referred back to the applicant to reconsider approval afresh. The applicant once again approved the plans. In a fourth review application, the Court not only set aside the approval, but made an order that the plans not be approved. The first respondent was required to submit revised plans, which he did. But as the height restrictions now in place were still exceeded the applicant refused to approve the plans. The present application was for the demolition of the buildings.
Held that in terms of the first set of plans, a partial obscuring of the second respondent’s view was to be partially obscured. However, on the next set of plans, the entire view from second respondent’s property was obscured. The eventual building had a roof height which exceeded that shown in either set of plans.
The dwelling required plans and specifications to be drawn and submitted in terms of section 4(1) of the
National Building Regulations and Building Standards Act 103 of 1977.
By virtue of the operation of the presumption of regularity, all administrative decisions remain valid and legal until it is set aside on review or appeal. The dwelling, both judicially and administratively, was an unlawful structure in terms of the Act, and in terms of section 21 thereof the applicant was entitled to an order authorising it to demolish such building. The next question was whether the Court on the facts of this case, had a discretion to issue a Demolition Order, or whether it was obliged to order demolition only if satisfied that the erection was contrary to or did not comply with the provisions of the Act or any approval or authorisation granted thereunder. In the exercise of the discretion in matters of Demolition
Orders, it is not only the usual considerations of equity which play a role, but it is also how the grant or refusal of a Demolition Order will accord with legal and public policy. The Court found that in all cases where a Demolition Order is sought, the Court retains a discretion. Such discretion is to be exercised judicially, that is to say in accordance with the disproportionality of prejudice test, having regard also to the dictates of legal and public policy.
Applying the disproportionality of prejudice test, the Court concluded that if a Demolition Order was granted, the obvious hardship and prejudice which the first respondent would suffer was not disproportionate to the prejudice which his neighbours, particularly the second respondent, would suffer if a Demolition Order was not made. A Demolition Order was thus granted.
Sondag v Minister of Justice & Constitutional Development & another
[2010] JOL 26054 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Claim for damages – Exception to claim – Vicarious liability
Mini Summary:
1865 / 09
07 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
VS Notshe AJ

The plaintiff sued the defendant for damages arising from his alleged unlawful detention in prison. He alleged that despite being granted bail after his first appearance in court, the relevant officials failed to indicate in his detention warrant that bail had been granted.
The first defendant raised three exceptions to the claim. The first was that the first defendant was not liable for the actions of the magistrate in executing his judicial functions. For purposes of the judgment, this was the only relevant exception.
Held that vicarious liability is the strict liability of one person for the delict of another. Such liability arises when there is a particular relationship between two persons – such as employee-employer. When magistrates execute their judicial functions, they do not do so as employees of the first defendant. The latter was therefore not vicariously liable for the actions of the magistrate, and the first exception was upheld.
Mzileni v Minister of Safety & Security
[2010] JOL 26065 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
488 / 09
03 / 09 / 2009
South Africa
High Court
Eastern Cape, Mthatha
Miller J
Delict – Claim for damages – Unlawful arrest – Detention – claim for damages
Mini Summary:
The plaintiff sued the defendant for damages for unlawful arrest and detention and deprivation of liberty.
She testified that she had been visited by the police at her home, and informed that she had to accompany them to the police station as a certain police officer had a case against her.
Held that the court found the plaintiff not to be a satisfactory witness. Her description of the events surrounding the incident, and the duration of her stay at the police station did not add up.
Accepting certain aspects of the plaintiff's evidence, the court still found that the request by the police for the plaintiff to go to the police station did not in itself constitute an arrest or a deprivation of the plaintiff's freedom. However, the insistence by the police officers that the plaintiff immediately go with them in the police van to the police station was both unnecessary and unreasonable in the circumstances. By causing the plaintiff to get into the back of the police van the police officers assumed control over her movements and accordingly arrested her and deprived her of her freedom unlawfully.
The plaintiff was awarded R15 000 as damages.
Ziaur & another v Minister of Home Affairs & another; Matiwos v Minister of Home Affairs &
another
[2010] JOL 25923 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
687 / 10; 688 / 10
12 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
MR Madlanga AJ
Keywords:
Immigration – Deportation – Arrest and detention pending deportation – Lawfulness – Exercise of discretion
Mini Summary:
The applicants in each of the two cases before court were seeking their release from detention. They were detained pending their deportation to their countries of origin.
Held that the opposing affidavit filed by the Minister did not address an important question regarding the deprivation of liberty namely, must it always follow as a matter of course that somebody who has been refused asylum must be arrested and detained pending deportation?
The court did not agree with the above supposition. It held that there must still be a proper exercise of discretion on the question of whether or not there should be an arrest and detention prior to deporting.
The court emphasised that it was mindful of the risks associated with not detaining persons who are to be

deported. However, it remained of the view that the lawfulness of the deprivation of liberty had to be established by showing that there was a proper exercise of discretion.
The applications were postponed, and the release of the applicants ordered, subject to their paying bail.
De Koker v Minister of Safety & Security
[2010] JOL 25954 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Arrest and detention – Unlawfulness – Claim for damages – Liability
Mini Summary:
5676 / 07
13 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
The plaintiff claimed damages from the defendant for unlawful arrest and detention, which resulted in emotional shock and distress and for damages to his vehicle.
The background facts were as follows. The plaintiff had been driving with his son, his niece and her boyfriend, when he was approached at speed by another vehicle. That vehicle was joined by another, and the plaintiff, who thought he was being hijacked, was forced to stop. The vehicles were not marked as police vehicles, and the occupants were in civilian clothing. Police identification was only produced after the plaintiff had been forced to stop his vehicle. The officer informed the plaintiff that he was arresting him for drunken driving, despite the plaintiff informing him that he was a teetotaller. The plaintiff was arrested and detained, and charges were later withdrawn.
Held that the defendant bore the onus of proving the lawfulness of the arrest.
The court examined the conduct of the police officers during the incident, in order to determine if their conduct was reasonable. It found that the rejection of the plaintiff's explanation that he had not stopped when chased by the police, was due to the fact that he believed he was being hijacked, was not reasonable. The plaintiff's fear that he was being hijacked was a reasonable one caused by the actions of the police. Instead of apologising for the mutual misunderstanding triggered by their conduct and trying to remedy the damages, the police officers compounded their liability by arresting the plaintiff on a spurious suspicion of drunken driving. The conduct of the police was held to be unlawful, and the defendant was held liable for plaintiff's damages.
Malachi v Cape Dance Academy International (Pty) Ltd & others
[2010] JOL 25915 (CC)
Case Number: CCT 05 / 10
Judgment 24 / 08 / 2010
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Ngcobo CJ, Moseneke DCJ, Mogoeng, Cameron, Froneman, Jafta, Khampepe, Nkabinde,
Skweyiya, Van der Westhuizen, Yacoob JJ
Keywords:
Constitutional law – Arrest tanquam suspectus de fuga – Magistrates' Courts Act 32 of 1944 – Magistrates'
Courts Act 32 of 1944, section 30(1) and (3) – Constitutional validity
Mini Summary:
Section 30(1) and (3) (impugned provisions) of the Magistrates' Courts Act 32 of 1944 was declared invalid by the High Court. The section empowers a magistrate to issue an order for the arrest and detention of a debtor in circumstances where a creditor reasonably believes that a debtor is about to flee the country in order to avoid paying what is owed to a creditor – in a procedure known as arrest tanquam suspectus de fuga.
The High Court referred its order declaring both the common law and section 30(1) and (3) constitutionally invalid to the present court.
The applicant was a citizen of the Republic of Moldova, and was employed by the first two respondents
(the employers) as an exotic dancer in South Africa. As part of the agreement between the parties, the employers would pay for all of the applicant's visa and travel arrangements and would provide her with

rented accommodation. She was required to reimburse them. On her arrival in South Africa, her passport was taken from her, and she was told that she would only get it back once she had reimbursed the employers as set out above.
After a few months of working, the applicant expressed to her employers that she was dissatisfied with her conditions of employment. She then made arrangements to return home. Upon learning of that, the employers obtained an order to have the applicant arrested in terms of the impugned provisions. The basis for the application, and for the granting of the arrest order, was that the applicant owed her employers about R100 000 and that they reasonably suspected that she was about to flee the country permanently in order to escape payment of the debt. The applicant was arrested and detained, and approached the High Court to secure her liberty. She challenged the constitutional validity of both the impugned provisions and the common law in so far as they empower a court to make an order for arrest
tanquam suspectus de fuga.
Held that as the Constitutional Court cannot confirm an order of constitutional invalidity of the common law, and the issue was limited to confirmation of the statutory provision.
Of the constitutional rights allegedly infringed by the impugned provisions, the most directly implicated was the right to freedom and security of the person in terms of section 12(1) of the Constitution.
An order in terms of section 30 of the Magistrates' Courts Act must be aimed at the debtor who allegedly owes the creditor at least R40 excluding costs; is reasonably believed to be about to leave the Republic, but not one who appears to be leaving one part of the country for another; and intends leaving permanently and whose departure is imminent. Furthermore, the creditor must appear to have no, or insufficient, security for the debt. The impugned provisions empower a magistrate to issue an order for the arrest of a debtor even though the debtor's liability has not been acknowledged or proven in a court of law.
The question was whether the deprivation or limitation of freedom authorised by the impugned provisions was arbitrary or without a just cause. Section 30(1) and section 30(3) are laws of general application, authorising arrest tanquam suspectus de fuga, to facilitate debt collection. However, the impugned provisions go further than is necessary to achieve the objective. The detention of any person without just cause is a severe and egregious limitation of that right. The order of constitutional invalidity was thus confirmed.
The appropriate remedy was to sever the offensive parts of subsection (1) and to strike out subsection (3) in its entirety – and to limit the retrospective application of the order.
VERY NB CASE. DOES AWAY WITH THESE APPLICATIONS!
Aruforse v Minister of Home Affairs & others
[2010] JOL 26037 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2010 / 1189
25 / 01 / 2010
South Africa
High Court
South Gauteng, Johannesburg
PA Meyer J
Keywords:
Immigration – Detention of foreigner – Lawfulness
Mini Summary:
In an urgent application, the applicant sought his immediate release from a holding facility operated by the third respondent for the Department of Home Affairs where inter alia illegal foreigners are detained pending their deportation from the Republic of South Africa. He also sought an order directing the first and second respondents (the respondents) to immediately re-issue him with a temporary asylum seeker permit in accordance with the provisions of section 22 of the Refugees Act 130 of 1998.
The respondents maintained that the provisions of the Refugees Act were not available to the applicant since he was being detained under the provisions of section 34 of the Immigration Act 13 of 2002 as an
"illegal foreigner" pending his deportation. However, the applicant argued that because he was an asylum seeker in the Republic of South Africa his status was governed by the provisions of the Refugees Act and he could therefore not be lawfully detained under the provisions of the Immigration Act.
Held that a pre-condition for the issue and subsequent extension of an asylum seeker permit is the existence of an application for asylum. While the applicant alleged that he had made such an application, that was disputed by the respondents. The court found the disputes of fact raised by the respondents to be bona fide and on reasonable grounds. The disputes of fact were not capable of resolution on the papers. As a final order can only be granted in motion proceedings if the facts stated by the respondents

together with the admitted facts in the applicant's affidavits justify the order, the application for reissue of a permit could not succeed.
That was not the end of the matter. The court then turned to consider the lawfulness of the applicant's detention. The maximum period for which any person may be detained for purposes of deportation in terms of section 34(1) of the Immigration Act is a period of 120 days. Insofar as the applicant's detention exceeded that, it was unlawful. His release was ordered.
Transnet Ltd v Newlyn Investments (Pty) Ltd
[2011] JOL 26946 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
553 / 09
29 / 03 / 2011
South Africa
Supreme Court of Appeal
L Mpati P, TD Cloete, JA Heher and JB Shongwe JJA and Petse AJA
Evidence – Documentary evidence – A party may adduce secondary evidence of a document in the possession of the opposite party if the latter has failed to produce it after having been given written notice to do so – Notice is not required where the nature of the proceedings is such as to inform the opposite party, by necessary implication, that production of the document will be required –– Evidence –
Documentary evidence – Objection that oral evidence regarding existence of missing document was inadmissible on ground that the respondent had failed to demonstrate that after a proper search, the lost document could not be found – An appeal court will not entertain technical objections to documentary evidence which were not taken in the court below and which might have been met by the calling of further evidence
Mini Summary:
In the high court, the appellant sought the eviction of the respondent from certain immovable property.
The cause of action was the rei vindicatio.
While admitting that the appellant was the owner of the property, the respondent averred that it had a contractual right to occupy part of the property in terms of an addendum to a written lease, and the remainder of the property in terms of an oral agreement which gave it the right to occupy for so long as the written lease continued in force. Although the oral agreement was not in contention, the existence of the addendum was the crux of the dispute.
The appellant had first leased the property to another entity (“Kirk Road Properties”), and the original expiry date was extended to 31 December 2005. In terms of a further agreement, Kirk Road Properties ceded its rights and assigned its obligations in terms of the lease to the respondent. The lease agreement did not provide for any right to extend or renew the lease beyond 31 December 2005 and contained a non-variation clause.
The respondent could not produce an authentic copy of the addendum on which it sought to rely. It pleaded that a copy of the actual addendum was not in its possession and was last in the possession of the appellant. In support of its contention that the addendum did exist, the respondent relied on contemporaneous documents and the oral evidence of four witnesses, who testified that an addendum to the lease had been concluded and gave evidence as to its terms. On appeal, the admissibility of the evidence of the four witnesses was raised for the first time. The appellant argued that such evidence was inadmissible in as much as the respondent had failed to demonstrate that after a proper search, the lost addendum could not be found.
Held that an appeal court will not entertain technical objections to documentary evidence which were not taken in the court below and which might have been met by the calling of further evidence. Moreover, the evidence before the court was that there was only one original addendum, and that it was never in the possession of the respondent after it had been signed on behalf of the appellant. If it had ever existed, the original remained in the possession of the appellant. That being so, two rules of evidence came into play.
The first was that a party may adduce secondary evidence of a document in the possession of the opposite party if the latter has failed to produce it after having been given written notice to do so. Notice is not required where the nature of the proceedings is such as to inform the opposite party, by necessary implication, that production of the document will be required. Once secondary evidence is admissible, there are no degrees of secondary evidence – the common law no longer requires that the best secondary evidence has to be produced. The respondent was therefore entitled to give whatever evidence it could in

respect of the contents of the missing addendum. It was not obliged to satisfy the court that its copy was missing and could not be found despite a diligent search.
Turning to analyse the evidence of the witnesses who testified on behalf of the respondent, the court found that at least two of the witnesses were impartial, and had no reason to fabricate testimony about the existence of the addendum. The balance of probabilities supported the evidence that a valid addendum was executed.
The court a quo, in reaching the same conclusion, was therefore correct, and the appeal was dismissed.
Bosasa Operation (Pty) Ltd v Basson & another
[2012] JOL 29106 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
09 / 29700
26 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
M Tsoka J
Civil procedure – Defamation action – Discovery of documents – Entitlement to identity of sources
Mini Summary:
The plaintiff sued the defendants, claiming damages for defamation. The first defendant was a reporter employed by the second defendant. The plaintiff alleges that the first defendant had written an article about the alleged corrupt relationship between the plaintiff and the Department of Correctional Services.
According to the plaintiff, the said article was per se defamatory of the plaintiff and such publication was wrongful.
The defendants filed two special pleas. The first was that the alleged corrupt relationship was also exposed by various other widely-read newspapers throughout South Africa with the result that the plaintiff had no reputation that could have been injured by the defendants’ article. The second plea was that for the period between 9 July 2008 and 29 January 2010 there were no less than 33 articles, 18 of which were published in different newspapers, and that the suing of the defendants was arbitrary and not bona fide. It was contended that the action instituted against the defendants by the plaintiff was an abuse of the plaintiff’s right to sue and abuse of the court process. In their main Plea, the defendants denied that the article complained of was defamatory of the plaintiff. In the alternative, they pleaded truth and public benefit, further alternatively, fair comment on a matter of great public interest, further alternatively, reasonable publication in that the article was published in good faith, a matter of great public interest and that the information in the article was based on reliable information received from reliable sources. In the further alternative, the defendants pleaded qualified privilege as the allegations complained of were contained in a report of the Special Investigation Unit, which report was placed before parliament.
After the close of pleadings, the plaintiff filed a Notice of Discovery. The defendants Discovery Affidavit was objected to as the names of their sources had been redacted. The plaintiff therefore filed two applications in terms of Rule 37, one compelling the defendants to file further and better discovery and the other in terms of Rule 21(4) compelling further and better particulars. The plaintiff particularly sought to compel the defendants to reveal the names of their reliable sources.
Held that the crisp issue in the two applications was whether the defendants had a valid objection to revealing the identity of their sources. The right to freedom of expression includes the right to receive information. Having regard to the authorities, the Court found it to be apparent that journalists, subject to certain limitations, are not expected to reveal the identity of their sources. If freedom of the press is fundamental and sine qua non for democracy, it is essential that in carrying out this public duty for the public good, the identity of their sources should not be revealed. The identity of the sources, in the court’s view, was irrelevant between the parties, being peripheral to the actual and real dispute between the parties.
The plaintiff’s applications were dismissed with costs.
Hemingways Shopping Centre (Pty) Ltd v PD Naidoo & Associates Consulting Engineering (Pty)
Ltd
[2012] JOL 28795 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2009 / 44089
30 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
Kathree-Setiloane J

Keywords:
Civil procedure – Discovery of documents – Application to compel
Mini Summary:
The applicant sough to compel the respondent to deliver the further particulars requested by the applicant, as well as the respondent’s notice in terms of rule 35(6) – setting out when certain documents might be inspected.
In response, the respondent contended that the relief sought in the notice of motion was not competent, as the manner in which the prayers were formulated constituted blanket orders. The respondent’s complaint was that the so called “blanket order” sought by the applicant in respect of the further particulars was aimed at depriving it of the opportunity to refuse to deliver the further particulars when it filed its answer, the effect being that the respondent would be in contempt of court should it refuse, even on proper grounds, to deliver the further particularity sought.
Held that rule 35(3) provides that if a party believes that in addition to those documents discovered, other documents and tape recordings exist, which may be relevant to any matter in question, that party may give notice to the other party to make the documents or tape recordings available for inspection in terms of rule 35(6), or to state on oath that such documents are not in his or her possession, within 10 days of the service of the notice. Rule 35(6) provides that a party may by notice require inspection of documents or tape recordings discovered. The party in receipt of the notice must respond, within five days of receipt of the notice, stating a time, within five days of receipt of the notice, when the requisite inspection can occur.
As the documents sought in this application were documents that had not been discovered by the respondent, the respondent had therefore to be given an opportunity, in terms of rule 35(3), to state on oath whether such documents were in its possession or not. The order sought by the applicant did not provide the respondent with such an opportunity. The respondent was ordered to deliver a reply to the applicant’s request for further particulars within 10 days of this order.
Solarie v Solarie & others
[2010] JOL 26128 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
26186 / 09
24 / 08 / 201011 / 08 / 2010
South Africa
High Court
Western Cape, Cape Town
Fortuin J
Keywords:
Constitutional law – City policy – Discriminatory policy – Unenforceable policy
Mini Summary:
The applicant and first respondent were married in terms of Muslim rites in 1983. They were divorced in
1998. The applicant remained in the marital home with the couples' four children. She sought to have the house transferred into her name, as she made payments in respect of the property, and maintained the property – while the respondent no longer lived there.
The property was owned by the second respondent ("the city"). The city's policy was that it would sell a dwelling only to a married male; a single person with dependants residing permanently with him or her; or to a married female who was the breadwinner of her family and who had dependants residing permanently with her. As a result of that policy, transfer of the property would only be to the first respondent.
In the present application, the applicant sought to interdict the city from transferring the property only to the first respondent. Instead, she sought transfer into both her name and that of the first respondent.
Held that the first question was whether the city's policy was discriminatory. The court agreed that the policy was discriminatory on the ground of gender. A contractual term that is contrary to public policy is unenforceable.
The application succeeded.

Solarie v Solarie & others
[2010] JOL 26128 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
26186 / 09
24 / 08 / 201011 / 08 / 2010
South Africa
High Court
Western Cape, Cape Town
Fortuin J
Keywords:
Constitutional law – City policy – Discriminatory policy – Unenforceable policy
Mini Summary:
The applicant and first respondent were married in terms of Muslim rites in 1983. They were divorced in
1998. The applicant remained in the marital home with the couples' four children. She sought to have the house transferred into her name, as she made payments in respect of the property, and maintained the property – while the respondent no longer lived there.
The property was owned by the second respondent ("the city"). The city's policy was that it would sell a dwelling only to a married male; a single person with dependants residing permanently with him or her; or to a married female who was the breadwinner of her family and who had dependants residing permanently with her. As a result of that policy, transfer of the property would only be to the first respondent.
In the present application, the applicant sought to interdict the city from transferring the property only to the first respondent. Instead, she sought transfer into both her name and that of the first respondent.
Held that the first question was whether the city's policy was discriminatory. The court agreed that the policy was discriminatory on the ground of gender. A contractual term that is contrary to public policy is unenforceable.
The application succeeded.
Putter and others v Chris Hani District Municipality and others
[2014] JOL 32672 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Dispute of fact – Referral to oral evidence
Mini Summary:
1839 / 2013
03 / 04 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
C Plasket J
The applicants were the spouses of now deceased former employees of the first respondent. The latter had paid contributions to their medical aid scheme, and continued to do so even after the deaths of their spouses. However, the first respondent stopped paying the contributions between December 2009 and
June 2010. The applicants applied for an order referring a dispute to oral evidence in terms of rule 6(5)(g) of the Uniform Rules. They contended that the first respondent’s obligation to pay the contributions arose from a tacit term in the contracts of employment of the deceased spouses.
The respondents contended that the dispute should not be referred for oral evidence as the Court had no jurisdiction to entertain the matter, the applicants had not established the primary facts necessary to make out a case and a referral to oral evidence would serve no purpose.
Held that the jurisdictional point required the Court to determine whether the entitlement to which the applicants laid claim arose from a tacit term of the contracts of employment or from a tacit term in a collective agreement reached in the bargaining council. If the obligation arose from the former, the Court would have jurisdiction, and if it arose from the latter, it would not. That was because section 24(2) of the

Labour Relations Act 66 of 1995 provides that disputes concerning the interpretation or application of a collective agreement, where no procedure for referring them to conciliation or, failing that, arbitration, has been provided for, must be referred to the Commission for Conciliation, Mediation and Arbitration (“the
CCMA”). It was found that the dispute did not concern the interpretation or application of a collective agreement but of an employment contract. The present Court therefore did have jurisdiction.
The second point raised by the first and second respondents was that the applicants had not established the primary facts from which a tacit term could be inferred. In order to import that term into the contracts of employment, the applicants relied on the fact that the first respondent conducted itself in such a way – by continuing to pay medical aid contributions for them after the deaths of their husbands – that an inference could be drawn that it, like the applicants, considered itself to be bound so to contribute.
However, the first respondent contended that it paid the contributions only until it realised that the applicants’ spouses were dead. That was the factual dispute which needed to be resolved. The Court found that it was appropriate to refer the matter to oral evidence.
Ngqukumba v Minister of Safety and Security and others
[2014] JOL 31554 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
660 / 12
31 / 05 / 2013
South Africa
Supreme Court of Appeal
XM Petse, FDJ Brand, MML Maya, LV Theron JJA, Meyer AJA
Civil procedure – Disputes of fact – Rule in motion proceedings – Where factual disputes in motion proceedings arise, relief may only be granted if the facts averred in the applicant’s affidavit that have been admitted by the respondent, together with the facts alleged by the respondent, justify the order sought – Criminal procedure – Police search and seizure – Unlawful search and seizure – Application for restoration of vehicle to owner – Section 68(6)(b) of the National Road Traffic Act 93 of 1996 precludes person from owning motor vehicle whose chassis number has been interfered with – Court prevented from ordering restoration of vehicle to owner in such circumstances, as such restoration would be tantamount to condoning an illegality
Mini Summary:
The appellant was a taxi operator whose vehicle was seized by the police whilst it was in the control of one of the appellant’s employees. The reason for the seizure was that the police suspected it to have been stolen. The appellant applied to the High Court for an order declaring the search, seizure and continued detention of the vehicle to be unlawful. He also sought the restoration of the vehicle to him.
However, the respondents opposed the relief sought, pointing out that the police inspection of the motor vehicle revealed that its chassis plate had been tampered with and appeared to have been removed from another motor vehicle and superimposed on the appellant’s motor vehicle, the vehicle’s original engine number had been ground off, and the manufacturer’s tag plate appeared to have been removed from another motor vehicle and later superimposed on the appellant’s motor vehicle. According to the respondents, that meant that no one may lawfully possess the motor vehicle.
The High Court found that the seizure of the motor vehicle was unlawful, but declined to order the release of the motor vehicle to the appellant. It considered that the provisions of sections 68(6)(b) and 89(3) of the National Road Traffic Act 93 of 1996 (“the Act”) precluded it from doing so.
Held that as the appellant denied that the police search of his vehicle had revealed the above irregularities, a dispute of fact existed with regard to whether the appellant’s motor vehicle’s engine and chassis numbers had been tampered with. These being motion proceedings, the dispute must be determined on the basis of the Plascon-Evans principle which states that where factual disputes in motion proceedings arise, relief may only be granted if the facts averred in the applicant’s affidavit that have been admitted by the respondent, together with the facts alleged by the respondent, justify the order sought. There was no suggestion that the respondents’ version is far-fetched or otherwise untenable.
Therefore, central issue on appeal was whether the court below should have ordered restoration of the motor vehicle to the appellant.
In terms of section 68(6)(b), insofar as there had been tampering with the vehicle’s chassis number, the appellant was prohibited from being in possession of the vehicle. Until a police clearance was issued and the vehicle was registered in accordance with the provisions of the National Road Traffic Act, the appellant’s possession of the vehicle was unlawful. If this Court were to direct that possession of the vehicle be restored to the appellant, it would be condoning an illegality. As the Court was prevented from doing that, the appellant was not entitled to spoliatory relief.
The appeal was dismissed.

Prinsloo NO & others v Goldex 15 (Pty) Ltd & another
[2012] JOL 28866 (SCA)
Case Number: 243 / 11
Judgment Date: 28 / 03 / 2011
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
FDJ Brand, A Cachalia, NZ Mhlantla, MJD Wallis JJA, P Boruchowitz AJA
Keywords:
Civil procedure – Disputes of fact – As a general rule and save in exceptional circumstances, disputes of fact arising on affidavit cannot be finally determined on the papers – Civil procedure – Plea of exceptio rei iudicata in the form of issue estoppel – Application of issue estoppel should be considered on a case-bycase basis and deviation from the threefold requirements of res iudicata should not be allowed when it is likely to give rise to potentially unfair consequences in subsequent proceedings – Words and phrases –
Res iudicata – Literal meaning is that the matter has already been decided
Mini Summary:
The first two appellants were the trustees of a trust which sold a farm to the first respondent in October
2004. The first respondent was a company in which the second respondent was the sole director and shareholder. In February 2005, the second respondent, acting on behalf of the company, purported to cancel the sale agreement on the ground that the third appellant (one of the trust’s trustees, cited herein in his personal capacity as the third appellant) had fraudulently misrepresented that no land claims in terms of the Restitution of Land Rights Act 22 of 1994 lay against the farm. However, according to the second respondent, it emerged after the sale that a certain community had lodged a land claim in respect of the property. The second respondent contended that the circumstances were such that the third appellant must have been aware of the claim at the time, and that his misrepresentation was therefore fraudulently made. The trust then brought an urgent application in the High Court, seeking an order compelling the first respondent to take transfer of the farm against payment of the agreed purchase price.
The third appellant denied that he was aware of the existence of the land claim at the material time.
The high court (Webster J) dismissed the trust’s urgent application, finding that the third appellant must have been aware of the existence of the claim. The respondents then sued the appellants for damages arising from the alleged fraudulent misrepresentation. The respondents thereupon raised a plea of res
iudicata in the form of what has become known as issue estoppel. Specifically, it was argued that the appellants were estopped from denying the allegations against them by virtue of the exceptio rei iudicata.
The special defence of res iudicata was dealt with before the hearing of any evidence. At the end of the preliminary proceedings, the court a quo upheld the plea of res iudicata with costs, leading to the present appeal.
Held that the expression “res iudicata” literally means that the matter has already been decided. The gist of the plea is that the matter or question raised by the other side had been finally adjudicated upon in proceedings between the parties and that it therefore cannot be raised again.
In casu, the pertinent issue decided by Webster J was virtually the same as in the court a quo, namely, whether the third appellant knew there was a land claim against the farm when he gave the second respondent the assurance to the contrary. That gave rise to potential issue estoppel.
The appellants’ first argument as to why the plea of res iudicata in the form of issue estoppel was wrongly upheld was that the “same persons” requirement underlying the concept of res iudicata had not been met in that neither the third appellant nor the second respondent were parties in the urgent application proceedings. The appellants argued further that the application of issue estoppel in these proceedings would result in unfairness and inequity. That contention was based firstly on the averment that it was not necessary for Webster J to arrive at any final decision as to whether or not the third appellant had committed fraud in order to dismiss the trust’s application to compel specific performance. Secondly, it was submitted that Webster J could not and should not have decided the disputed issue of whether fraud was committed on motion proceedings without the benefits inherent in the hearing of oral evidence. The court held that as a general rule and save in exceptional circumstances, disputes of fact arising on affidavit cannot be finally determined on the papers. The concomitant rule is that in the event of material factual disputes arising on affidavit in motion proceedings, the applicant can only succeed in those exceptional circumstances where the respondent’s version of the disputed facts can safely be rejected on the papers as farfetched or untenable. The dispute of fact that arose in the motion proceedings before
Webster J fell outside the ambit of the exceptional circumstances envisaged by the authorities. The allegations of fraud could hardly be described as so farfetched or untenable that they could be rejected on the papers. The application for final relief by the trust was therefore doomed to fail. On that basis alone,
Webster J was bound to dismiss the application with costs.

Regarding the appellants’ second proposition, the Court agreed that Webster J should not have made a finding of fraud against the third appellant on the basis of untested allegations against him on motion papers that were denied on grounds that could not be described as farfetched or untenable. The critical objection by the appellants was that, because of Webster J’s fundamentally wrong approach to the matter before him, it would be inequitable and unfair to preclude them from denying fraud on the part of the third appellant in this case, through the application of issue estoppel.
In considering the respondents’ objection of res iudicata, the Court set out common law requirements therefor, namely the same parties; same cause of action; and same relief. However, as the circumstances in which issue estoppel may conceivably arise are so varied, its application cannot be governed by fixed principles or even by guidelines. Therefore, the application of issue estoppel should be considered on a case-by-case basis and deviation from the threefold requirements of res iudicata should not be allowed when it is likely to give rise to potentially unfair consequences in the subsequent proceedings. The appellants’ contention that the court a quo erred in allowing the plea of res iudicata in the form of issue estoppel in this case was thus upheld.
The appeal was upheld and the order of the court a quo replaced with one in which the respondents’ plea of res iudicata in the form of issue estoppel was dismissed with costs.
Perumal & others v National Director of Public Prosecutions
[2012] JOL 29088 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
356 / 11
29 / 03 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, S Snyders, JA Heher, SA Majiedt JJA, C Plasket AJA
Civil procedure – Resolution of dispute of fact in application proceedings – Application of principles set out in Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd – Whether the trial court correctly concluded that the undisputed allegations in the Founding Affidavit, taken with the appellants’ allegations in the answering affidavits that were not clearly untenable, established, on a balance of probability, that the first appellant was a drug dealer and that he acquired identified assets from the proceeds of his drug dealing activities – Respondent failing to establish case on balance of probabilities – Criminal Law –
Organised crime – Application for forfeiture order – Section 48 of the Prevention of Organised Crime Act
121 of 1998 – Section 48(1) requires a court to find, on a balance of probabilities, that the property concerned is either an instrumentality of an offence or the proceeds of unlawful activities
Mini Summary:
In terms of section 38 of the Prevention of Organised Crime Act 121 of 1998 (“the Act”), the respondent brought an ex parte application for a preservation order in respect of property belonging to the appellants.
Upon obtaining the order, the respondent then approached the court, on essentially the same founding papers, for an order in terms of section 48 of the Act for the forfeiture of the property seized under the
Preservation Order. The present appeal was directed at the granting of the forfeiture order.
According to the respondent, all of the assets belonged to the first appellant, despite being registered in the names of his various family members, and were either the proceeds of unlawful activities, or an instrumentality of crime. It was alleged that the first appellant was one of Durban’s biggest drug dealers.
Held that an application for forfeiture of assets in terms of section 48(1) requires a court to find, on a balance of probabilities, that the property concerned is either an instrumentality of an offence or the proceeds of unlawful activities. For the respondent to establish its allegations against the first appellant in application proceedings, its case had to comply with the well-known principles established in Plascon-
Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd. Consequently, the issue on appeal was whether the trial court correctly concluded that the undisputed allegations in the Founding Affidavit, taken with the appellants’ allegations in the answering affidavits that were not clearly untenable, established, on a balance of probability, that the first appellant was indeed a drug dealer and that he acquired the identified assets from the proceeds of his drug dealing activities.
The Respondent’s Founding Affidavit stated that the first appellant had been under investigation by various members of the then Directorate of Special Operations for drug-related offences for almost 20 years. Several of the investigators deposed to the affidavits that constituted the founding papers against the appellants. Despite the extensive investigation, the most that the respondent’s case amounted to was the raising of suspicion. All the affidavits relied upon by the respondent fell short of the basic principles that pertain to evidence on affidavit.
The Court described the case which the appellants had to meet as a poor one. The first appellant denied any involvement in any form of drug dealing, and denied that any of the property of the other appellants

was his. The lack of detail in that response did not assist the respondent’s case. There was very little to support the respondent’s allegations against the first appellant. The respondent had therefore failed to establish his case on a balance of probabilities, and the court below came to an incorrect conclusion on the application of the principles set out in Plascon-Evans.
Before concluding, the Court commented on the judgment of the court a quo. The judgment contained no evaluation of the evidence, no application of legal principles and no reasoning that sustained the conclusion reached. It therefore fell short of the principles repeatedly stated by the courts.
The appeal was upheld and the respondent’s application for a forfeiture order was dismissed.
RTT Group (Pty) Ltd v Surgical Warehouse (Pty) Ltd
[2012] JOL 29018 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Disputes of fact – Test
51877 / 11
24 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
G Webster J
Mini Summary:
Upon the termination of the business relationship between the parties, an acknowledgement of debt was signed in which the respondent admitted the amount allegedly owing by it, and undertook to liquidate the debt in monthly instalments. In the present application, the applicant averred that the respondent failed to comply with the terms and conditions set out in the acknowledgement of debt and sought payment of what was allegedly owing by the respondent. The respondent's defence was a denial that it intended that the contents of the document be an admission of liability.
Held that where disputes of fact have arisen in motion proceedings a final order may only be granted if those facts averred in the applicant's affidavit that have been admitted by the respondent, together with the facts alleged by the respondent justify such an order. Where the dispute of fact is such that the court cannot with any accuracy conclude that the probabilities in the Founding Affidavit of the applicant's case should be accorded any more weight than an assertion under oath to the contrary, it is incumbent upon the applicant to ask for the hearing of evidence so as to enable him to establish that the evidence and the resultant probabilities should be acted upon. As there were several unanswered questions in the applicant’s case, the above test was not satisfied. The application was referred to trial.
Nedbank Ltd v Euro Blitz 21 (Pty) Ltd & others
[2010] JOL 26446 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
10 / 10766
04 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
NP Willis J
Civil procedure – Return of property – Dispute of fact – Court’s approach
Mini Summary:
In 2006, the applicant sold an aircraft to the fifth respondent. The agreement provided that ownership would remain vested in the applicant until all amounts were paid by the buyer. When the fifth respondent fell into arrears, the applicant cancelled the agreement. The fifth respondent failed to return the aircraft to the applicant, leading to the latter obtaining an order confirming cancellation of the instalment sale agreement, ordering the fifth respondent to return the aircraft to the applicant, and authorising the sheriff to attach and remove the aircraft from the fifth respondent’s premises. However, the aircraft turned out to be in the possession of the first respondent, and that is where the sheriff attached it.
In the interim, the second respondent obtained judgment against the fifth respondent, and caused the aircraft to be judicially attached. The aircraft was then sold to the third respondent at a sale in execution.
The sale took place in the absence of the applicant notwithstanding that the aircraft had been previously attached as a result of the applicant’s judgment.

The applicant obtained an urgent interdict restraining the respondents from dealing with the aircraft in any way, pending the finalisation of the present application. This application was for an order directing the third and/or fourth respondents to return the aircraft to the applicant failing which the sheriff would be authorised to attach and remove the aircraft and deliver it to the applicant; declaring that the applicant was the lawful owner and possessor of the aircraft; declaring the sale in execution of the aircraft to be null and void and for the sheriff to repay any funds received from the third and/or fourth respondent in respect of the sale in execution to the execution creditor.
A dispute arose as to whether the third respondent had bought the aircraft in good faith and without any knowledge of any defects pertaining to the sale in execution when the sale in execution took place. The court referred the dispute for oral evidence.
Held that to come to a conclusion on dispute of issues, a court must make findings on the credibility of the various factual witnesses; their reliability; and the probabilities.
Applying the above, the court found for the applicant.
De Beer v Tshwane Municipal Provident Fund
[2011] JOL 28025 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA / GA / 20332 / 2007 / TD
18 / 08 / 2011
South Africa
Tribunal of the Pension Funds Adjudicator
Johannesburg
Dr EM De la Rey
Keywords:
Pensions – Divorce – Amendment to section 37D of the Pension Funds Act 24 of 1956, so as to accelerate the date of accrual of the benefit to the member spouse and in turn the date on which the divorce benefit accrues to the non-member spouse which is the date of divorce – Financial Services Laws General
Amendment Act 22 of 2008 makes new section 37D retrospective in application
Mini Summary:
The complainant and her husband were divorced in 2006. The divorce order stipulated that the complainant would be entitled to half of her spouse’s pension interest as at date of divorce. When the complainant requested payment, the respondent refused to accede to the request on the basis that the
Pension Funds Amendment Act 11 of 2007, which came into operation on 13 September 2007, does not refer to any divorce orders granted before that date nor does it state that it applies retrospectively to any divorce orders prior to 13 September 2007.
Held that the issue for determination was whether or not the respondent’s refusal to pay the complainant her 50% portion of pension interest was reasonable and justifiable in terms of the Act, read together with the Divorce Act 70 of 1979.
Since the issuing of the complainant’s divorce order, the law had changed. In terms of section 7(8)(a)(i) of the Divorce Act, a court granting a decree of divorce may make an order that the share of the pension interest allocated to the non-member spouse be paid by the fund to such spouse when any pension benefits accrue in respect of the member spouse which can either be on retirement, resignation, retrenchment or dismissal. As that undermined the clean-break principle, the Pension Funds Amendment
Act sought to address the problem by amending section 37D of the Pension Funds Act 24 of 1956. The new section 37D(1)(e) accelerates the date of accrual of the benefit to the member spouse and in turn the date on which the divorce benefit accrues to the non-member spouse which is the date of divorce.
To deal with the issue of retrospectivity, section 37D(4)(d) of the Financial Services Laws General
Amendment Act 22 of 2008 states that any portion of the pension interest that is payable to a nonmember spouse that was granted prior to 13 September 2007 is deemed to have accrued to the nonmember spouse on 13 September 2007. Section 37D(4)(a), in turn states that the pension interest that is assigned to the non-member spouse is deemed to accrue to the member spouse on the date on which the divorce order was granted. The amended section 37D of the Pension Funds Act applies to divorce orders granted prior to 13 September 2007 and the mere fact that the date of accrual of the benefit to the member spouse is accelerated does not mean that the Amendment Act applies retrospectively. The respondent’s submission that it could not apply the Pension Funds Amendment Act as if it applied

retrospectively could not be sustained, and its decision to refuse the complainant’s request for payment was set aside.
Staats (born Coetzer) v Staats
[2010] JOL 25912 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
EL 276 / 10
19 / 08 / 2010
South Africa
High Court
East London Circuit Local
SD Ndengezi AJ
Marriage – Divorce – Maintenance
Mini Summary:
The parties were married to each other after the commencement of the Matrimonial Property Act 88 of
1984 in terms of a duly registered antenuptial contract wherein community of property, profit and loss was excluded. The marriage had broken down.
In the present rule 43 application, the applicant sought an order that the respondent pay maintenance
pendente lite for the couple's minor child, to retain the applicant and the minor child as beneficiaries of the respondent's Medical Aid Scheme and pay the contributions in respect thereof as well as anything not covered by the respondent's Medical Aid, to pay pendente lite for the school fees of the minor child and for all other reasonable expense related to her schooling, including but not limited to, extramural equipment and extramural costs and clothes, to pay pendente lite the costs of the minor child's casual clothing and to contribute towards the applicant's costs.
Held that the applicant failed to prove on a balance of probability that she need assistance towards costs in this matter, taking into account her income and what would be reasonable expenses.
The court granted an order that the parties be joint caregivers of the minor child whose place of primary / physical residence would vest jointly with the parties; that the respondent pay the school fees, cost of school books and cost of school uniforms; that the respondent retain the applicant and the minor child as beneficiaries in his Medical Aid Scheme; that the applicant pay for the minor child's hair-do's, casual clothing and pocket money; and that each party pay their own costs.
Klare & another v Klare (born Bodley)
[2010] JOL 25922 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1214 / 09
04 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
F Kroon J
Keywords:
Civil procedure – Divorce litigation – Variation of order – Costs
Mini Summary:
The first applicant and the respondent were formerly married to each other, but were divorced in 2008.
The divorce order incorporated the terms of a deed of settlement provided, inter alia, that the couple's children would reside with the respondent, who would be their primary carer subject to the first applicant's right of reasonable access to them.
Having since married the second applicant, the first applicant now sought variation of the order relating to the care and control of the children, in essence decreeing that the first applicant be the primary carer of the children and that they live with him, with the respondent having rights of access to them. The applicants adduced evidence regarding the conduct of the respondent, and her alcohol abuse. The Family
Advocate issued a report supporting the relief sought in the present application.
The matter was postponed several times, and eventually the parties reached an agreement. The agreement made provision for the first applicant to be the primary care giver of the children, for them to reside with him, and for the respondent to have structured supervised contact with the children.

The parties were, however, unable to reach agreement on the issue of costs and that was the sole issue argued before the court.
Held that the respondent opposed the application on a limited basis only. Her opposition arose where she bona fide believed that she was acting in the best interests of her children. The court therefore deemed it best to make no order as to costs.
Transnet Ltd v Newlyn Investments (Pty) Ltd
[2011] JOL 26946 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
553 / 09
29 / 03 / 2011
South Africa
Supreme Court of Appeal
L Mpati P, TD Cloete, JA Heher and JB Shongwe JJA and Petse AJA
Evidence – Documentary evidence – A party may adduce secondary evidence of a document in the possession of the opposite party if the latter has failed to produce it after having been given written notice to do so – Notice is not required where the nature of the proceedings is such as to inform the opposite party, by necessary implication, that production of the document will be required –– Evidence –
Documentary evidence – Objection that oral evidence regarding existence of missing document was inadmissible on ground that the respondent had failed to demonstrate that after a proper search, the lost document could not be found – An appeal court will not entertain technical objections to documentary evidence which were not taken in the court below and which might have been met by the calling of further evidence
Mini Summary:
In the high court, the appellant sought the eviction of the respondent from certain immovable property.
The cause of action was the rei vindicatio.
While admitting that the appellant was the owner of the property, the respondent averred that it had a contractual right to occupy part of the property in terms of an addendum to a written lease, and the remainder of the property in terms of an oral agreement which gave it the right to occupy for so long as the written lease continued in force. Although the oral agreement was not in contention, the existence of the addendum was the crux of the dispute.
The appellant had first leased the property to another entity (“Kirk Road Properties”), and the original expiry date was extended to 31 December 2005. In terms of a further agreement, Kirk Road Properties ceded its rights and assigned its obligations in terms of the lease to the respondent. The lease agreement did not provide for any right to extend or renew the lease beyond 31 December 2005 and contained a non-variation clause.
The respondent could not produce an authentic copy of the addendum on which it sought to rely. It pleaded that a copy of the actual addendum was not in its possession and was last in the possession of the appellant. In support of its contention that the addendum did exist, the respondent relied on contemporaneous documents and the oral evidence of four witnesses, who testified that an addendum to the lease had been concluded and gave evidence as to its terms. On appeal, the admissibility of the evidence of the four witnesses was raised for the first time. The appellant argued that such evidence was inadmissible in as much as the respondent had failed to demonstrate that after a proper search, the lost addendum could not be found.
Held that an appeal court will not entertain technical objections to documentary evidence which were not taken in the court below and which might have been met by the calling of further evidence. Moreover, the evidence before the court was that there was only one original addendum, and that it was never in the possession of the respondent after it had been signed on behalf of the appellant. If it had ever existed, the original remained in the possession of the appellant. That being so, two rules of evidence came into play.
The first was that a party may adduce secondary evidence of a document in the possession of the opposite party if the latter has failed to produce it after having been given written notice to do so. Notice is not required where the nature of the proceedings is such as to inform the opposite party, by necessary implication, that production of the document will be required. Once secondary evidence is admissible, there are no degrees of secondary evidence – the common law no longer requires that the best secondary evidence has to be produced. The respondent was therefore entitled to give whatever evidence it could in respect of the contents of the missing addendum. It was not obliged to satisfy the court that its copy was missing and could not be found despite a diligent search.

Turning to analyse the evidence of the witnesses who testified on behalf of the respondent, the court found that at least two of the witnesses were impartial, and had no reason to fabricate testimony about the existence of the addendum. The balance of probabilities supported the evidence that a valid addendum was executed.
The court a quo, in reaching the same conclusion, was therefore correct, and the appeal was dismissed.
Minister of Safety and Security v Venter & another
[2011] JOL 26949 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
570 / 2009
29 / 03 / 2011
South Africa
Supreme Court of Appeal
L Mpati P, A Cachalia and SA Majiedt JJA
Delict – Claim for damages – Failure by police to inform respondents of their rights under the Domestic
Violence Act 116 of 1998 – Such failure amounting to a breach of the duties of the police in affording maximum protection to victims of doemstic violence –Delict – Claim for damages – Failure by police to inform respondents of their rights under the Domestic Violence Act 116 of 1998 – Contributory negligence
– Court confirming that respondents were negligent in failing to obtain a common law interdict and that that contributed to the harm
Mini Summary:
After the second respondent’s divorce from her husband (“the deceased”) he became threatening when he heard of her relationship with the first respondent. As a result of the deceased’s increasingly erratic and threatening behaviour the first respondent approached the police during June 2002 to seek advice on how he could deter the deceased from coming to his house. They told him that they could only act if the deceased physically tried to enter the house.
Subsequently, the respondents approached the police for assistance on several occasions, but nothing came of their complaints. Eventually, in October 2002, the deceased arrived at the respondents’ house and after threatening her, raped her. He then lay in wait for the return of the first respondent. Upon arriving home, the latter grew alarmed upon realising that the deceased was inside the house, and therefore attempted to enter the house despite knowing the deceased was there. The deceased shot and injured the first respondent. The police arrived and arrested the deceased, who later committed suicide whilst in custody.
The respondents sued the appellant for damages based on the failure of the police to perform their legal duty to assist the respondents to take steps to protect themselves under the Domestic Violence Act 116 of
1998 (“the Act”). The appellant did not dispute that the Act imposes a legal duty to take steps to protect the respondents in the circumstances of this case. Nor did he dispute that the police were negligent in failing to assist the respondents in accordance with the Act’s provisions. However, he contended that the respondents had failed to prove that such negligence caused their damages, because they would probably not have taken steps to protect themselves even if the police had assisted them or, at the very least, that their own negligence contributed to what happened.
Held that the Act and the National Instructions on Domestic Violence (the Instructions) require the police to advise persons of their rights and to assist them in asserting these rights, where necessary. Section
12(1) of the Constitution imposes a duty on the police to protect the right of everyone to be free from private or domestic violence. The preamble to the Act declares that its objective is to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide. Section 2 imposes a duty to assist and inform complainants of their rights under the Act.
On receipt of a domestic violence complaint, wide-ranging duties are imposed on both the station commander and the member receiving the complaint. These include the duty to investigate a complaint and to collate all information in connection with it.
The respondents contended that had they been aware of and understood their rights under the Act – in particular their right to apply for a protection order – they would have taken the appropriate steps to protect themselves. That was disputed by the appellant.

The court pointed out that the wide ranging remedies available to persons in the position of the respondents would be rendered meaningless if the police, as first point of contact in giving effect to these rights and remedies, remained distant and aloof to them, as the facts of this case appear to suggest.
The test for causation in delict, consists of two legs, namely factual and legal causation. Factual causation is to be determined by application of the “but for” test. The high court found that the evidence had established that the police’s failure to advise the respondents of their remedies under the Act was the critical cause for why they had not pursued this course. The present court could not fault the high court’s reasoning. The respondents had therefore established factual causation. Concerning legal causation the appellant did not advance any grounds to suggest that there were any policy considerations that stood in the way of a finding against the appellant. Our courts have in the recent past consistently held the police liable for failure to perform their statutory duty to protect citizens resulting in harm being suffered through such failure. Legal causation was clearly established in this case.
The next question was whether the respondents were contributorily negligent. The appellant’s main contention was that they were negligent in two main respects: first, by failing to obtain a common law interdict and second, by the first respondent’s not leaving his firearm in a locked safe and also by attempting to gain entry to the house when contacting the police would have been the more prudent course of action. In the second resondent’s case it was contended that she was additionally negligent in permitting the deceased to enter the house. The court held that it was not unreasonable for the first respondent to have left his firearm accessible for the second respondent to protect herself int he face of threats from the deceased - or for him to have attempted to gain entry to the house when he perceived that the second respondent and, possibly her children, whom he thought were at home, were in danger.
The second respondent explained that she let the deceased into the house because she believed that it would antagonise him if she did not. Her conduct in that regard was not unreasonable.
In considering whether the respondents were negligent in failing to obtain the common law interdict, the court emphasised two considerations in assessing contributory negligence. The first is that reasonable conduct cannot be judged with the benefit of hindsight and one must guard against the drawing of conclusions from ex post facto knowledge. Secondly, care must be taken not to conflate separate elements of a delictual action such as causation and negligence.
The court’s conclusion was that the respondents were negligent in failing to obtain the interdict and that that contributed to the harm. Comparing the respective degrees of negligence, it was clear that the negligence of the appellant was far greater than that of the respondents. It was confirmed that the appellant was liable for 75% of the respondents’ proven damages.
The appeal was, but for a minor aspect, dismissed.
Sibanda v Sibanda
[2010] JOL 26036 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HC 578 / 10
15/ 04 / 2010
Zimbabwe
High Court
Bulawayo
Ndou J
Keywords:
Family law – husband and wife – domestic violence – protection order under Domestic Violence Act
[Chapter 5:16] – purpose of – courses open to party objecting to terms of order granted against him
Mini Summary:
The applicant and the first respondent were husband and wife. They were separated. The separation was an acrimonious one. The first respondent instituted proceedings against the applicant under section 11 of the Domestic Violence Act [Chapter 5:16]. She sought a provisional protection order against him. An interim protection order was granted and subsequently confirmed. In addition, the magistrate granted an emergency monetary relief in favour of the first respondent against the applicant. The applicant noted an appeal against the confirmation of the protection order and the granting of the emergency monetary relief. In spite of the noting of the appeal, the clerk of court issued a directive against the applicant’s salary. The applicant sought to have this directive reviewed and, simultaneously filed an application to stay the directive. The main complaint by the applicant in these two applications is that he was not notified of the directive before it was issued. The applicant based his application for review on failure to comply with the provisions of sections 9(2) and (3) of the Maintenance Act [Chapter 5:09].
Held that the applicant did not seek revocation in terms of section 12 of the Domestic Violence Act, but chose to approach the court for review of the clerk of court's act. The purpose of the Act is to provide relief to victims on an interim basis whilst the other competent courts are still determining the main issues. In cases of divorce, the complainant party must be protected against violence. The complainant

and the children must be maintained in the interim period. Children cannot wait for determination of the divorce or maintenance between their parents without provision for their maintenance. The Act provides instant relief orders to cater for this interim period. To allow suspension of such orders pending the determination of the main matter would defeat the purpose of the Act and the court should guard against abuse of its process to defeat the protective measures enshrined in the Act.
Laeveld Trust 2001 (Pty) Ltd & others v Blue Fire Properties 115 (Pty) Ltd
[2011] JOL 28053 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
795 / 10
29 / 09 / 2011
South Africa
Supreme Court of Appeal
LV Theron, TD Cloete, FR Malan JJA
Civil procedure – Defence of res judicata – Requirements for res judicata are that the proceedings must be between the same parties, the grounds for relief must be the same in both cases and the same relief must be sought in both cases – Where relief related to different time periods, defence not available – Contract –
Terms of – Agreement entitling purchaser to request documents to conduct due diligence investigation within stipulated time period – Seller’s breach in failing to provide requested documents causing delay which had effect of extending due diligence period
Mini Summary:
In terms of an agreement for the sale of commercial properties by the appellant to the respondent, the latter was entitled to conduct a due diligence investigation in relation to all material matters pertaining to the property, within seven days of the signing of the agreement. During that period, the respondent could request access to documentation and information that it, in its discretion, regarded as material to the purchase of the properties. The appellants were obliged to make available “forthwith” documents properly requested by the respondent.
Four days before the due diligence period could expire, the respondent requested certain specified documents from the appellants. The appellants failed to make all the documents requested available. The annual audited financial statements in particular, were not disclosed. A dispute in that regard was referred to arbitration, where the arbitrator found that the respondent was entitled to the documents requested.
The appellants were ordered to allow the respondent to inspect and make copies of the audited annual financial statements which existed in respect of each of the appellants as at 30 June 2005. The arbitrator also declared that from the date when the said documents were made available, the respondent would have two working days to complete the due diligence investigation, whereafter it would have a further two days within which to inform the appellants which properties it intended purchasing. On 13 January 2010, the respondent was advised that the requested documents would be available that afternoon. Thus, in terms of the arbitrator’s award, the respondent was required to complete its due diligence investigation on or before 15 January 2010. However, on 13 January, the respondent requested further documents in order to update the information to the current date. As the documents specified in the arbitration proceedings related to the period prior to July 2005, the appellants refused to make available any documents not in existence as at July 2005. The respondent then approached the high court for an order compelling the appellants to make available the more recent documents requested, extending the period for the due diligence investigation and interdicting the appellants from disposing of the properties. The present appeal was against the granting of that order.
While acknowledging that they were obliged to provide information to the respondent in order to facilitate a due diligence investigation, the appellants argued that they were not obliged to provide documents that had not been in existence at the time of the conclusion of the agreement. It was submitted that having regard to the limited time frame within which the due diligence investigation had to be concluded, and the other terms of the agreement, the parties could not have envisaged that the respondent would be entitled to documents not in existence during the period of seven days within which the due diligence investigation had to be completed.
Held that what the appellants’ argument failed to take into consideration was the fact that the delay was due to their breach of contract. The consequence of the breach was that the due diligence period was extended. During that period the respondent was entitled to call for documents to enable it to exercise its right to exclude properties from the sale because it deemed them not to be viable. The documents could only be those relevant to the exercise of that right at the time the respondent was entitled to exercise it.
In refusing to provide the documents requested, the appellants had again breached their obligation and

the due diligence period had in consequence, again been extended. As long as the documents were not provided, the respondent would have the right to request same, in respect of the decision it was still entitled to make.
At the hearing of the appeal, the further argument was raised that the respondent was precluded from claiming documents that were more recent than June 2005 as the award by the arbitrator rendered the respondent’s entitlement to documents res judicata. The requirements for res judicata are that the proceedings must be between the same parties, the grounds for relief must be the same in both cases and the same relief must be sought in both cases. As the relief sought by the respondent in the arbitration proceedings related to documents in existence at June 2005 while the relief sought in the high court, was for the production of documents that only came into existence after June 2005, the defence of res judicata could not successfully be raised.
The appeal was dismissed with costs.
Loureiro & others v Imvula Quality Protection (Pty) Ltd
[2011] JOL 27991 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 15228
30 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
K Satchwell J
Keywords:
Delict – Contract – Claim for damages – Duty of care – Negligence
Mini Summary:
The defendant was a security company hired by the plaintiffs to provide security services at their home. In
January 2009, the plaintiffs were robbed by persons who gained access to the plaintiff’s home, posing as members of the South African Police.
Held that the liability of the defendant essentially boiled down to the question of negligence. The robbers had gained access to the plaintiff’s property when the security guard employed by the defendant unlocked the gate to see what they wanted. The Court found that the reasonable security company would reasonably have foreseen the possibility inter alia of unlawful intruders attempting to gain access to the premises; that such intruders might use disguise and guile to facilitate such unlawful access; that the only point of access to the premises over which the company and its employee exercised control was the pedestrian gate which therefore required particular surveillance and management; the only means of communication from the guardhouse to the family home, the company and the outside world was through the intercom in the guardhouse which functionality required to be checked; that clear, understandable or accessible instructions must be given and remain available from the company to the employee; that the employee in the guardhouse would require means to contact a supervisor for guidance or backup. In all these instances the company failed to take the reasonably appropriate steps to eliminate or ameliorate problems arising therefrom and were therefore in breach of their contract with the first plaintiff, negligent in failing to meet the standards required of a security company and the duty of care which they had assumed.
The security guard’s failure to exercise the appropriate caution constituted breaches of contract, failure to meet the duty of care expected, failure to meet the standards required of both security company and security employee and therefore negligence.
The defendant was held liable in both contract and delict to the respective plaintiffs.
Judd v Nelson Mandela Bay Municipality
[2010] JOL 26010 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
2361 / 08
23 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth

Bench:
Keywords:
Chetty J
Delict – Personal injury – Fall on pavement – Negligence
Mini Summary:
In July 2008, while walking to church, the plaintiff tripped on a pavement and fell, seriously injuring herself. She sued the defendant municipality for damages, alleging that she had tripped and fell over a raised and cracked portion of the sidewalk and that the defendant, who was responsible for the maintenance and upkeep of the sidewalk, owed her a duty of care. She alleged further that her fall was occasioned by the negligence of the defendant's employees who had failed to warn pedestrians of the danger posed by the cracked and raised pavement; failed to take any and/or adequate measures to prevent members of the public having access to the dangerous portion of the pavement; failed to maintain the pavement at a reasonable standard when consideration is had to the purpose of which it was used; and failed to take any and/or adequate measures to prevent the pavement from cracking and lifting thereby posing a danger to pedestrians.
Held that the case was concerned with delictual liability for an omission. The defendant's admission that it was under a legal duty to take reasonable precautions in order to avoid or minimise injury to pedestrians on the sidewalks carried with it the necessary corollary that if it was found to have negligently failed to take such precautions its conduct would not only be negligent but also wrongful.
The court held that in a large metropole such as that managed by the defendant no reasonable municipality could be expected to keep its roads and sidewalks in a perfect condition. The court took cognisance of the fact that the defendant's invitation to the general public to report defects in its roads and sidewalks network by utilising both the office and after hours telephone numbers was frequently made use of. That system did not cast an onerous burden upon the metropole's inhabitants.
Finding no negligence on the part of the defendant, the court dismissed the claim.
Jansen & another v RAF
[2010] JOL 26116 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1737 / 09
25 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Civil Procedure – Motor vehicle accidents – Claim for damages – Assessment of evidence – General damages – Loss of earning capacity
Mini Summary:
At a time when he was still a minor, the second plaintiff was injured in a motor vehicle accident. The plaintiffs accordingly sued the defendant fund for damages.
Held that the issue of liability having previously been decided in their favour, the court had to consider the issue of general damages, loss of earnings/ earning capacity and costs.
The evidence satisfied the court that the second plaintiff demonstrated a good work ethic and a desire to better himself. That led the court to apply a contingency deduction of 25% to the damages awarded for loss of earning capacity. Assessing the medical reports and having regard to case law, the court awarded
R4 717 117 as damages.
Louw v Louw
[2011] JOL 26795 (GNP)
Case Number:
Judgment Date:
75723 / 10
22 / 12 / 2010

Country:
Jurisdiction:
Division:
Bench:
Keywords:
Family law – Children – Education
South Africa
High Court
North Gauteng, Pretoria
C Botha J
Mini Summary:
The parties herein were previously married, and had a daughter. A court order ruled that the child would spend alternative weeks with each parent.
The applicant was dissatisfied with the school which the child had been attending thus far, and sought an order that she be enrolled in another school for the 2011 year.
Held that if the child were to be moved to the school suggested by the applicant it would entail a disruption in her education. The court found no reason to disturb the status quo and dismissed the application.
Falcke v Smith
[2012] JOL 28715 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
06 / 12356
15 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FN Kgomo AJ
Keywords:
Contract – Engagement – Termination of – Return of gifts
Mini Summary:
In his action against the defendant, the plaintiff sought an order confirming the termination of his engagement to the defendant, and the return of the engagement ring which he had given the defendant.
He also sought payment of an amount relating to immovable property belonging to the parties jointly during their relationship, and to the amount spent on a vehicle which he had bought for the defendant.
Held that the general rule governing gifts given in anticipation of marriage is that such gifts must be returned if the marriage does not take place. The Court referred to the marriage as a condition attached to the giving of the gifts. That the gifts will be returned should the marriage not ensue will be an implied term of the engagement agreement where not specifically agreed.
In the present case, in pleading to the plaintiff’s summons, the defendant should have specifically pleaded the circumstances surrounding the termination of the engagement and why she alleged that the termination was unjustifiable and justifying the refusal to return the gifts.
Despite some argument to the contrary by the defendant, the Court was led to the conclusion that the engagement was terminated by the mutual consent of both parties.
The Court ordered the defendant to return the engagement erring or to pay the plaintiff the price paid therefor, and further ordered that the selling price of the immovable property be divided as stipulated in the order.
Afri-Forum & another v Malema & another (Vereniging van Regslui vir Afrikaans as amicus
curiae)
[2011] JOL 27740 (EqJ)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20968 / 2010
12 / 09 / 2011
South Africa
Equality Court
Johannesburg
CG Lamont J
Keywords:
Constitutional Law – Constitution – Equality – Hate speech – Singing of offensive song – Interdict
Mini Summary:
The complainants complained that the first respondent while addressing various public meetings had recited, sung and/or chanted certain objectionable utterances. The objectionable utterances which were not in English, were translated as meaning “shoot the Boer/farmer”, “shoot the Boers/farmers they are rapists/robbers”.
In adjudicating the complaint, the Equality Court set out the relevant historical background and the constitutional rights involved in the dispute.
Held that section 9 of the Constitution guarantees equality before the law. Section 12(1)(c) guarantees freedom of security of person, and section 16 guarantees freedom of expression. The Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”) prohibits hate speech.
Inevitably there is a tension between the right of the speaker to freedom of expression and the obligation of the speaker not to use words constituting hate speech.
Section 10 of the Equality Act defines what may not be published. The target group is widely defined and includes natural and juristic persons and associations as well as groupings of people and categories of people.
It was common cause that the first respondent had sung the songs complained of at various public gatherings. The songs in question were liberation songs, the nature of which meant that the words could be manipulated or changed on each occasion. There was a high degree of publicity around the song and the first respondent’s singing of it. The public had interpreted the words which he sang as being an attack upon a sector of the community namely the Boer/farmer who were loosely translated as being the
Afrikaans-speaking sector of the community. The song resulted in two polarised factions, namely those who had been part of the liberation struggle, largely members of the ANC and its supporters, and those who perceived themselves to be the target of the song namely the White Afrikaners.
At all but one of the events at which the song was sung by the first respondent, the press had been invited. It therefore must have been anticipated that the press would publish events which took place.
Therefore, the public at large, even those who did not attend the rallies, had to be treated as being the audience.
The Court held that the first question was to determine the meaning of the words complained of. The intention of the person who uttered the words is irrelevant. Once the meaning was ascertained, it had to be determined whether the words constituted hate speech.
The Court was satisfied that the singing of the song by the first respondent constituted hate speech. The respondents were interdicted from singing the song complained of in any private or public meeting.
Sonke Gender Justice Network v Malema
[2010] JOL 25181 (EqC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
02 / 09
15 / 03 / 2010
South Africa
Equality Court
Johannesburg
Ms CJ Collis
Keywords:
Constitutional law – Right to equality – Right to dignity – Hate speech – Harassment
Mini Summary:
A complaint was referred to the Equality Court, regarding certain utterances made by the respondent at a public gathering. The words complained of related to the respondent's views on the veracity of a rape allegation made against the present president of the country.
The court had to decide whether the said comments amounted to hate speech and/or harassment as per the definitions found within the framework of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 ("the Equality Act"). The complainant sought appropriate declaratory relief,

an unconditional apology for the statements and an order for compensation of the kind contemplated in section 21(2)(e) of the Act.
Held that the legal framework within which the case had to be decided was sections 9, 10 and 16 of the
Constitution and sections 3, 10, 11 and 12 of the Equality Act. Sections 9 and 10 of the Constitution deal respectively with the right to equality and the right to dignity, while section 16 guarantees freedom of expression.
The court was required to consider whether the respondent's words amounted to hate speech. The definition of hate speech in the Equality Ac is a broad one. The test is whether a reasonable person would construe the speech as demonstrating a clear intention to be hurtful. In the present case, the words complained of were based on two prohibited grounds in terms of the Act, namely gender and sex.
The court found that the respondent's utterances demeaned and humiliated women, and more specifically alleged rape survivors. They amounted to hate speech and harassment. The respondent was ordered to issue an apology and to pay R50 000 to a women's organisation.
Haigh Farming (Pty) Ltd v EG Elliot Real Estate CC
[2015] JOL 32546 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14175 / 13
18 / 11 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Mbatha J
Keywords:
Civil procedure – Absolution from the instance – Nature of defence
Mini Summary:
At the close of the plaintiff’s case, the defendant sought absolution from the instance. The defendant claimed that the plaintiff failed to prove the agreement as alleged in its declaration; whether the plaintiff was a “consultant” and not an estate agent with respect to the agreement, and lastly, whether the plaintiff was the contracting party.
Held that the legal question properly formulated would not be whether the plaintiff did work as an estate agent for which it required remuneration but whether it is in law illegal for a member of the public to enter into an agreement with an estate agent commonly referred to as a “spotter’s fee” whereby the member of the public is paid by the estate agent for such a listing resulting in a sale. The Court was not referred to any authority that such an agreement would be illegal or contra bonos mores and of no force and effect. It was therefore not persuaded that the application for absolution from the instance ought to be granted for the reasons advanced by the defendant.
Wakefields Real Estate (Pty) Ltd v Attree & others
[2010] JOL 24990 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
17185 / 05
10 / 02 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
CR Nicholson J
Property – Estate agents – Claim for commission
Mini Summary:
Plaintiff, an estate agency, sued the defendants for commission due on the sale of a property sold to the third respondent.
Held that the only way in which an agent who finds a purchaser can succeed in proving that the finding of the purchaser was the effective cause of the sale, is by evidence that the purchaser was willing and able to buy on the seller's conditions and that the sale was bound to have gone through quite independently of any negotiations conducted by another agent.

It could not be found on the facts of the present case that the plaintiff was the effective cause of the sale, and the claim was dismissed.
MFC, A Division of Nedbank Limited v Duna NO
[2014] JOL 32092 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3712 / 2013
19 / 02 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson J
Keywords:
Administration of estates – Deceased estate – Action against executor – Non-joinder of Master of High
Court – Claim against estate
Mini Summary:
The plaintiff sued the defendant in her capacity as executrix of a deceased estate.
The plaintiff and the deceased entered into an instalment sale agreement in terms of which the deceased purchased a vehicle from the plaintiff. In its particulars of claim, the plaintiff alleged that instalments due in terms of the agreement were in arrears and that a notice in terms of section 129 of the National Credit
Act 34 of 2005 had been delivered to the defendant.
In her opposing affidavit, the defendant raised two defences. The first was that the Master of the High
Court should have been joined as a party in the action, and the second was that the plaintiff should have lodged a claim against the estate and hence the summons was premature.
The present application was for summary judgment.
Held that the Master has the statutory authority in terms of the Administration of Estates Act 66 of 1965, to ensure that executors perform their duties, and liquidate and distribute estates in accordance with the provisions of the Act. However, the Master does not have an interest in the subject-matter of such claims which could be prejudicially affected by a court’s judgment.
On the second point, the Court held that the provisions of the Administration of Estates Act dealing with claims against an estate do not deprive a creditor of his common law right to sue the estate.
As neither of the defences were sustainable, summary judgment was granted.
Pangbourne Properties Ltd v Basinview Properties (Pty) Ltd
[2011] JOL 27156 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
381 / 10
17 / 03 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, MML Maya, WL Seriti JJA
Keywords:
Contract – Suspensive condition – Whether fulfilled – Where a sale agreement was made subject to the furnishing of a Board of Directors resolution confirming the sale, a letter from the company secretary to that effect did not constitute fulfilment of the condition – Contract – Non-fulfilment of condition – Estoppel
– Purchaser not estopped from relying on non-fulfilment since none of requirements of estoppel established
Mini Summary:
In 2007, the respondent sold its business to the appellant. The agreement was subject to three suspensive conditions. According to the appellant, because one of the conditions had not been fulfilled, the agreement was not binding on it. That stance led to the respondent’s applying to the high court for an order that it was of full force and effect. The present appeal was against the granting of the relief sought.

The suspensive condition which the appellant relied upon in support of its stance that the agreement was not binding was that the Board of Directors of both the purchaser and the seller approve the purchase and sale. Proof of the passing of such resolution was to be furnished by each party to the other in the form of a written resolution duly certified by the chairman/secretary. It was common cause that the appellant’s board of directors did not pass the resolution within the period stipulated.
The high court found that although the agreement had lapsed it had been revived. That was the implication of a written addendum to the agreement concluded after the date for fulfilment had occurred.
The high court also found for the respondent on the ground that the appellant was estopped from asserting that the agreement was a nullity and it found that the fulfilment of the condition had been waived despite the express prohibition on unwritten waivers in the agreement.
On appeal, the respondent argued that the agreement was binding on the basis of estoppel. Alternatively it contended that a new agreement had been entered into when the parties signed an addendum to the agreement on 19 June 2008. Before the expiration of the 14-day period for fulfilment of the condition, on
15 November 2007, the appellant’s company secretary wrote to the respondent advising that the chief executive officer of the appellant who had authority to approve the purchase price, had approved the agreement for the purchase of the property. Thus, the respondent argued that the letter from the company secretary on 15 November 2007 formed the basis for finding that the appellant was estopped from asserting that the condition was not fulfilled and that the agreement was not binding. Although it turned out that the appellant’s chief executive officer had in fact exceeded the limits of his authority, the respondent’s case was that that fact was irrelevant as the appellant had represented to it that there was board approval, and that the respondent had reasonably relied on the representation to its detriment.
Held that the court dealt first with the dispute around whether one of the conditions was fulfilled, because were it to be found that the condition was not fulfilled and that the agreement was thus of no effect, the dispute about the price, and an application to rectify the agreement, need not be decided.
The requirements for estoppel are a representation made by a principal (not an agent) by words or conduct in such a way that the principal would expect someone to rely on it; reasonable reliance on the representation by the person relying on the representation; and consequent prejudice to that party.
The court found that the letter relied on by the respondent made no misrepresentation that the condition had been fulfilled, and that the respondent could not reasonably have relied on it in believing that the board had passed the requisite resolution. The agreement expressly required a resolution of the board approving the sale, and proof of the specific resolution to be provided to the respondent. There was no resolution and thus no proof of it as required. The requirements for estoppel to operate such that the agreement was enforceable against the appellant were thus not met.
In the alternative, the respondent contended that an addendum signed in 2008 constituted a new agreement between the parties. Having regard to the wording of the addendum, the court concluded that it could not be interpreted to mean that a new agreement had been constituted.
The high court was thus wrong in finding that the addendum revived the agreement for the sale of the property. Secondly, the respondent’s argument that it actually constituted a new agreement on the same terms was also untenable. The high court also erred in finding that the parties had waived the fulfilment of the condition since the alleged waiver was not only precluded by the express terms of the agreement but also occurred after the date by which the condition should have been fulfilled.
As there was no basis on which to find that the agreement was enforceable, the court upheld the appeal, and dismissed the respondent’s application.
Cubana Latino Caffe CC v Gapwedge Properties 53 (Pty) Ltd
[2011] JOL 27948 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
1628 / 2011
03 / 11 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
D Chetty J
Contract – Terms of – Suspensive condition – Alleged non-fulfilment – Estoppel
Mini Summary:
The parties herein entered into a franchise agreement. The respondent now sought to resile from its contractual obligations on the basis of non-fulfilment of what it contended was a suspensive condition. The alleged suspensive condition which the respondent contended rendered the contract void ab initio was a clause requiring the franchisee to conclude an agreement of lease with the landlord of premises.
Held that as a general proposition, the non-fulfilment of a suspensive condition renders a contract void ab
initio unless the parties have agreed otherwise. The question in the present case was whether the clause constituted a term of the contract or was a true condition.

The Court held that the term in question constituted a term of the franchise agreement. It did not suspend either parties obligations flowing from the contract pending the happening or failure of some uncertain future event. It merely required that an agreement of lease be concluded prior to the parties signing the franchise agreement. That was in fact done.
The contract was signed by the parties in May 2010. The respondent, shortly after signature of the franchise agreement, discovered that the agreement was invalid as it had been entered into with the incorrect entity. At no stage was the applicant appraised of the invalidity of the lease agreement, until advised by the respondent’s attorneys a year later. During that year, the respondent with full knowledge of the invalidity of the lease agreement and far more than a year, enjoyed the benefits of the agreement.
It was therefore estopped from obtaining the relief sought.
The franchise agreement was declared valid and enforceable, and the respondent was ordered to vacate the leased premises.
Company Unique Finance (Pty) Ltd & another v Northern Metropolitan Local Council of
Johannesburg & another
[2010] JOL 26055 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14581 / 99
13 / 08 / 2010
South Africa
High Court
South Gauteng, Johannesburg
P Blieden J
Keywords:
Contract – Contract – Repudiation – Authority – Ostensible authority – Estoppel
Mini Summary:
In terms of three contracts, the first defendant ("the council") rented certain equipment from the first plaintiff. The second defendant signed the agreements on the council's behalf.
The plaintiffs alleged that the council unlawfully repudiated its obligations as contained in the agreements, when it informed the first plaintiff that it was unaware of the existence of the agreements, and that it therefore sought repayment of amounts paid under the agreements. Accepting the repudiation, the plaintiffs cancelled the contracts and instituted the present action for delictual damages. The second defendant denied that he lacked authority as claimed by the council and consequently denied any liability to the plaintiffs on their claims.
Held that in order to act on behalf of another so as to affect that other's relationships, the necessary authority to do so must be present. Authority to act can either be actual or ostensible. It was only ostensible authority which was in issue in the plaintiffs' case based on contract. Ostensible or apparent authority is the authority of an agent as it appears to others.
A claimant who relies on an estoppel will have to show that he was misled by the principal into believing that the party who purportedly acted on the principal's behalf had authority to conclude the act, that the belief was reasonable, and that the claimant acted on that belief to his prejudice. Assurances by the agent of the existence or extent of his own authority are of no consequence. The onus to establish an estoppel rests on the party who pleads it.
The court also set out the requirements for proof of fraud, misrepresentation and vicarious liability.
On the claim based in contract, the court found that there was a representation by both words and conduct made by the council, that the second respondent had the authority to sign the agreements. The council should reasonably have expected that outsiders such as the plaintiffs would act on the strength of its representation. The council was therefore estopped from denying the authority of the second respondent to act on its behalf in concluding the agreements.
Judgment was granted in plaintiff's favour, as against the first defendant only.
Wijnen and another v Mohamed and others
[2015] JOL 32821 (WCC)
Case Number:
Judgment Date:
16043 / 13
01 / 09 / 2014

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Western Cape, Cape Town
Masuku AJ
Keywords:
Civil procedure – Eviction application – Eviction order – Ex parte application – Application for reconsideration
Mini Summary:
In an ex parte application brought by the respondents, an order was issued in terms of section 4(2) of the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. The present application was for an order in terms of rule 6(12)(c) of the Uniform Rules of Court setting aside the order.
Held that rule 6(12)(c) of the court provides that a person against whom an order was granted in his absence in an urgent application may by notice, set down the matter for reconsideration of the order.
Reconsideration of an order may involve the deletion of the order, in part or in whole, an amendment of an order or even addition to the order. In this case, the applicants sought the setting aside of the entire order on the grounds that the order was granted in circumstances where the application was defective in terms of rule 6(4) of the Rules of Court, and was set down for hearing as an urgent application without complying with rule 6(12). As an ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the provisions of the Constitution, the basic procedural safeguard, ensuring an impartial court, is a hearing held in public in which all the parties with an interest in the order of the Court are allowed to participate. Section 34 of the Constitution guarantees the right of everyone to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
Because adequate notice of judicial proceedings to concerned parties may at times lead to irreparable harm to one or more of those parties, in such a case the threatened party or parties may approach a court on an ex parte basis for temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing. Whether or not the respondents in this application were entitled to bring an urgent ex parte application had to be established from the facts and circumstances of the case before the Court.
The Court was satisfied that the circumstances in the present case warranted the bringing of the eviction application on an urgent ex parte basis. It dismissed the application for reconsideration.
However, as the Court was unhappy with the manner in which the respondents pursued their eviction application, it made a costs order against them.
Thekiso v Nxumalo and others
[2014] JOL 32335 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Eviction application – Rights of occupiers
Mini Summary:
41976 / 2012
03 / 04 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
I Opperman AJ
The applicant sought the eviction of the first and second respondents from premises on the basis that he was owner of the property and that the first and second respondents were in occupation of the property.
Held that the evidence showed that the respondents had paid a substantial amount towards the purchase price of the property. in seeking eviction, the applicant was requesting the court to order that the respondents be evicted from the property under circumstances where the respondents had paid more than three quarters of the purchase price. The effect of the order would be that the applicant retained both property and a substantial portion of the purchase price. That would be patently unjust and inequitable.
The verbal agreement between the parties regarding the sale of the property was invalid. It would be unfair for the respondents to be evicted until such time as the proprietary aspects relating to the unenforceable and invalid verbal agreement were dealt with. A trial action would appear better suited to that enquiry.
On the ground that the applicant had failed to discharge the onus resting upon him, the application was dismissed with costs.

Changing Tides 74 (Pty) Limited v Kasu Wholesalers CC
[2014] JOL 32334 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2013 / 46593
31 / 07 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
BA Mashile J
Keywords:
Civil procedure – Eviction application – Alleged dispute of fact
Mini Summary:
The applicant sought to evict the respondent from certain commercial premises belonging to it. The respondent occupied the premises in terms of a lease agreement, which had expired. At the end of the lease term, the respondent remained in occupation and continued to pay monthly rentals, which the applicant accepted. The monthly tenancy was terminable at one calendar month notice by either party.
The applicant contended that it terminated the lease agreement on 5 August 2013 alternatively, on 1
November 2013 on account of the respondent’s recurring breaches.
In response, the respondent argued that it was justified in not meeting its obligations arising from the lease agreement in terms of the exception non adempleti contractus, and that it had invested vast amounts of funds in the premises by way of rentals and was therefore entitled to exercise a debtor / creditor lien over the premises. It contended that in view of the presence of the dispute of fact, there existed a need to lead oral evidence.
Held that even on its own version, the respondent breached the lease agreement in that its payment of the rentals had been intermittent from inception until it stopped paying completely in September 2012.
The reasons for the sporadic and the ultimate complete cessation of payment of rentals were irrelevant.
There was no dispute of fact.
The Court went on to find that the exceptio non adempleti contractus could not in the circumstances of this case avail the respondent, who had simply not met its contractual obligations. Furthermore, a debtor/creditor lien did not find application in the current situation.
The eviction order was thus granted.
Sterklewies (Pty) Ltd t/a Harrismith Feedlot v Msimanga & others
[2012] JOL 29042 (SCA)
Case Number: 456 / 2011
Judgment Date: 25 / 05 / 2012
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
KK Mthiyane DP, MJD Wallis, IG Farlam JJA, F Kroon, P Boruchowitz AJJA
Keywords:
Property – Land – Eviction order – Appeal against setting aside of eviction order on review – Termination of right of residence of occupier in terms of Extension of Security of Tenure Act 62 of 1997 – Section 8(1) of the Extension of Security of Tenure Act provides that termination of a right of residence must be both lawful and just and equitable having regard to the factors specified in the section, and section 8(2) provides that an occupier’s right of residence where the occupier is an employee whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act 66 of 1995 – Respondents’ contact of employment expressly providing that their right of residence derived from their employment agreements and terminated when those agreements were terminated – Eviction of respondents in those circumstances confirmed as just and equitable –
Mini Summary:
During their employment by the appellant, the respondents resided in a hostel on the appellant’s premises. Despite having been dismissed from employment in 2004, the respondents continued to reside in the rooms previously occupied by them in the hostel. After their attempts to challenge the fairness of their dismissals had been exhausted, they were given notice of termination of their right of residence in the rooms in January 2008. Between May and December 2008 the notices required by section 9(2)(d) of the Extension of Security of Tenure Act 62 of 1997 (“the Act”) were served and published requiring the former employees to vacate, but they declined to do so. Consequently, the appellant applied to the

Magistrates’ Court for an order for their eviction. The eviction order was granted by that court, but on review in the Land Claims Court, the order was set aside. The present appeal was directed at the Land
Claims Court decision.
Held that the Act provides statutory protection against eviction for occupiers of agricultural land. An occupier is defined in section 1 of the Act as referring to a “person residing on land which belongs to another person, and who has or on 4 February 1997 or thereafter had consent or another right in law to do so”. In terms of section 3(1) of the Act, consent to an occupier to reside on or use land shall only be terminated in accordance with the provisions of section 8. That section refers to the termination of an occupier’s “right of residence” on the land in question. That refers to the right to occupy that arises from the express or tacit consent of the owner of the land. The Act does not describe an occupier as a person occupying land in terms of an agreement or contract, but as a person occupying with the consent of the owner. Persons claiming the Act’s protection must show that the owner of the land has consented to their being in occupation, irrespective of whether that occupation flows from any agreement or has its source elsewhere. Whatever its origins, it is the right of residence flowing from that consent that must be terminated in terms of section 8 before an eviction order can be obtained.
The appellant’s case was that the respondents’ right to reside in the hostel flowed from their contracts of employment and, with the termination of the latter, their right to occupy those rooms terminated.
Section 8(1) of the Act provides that termination of a right of residence must be both lawful and just and equitable having regard to the factors specified in the section. Section 8(2) provides that a “right of residence for an occupier who is an employee and whose right of residence arises solely from an employment agreement, may be terminated if the occupier resigns from employment or is dismissed in accordance with the provisions of the Labour Relations Act”. The purpose of the section was to ensure that eviction orders could not be obtained against dismissed workers in these areas until all disputes about the validity of the termination of their employment had been resolved through the mechanisms of the Labour
Relations Act.
The Act contemplates two stages before an eviction order can be made. First, the occupier’s right of residence must be terminated in terms of section 8 of the Act. Once the right of residence has been terminated, before an eviction order can be sought, not less than two months’ notice of the intention to seek the occupier’s eviction must be given to the occupier, the local municipality and the head of the relevant provincial office of the Department of Land Affairs in terms of section 9(2)(d) of the Act. That notice is required to be in a form prescribed by regulations made in terms of section 28 of the Act.
From the outset, it was made clear to the former employees that their right of residence had derived from their employment agreements and that it terminated when those agreements were terminated.
Accordingly, the obligation to vacate the hostel on termination of the contracts of employment of the former employees was one that was explicitly embodied in the obligations of the former employees under those contracts. The employment contracts further required the employees to observe and comply with the employer’s rules. Those rules included the rules in regard to residence in the hostel, and provided that the right of residence would terminate on termination of the employment contracts. In the premises, the appeal had to succeed.
MGRO Properties (Pty) Limited and another v Snyers and another
[2014] JOL 32125 (LCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Eviction application – Requirements
LCC 05 / 2013
17 / 04 / 2014
South Africa
Land Claims Court
Cape Town
YS Meer J
Mini Summary:
In terms of the Extension of Security of Tenure Act 62 of 1997, the applicants sought the eviction of the respondents from the dwelling they occupied on a farm owned by the first applicant.
The first respondent, aged 48, was an erstwhile farmworker on the farm. He was an occupier on the farm as defined in the Act and resided in the dwelling together with the second respondent, his wife aged 45, their 2 daughters and 2 grandchildren. In terms of contacts of employment with the previous farm owner, the first respondent's right of residence would terminate upon the termination of his employment, whereafter he would have to vacate the dwelling he occupied. When the first applicant acquired the farm in 2010 the second applicant concluded an employment contract with the first respondent. It was agreed that the housing agreement would be terminated upon termination of the employment contract, whereafter the occupier would be obliged to vacate the premises on 2 month’s notice by the owner. The first respondent resigned in December 2010, alleging later that the applicants had asked him to resign.

Held that the respondents did not have any right to continue to live on the property. The Court turned to consider whether the mandatory requirements for the granting of an eviction order as specified at section
9(2) the Act had been complied with. Given that the first respondent voluntarily resigned, his right of residence had been terminated in terms of section 8. The notices given to him were valid notices in terms of section 9(2)(b).
Finding that all the requirements of section 9(2) were complied with, the Court granted the eviction order.
Marais NO and others v Kondos
[2014] JOL 32090 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
5192 / 2013
09 / 01 / 2014
South Africa
High Court
Free State, Bloemfontein
LJ Lekale J
Contract – Lease agreement – Termination of – Vacating of property – Eviction application
Mini Summary:
The applicants were the trustees of a family trust which owned immovable property. The respondent had been renting the property from the trust for the purposes of conducting a business therefrom since
September 2012. The lease agreement was for six months, and at the expiry thereof, the respondent, instead of exercising an option to renew the lease, made a written offer to purchase the property subject to a suspensive condition relating to the procuring of a bond. The respondent continued paying rent after the expiry of the lease, and he was asked to either pay the full purchase price if he was still interested in buying the property or to conclude a written lease agreement. Failing that, he was to vacate the property.
He continued to tender rent, but that was refused, and his subsequent offer to purchase was rejected as the trust had by then entered into negotiations with another entity for a five-year lease agreement.
The present urgent application was for the eviction of the respondent from the property. The respondent disputed that the applicant had established urgency. He further, contended that there existed a genuine dispute of fact which could not be resolved on papers and, as such, the application should be dismissed insofar as the trust should have foreseen the dispute much earlier.
Held that the Court was satisfied that the applicant was entitled to bring the application on an urgent basis.
The real question for determination was whether or not, at the time when the trust required the respondent to vacate the property, it was, in law, entitled to do so. Rejecting the respondent’s assertions to the contrary, the Court concluded that the trust was entitled to cancel the agreement when it did, and to require the respondent to vacate the property.
The application succeeded.
Guman NO v Ansari & others
[2011] JOL 27841 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Eviction application – Defence – Lien
Mini Summary:
2011 / 2648
23 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
The applicant sought an order for the eviction from certain premises, of the first respondent and anyone occupying and claiming occupation under or through her. The first respondent contended that she was a
bona fide possessor of the property and that she had incurred necessary expenses for the maintenance and improvement of the property as a result of which the owner of the property had been enriched in respect of the overall value of the property. She accordingly contended that she had a valid enrichment claim against the estate for R70 000.
Held that a lien (right of retention, ius retentionis) is the right to retain physical control of another’s property, whether movable or immovable, as a means of securing payment of a claim relating to the expenditure of money or something of monetary value by the possessor (termed “retentor” or “lien

holder”, while exercising his or her lien) on that property, until the claim has been satisfied. A person who has spent money or done work on another person’s property generally has a right of retention over that property, operating against the entire world. This right may be either a real lien, a salvage and improvement lien, or an enrichment lien. The lien enables the retentor to retain possession of the property in question until the expenditure on the property has been compensated. A lien for the recovery of necessary expenses is traditionally called a salvage lien or a lien for repairs, while the one for the recovery of useful expenses is termed an improvement lien. If successfully raised, the owner may not recover possession of the property from a person who is lawfully in possession and who has an underlying valid enrichment claim, unless and until the defendant has been compensated.
To successfully raise the defence of a lien, the defendant must allege and prove lawful possession of the object; that the expenses incurred were necessary for the salvation of the thing or useful for its improvement; the actual expenses and the extent of the enrichment of the plaintiff. Both have to be given because the lien covers the lesser of the two amounts only; that the plaintiff’s enrichment is iniusta
(unjustified); and that there was no contractual arrangement between the parties (or a third person) in respect of the expenses.
The general principle that applies to (real) security that in the absence of an agreement to the contrary, the secured party is not permitted to use the encumbered asset for his or her benefit, also applies to liens.
The Court found that the first respondent had failed to make the necessary allegations to uphold the alleged defence of an improvement lien.
Nel v Beleng & others
[2012] JOL 28903 (LCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Land – Eviction order – Review
LCC 77R / 2011
14 / 02 / 2012
South Africa
Land Claims Court
Randburg
Kahanovitz AJ
Mini Summary:
An unopposed eviction application having been granted by the magistrate, the case came before the present court on automatic review. The magistrate gave no reasons for ordering the eviction of the respondents.
Held that after granting an order of eviction in terms of the Extension of Security of Tenure Act 62 of
1997, magistrates are required in terms of Land Claims Court Rule 35A(l)(b) to ensure that the record of proceedings and reasons for the order are forthwith transmitted to this Court for automatic review.
The eviction order in this case could not be confirmed as various procedural requirements had not been complied with. The Court had not requested a probation officer’s report as required by section 9(3) of the
Act. There was also no compliance in respect of all respondents with section 8 of the Act. Finally, it appeared that there was no proof that the applicant had given written notice to the municipality or the head of the relevant provincial Department of Rural Development and Land Reform as required by section
9(2)(d).
The order was accordingly set aside.
Table of Contents
Remhoogte Boerdery Grabouw (Pty) Ltd v Booysen
[2012] JOL 28904 (LCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
LCC 27R-2012
08 / 05 / 2012
South Africa
Land Claims Court
Randburg
Kahanovitz AJ
Property – Land – Eviction order – Review
Mini Summary:
The applicant was the owner of a farm on which the respondent had been employed. As a result of such employment, the respondent was allowed to live together with his family in a house on the property, for the duration of his employment. He was dismissed in 2010, and was given notice to vacate the house.

An eviction order was granted by the court a quo, and the matter now came before the present court on automatic review.
Held that after granting an order of eviction in terms of the Extension of Security of Tenure Act 62 of
1997, magistrates are required in terms of Land Claims Court Rule 35A(l)(b) to ensure that the record of proceedings and reasons for the order are forthwith transmitted to the present court for automatic review.
In the present case, the magistrate gave no reasons for his decision.
Furthermore, the Court was not apprised of all the facts relating to the respondent’s right of residence.
That together with certain other instances of non-compliance with the Act, led the Court to set aside the eviction order.
Bouwer NO & others v Linnerts & others
[2011] JOL 27957 (LCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Land – Eviction order – Refusal of – Appeal
Mini Summary:
LCC 255 / 2009
02 / 12 / 2010
South Africa
Land Claims Court
Randburg
A Gildenhuys J, AJ Mia AJ
The appellants were the trustees of a trust which owned a farm on which the first respondent had lived since about 1995. The first respondent had been employed as a general worker by a previous owner of the farm, and his right of residence arose from such employment.
In terms of the Extension of Security Act 62 of 1997, the applicant applied for the eviction of the first respondent and his family from the property. The magistrate dismissed the application on the basis that it would not be fair or lawful to grant the eviction order. The present appeal was against that decision.
Held that the issues in dispute were whether the fairness of the first respondent’s dismissal from employment was relevant to the question of whether his right of residence was validly terminated; and whether the appellants had made out a case in terms of section 10(1)(c) of the Act in seeking the eviction of the respondents.
The present Court did not have the competence to determine whether the first respondent’s dismissal was valid, and had to accept that it was valid. In terms of section 8(1) of the Act, the appellants were entitled to cancel the first respondent’s right of residence.
In terms of section 9(2)(c), in the circumstances of the present case, the appellants had to comply with the provisions of section 10 before they could obtain an eviction order. A person who seeks the eviction of an occupier under the Act must make out a case in relation to every provision to which the court must apply its mind in deciding whether an eviction order is justified. On the papers before the Court, the appellants did out make out a case that the first respondent had irretrievably damaged his relationship with the appellants. Consequently, section 10(1)(c) had not been complied with.
In the premises, the appellants were not entitled to the eviction order.
The appeal was dismissed.
Merebank Hotel (Pty) Ltd v Chetty
[2010] JOL 26355 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3564 / 10
29 / 10 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Ngwenya AJ
Keywords:
Contract – Lease agreement – Existence of – Eviction
Mini Summary:
In an application for the eviction of the respondent, the court had to decide whether as averred by the respondent, there existed an oral lease agreement between the parties. The applicant’s contention was that the lease was on a month to month basis.

Held that the version of the applicant was the more credible one. The applicant had adduced evidence of the way it normally conducted business, and established that it had entered into written leases with all its tenants. It was unlikely that it would out of twenty one tenants, decide to enter into an oral lease agreement with the respondent only.
The eviction order was accordingly granted.
Janion v RAF
[2010] JOL 25925 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1597 / 08
01 / 04 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JD Pickering J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Liability
Mini Summary:
The plaintiff was involved in a motor vehicle accident in which, he alleged, he sustained severe injury. He sued the defendant fund for damages.
Held that the plaintiff was unable to testify due to his injuries, but his two witnesses satisfied the court as being credible witnesses. The insured driver and his witness on the other hand were found to be unconvincing. Their testimony was described by the court as improbable and contradictory.
In argument, the defence conceded that the evidence of its two witnesses could not be relied upon, and that the matter had to be decided on the basis of the plaintiff's evidence. The defence’s attempt to contend for contributory negligence on the part of the plaintiff was rejected by the court, as lacking in any factual basis.
The defendant was held liable for the plaintiff's proven damages.
Nedbank v Oosthuizen
[2014] JOL 32084 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6588 / 2012
28 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Bezuidenhout AJ
Keywords:
Civil procedure – Execution of judgment – Immovable property – Declaration that property is executable –
Requirements
Mini Summary:
In an application in terms of rule 46(1) of the Uniform Rules of Court, the applicant bank sought an order declaring certain immovable property of the respondent specially executable. As the property was the respondent’s primary residence, the Court asked for a valuation of the property. The bank’s attorney submitted that as the judgment was not in respect of a bond, and not in favour of the bondholder, such was not required. He further submitted that the applicant would not be able to obtain a valuation of the property. He also submitted that the requirements as set out in the practice directive of this division relating to declaring bonded property specially executable are not applicable.
Held that in light of the bank’s arguments, rule 46(1), the practice directives of this division and the
Constitution had to be considered.
Before a primary residence can therefore be declared executable the Court must first consider all relevant circumstances to ensure that there is no abuse of the execution process. At all times the provisions of the

Constitution must be considered and applied. When a writ of execution is to be authorised in respect of the primary residence of a debtor, the same principles must be applicable whether it is a bondholder or a creditor of other sorts wanting to declare the property executable. This requires that all relevant facts be placed before Court. Judicial oversight is required irrespective of whether the application to declare immovable property executable results from a bond or any other debt. There is however a distinction between a bondholder declaring a property executable and a non-bondholder in that in the latter case there must be a nulla bona return from the Sheriff in respect of movables, or that there are insufficient movables. However if a primary residence of a debtor is to be declared executable by a creditor who is not a bondholder a valuation of the property concerned would be of assistance and if there is a bond registered against the title deed of the property the outstanding amount in respect of the bond would also assist the Court in exercising the judicial oversight required. An attempt should be made by the applicant to provide such information. If it is not provided the reasons therefore must be set out in the applicant’s affidavit.
Satisfied that the applicant had done all it was required to do, the Court granted the relief sought.
Mkhize v Umvoti Municipality & others
[2010] JOL 25856 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8701 / 06
21 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MJD Wallis J
Keywords:
Civil procedure – Residential property – Sale in execution – Validity
Mini Summary:
The plaintiff owned certain immovable property against which a warrant of execution was issued. The property was attached and then sold in execution to the third defendant. The latter sold the property to the fourth and fifth defendants in 2004. They took ownership, and were currently in possession of the property, to which they had effected improvements.
However, in the present action, the plaintiff contended that the sale in execution was void and sought a declaratory order to that effect. In addition he sought an order setting aside the subsequent sale to the fourth and fifth defendants and an order that the property be re-transferred to him.
All the steps in respect of the sale in execution of the property were taken before the judgment of the
Constitutional Court in Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others. Prior to that decision a sale in execution of immovable property consequent upon a judgment in the magistrates' court was a routine matter with the relevant steps in the process being undertaken by the clerk of the court in terms of section 66(1)(a) of the Act. In Jaftha the Constitutional Court declared that section 66(1)(a) was unconstitutional and invalid in certain respects. It remedied the defect by reading words into the section providing for judicial oversight of the process of execution against immovable property. The plaintiff contended that the Constitutional Court had held that judicial oversight is a pre-requisite to a valid sale in execution under section 66(1)(a) and because the sale of his property took place without such judicial oversight, it was void and had to be set aside.
Held that the orders in Jaftha are ambiguous because they are capable of being construed as being generally applicable to all cases of execution against immovable property in the magistrates' court, whereas the case concerned only the possibility of such execution infringing the debtor's right of access to adequate housing in terms of section 26(1) of the Constitution.
The right of access to adequate housing was not compromised in this case. the orders made by the
Constitutional Court should be construed as applying only when the immovable property in respect of which execution is sought is the debtor's home. The plaintiff never lived in the property in question in this case. There was accordingly no constitutional requirement of legal oversight before the clerk of the court issued a warrant of execution.
Charlton v Parliament of the RSA
[2011] JOL 27799 (SCA)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
680 / 2010
16 / 09 / 2011
South Africa
Supreme Court of Appeal
BJ van Heerden, FDJ Brand, MML Maya, NZ Mhlantla JJA, Meer AJA
Civil procedure – Exceptions – Dismissal of – Appealability – The dismissal of an exception is generally not appealable - the qualification to that general principle relating to exceptions going to jurisdiction – Words and phrases – “Judgment” and “order” – Section 20(1) of the Supreme Court Act 59 of 1959 – Decision must be final in effect and not susceptible to alteration by the court of first instance; it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings –
Mini Summary:
The appellant was the Chief Financial Officer to the respondent (parliament) until his purported dismissal on 13 January 2006, ostensibly on the grounds of work-related misconduct. However, the appellant contended that his dismissal was in actual fact motivated by the fact that he was a whistleblower in relation to fraud perpetrated by members of parliament in respect of claims for their travel benefits. He alleged that he first discovered an alleged improper travel benefits claim by a member of parliament in
2002. In the course of his investigations, he formed the view that the fraud had been perpetrated on a very large scale as hundreds of members of parliament were implicated. According to the appellant, he enjoyed the support of parliament in his pursuit and investigation of the travel fraud until April 2004, when a new secretary to parliament was appointed. From that point on, according to the appellant, parliament’s support for the investigation and pursuit of the travel fraud declined substantially.
On 18 November 2005, parliament suspended the appellant from his employment without any prior hearing. A disciplinary enquiry into the various charges of alleged misconduct against him was conducted between 12 and 21 December 2005. The disciplinary enquiry recommended his dismissal, and on 13
January 2006, the secretary to parliament accepted the recommendation and summarily dismissed the appellant.
Challenging his dismissal before the labour court, the appellant contended that his dismissal was automatically unfair and that it was substantively and procedurally unfair. Parliament excepted to the statement of claim on six grounds, but only two were pursued at the hearing. The labour court dismissed both exceptions, but the Labour Appeal Court upheld the exceptions previously dismissed by the labour court. The Labour Appeal Court made orders staying the proceedings under section 158(2)(a) of the
Labour Relations Act 66 of 1995 and referring the dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) for arbitration. The present appeal ensued.
The first exception related to the appellant’s first cause of action, ie that his dismissal was automatically unfair in terms of section 187(1)(h) of the Labour Relations Act because he was dismissed for having made protected disclosures as envisaged in the Protected Disclosures Act 26 of 2000 (“the PDA”).
Parliament submitted that, in order to enjoy the protection of the PDA, the disclosure by the employee concerned had to relate to conduct by his employer or by a co-employee. In terms of section 187(1)(h) of the Labour Relations Act, a dismissal is automatically unfair if the reason for the dismissal is a contravention of the PDA, by the employer, on account of an employee having made a protected disclosure defined in that Act. Exception A was to the effect that members of Parliament are neither employees nor employers for purposes of the PDA; that the appellant did not enjoy protection under the
PDA when he made disclosures about their conduct; that his dismissal was accordingly not automatically unfair in terms of section 187(1)(h) and hence that the first claim disclosed no cause of action.
Held that the issue of the appealability of the labour court’s dismissal of the first exception was wrongly dealt with by the Labour Appeal Court which failed to appreciate that it is established law that the dismissal of an exception is generally not appealable. The qualification to that general principle relates to exceptions going to jurisdiction.
It is established practice that exceptions are dealt with in the labour court and the Labour Appeal Court in the same manner as in the high court. In terms of section 20(1) of the Supreme Court Act 59 of 1959, only judgments and orders (and not mere rulings) are appealable. The test for what is meant by a judgment or order is that the decision must be final in effect and not susceptible to alteration by the court of first instance; it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. Because the order is not final in effect in that there is nothing to prevent the aggrieved party from raising and arguing the same issue at the trial, the dismissal of an exception is not appealable. Accordingly, leave to appeal against the dismissal of the first exception should not have been given by the labour court and the Labour Appeal
Court ought simply to have struck parliament’s appeal in respect of the first exception from the roll. In that regard, the appeal had to succeed.

The remaining exception related to the appellant’s fourth and fifth causes of action, in which the appellant alleged that his dismissal was substantively and procedurally unfair. These were the ordinary unfair dismissal claims, as opposed to the automatically unfair dismissal claims. Parliament submitted that the said claims had to be resolved through arbitration in the CCMA and not through adjudication in the labour court. Therefore, it was argued, the labour court lacked jurisdiction to entertain the matter. As indicated above, the qualification to the general principle that the dismissal of an exception is generally not appealable, relates to exceptions going to jurisdiction. In this case, however, in dealing with this exception, the labour court did not in fact decide on the issue of jurisdiction. The Labour Appeal Court thus clearly erred in holding that the labour court in dismissing the exception, made a finding that it had jurisdiction. The labour court made no such finding. As there was no final judgment or order on this exception, no appeal could arise in relation thereto. Here too, the Labour Appeal Court ought to have struck the matter from the roll.
The appeal was upheld with costs.
Bezuidenhout v Lindelo Projects CC and another
[2014] JOL 31987 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4990 / 2013
26 / 06 / 2014
South Africa
High Court
Free State, Bloemfontein
NM Mbhele AJ
Keywords:
Civil procedure – Particulars of claim – Breach of contract – Exception
Mini Summary:
The plaintiff sued the defendants, arising from an alleged breach of contract. The parties had entered into a contract, using a pro-forma document to express their intentions. The defendant argued that on the face of the contract, it showed that the parties did not intend to give the plaintiff a sole mandate to sell the property. The reference in the pro-forma document to “multi-listing services” had been deleted, and the space meant for the identification of the person in whose favour the mandate was granted, had been left blank and scratched out.
Held that an exception that a pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations will not be expunged. It must be determined in each case whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice. The excipient must work out his case for embarrassment by reference to the pleadings alone. The Court will not decide by way of exception, the validity of an agreement relied upon, or whether a purported contract may be void for vagueness.
In the present case, the dispute regarding the contract could not be resolved at the present stage of the proceedings. The Court was not of the view that the particulars of claim lacked particularity and clarity so that the first and second defendants would have difficulty pleading thereto.
The Court dismissed the exception.
Du Plessis v Stander
[2014] JOL 31992 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
570 / 2014
03 / 07 / 2014
South Africa
High Court
Free State, Bloemfontein
NM Mbhele AJ
Keywords:
Civil procedure – Particulars of claim – Exception to
Mini Summary:
The plaintiff sued the defendant in a defamation action, alleging that the defendant had mentioned within earshot of third parties, the allegation that the plaintiff had engaged in an extra-marital relationship while his wife was alive. The defendant filed an exception to the particulars of claim on the ground that they were vague and embarrassing.

Held that an exception that a pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations will not be expunged. It must be determined in each case whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice.
In the present case, the defendant averred that the details regarding the time and place when the defamatory statements were made were not provided. High Court Rule 18(4) provides that every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto. A pleading may be vague if it is either meaningless or capable of one meaning, or if it lacks the particularity and clarity necessary to inform the other party of the case to be answered. The Court could not find that the particulars of claim were so wanting in clarity and particularity that the defendant should have difficulty pleading thereto.
The exception was dismissed with costs.
South African Securitisation Program (Pty) Ltd v Enviroserv Waste Management (Pty) Ltd
[2012] JOL 29044 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3030 / 2010
07 / 06 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J
Keywords:
Civil procedure – Pleadings – Particulars of Claim – Exception to
Mini Summary:
The plaintiff applied to amend its Particulars of Claim, after an Exception was raised to the particulars by the defendant. The latter opposed the proposed amendment.
The plaintiff claimed as cessionary in respect of two lease agreements, pursuant to a series of cession agreements. Its allegations in regard to the written cession agreements were the subject of the defendant’s objections to the amendment. According to the defendant, were the amendment to be allowed, the Particulars of Claim would be rendered excipiable in that they were vague and embarrassing, alternatively that they lacked averments necessary to sustain a cause of action.
Held that the objection in essence concerned the absence of sufficient allegations to establish the plaintiff’s locus standi in the action.
It was clear that the Particulars of Claim suffered from a lack of particularity. Moreover, there was a reliance on conclusions without setting out the factual foundation therefor. Essential details regarding the alleged cession to the plaintiff were not provided. Those details were essential to complete the plaintiff’s cause of action. In the absence thereof, the plaintiff’s Particulars of Claim lacked averments necessary in order to sustain a cause of action based on the alleged cession.
The application was dismissed.
Dakin NO & another v Cronje NO
[2010] JOL 26009 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Plea – Exception to
1321 / 09
26 / 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
M Makaula AJ
Mini Summary:
In their capacities as trustees of a family trust, the plaintiffs sued the defendant in his capacity as executor of a deceased estate. The trust had entered into an agreement of lease with the deceased. It subsequently sued for non-payment of rentals. The defendant defended the action. Leading to an

exception to the plea by the trust. In the exception, it was contended that the plea did not disclose a defence.
Held that rule 22(2) of the Uniform Rules of Court provides that the defendant in his plea shall either admit or deny or confess or avoid all the material facts alleged in the summons, and shall clearly and concisely state what material facts he relies upon. The defendant in this case failed to meet the latter requirement. The exception was upheld, and the defendant was granted leave to amend his plea within a stipulated time.
Aveng (Africa) Ltd v Varicor Six (Pty) Ltd t/a Sigma Consulting
[2010] JOL 25924 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1613 / 09
09 / 04 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
CT Sangoni J
Keywords:
Civil procedure – Particulars of claim – Claim for damages – Details of claim – Exception
Mini Summary:
The plaintiff had appointed the defendant as an engineer in a building project. Alleging that the defendant had not performed his contractual obligations with the required care and skill, and setting out the alleged defects in workmanship, the plaintiff claimed damages for breach of contract. The amount claimed was that allegedly spent by the plaintiff in remedying the defects.
The defendant raised an exception to the summons. He contended that there was no nexus, in the particulars of claim, between the sum claimed and the alleged breaches of contract such that the defendant would be enabled to assess the quantum thereof for the purposes of pleading.
Held that the issue of when a declaration or particulars of claim may be excepted to on the basis of it being vague and embarrassing has been addressed in case law. Generally the information in a declaration or particulars of claim need only be sufficient for the defendant to plead thereto. The exception stage is not the time for the defendant to complain that he does not have enough information to prepare for trial or may be taken by surprise at the trial. That comes later.
In casu the defendant contended that the plaintiff had supplied particulars that failed to give the defendant any guidance in respect of assessment of damages. One of the requirements to prove in a claim for damages arising out of a breach of contract, is a causal link between the breach and damages. Another element is that the loss must not be too remote. The breach must be a causa sine qua non for the loss.
The court agreed that the plaintiff was required to detail the remedial work done by it, failing which the defendant would be no position to know the nature and amount of the remedial work. The exception was upheld, and the plaintiff given leave to amend the particulars of claim.
Lob v Carribean Estates (Pty) Ltd
[2010] JOL 26096 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
07 / 16441
30 / 04 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Civil procedure – Plea – Application for amendment
Mini Summary:
The applicant, the defendant in the main action, sought an order allowing him to amend his plea and counterclaim. The plaintiff objected to the amendment on the ground that it would render the plea and counterclaim excipiable as the proposed new pleading was vague and embarrassing and did not disclose a defence to the plaintiff's claim and a valid cause of action in respect of the defendant's counterclaim.
The dispute arose from a two-fold agreement entered into between the parties. The first was referred to as a letter of intent agreement and the second an asset management agreement. The plaintiff claimed to have validly exercised a call option provided for in the letter of intent, pursuant to which it paid the defendant R1 268 350,86 for his 12% share in the asset management agreement. It therefore sought a

declaratory that it had acquired the defendant's interest in the net capital profit due to the plaintiff upon a sale of its interest in the asset management agreement. The defendant disputed the validity of the exercising of such call option and contended that the correct amount payable to him was in fact R8.4 million, which was the subject matter of the counterclaim.
Held that the terms of the letter of intent lay at the heart of the defendant's proposed amendment. The defendant referred to a clause in the letter of intent, imposing certain good faith obligations on the parties, the defendant averred that the exercise of the call option was rendered invalid by virtue of the plaintiff's breach of its good faith obligations, in that the plaintiff had not disclosed that it intended to dispose of its interest in the management agreement to a third party. The proposed amended plea and counterclaim was, in many respects, a mere repetition of the existing plea and counterclaim. However, certain new allegations were introduced.
Flowing from Rule 23 of the Uniform Rules of Court, an amendment ought not be allowed when its introduction into a pleading would render such pleading excipiable. Rule 23 deals with a situation where a pleading is vague and embarrassing and lacks averments which are necessary to sustain an action or defence. an amendment should be refused on the grounds of excipiability if it is clear that the amended pleading "will", rather than "may" be excipiable.
The court found that the proposed amended plea did not disclose a defence to the plaintiff's claim for declaratory relief with regard to the exercise of its option rights; nor did the proposed amended counterclaim disclose any cause of action which would entitle the defendant to payment of the amount claimed by him
Chemical Specialities (Pty) Ltd v Humansdorp Paint Centre CC
[2010] JOL 26114 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
227 / 09
30 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Civil procedure – Particulars of claim – Amendment to
Mini Summary:
The plaintiff applied for the amendment of its particulars of claim.
Held that the court will usually allow an application to amend unless it is made mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs. Where, however, the granting of the application for amendment would render the pleading excipiable (as contended by the defendant in this case) the court will not grant an amendment.
The court agreed that the amendment would render the particulars of claim excipiable and accordingly dismissed the application.
Dis-Chem Pharmacies (Pty) Ltd v Edrei Investments 9 Ltd (in liquidation) & others
[2010] JOL 26007 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3711 / 09
25 / 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Civil procedure – Interim interdict – Appeal
Mini Summary:
On application by the respondents, the court had granted an interim interdicting preventing the applicant from vacating the premises which it leased from the first respondent pending the final determination of an action by the respondents.
The present application was for leave to appeal against that order.

Held that the appealability of the order was in issue.
To qualify as an order in terms of the Supreme Court Act 59 of 1959, it must have three attributes. The order must be final in effect and not subject to alteration by the court of first instance; it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed.
The court found the latter requirement not to have been met, with the result that the order was not appealable. The application was thus refused.
Motsei v Minister of Police; Phefadu v Minister of Police
[2014] JOL 32178 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
65356 / 2012; 65249 / 12
23 / 05 / 2014
South Africa
High Court
Gauteng Division, Pretoria
SAM Baqwa J
Delict – Arrest and detention – Assault in detention – Claim for damages
Mini Summary:
Suing the defendant tin his capacity as head of the police service, the plaintiffs claimed damages for wrongful arrest, detention and assault by the police.
Due to a separation of issues, the matter proceeded only on the issue of the defendant’s liability.
The facts underlying the charges were as follows. During a patrol, the police stopped a group of persons to conduct a search. Whilst the search was being carried out, a car arrived on the scene and three men alighted. A confrontation occurred, and the plaintiffs obstructed the police in their efforts to carry out their duties.
Held that section 40 of the Criminal Procedure Act 51 of 1977 deals with the circumstances in which a police officer may effect an arrest without a warrant. The officer must entertain a suspicion, based on reasonable grounds, that the arrestee committed an offence referred to in Schedule 1. Section 12 of the
Constitution guarantees the right to an individual’s liberty. Arrest and detention is therefore prima facie unlawful, and the defendant bears the onus of proving the lawfulness thereof. The court was not satisfied with the explanation given by the police officers, for the arrest of the plaintiffs. It was therefore concluded that the element of lawfulness was not proved.
The evidence of the plaintiffs’ injuries also pointed to their assault.
The defendant was held liable for 100% of the plaintiffs’ proven damages.
Watersure (Pty) Ltd v Nelson Mandela Bay Metropolitan Municipality
[2010] JOL 25918 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1759 / 08
26 / 01 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
PC van der Byl AJ
Keywords:
Insurance – Financial Advisory and Intermediary Services Act, 37 of 2002 – Financial services provider –
Meaning
Mini Summary:

This was an application for leave to appeal against the court's order in the dispute between the parties.
The respondent, a municipality, had sought a declaration that an agreement entered into with the applicant to be null and void. The applicant was a specialist water leak insurance broker. In terms of the agreement, the applicant was to provide such insurance to the applicant's metred water consumers. The issue for determination by the court was whether on a proper interpretation of the Financial Advisory and
Intermediary Services Act 37 of 2002 ("the Act"), the respondent was required in terms of the agreement to act as a financial services provider. The court found that in terms of the agreement, the applicant was being required to act as a financial services provider in contravention of the Act. The agreement was thus void ab initio.
Held that in the application for leave to appeal, the main argument was that the court had erred in not recognising that the respondent was an organ of state, and therefore was not "conducting business" as envisaged in the Act.
The court emphasised that section 7(1) of the Act prohibits any person or entity (which must include a municipality) from acting as such without having obtained the necessary licence. It was unpersuaded that another court might arrive at a different conclusion.
Leave to appeal was thus refused.
Bula and others v Minister of Home Affairs and others
[2012] JOL 29379 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
589 / 11
29 / 11 / 2011
South Africa
Supreme Court of Appeal
MS Navsa, TD Cloete, MML Maya, LO Bosielo, LE Leach JJA
Courts – Presiding officers – Role of – Irregularities committed in conduct of proceedings – Presiding officer making unwarranted statements about foreigners, running counter to proper administration of justice – International Law – Immigration – Applications for asylum – Where a foreign national indicates an intention to apply for asylum, the regulatory framework of the Refugees Act 130 of 1998 kicks in – In terms of section 22 of the Refugees Act, an asylum seeker has the protection of the law pending the determination of his application for asylum
Mini Summary:
The appellants were all Ethiopian nationals who had applied firstly for the review and setting aside of the extension of their warrants of detention, and secondly for an interdict preventing the Minister of Home
Affairs and the Director-General of the Department of Home Affairs (“the DG”) from deporting them until their status under the Refugees Act 130 of 1998, was lawfully and finally determined. The High Court, faced with the application, refused the above relief, as well as other relief sought by the appellants. The dismissal of the application led to the present appeal.
According to the appellants, they fled Ethiopia to escape political persecution and in fear of their lives, and crossed the South African/Mozambique border without being stopped by any immigration officials. They were assisted in South Africa by a Somalian who took them to a house and gave them a meal. Whilst there, a fight broke between two other people, and the police arrived. When the appellants were unable to provide documentation to prove that they were lawfully resident in South Africa, they were arrested as illegal foreigners. They were detained at a police station for nine days and were then transferred to
Lindela, a holding facility and repatriation centre controlled by the Department of Home Affairs.
Approximately a month later, a letter on their behalf was sent to the Department of Home Affairs in which their lawyers demanded that all deportation proceedings against them be halted and that they be released immediately and afforded the opportunity to apply for asylum. No response was received. They then approached the High Court for the relief set out hereinabove.
Held that the appeal was about the principle of legality. It involved the interpretation and application of provisions of the Refugees Act and of regulations issued thereunder.
The manner in which the High Court conducted proceedings was a matter of grave concern as fundamental rules of litigation were flagrantly flouted. The court below misconceived its function and misidentified the issues that required decision. Some of the irregularities which were committed were a referral to oral evidence in the absence of a request n that regard by the parties; the failure to swear in

the first two witnesses; and the judge indicating that he would accept an advocate’s word above the word of the appellants on whether or not the former had been properly authorised to bring an earlier application. The judge also made comments about foreigners which indicated bias on his part.
Distancing itself from the approach of the court a quo, the present Court set out the proper approach which should have been followed. It began by setting out the relevant provisions of the Refugees Act, and the regulations promulgated thereunder. An important regulation was Regulation 2(2) which provides that any person who enters South Africa and is “encountered in violation of the Aliens Control Act, who has not submitted an application pursuant to subregulation 2(1), but indicates an intention to apply for asylum shall be issued with an appropriate permit valid for 14 days within which they must approach a Refugee
Reception Office to complete an asylum application”. The regulation does not require an individual to indicate an intention to apply for asylum immediately he or she is encountered, nor should it be interpreted as meaning that when the person does not do so there and then he or she is precluded from doing so thereafter. The purpose of subsection 2 is to ensure that where a foreign national indicates an intention to apply for asylum, the regulatory framework of the Refugees Act kicks in, ultimately to ensure that genuine asylum seekers are not turned away. It is clear that the appellants, when they were detained at Lindela, communicated to the Department’s officials and enforcement officers by the letter referred to earlier in this judgment that they intended to apply for asylum. Once the appellants, through their attorneys, indicated an intention to apply for asylum they became entitled to be treated in terms of
Regulation 2(2) and to be issued with an appropriate permit valid for 14 days, within which they were obliged to approach a Refugee Reception Office to complete an asylum application. No decision on the
bona fides of the application is made upfront. Once the application has been made at a Refugee Reception
Office, in terms of section 21 of the Refugees Act, the Refugee Reception Officer is obliged to accept it, see to it that it is properly completed, render such assistance as may be necessary and then ensure that the application together with the relevant information is referred to a Refugee Status Determination
Officer. In terms of section 22 of the Refugees Act , an asylum seeker has the protection of the law pending the determination of his application for asylum.
The principle of legality, an incident of the rule of law, dictates that officials must act in accordance with legal prescripts. Accordingly, once an intention to apply for asylum is evinced the protective provisions of the Refugees Act and the associated regulations come into play and the asylum seeker is entitled as of right to be set free subject to the provisions of the Act.
The appeal was upheld and the High Court’s order set aside. Subject to the appellants approaching a
Refugee Reception Office as set out in the order, the respondents were interdicted from deporting the appellants unless and until their status under the Refugees Act had been lawfully and finally determined.
Aruforse v Minister of Home Affairs A O 2011 (1) SACR 69 (GSJ)
Section 34(1) of the Immigration Act 13 of 2002 only permits an initial period of detention without a warrant, not exceeding 30 calendar days. This period may be reduced if the foreigner requests that his or her detention be confirmed by a magistrate's warrant, and such warrant is not forthcoming within 48 hours, in which case the foreigner must be immediately released. Section 34(1) only permits the extension of 'such' initial period by a magistrates' court for a period not exceeding 90 calendar days, and does not permit the further extension of the detention once a magistrate has extended the initial period of detention.
Case Information - Application for an order directing the release of the applicant from an immigration holding facility. The facts appear from the reasons for judgment.
Ersumo v Minister of Home Affairs & others
[2012] JOL 28906 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
69 / 2012
28 / 03 / 2012
South Africa
Supreme Court of Appeal
Wallis, Nugent, Majiedt JJA, Mthiyane DP & Ndita AJA

Immigration – Arrest of illegal foreigner seeking refugee status – Legal position where an application for asylum had not yet been made at the time of the arrest and detention – Once a person claiming asylum indicated a desire to make an application for refugee status, the protection afforded to such persons by the Refugees Act applies to such person – Delay in indicating desire to apply for asylum not a ground for preventing such an application
Mini Summary:
The appellant was an Ethiopian national who sought refuge in South Africa after being allegedly unlawfully imprisoned and tortured for his political beliefs by members of the ruling party in his country. However, he was arrested in the Eastern Cape as an illegal foreigner and was being detained at the Lindela Detention and Holding Facility. The High Court dismissed an application to secure the appellant’s release, as well as further relief relating to a claim for asylum in South Africa.
According to the appellant, he was granted an asylum transit permit in terms of section 23(1) of the
Immigration Act 13 of 2002. In terms of the Act, if the holder of such permit does not within 14 days, report to a Refugee Reception Officer at a Refugee Reception Office in order to apply for asylum in terms of section 21, he shall become an illegal foreigner. The appellant stated that he was unable to comply with the above requirements as the officials at the office helped only a few asylum seekers and there were a number of people in the queue who were not assisted. He alleged that before he could seek further help, he was the victim of a mugging which left him without his asylum transit permit. He reported the theft to the police.
The respondents disputed the appellant’s version of events, pointing to gaps in the factual detail provided, and to possible contradictions.
Held that the problems referred to by the respondents were proper matters for investigation and might ultimately justify the respondents’ doubts about the appellant’s status and purpose in coming to South
Africa. However, they were not matters that could be resolved on the papers and the respondents were unable to challenge the appellant’s statements about his treatment in Ethiopia; the threats to his safety and well-being if he had stayed in that country; and the problems he would face were he to be returned there. On the evidence before the court, there was sufficient material to indicate that the appellant might have a valid claim to refugee status. Accordingly, the court below was obliged to approach the case on the basis that the appellant had left Ethiopia because of a well-founded apprehension of being persecuted for his political opinions and because of that fear he was unwilling to return to it. The final decision on the truthfulness of his claims would need to be taken by a Refugee Reception Officer, but for the purposes of the application his statements in that regard could not be disputed and the case should have been decided on that footing. However, even on that footing he was at the time of his arrest and detention an illegal foreigner in terms of the Immigration Act and liable to arrest and deportation, subject only to his right to claim refugee status under the Refugees Act.
The Court had to consider what the legal position would be where an application for asylum had not yet been made at the time of the arrest and detention of a refugee. In the comparable case of Bula & others v
Minister of Home Affairs, the court held that such refugees were entitled to invoke the protection of the
Refugees Act and for that purpose were entitled to their release from custody, protection against deportation whilst applications for refugee status were being processed and ancillary relief. It was held that once a person claiming asylum indicated a desire to make an application for refugee status, the protection afforded to such persons by the Refugees Act applied to such person. The present court was of the view that the appellant had indicated a desire to apply for refugee status.
In response to the above, the respondents argued that regulation 2(1)(a) of the Refugee Regulations requires an application for asylum to be made without delay. Thus, the respondents submitted that if, on all the facts in a particular case, there has been an undue delay in applying for asylum then the immigration authorities are not obliged to entertain an application for asylum and the protection of the
Refugees Act is lost. It was submitted that before an applicant can rely upon that protection he must show that there has been compliance with the primary duty to report to the authorities in order to apply for asylum. The court found this submission to be inconsistent with the emphatic terms of regulation 2(2).
Whilst regulation 2(1) says that an application for asylum must be submitted without delay, neither it nor the Refugees Act prescribes a time within which such an application must be made, nor does the Refugees
Act suggest that delay in making an application is of itself a ground for refusing an otherwise proper claim for refugee status. Regulation 2(2) provides that any person who entered South Africa and is encountered in violation of the Immigration Act, who has not submitted an application pursuant to sub-regulation 2(1), but indicates an intention to apply for asylum, shall be issued with an appropriate permit valid for 14 days within which they must approach a Refugee Reception Office to complete an asylum application. There was no basis for finding that undue delay deprives the asylum seeker of the rights afforded by regulation
2(2).
Upholding the appeal, the Court directed that the appellant be issued with an asylum transit permit valid for 14 days. His continued detention would then become unlawful and he had to be released. He would be obliged to apply for asylum within 14 days. If he did not do so, he would again become an illegal foreigner and be subject to the relevant provisions of the Immigration Act. In order to ensure that he was not prevented from applying for asylum within the 14-day period, the Minister and Director-General, as the

representatives of the Department of Home Affairs were directed to afford him priority when he reported to the Refugee Reception Office for that purpose.
Road Accident Fund v Coughlan NO
[2014] JOL 32245 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
702 / 2013
03 /09 / 2014
South Africa
Supreme Court of Appeal
CH Lewis, Theron, Pillay, Mbha JJA, Mathopo AJA
Keywords:
Delict – Motor vehicle accidents – Compensation by Road Accident Fund – Whether dependants are entitled to compensation for loss of support where foster child grants had been paid as a result of the death of mother – Foster child grants made to the dependants of a deceased killed in a collision covered by the Road Accident Fund Act 56 of 1996 should, as a rule, be deducted from any award of damages for loss of support made by the Road Accident Fund
Mini Summary:
The respondent was the curator ad litem for two children whose mother was killed when she was knocked over by the driver of a motor car. The appellant (“the RAF”) admitted that the driver was 100% to blame for the collision such that it was liable for damages suffered by the children for loss of support. After the death of the children’s mother, the grandmother applied to the Children’s Court to be appointed as a foster parent to her grandchildren and was so appointed in terms of the Child Care Act 74 of 1983. As a result she was entitled to receive foster child grants in terms of the Social Assistance Act 59 of 1992, replaced by the Social Assistance Act 13 of 2004. The RAF contended that the children were not entitled to compensation for loss of support as the foster child grants had been paid as a result of the death of their mother and that they had therefore already been compensated for loss of support. The curator contended, on the other hand, that the payments of the grants were acts of gratuity by the State - paid to people who elected to become foster parents, and were not compensation for losses sustained by accident victims.
Held that generally, dependants are not permitted to get double compensation. The Court was of the view that there is no difference in substance between child support grants and foster child grants. It accepted the argument of the RAF that, but for the death of the mother in a collision for which the RAF accepted liability, the foster parent would not have claimed foster child grants. There was no evidence to support the proposition that the foster parent would have applied for grants had the mother of the children not died.
The conclusion was that the High Court erred in finding that the children were entitled to damages for loss of support from the RAF. The foster child grants served the very purpose which an award of damages would do, namely providing the children with the financial support lost as a result of the death of their mother. The court explained that its finding did not mean that there is any general principle precluding an award of damages for loss of support where dependants have had the benefit of social support grants. The enquiry must involve considerations of public policy, reasonableness and justice.
The grants made to the foster parent exceeded the amounts that the children would have been entitled to had their foster parent not received the grants. The question put to the High Court in the stated case should have been answered on the basis that the dependants were not entitled to both the benefit of the foster child grants and to damages for loss of support. The appeal was accordingly upheld.
SS (a minor child) v Presiding Officer of the Children's Court, District Krugersdorp & others In
re: Children's Institute v NCM (a minor child)
[2011] JOL 27939 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 3056 / 11
25 / 10 / 2011
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener, R Mokgoatlheng JJ

Keywords:
Persons – Children – Foster care – Refusal of – Appeal – Procedural issues
Mini Summary:
The Magistrate’s Court issued an order that the appellant, a minor, was not in need of care and protection as envisaged in section 150(1)(a) of the Children’s Act 38 of 2005. The Court therefore refused to place the child in foster care. The appeal was directed at that order.
Three other applications had to be addressed by the court before dealing with the merits of the appeal.
The first was an application by the second and third respondents, being the Minister of Social
Development and the Member of the Executive Council for Health and Social Development, Gauteng, respectively, to be joined in the matter either as amici curiae or as respondents. The second was by the
Children’s Institute, the proposed amicus curiae, in terms of which it sought to be admitted as amicus
curiae in the appeal. The third application was brought by the proposed appellant by way of urgency to hear another matter together with the appeal already before the Court.
Held that a joinder of the second and third respondents was required by Uniform Rule 10A if the constitutional validity of a law was challenged. In this matter there was no challenge to the validity of the legislation as far as the appellant and the two respondents were concerned. It concerned the interpretation of legislation and the joinder could not be pursuant to rule 10A. The joinder of a party is necessary when the interests of such a party may be affected by the court’s order. The test is whether or not a party has a “direct or substantial interest” in the subject matter of the action or has a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgment of the court.
Finding that the second and third respondents had a direct and substantial interest in the order which the court might give, the Court found their joinder to be necessary.
The application by the proposed amicus curiae to be admitted as such was postponed sine die to allow the proposed amicus curiae to properly apply to be admitted at the hearing of the matter.
Frikkie Pretorius Incorporated & another v Glass
[2010] JOL 25910 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 528 / 09
26 / 04 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
EJS Steyn, PA Koen JJ
Keywords:
Civil procedure – Garnishee order – Validity – Money held in trust – Duty to pay
Mini Summary:
The respondent had instituted action against the appellants for the recovery of a half share of the proceeds from the sale of immovable property of which he was the co-owner.
The appellants were law firms, who at different times, had employed an attorney (Ms Crouch) who acted for the respondent's ex-wife in proceedings instituted against the respondent for arrear maintenance. The first appellant received the proceeds of the sale of the property into its trust account at a time when Ms
Crouch held employment with that firm. The funds could only have been received for the credit of the respondent and his ex-wife. While employed with the first appellant Ms Crouch paid to the ex-wife her half share of the proceeds. She also paid a further sum of R10 000 to her, and appropriated some money for fees due to the first appellant from the remaining half share due to the respondent. The balance remaining was transferred to the second appellant's trust account when Mrs Crouch left the services of the first appellant and joined the second appellant. While employed by the second appellant, Ms Crouch paid an amount to the respondent's ex-wife from the money held in trust. All the payments from the respondent's share of the proceeds were purported to be made only pursuant to the terms of a garnishee order which the respondent's ex-wife had obtained from the maintenance court.
Held that the issue to be decided was whether the order issued by the maintenance court precluded the first and second appellants from paying to the respondent his half share of the proceeds of the sale, which had been paid over by the conveyancing attorneys to the first appellant. The court found no basis in law for the money held in trust by the first appellant for the respondent, not to have been paid to him. No valid garnishee order was found to exist. The appeal by the first appellant was dismissed.

Compass Insurance Company Ltd v Hospitality Hotel Developments (Pty) Ltd
[2011] JOL 27976 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
756 / 10
26 / 09 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, BJ van Heerden, A Cachalia, FR Malan, LE Leach JJA
Keywords:
Contract – Construction guarantee – Terms of – Guarantee requiring certain documentation to be furnished together with written letter of demand for payment – Non-compliance with such requirements resulting in guarantor being not liable to pay
Mini Summary:
The respondent was a property developer which, in a hotel-upgrade project, engaged a construction company, which in turn engaged a sub-contractor to install a computer network in the hotel.
The appellant was a short-term insurer which issued construction guarantees to employers and owners. It issued a construction guarantee to the respondent for the work performed by the sub-contractor referred to above. The sum guaranteed was R1 444 428,51 and the guarantee expiry date was 30 April 2008.
The sub-contractor breached the contract, and was provisionally wound up on 23 April 2008. On 25 April, the respondent sent a letter to the appellant, demanding payment of the sum guaranteed. The appellant refused to pay on the basis that the demand did not comply with the terms of the guarantee in that it was not accompanied by a copy of the court order of provisional sequestration of the subcontractor. That caused the respondent to apply to the high court for an order compelling payment. The court granted the order on the basis that, the subsequent furnishing of the order constituted sufficient compliance with the terms of the guarantee. The appellant appealed against that order.
Held that the construction guarantee stipulated what the terms of the written letter of demand should be.
It had to be confirmed that the agreement was cancelled due to the sub-contractor’s default (with a copy of such cancellation to be provided), and that a provisional sequestration or liquidation court order had been granted against the sub-contractor. A copy of such court order had to be attached.
It was common cause that there had in fact been no cancellation at the time the letter of demand was sent, though the letter did state that there was, and that the subcontractor was provisionally liquidated prior to the issue of the demand. It was further common cause that the court order was not attached to the letter of demand, as required by the guarantee. The reason for requiring strict compliance with a letter of credit is that it is an instrument that compels a bank to pay on demand irrespective of the status of the underlying debt. The respondent argued that while strict compliance with letters of credit has been required by South African courts, performance guarantees should be treated differently.
The Court held that it was in fact not necessary to decide whether “strict” compliance was necessary for performance guarantees, since in this case the requirements to be met by the respondent in making demand were absolutely clear, and there was in fact no compliance let alone strict compliance.
Upholding the appeal, the Court replaced the high court’s order with one in terms of which the respondent’s application to compel payment was dismissed.
Marriott & another v ABSA Bank Ltd & another
[2010] JOL 25959 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
6910 / 09
24 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
TA Sishi J

Civil procedure – Judgment – Rescission application – Good cause
Mini Summary:
In an urgent application, the applicants sought the stay of a sale in execution, and the rescission of a judgment obtained against them by the first respondent. As the first respondent consented to the stay of the sale in execution, the court had only to decide on the rescission application.
Held that the application for rescission was brought in terms of common law and the applicants had to show good cause for the rescission application to be granted. They had to satisfy the court that three requirements had been met, namely by giving a reasonable explanation for the default; showing that the application was bona fide; and showing that they had a bona fide defence to the first respondent's claim which prima facie had some prospects of success.
Finding that the above requirements were not met, the court concluded that the applicants had not show good cause for rescission. The application was dismissed.
Teto v Mahanjana and others
[2015] JOL 32824 (EC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
EL 1110 / 2014; ECD 2410 / 2014
04 / 09 / 2014
South Africa
High Court
Eastern Cape, East London
PW Tshiki J
Keywords:
Civil procedure – Evidence – Hearsay evidence – Locus standi
Mini Summary:
The applicant sought an order interdicting the respondents from cremating the remains of a person whom she alleged was her fiancé. The main issue raised by the respondents was that the applicant had no locus
standi to bring the application.
Held that the applicant’s evidence as to the wishes of the deceased was challenged by the respondents, who averred that it was hearsay evidence. Section 3(1)(c) of the Law of Evidence Amendment Act 45 of
1988 (“the Act”) which came into operation on
3 October 1988, empowers the court to admit hearsay evidence in the interests of justice. In deciding what is in the interests of justice, the Court may have regard, not only to certain specified matters, such as the purpose for which the evidence is tendered and its probative value, but to any other factor which in the opinion of the court should be taken into account. The Court found that it would not be in the interests of justice to admit the applicant’s evidence because to do so would seriously prejudice the case of the respondents. The evidence of the applicant was held to be inadmissible hearsay and therefore could not be admitted.
On the merits, the Court held that the wishes of the first respondent, who was the mother of the deceased, should be decisive on whether the deceased should be cremated or buried because the mother was the closest relative of the deceased and the applicant was not even the wife of the deceased. She therefore lacked locus standi.
The application was dismissed with costs.
Corver v Yellow Yersey Logistics
[2014] JOL 31644 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
3827 / 2012
12 / 12 / 2013
South Africa
High Court
Free State, Bloemfontein
KJ Moloi J

Delict – Motor vehicle collision – Evidence – Hearsay evidence – Admissibility
Mini Summary:
In April 2012, a collision occurred between the plaintiff’s tractor and trailer and a truck belonging to the defendant. The drivers of both vehicles were acting within the scope of their duties as employees of the plaintiff and the defendant.
At the commencement of the trial and by agreement between the parties, the merits were separated from the quantum and this judgment related to the merits alone.
Held that the Court had to first determine the admissibility of the statement forming the basis of the defence version as it constituted hearsay evidence. The plaintiff argued against the admission of the statement on the grounds of it being untested and not qualifying to be admitted under section 3 of the
Law of Evidence Amendment Act 45 of 1988 as an exception to the hearsay rule. However, the defendant argued that the statement ought to be admitted in the interest of justice, having met the requirements listed under section 3(1)(e) of the Act. Having regard to those requirements, the Court found that it was in the interest of justice to rule the statement to be admissible as it provided some explanation of a possible way the collision would have occurred.
Giesecke & Devrient SA (Pty) Ltd v Tsogo Sun Holdings (Pty) Ltd & another
[2010] JOL 25559 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
05 / 27893
25 / 05 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Delict – Claim for damages – Enrichment action – Vicarious liability – Evidence – Hearsay evidence
Mini Summary:
In terms of an agreement between the plaintiff and the first defendant, the former undertook to provide cash processing and security services in order to process the gross daily value of the revenue generated by the first defendant's casino. When a robbery was perpetrated at the casino, the plaintiff, believing it was obliged to do so, made good the first defendant's loss.
In the present action, the plaintiff sued the defendants for damages an enrichment claim against the first defendant; alternatively, a delictual claim against the first defendant on the basis that the robbery was perpetrated with the active assistance or involvement of an employee of the first defendant.
The plaintiff subsequently withdrew its claims against the first defendant, and the case proceeded in respect of the second defendant only.
Held that the issues for determination were whether the robbery which occurred at the plaintiff's cash processing centre was perpetrated with the active assistance or involvement of an employee of the second defendant, acting in the course and scope of his employment with the second defendant; whether an employee or employees of the second defendant, with knowledge of the contemplated robbery, failed in his duty to prevent the robbery; and whether employees of the second defendant, acting in the course and scope of their employment with the second defendant, stole money which had been part of the proceeds of the robbery that had been recovered from suspects in the robbery and others.
After the close of the second defendant's case, the plaintiff sought to introduce into evidence statements which constituted hearsay evidence. The court held that the second defendant was entitled to know what case he had to meet at the time the plaintiff closed its case. It is at that point that the plaintiff had to clearly signal its intention to invoke the provisions of section 3 of the Law of Evidence Amendment Act 45 of 1988 when it sought to have hearsay evidence admitted. If this were not to happen, the second defendant would be prejudiced in the conduct of its defence. The court ruled the statements inadmissible as it would not be in the interests of justice to admit same.
On the remaining proven facts, the court could not find that the second defendant's employee stole money from the casino.
The plaintiff's claim was dismissed.
G Liviero & Son Building (Pty) Ltd v IFA Fair-Zim Hotel & Resort (Pty) Ltd: In re IFA Fair-Zim
Hotel & Resort (Pty) Ltd v G Liviero & Son Building (Pty) Ltd & another
[2010] JOL 25958 (KZP)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7802 / 09; 7803 / 09 In re 7434 / 09
27 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
TA Sishi J
Keywords:
Civil procedure – Provisional sentence – Interdict – Further affidavits – Leave to file – Application to strike out – Hearsay evidence
Mini Summary:
In the first two cases before the court, plaintiff sued the defendant for provisional sentence on two interim payment certificates issued in term of a building contract by the principal agent. The defendant contended that the plaintiff sought to obtain payment in circumstances where it had no right to do so because it knew that the two certificates had been issued otherwise than in accordance with the provisions of the principal building contract and as such were invalid.
In the third application, the applicant (the employer in terms of a building contract) sought to interdict the first respondent, the main contractor on the project, from claiming payment in terms of two guarantees issues by the second respondent.
The court was also required to deal with two preliminary applications. The first was the application for leave to file further affidavits in the matters. And the second was an application to strike out certain allegations contained in an affidavit in the provisional sentence proceedings.
Held that as the applicant had advanced good reasons why the further affidavits should be filed at this stage and provided a satisfactory explanation for the lateness, the first preliminary application was granted.
In considering the application to strike out, the court expounded on the admissibility of hearsay evidence
(as contained in the impugned affidavit). It set out the law in that regard, and concluded that the hearsay evidence should not be allowed. The application to strike out was granted.
The next aspect considered was the provisional sentence proceedings. The test as to when provisional sentence should be granted is that – where, as in the present instance, the plaintiff sues for provisional sentence on an illiquid document - the court will ordinarily grant provisional sentence unless the defendant produces such counter proof as it would satisfy the court that the probability of success in principle case is against the plaintiff. The defendant must show on a preponderance of probabilities that it has a valid defence in law. In this case, such onus was not discharged, and provisional sentence was granted.
Flowing from the findings in the provisional sentence application, the court dismissed the application for an interdict.
Aruforse v Minister of Home Affairs A O 2011 (1) SACR 69 (GSJ)
Section 34(1) of the Immigration Act 13 of 2002 only permits an initial period of detention without a warrant, not exceeding 30 calendar days. This period may be reduced if the foreigner requests that his or her detention be confirmed by a magistrate's warrant, and such warrant is not forthcoming within 48 hours, in which case the foreigner must be immediately released. Section 34(1) only permits the extension of 'such' initial period by a magistrates' court for a period not exceeding 90 calendar days, and does not permit the further extension of the detention once a magistrate has extended the initial period of detention.
Case Information - Application for an order directing the release of the applicant from an immigration holding facility. The facts appear from the reasons for judgment.

Margo & another v Gardner; Gardner & another v Margo & another
[2010] JOL 26137 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
564 / 09; 511 / 09
17 / 09 / 2010
South Africa
Supreme Court of Appeal
LTC Harms DP, JB Shongwe, JA Heher, LE Leach JJA, Ebrahim AJA
Contract – Claim for interest on capital debt – In duplum rule – Interest does not run only until the amount thereof reaches double the capital amount outstanding in terms of the judgment but also runs pendente lite because, as a rule, the in duplum rule is suspended during litigationStandard Bank of South
Africa Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811 (SCA) – Referred toCommercial Bank of Zimbabwe Ltd v M M Builders and Suppliers (Pvy) Ltd & others and three similar cases 1997 (2) SA 285 (ZH) – Referred toLTA Construction Bpk v Adminstrateur, Transvaal 1992 (1) SA
473 (A) – Referred toBellingan v Clive Ferreira & Associates CC 1998 (4) SA 382 (W) – Referred toMeyer v
Catwalk Investments 354 (Pty) Ltd 2004 (6) SA 107 (T) – Referred toTitus v Union & SWA Insurance Co
Ltd 1980 (2) SA 701 (Tk SC) 704 – Referred to
Mini Summary:
Two appeals before the court, were argued as one due to the similar facts and issues. The parties were also essentially the same. As the appellant in one appeal was the respondent in the other, they are referred to by name henceforth.
The dispute concerned the application of the old common law rule known as the in duplum rule. It means in general terms that a creditor is not entitled to claim unpaid interest in excess of the capital outstanding.
In 1999, Margo (the first appellant in the first appeal) sued Gardner (the respondent in that appeal) for payment of R15 000 000. On appeal, the amount was reduced. Pursuant to the order issued o appeal,
Gardner made two payments amounting to R3 022 864. He contended that after the second payment he understood that the two payments were made in full and final settlement of the capital. That was disputed by Margo, which eventually in 2007, sent a writ of execution to Gardner's attorneys as well as to the
Sheriff for service, claiming the sum of R185 983 being the balance of the interest owing on the judgment debt. Gardner brought an urgent application to have the writ suspended, pending the outcome of an application for a declaratory order that the judgment had been satisfied, and for the setting aside of the writ. Both the application for a declarator and an application for leave to appeal were dismissed. The court found that the in duplum rule did not apply in the present instance.
In 2008, Margo caused a second writ of execution to be issued alleging that the first one reflected incorrect amounts and was therefore withdrawn. Gardner launched another urgent application to suspend the second writ and later launched another application to have the aforesaid writ set aside and to declare that he was not indebted to Margo for any capital sum, interest or costs. The high court found in favour of
Gardner and ordered Margo to pay to Gardner the amount by which it found Gardner had overpaid, and also set aside the second writ and declared that Gardner was no longer indebted to Margo. Unlike the court referred to above, this court found that the in duplum rule was applicable. Leave to appeal to the present court was granted.
Held that the in duplum rule forms part of South African law. It prevents unpaid interest from accruing further, once it reaches the unpaid capital amount. However, a creditor is not prevented by the rule from collecting more interest than double the unpaid capital amount provided that he at no time allows the unpaid arrear interest to reach the unpaid capital amount. The aim of the in duplum rule is to protect borrowers from exploitation by lenders who permit interest to accumulate, but essentially also to encourage plaintiffs to issue summons and claim payment of the debt speedily. Delays inherent in litigation cannot be laid at the door of litigants and it would be unfair to penalise a creditor with the application of the in duplum rule while proceedings are pending.
The court in the second appeal, in finding in favour of Gardner that the in duplum rule was applicable, failed to recognise the suspension of the in duplum rule during the period when the matter was pending before court. Interest does not run only until the amount thereof reaches double the capital amount outstanding in terms of the judgment but it also runs pendente lite because, as a rule, the in duplum rule is suspended during the litigation. The present court therefore found in favour of Margo.
Ryton Estates (Edms) Bpk & andere v Land & Landbou Ontwikkelings Bank van SA
[2012] JOL 28600 (GNP)
Case Number:
Judgment Date:
Country:
33482 / 2010
09 / 03 / 2012
South Africa

Jurisdiction:
Division:
Bench:
High Court
North Gauteng, Pretoria
WRC Prinsloo J
Keywords:
Contract – Loan agreements – Charging of interest – Rate of interest – Method of computation
Mini Summary:
The plaintiffs were farmers who had loan accounts with the Land Bank (the defendant). They were concerned that the bank had debited their loan accounts with too much interest. In essence, the plaintiffs complained that the defendant had debited their accounts with compound as opposed to simple interest, and that it had also wrongly imposed various charges.
The parties were in agreement that the Land Bank Act 13 of 1944 was applicable to their dispute.
Held that the issues in dispute between the parties related specifically to the rate of interest and the method used to calculate such interest.
On the first issue, the plaintiffs bore the onus of proving that the defendant failed to properly exercise its discretion to adjust the rate of interest charged. That onus was not discharged, and the court resolved the first issue in the defendant’s favour.
On the second issue, the Court held that the loan agreements made provision for simple interest, which does not allow for interest on interest. The defendant was therefore not allowed to charge compound interest, nor were the administrative charges complained of by the plaintiffs permissible. The defendant was ordered to repay the amounts charged in that regard.
Jhamba & another v Mugwisi
[2010] JOL 26034 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HC 1428 / 09
11 / 02 / 2010
Zimbabwe
High Court
Bulawayo
Cheda J
Keywords:
Damages – assessment of – delictual – actio injuriarum – adultery
Mini Summary:
Damages for adultery are claimable on two entirely separate and distinct grounds: firstly, on the ground of the injury or contumelia inflicted upon the plaintiff; and, secondly, on the ground of the loss of comfort, society and services of the other spouse (consortium). It is wrong for a plaintiff to lump her claims in one, mixing both contumelia (injury) and loss of consortium.
Raliphaswa v Mugivhi & others
[2008] JOL 21570 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
236 / 07
27 / 03 / 2008
South Africa
Supreme Court of Appeal
Cameron, Combrinck JJA, S Snyders AJA
Keywords:
Delict – Iniuria – Claim for damages
Mini Summary:
His claim for damages having been dismissed by the court a quo, the appellant launched the present appeal.
The factual background was as follows. The appellant was accosted by the first two respondents, acting in the course of their duty as police officials, who proceeded to search him. He alleged that in the course of the search, he was humiliated by the words and actions of the policemen. The therefore sued the respondents for damages.

Held that in the absence of consent or a search warrant, police officers are entitled to search an individual only in circumstances authorised by section 22(b) of the Criminal Procedure Act 51 of 1977, namely when it is believed, on reasonable grounds, that a warrant will be issued if applied for and that the delay in applying for a warrant would defeat the object of the search.
In the present case, the appellant was subjected to an invasive and humiliating search which amounted to an iniuria, without probable cause. The court upheld the appeal, and awarded the appellant R25 000 as damages.
Regent Insurance Company Ltd v King's Property Development (Pty) Ltd t/a King's Prop
[2015] JOL 32554 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5 / 2014
21 / 11 / 2014
South Africa
Supreme Court of Appeal
Lewis, MJD Wallis, Pillay JJA, Fourie, Meyer AJJA
Keywords:
Insurance – Claim for cost of repairs and loss of income – Repudiation of claim by insurer on ground of non-disclosure – Failure to advise insurer that the premises were occupied by a tenant which manufactured truck and trailer bodies using highly flammable materials – Non-disclosure found to be material and as having induced the insurer to enter into the insurance contract – Insurer entitled to repudiate claim
Mini Summary:
The respondent’s premises burnt down in May 2010, and it claimed the cost of repairs and payment in respect of rental income lost, from the appellant as its insurer. The appellant rejected the claim, alleging a material non-disclosure by the respondent when applying for the insurance policy in respect of the premises. The non-disclosure lay in failing to advise the appellant that the premises were occupied by a tenant which manufactured truck and trailer bodies using highly flammable materials, a risk that the appellant said it would not have undertaken had it known of the nature of the business. The fire was caused by employees of the tenant in the course of manufacturing.
In consequence of the appellant’s stance, the respondent instituted action in the High Court, seeking payment of its damages. The Court found that the appellant was liable to pay the sum claimed on the basis that it was estopped from relying on the defence of non-disclosure because, when the insurance broker for the respondent had requested the insurance, he had asked the appellant’s representative to do an urgent survey of the premises. The high court held that the respondent had been misled into believing that the survey had been done, and had accordingly paid the premiums on the assumption that the insurance covered the premises. The appellant was ordered to pay the full amount claimed. It appealed against that order.
Held that the issues to be determined concerned what was in fact disclosed to the appellant about the premises; whether the appellant established a material non-disclosure in terms of section 53(1) of the
Short-Term Insurance Act 53 of 1998 which induced it to enter into the contract; and, if there was a material non-disclosure, whether the respondent established either estoppel or waiver of reliance on nondisclosures.
At common law, an insured, when requesting insurance cover, must make a full and complete disclosure of all matters material to the insurer’s assessment of the risk. Failure to do so will entitle the insured to reject a claim under a policy and to treat it as void. Legislation has been enacted, however, to preclude insurers from treating misrepresentations that are trivial, and more recently non-disclosures that are trivial, as grounds for avoiding insurance contracts and rejecting claims. The test in respect of both misrepresentations and non-disclosures is an objective one. The question is thus whether the reasonable person would have considered the fact not disclosed as relevant to the risk and its assessment by an insurer. The onus rests on the insurer to prove materiality. The insurer must prove that the non-disclosure or representation induced it to conclude the contract. Thus the insurer must show that the representation or non-disclosure caused it to issue the policy and assume the risk. Once materiality has been proved it would be difficult for the insured to overcome the hurdle of showing no causation. The test for inducement is subjective.
In considering whether there was a failure to disclose the nature of the risk in this case, the Court held that the presence of the tenant in the building, and the fact that it occupied a substantial portion of the building, made a material difference to the risk. The reasonable person would have regarded that fact as

material and disclosed it to the appellant. The request for the survey did not relieve the respondent of the duty to make a full disclosure as to the use of the premises. The Court found that the failure to disclose the tenant’s business on the premises induced the appellant to unsure the property.
Based on the facts, the Court found that the respondent had not established any right to rely on the defences of estoppel or waiver.
The conclusion was that non-disclosure to the appellant of the fact that there was a manufacturing business that used highly flammable materials in the process of manufacturing was material, in that the reasonable, prudent person would consider that it should have been disclosed so that the appellant could have formed its own view as to the effect of the information on the assessment of the risk. The appellant was entitled to reject the claim and to regard the policy as void.
The appeal was upheld.
Nkosi v Mbatha
[2010] JOL 25884 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 20 / 10
06 / 07 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MI Madondo, JB Mnguni JJ
Keywords:
Delict – Claim for damages – Doctrine of subrogation
Mini Summary:
The present appeal was noted against the Magistrate's Court's dismissal of the appellant's claim against the respondent for the payment of damages. The claim arose out of a motor vehicle collision between the appellant's vehicle and respondent's vehicle. The damages the appellant sought related to fair, reasonable and necessary costs to restore her motor vehicle to its pre-collision condition.
At the hearing, the appellant had informed the court that she had already been fully indemnified for the loss she had suffered by her insurer. She was proceeding against the respondent on behalf of her insurer for the recovery of the amount her insurer had paid to her as costs of repair to her vehicle.
Held that the wronged party is entitled to be compensated for the consequences of the unlawful conduct.
The wronged party is to be placed in the position that he or she would have been in had the wrongful and negligent conduct had not occurred. The litigant who sues in delict sues to recover the loss which he had sustained because of the wrongful conduct of another. The plaintiff's damages must be assessed at the time of the injury done to him.
The general principle in cases of this nature is that a person who has more than one claim to indemnity is not entitled to be paid more than once for the same loss. One of the exceptions to the general principle is where the defendant had a contract with an insurer to repair the motor vehicles that had been involved in collision and as a result of such contract the defendant had repaired the plaintiff's vehicle.
In the present case the insurer having fully compensated the plaintiff, it had a subrogated claim against the defendant, whose negligence caused the loss in respect of which compensation was paid, for the recovery of the amount it paid to the plaintiff as the costs of repairs.
The prerequisites for the doctrine of subrogation are that payment or reinstatement has been made, secondly, a valid and subsisting policy, and thirdly, that the insured must have had right to claim compensation from a third party.
The appellant had not satisfied the requirements set out above, and the appeal was thus dismissed.
Buffelsdrift Game Reserve Owners' Association v Holkom and others
[2014] JOL 32107 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
58258 / 2013
07 / 07 / 2014
South Africa
High Court
Gauteng Local Division, Pretoria
Baqwa J

Keywords:
Civil procedure – Final interdict – Requirements – Waiver
Mini Summary:
The applicant was a homeowners association in a private property development in which the respondents had bought property. As all owners of property within the development were required to become members of the applicant, the respondents acquired such membership.
In terms of the applicant’s constitution, the keeping of domestic cats and dogs was prohibited, although an owner could seek consent of the applicant’s management committee and the management committee could give consent to an owner in special circumstances.
Alleging that the respondents were flouting that rule, the applicant sought an order requiring the respondents to permanently remove the cats and dogs from the property.
Held that the applicant was seeking a final interdict. The test was whether the facts averred by the applicant and admitted by the respondent, together with the facts alleged by the respondent justified the relief sought. The applicant also had to prove a clear right as a basis for the relief sought, the commission of an injury against it and that it had no other remedy available to it to obtain relief.
The main question to be determined was whether taking into account the terms of the agreement the respondents had entered into when purchasing their respective properties and the clauses in applicant’s constitution, the applicant had waived its right to enforce the rule on which it relied.
As the homeowners’ association, the applicant had demonstrated a clear right to institute the present action against the respondents, who did not contest or deny being members of the applicant and were therefore bound by the relevant constitutional provisions. The applicant contended that the respondents had committed an injury to the applicant and its members by contravening the applicant’s constitution by keeping one or more dogs or cats at the property. Injury or harm must be understood to mean not only a breach or infraction of the right which has been shown, but also prejudice which flowed or resulted from such infraction. The Court also had to decide on the established facts whether there were grounds for the entertainment of a reasonable apprehension of harm or injury by the applicant. The applicant merely alleged that it was reasonably apprehended that the respective respondents would not remove their dogs and cats without the court ordering them to do so. That was not sufficient to enable the applicant to comply with the relevant requirement.
Finally, it was found that the applicant had by its conduct acquiesced in the respondents owning pets and dogs thereby waiving its right by its conduct to seek legal recourse to prevent the respondents from doing so.
The application was dismissed with costs.
Akoo and others v Master of the High Court and others
[2013] JOL 30833 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5612 / 11
31 / 07 / 2012
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
D Pillay J
Keywords:
Civil procedure – Interdictory relief – Requirements
Mini Summary:
The applicants sought an order interdicting the 36 th and 37 th respondents from disclosing or furnishing to the respondents any information or documents in respect of the applicants’ banking account held with the
36 th respondent; and from proceeding with or participating in any enquiry or hearing in terms of section
415 or section 417 of the Companies Act 61 of 1973 or otherwise relating to the affairs of a company in liquidation. It was also sought that the above relief operate as interim relief pending the decision of the first respondent relating to expungement applications and or review proceedings to be instituted by the applicant in respect of the issue of subpoenas in the above regard.
Held in the present application for leave to appeal, that in dismissing the application, the court was motivated primarily by the fact that it was accompanied by neither the application to expunge foreshadowed in the notice of motion, nor the review anticipated in the communications between the various parties involved in this application. Even after the interim order was granted, the applicants did not launch the review proceedings – despite knowing that the review proceedings were a necessary consequence of the interim interdict. The explanation that the delay was due to the applicants being engaged in discussions to avoid litigation was rejected. The Court held that to confirm the interim rule would have the effect of final relief with no hope of the further applications in sight.

The requirements for an interim interdict are a prima facie right on the part of the applicant; a wellgrounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is granted; a balance of convenience in favour of granting the interim relief; and the absence of any other satisfactory remedy available to the applicant. The requirements for a final interdict are a clear right on the part of the applicant; an injury actually committed or reasonably apprehended; and no other satisfactory remedy available to the applicant.
Irrespective of whether the application for the interdict before me was characterised as interim or final the applicants had to show a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is granted, or they had to show an injury actually committed or reasonably apprehended. The applicants failed to make out any case either in administrative law or privacy that trumped the Master’s statutory duty to act on information provided by creditors as to where assets of the company in liquidation might be found. The applicants’ rights had to be balanced with the creditors’ rights to have the subpoena issued on their request.
Concluding that the applicants had not established grounds for the relief sought, the Court dismissed the application.
Bent v Ismail-Essop & another
[2011] JOL 27873 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Interdict – Requirements
4597 / 2011
24 / 05 / 2011
South Africa
High Court
KwaZulu Natal, Durban
Radebe J
Mini Summary:
In an urgent application, the applicant sought an interdict preventing the police from executing any warrant of arrest against the applicant, pursuant to an interim protection order, pending the final determination of the issues in dispute between the applicant and the first respondent.
Held that at the time of the launching of this application no warrant of arrest had been issued pursuant to the granting of the interim protection order. Neither had any attempts been made to arrest the applicant.
The key issue was whether it was competent for the court to issue the order sought by the applicant.
The apprehension by the applicant that he could be arrested at the whim of the first respondent was unreasonable. The Court highlighted the procedure which would have to be followed for a lawful arrest. To grant the order sought would be to curtail the powers of the police.
Setting out the requirements for interdictory relief, the Court found that such requirements were not met.
The application was thus dismissed.
ZTE Mzanzi (Pty) Ltd v Telkom SA Limited & others
[2012] JOL 29121 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
72499 / 2011
30 / 03 / 2012
South Africa
High Court
North Gauteng, Pretoria
WRC Prinsloo J
Keywords:
Civil procedure – Urgent application – Interim interdict – Requirements
Mini Summary:
The present application, brought on an urgent basis, was for interim interdictory relief.
According to the founding affidavit, the first respondent had developed a specification which had been overtaken by the advances in telecommunication technology. In order to compete with other local and international telecommunication service providers, the first respondent experienced the need to upgrade and standardise its telecommunication infrastructure. In 2011, it issued a request for proposals in that regard. The applicant submitted a bid timeously, but was informed that it was unsuccessful. It challenged its disqualification from the bidding process, and requested an undertaking from the first respondent that it would not proceed with contracting with other bidders until the applicant’s challenge was finalised. The first respondent declined to furnish the undertaking, and the applicant brought the urgent application for interim interdictory relief pending finalisation of an arbitration process.

Held that the interim relief sought was aimed at ultimately succeeding in a dispute resolution process resulting in the applicant's disqualification from the tender process being reversed so that the applicant could compete further with the view to ultimately achieving success as a tenderer.
The central issue was whether or not the relief sought by the applicant was legally competent. The question was whether or not the dispute resolution process which the applicant wished to embark upon whilst protected by the interim interdict sought, was available to the applicant and could lawfully be implemented under the circumstances. According to the first respondent, in the absence of a contract with the applicant, the latter could not utilise the arbitration process provided for in the request for proposals.
Based on the request for proposal document (RFP), the Court disagreed, finding that there was a dispute within the meaning of the RFP, which could be referred for resolution in terms of the mechanisms prescribed by the RFP.
It was concluded that the applicant had established a prima facie right as intended by the requirements for interim interdictory relief. The remaining requirements for such relief were also established, and the relief sought was granted.
Hogshead Bar CC v Erf 2077 Douglasdale Extension (Pty) Limited
[2012] JOL 29039 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2012 / 17045
05 / 06 / 2012
South Africa
High Court
South Gauteng, Johannesburg
R Sutherland J
Keywords:
Civil procedure – Threatend cancellation of lease – Interim interdict – Requirements
Mini Summary:
The applicant’s business was located in a shopping centre owned by the respondent. Although the applicant maintained that its business was a restaurant, the respondent contended that the business was not merely a restaurant but also a bar, allegedly in breach of their lease agreement. It therefore gave the applicant an ultimatum, requiring it to cease being anything other than a restaurant. It also told the applicant that if it did not desist from the business of a bar and monopolising the parking, which constituted unreasonable use and a breach of the lease, the lease would be cancelled. In response, the applicant denied running a bar or committing any breach of the lease. To protect itself, the applicant brought an application for an interim interdict to prevent the respondent cancelling the lease, on the grounds mentioned, pending the institution of an action to be launched by the applicant to address the disputes about the nature of the business and the question of whether or not any breach of the lease by the applicant had occurred.
Held that a bar, according to the regulations of the Gauteng liquor licensing authorities, is a place where you can buy liquor without being obliged to buy and eat a meal, and thus, is to be contrasted with a restaurant or a pub where food is to be consumed.
The Court declined to decide the issue on the basis of distinguishing between the patrons who ate and drank and the patrons who only drank.
The applicant bore the onus of establishing the existence of the four traditional elements for an Interim
Interdict, namely a clear or prima facie legal right; an imminent threat exists to such right, likely to cause irreparable harm; the absence of an appropriate alternative remedy capable of warding off that harm, or adequately compensating the applicant for its occurrence; and a balance of convenience to favour its interests over the contending interests of the respondent.
What the applicant really sought was specific performance of the lessor’s obligation to secure and to leave the lessee in undisturbed possession of the premises. An interdict is available to enforce a contractual obligation. The irreparable harm in this case would be the extinction of the applicant’s business. No alternative remedy was apparent.
The Court granted the applicant amended relief, and referred various disputed issue to oral evidence so as to expedite matters.
Kelly Group Ltd & another v Solly Tshiki & Associates (SA) (Pty) Ltd & others
[2010] JOL 25265 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
2010 / 5594
11 / 03 / 2010
South Africa
High Court
South Gauteng, Johannesburg

Bench:
Keywords:
A Gautschi AJ
Civil procedure – Interdict – Interim relief – Requirements
Mini Summary:
A joint venture between the first applicant and first respondent, operating through the vehicle of the second applicant, was embarked upon to provide temporary labour services to the fourth respondent. The first applicant and first respondent subsequently entered into a shareholders' agreement to govern their relationship.
The dispute arose when the first respondent received an order from the Post Office for the provision of labour, independently of the second applicant. The first applicant challenged the right of the first respondent to compete with the second applicant.
In the present application, the applicant sought an interdict preventing the respondents from inter alia, interfering with its back office services and payroll administration work; utilising or engaging the services of the employees in rendering services to the Post Office; coercing and/or soliciting the services of the employees to render services to the Post Office.
Held that the applicant was required to establish a prima facie right as one of the prerequisites for the relief sought. The court found that it had failed to do so, and dismissed the application on that basis.
Phillip & another v First Rand Bank Ltd trading inter alia as FNB Homeloans Formerly First Rand
Bank of SA Ltd & others
[2010] JOL 26145 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
628 / 09
01 / 09 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Lopes J
Keywords:
Civil procedure – Interdict – Prevention of transfer – Sale in execution
Mini Summary:
The applicants sought an order interdicting the first respondent from transferring certain immovable property (their home) which was registered in the names of the applicants into the name of the third respondent. The first respondent held three mortgage bonds over the property, and when the applicants fell into arrears with payments, obtained default judgment against them. Pursuant to an order declaring the property executable, it was sold to the third respondent.
The present application was based on the averments that an arrangement had been concluded with the first respondent for payment of the arrears; the applicants were given no notice of the date of the sale by the first respondent; the fact that the property had previously been advertised for a sale which had later been cancelled, indicated that the first respondent did not intend to proceed with the sale and accordingly proper notice should have been given to the applicants; and the sale of the property deprived the applicants of their constitutional right to housing in terms of the Constitution.
Held that as the applicants provided very few details, the court found that the making of an arrangement for the settling of arrears could not in any way constitute a ground for preventing the property from being transferred into the name of the third respondent. The court also rejected the allegation that there was no proper notice given to the applicants of the sale. As the applicants’ were solely to blame for their predicament, the court dismissed their attempt to challenge the constitutional validity of the respondent’s actions.
The application was dismissed with costs.
Dis-Chem Pharmacies (Pty) Ltd v Edrei Investments 9 Ltd (in liquidation) & others
[2010] JOL 26007 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
3711 / 09
25 / 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J

Civil procedure – Interim interdict – Appeal
Mini Summary:
On application by the respondents, the court had granted an interim interdicting preventing the applicant from vacating the premises which it leased from the first respondent pending the final determination of an action by the respondents.
The present application was for leave to appeal against that order.
Held that the appealability of the order was in issue.
To qualify as an order in terms of the Supreme Court Act 59 of 1959, it must have three attributes. The order must be final in effect and not subject to alteration by the court of first instance; it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed.
The court found the latter requirement not to have been met, with the result that the order was not appealable. The application was thus refused.
Oosthuizen v Meme Construction CC & another
[2010] JOL 25944 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2708 / 09
11 / 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
M Makaula AJ
Keywords:
Civil procedure – Interim interdict – Requirements
Mini Summary:
In 2007, the first respondent sued the applicant, and obtained default judgment against her. A writ was issued and certain items of the applicant were attached.
In the present application, the applicant sought an order requiring the respondent to show cause why the warrant of execution should not be suspended pending finalisation of the present application; and interdict preventing the second respondent from attaching the applicant's property; and an order directing that the goods of the applicant which had already been attached be returned.
Held that one of the preliminary points raised by the respondents was that the applicant had not made out a case for the interim interdict she sought. In order for the applicant to succeed, she had to prove,
inter alia, that she had no satisfactory alternative remedy. In this case, the applicant did have another remedy, in that she could appeal against the judgment. The application fell to be dismissed on that ground alone.
The application was dismissed with costs.
Standard Bank of SA Ltd v Swartland Municipality & others
[2010] JOL 25968 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Demolition order – Interdict – Requirements
Mini Summary:
11525 / 09
31 / 05 / 2010
South Africa
High Court
Western Cape, Cape Town
E Moosa J
In terms of a default judgment obtained by the first respondent, the third respondent was ordered to demolish the unauthorised and illegal structures comprising a garage and a storeroom on his property. It was common cause that the third respondent had failed to get written approval from the first respondent prior to erecting the said structures.
The third respondent then applied for an interdict preventing the demolition order being effected, and setting aside of the order.

Held that the issues to be determined were firstly, whether the applicant had made out a case for a final interdict, alternatively an interim interdict; secondly, whether the applicant had made out a case for the setting aside of the demolition order; and thirdly, whether the judgment of the court for the foreclosure on two bonds on the property superseded the demolition order.
In order to succeed in respect of the main relief, the applicant had to show firstly, that it had a clear right; secondly, that such right had been infringed; and thirdly that it had no other suitable remedy. In order to succeed in respect of the alternative relief, the applicant had to show firstly, that it had a prima facie right; secondly, that it would suffer irreparable harm if the interim relief was not granted; thirdly, that the balance of convenience favoured the granting of the interim relief; and lastly, the absence of any other remedy.
The court that the applicant had failed at the first hurdle ie in not establishing a clear right in the case of a final interdict or a prima facie right in the case of an interim interdict.
The applicant also failed to establish a factual or legal basis to have the demolition order set aside by this court.
The application was dismissed.
G Liviero & Son Building (Pty) Ltd v IFA Fair-Zim Hotel & Resort (Pty) Ltd: In re IFA Fair-Zim
Hotel & Resort (Pty) Ltd v G Liviero & Son Building (Pty) Ltd & another
[2010] JOL 25958 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7802 / 09; 7803 / 09 In re 7434 / 09
27 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
TA Sishi J
Keywords:
Civil procedure – Provisional sentence – Interdict – Further affidavits – Leave to file – Application to strike out – Hearsay evidence
Mini Summary:
In the first two cases before the court, plaintiff sued the defendant for provisional sentence on two interim payment certificates issued in term of a building contract by the principal agent. The defendant contended that the plaintiff sought to obtain payment in circumstances where it had no right to do so because it knew that the two certificates had been issued otherwise than in accordance with the provisions of the principal building contract and as such were invalid.
In the third application, the applicant (the employer in terms of a building contract) sought to interdict the first respondent, the main contractor on the project, from claiming payment in terms of two guarantees issues by the second respondent.
The court was also required to deal with two preliminary applications. The first was the application for leave to file further affidavits in the matters. And the second was an application to strike out certain allegations contained in an affidavit in the provisional sentence proceedings.
Held that as the applicant had advanced good reasons why the further affidavits should be filed at this stage and provided a satisfactory explanation for the lateness, the first preliminary application was granted.
In considering the application to strike out, the court expounded on the admissibility of hearsay evidence
(as contained in the impugned affidavit). It set out the law in that regard, and concluded that the hearsay evidence should not be allowed. The application to strike out was granted.
The next aspect considered was the provisional sentence proceedings. The test as to when provisional sentence should be granted is that – where, as in the present instance, the plaintiff sues for provisional sentence on an illiquid document - the court will ordinarily grant provisional sentence unless the defendant produces such counter proof as it would satisfy the court that the probability of success in principle case is against the plaintiff. The defendant must show on a preponderance of probabilities that it has a valid defence in law. In this case, such onus was not discharged, and provisional sentence was granted.
Flowing from the findings in the provisional sentence application, the court dismissed the application for an interdict.

Magidiwana and Other Injured and Arrested Persons and others v President of the Republic of
South Africa and others (Black Lawyers Association as amicus)
[2013] JOL 30695 (CC)
Case Number: CCT 100 / 13
Judgment 19 / 08 / 2013
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Mogoeng CJ, Moseneke DCJ, Cameron, Froneman, Jafta, Nkabinde, Skweyiya, Van der
Westhuizen, Zondo JJ, Mhlantla AJ
Keywords:
Civil procedure – Interim order – Application for leave to appeal
Mini Summary:
Unrest at a mine during August 2012 culminated in the shooting of a number of people by members of the
South African Police Service. A Commission of Inquiry (the Commission) was established by the President to investigate and report on the events of that day. As members of the class of persons who were arrested or injured after the shooting, the applicants participated in the Commission’s proceedings. To cover their legal expenses, the applicants initially procured funding from a non-governmental entity. However, that covered only the first six months of the Commission’s proceedings. The applicants sought further funding but were unsuccessful in that regard. They therefore brought an urgent application before the High Court for an interim order compelling the temporary provision of legal aid at State expense, pending a full review of the State’s obligations to provide legal aid. The High Court dealt only with the application for urgent and temporary relief and dismissed the applicants’ claim on the basis that it was constitutionally inappropriate for a court, in interim proceedings, to direct the executive on how to expend public resources in the absence of proof of unlawfulness, fraud or corruption. The applicants now sought leave to appeal against that ruling.
Held that the narrow question before the Court was whether there was any legal basis for interfering with the High Court’s interim ruling.
It was decided that the application for leave to appeal should be dismissed, because there are no reasonable prospects of success in relation to challenging the dismissal of the application for interim relief in the High Court, and because it is not in the interests of justice to grant leave in the particular circumstances of this case where the disputed issues still had to be determined in the main review application.
Atkin v Botes
[2011] JOL 27733 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
566 / 10
09 / 09 / 2011
South Africa
Supreme Court of Appeal
TD Cloete, BJ van Heerden, LO Bosielo, WL Seriti JJA, Meer AJA
Keywords:
Civil procedure – Interim interdict – Granting of – Whether appealable – An interim interdict is appealable if it is final in effect and not susceptible to alteration by the court of first instance – The grant of an interim interdict may be challenged by a respondent, who is free to approach the court for an amelioration or setting aside of the interdict, with the result that it is not appealable
Mini Summary:
In 2009, the respondent was shot by the appellant. He sued for damages arising from the shooting. In
February 2010, at the respondent’s instance, the high court granted an urgent interim interdict restraining the appellant’s attorneys from paying out the proceeds of the sale of the appellant’s house, and ordering them to instead invest such proceeds in a bank account. The interim order was subsequently confirmed, with leave to appeal to the present court being granted.
The factual basis for the court a quo’s granting of the interdict was its conclusion that the respondent’s apprehension that the appellant was dissipating his assets with the intention of defeating the claim for damages, was well-founded. That conclusion was sought to be challenged on appeal.
Responding to the Court’s request for heads of argument dealing with the appealability of the order, the appellant contended that the order was appealable, whilst the respondent contended that it was not.

Held that the refusal of an interim interdict was confirmed as being appealable in the case of Knox D'Arcy
Ltd & others v Jamieson & others 1996 (4) SA 348 (A). The Court also discussed, obiter, the position in regard to the grant of an interim interdict, which it held was distinguishable from the refusal of such an interdict. The explanation is that an order granting an interim interdict is an interlocutory order, with the result that there can be no appeal. The refusal of an interim interdict is final, and cannot be reversed on the same facts. By contrast, the grant of an interim interdict may be challenged by a respondent, who is free to approach the Court for an amelioration or setting aside of the interdict.
In Metlika Trading Ltd & others v Commissioner, South African Revenue Service 2005 (3) SA 1 (SCA) this
Court held that an interim interdict is appealable if it is final in effect and not susceptible to alteration by the Court of first instance. Thus, the crucial question in the present appeal was therefore whether the granting of the interim interdict was final in effect.
The Court pointed out that in this case, the appellant could approach the Court a quo for an amelioration or setting aside of the interdict because of the practical experience of its operation. According to the appellant, he was unemployed at the time the interdict was made final and he had sold his house to tide him and his dependants over until he obtained employment. He could show that the continued operation of the order would cause great hardship for him, his family, and his ex-wife and severely handicapped minor child whom he was obliged to maintain in terms of a court order. If so, he would be entitled to request the court a quo to reconsider the order and that court would be entitled to vary or even rescind it.
For that reason the order made in the interdict proceedings could not be said to have final effect. It was therefore not appealable. The appeal was struck from the roll.
Bobani v Nelson Mandela Bay Metropolitan Municipality and others
[2013] JOL 30931 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1459 / 13
28 / 06 / 2013
South Africa
High Court
Eastern Cape, Port Elizabeth
C Plasket J
Keywords:
Civil procedure – Interdict – Requirements – Apprehension of harm
Mini Summary:
In the application before this Court, the applicant sought orders interdicting the first respondent municipality from continuing to use the services of the second respondent (the municipal manager) and preventing her from rendering services to the municipality pending the finalisation of a review of the decision to appoint her to that post.
Held that an applicant who applies for an interim interdict must establish the right that forms the subject matter of the main application and which he or she seeks to protect, on a prima facie basis at least (even if it is open to some doubt); a well-grounded apprehension that, if the interim interdict is not granted and the main application succeeds in due course, he or she will suffer irreparable harm; the balance of convenience favours the granting of interim relief; and that he has no other satisfactory remedy.
The present matter was capable of being resolved with reference to one of the elements, namely that of the apprehension of irreparable harm. The applicant’s case was that irreparable harm would be suffered if the interim interdict was not granted and the review succeeded in due course because the municipal manager would in the interim take a significant number of decisions that would be liable to be set aside with prejudicial consequences for the municipality and its rate-payers. The arguments of all of the parties centred around whether that apprehension was a reasonable one. The Court found the evidence of the respondents that the applicant’s apprehension of harm was not a reasonable one. Consequently, the interim interdict could not be granted.
Brink and others v Diocesan School for Girls and others
[2012] JOL 29362 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
1072 / 2012
30 / 04 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson J

Civil procedure – Interim relief – True nature of relief – Final relief – Review application – Private school’s decision to expel learner
Mini Summary:
The first applicant was a learner enrolled at the first respondent school. In applying for enrolment at the school, the first applicant’s parents had agreed, on behalf of themselves and their daughter (“the learner”), to comply with the rules, regulations, policies and procedures of the school. In February 2012, the learner left her room at the boarding school, to go to the room of a boy at the neighbouring boy’s school. Upon being discovered, the learner was summoned to a disciplinary enquiry, which culminated in her expulsion from the school.
In the present application, the applicants sought interim relief, pending an application for the review of the decision to expel the learner. The relief claimed by the applicants was that, pending the finalisation of the review proceedings, the decision of the Tribunal should be suspended and the learner allowed to attend the school (not as a boarder). The respondents argued that the relief sought was in substance and effect, final relief, in that such relief would amount to a final determination of rights.
Held that if the interim relief sought was granted, the applicants would achieve in substance what they sought in final relief, namely a lesser sanction than expulsion. By the time the review application was finalised, the academic year would be almost over, and as the learner was in her final year, she would not have been expelled. Thus, in substance final relief was sought, and the matter was adjudicated accordingly.
The review application had to be dealt with against the principles of natural justice, developed in accordance with section 39 of the Constitution, to include rationality as a ground for interference. The
Court could find no fault in the manner in which the school arrived at its decision to expel. The application was dismissed with costs.
Afriforum v City of Tshwane Metropolitan Municipality & others
[2012] JOL 29111 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Interdict – Requirements
21681 / 2012
30 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
NB Tuchten J
Mini Summary:
The applicant was an entity which strove to protect and promote constitutionally guaranteed human rights. It was aggrieved by a decision of the first respondent ("the city") to rename certain major streets within its jurisdiction. It therefore sought an interdict preventing the city from effecting the name changes, pending an application for review of the decision.
According to the applicant, the renaming process was being conducted in such a manner that it constituted an assault on the cultural heritage of a section of the community and thus violated the right to dignity of those concerned. The city, under its present political leadership, believed that the street names within its jurisdiction reflected an earlier dominant culture and did not take account of the democratic transformation our country has undergone.
Held that applicant for an Interim Interdict must establish a clear right or at least a prima facie right, as well as an apprehension of irreparable injury and the absence of an ordinary or alternative remedy. The applicant must then establish that the balance of convenience is in its favour. The balance of convenience is determined by weighing the prejudice to the applicant if the interdict is withheld against the prejudice to the respondent if the interdict is granted.
Under the decision of the city which the applicant wished to attack, a total of 25 roads were to be renamed. Of those eight were provincial roads, in respect of which the city gave an undertaking in open court that it would not proceed with the implementation of its decision until the completion of a process by which the city would consult the provincial government. Thus, in regard to the provincial roads, there was no imminent threat of harm of any kind. The applicant had in regard to the provincial roads an alternative remedy: it could engage the provincial authorities in an attempt to persuade them to withhold their consent to the renaming of the provincial roads. In open court, the city undertook further that it would not replace any of the other road signs for a period of six months. Instead, it will put up the new names and leave the old names in place for that period. The effect of the undertaking, which conditionally on the failure of its application for an Urgent Interdict, the applicant accepted, was that there was no imminent threat of the very harm which the applicant sought to prevent by interdict.

The undertakings by the applicant and by the first respondent described were noted, and no order was made.
Nkuni Holdings (Pty) Ltd v Hewan & another
[2012] JOL 28810 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7643 / 2012
26 / 04 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J
Keywords:
Civil procedure – Interim relief – Requirements
Mini Summary:
The applicant was a holding company with four subsidiary companies. The first respondent was the managing director of the applicant and the director of three of its subsidiaries. He resigned as director of all the entities in June 2011. According to the applicant, the first respondent’s resignation was prompted by the fact that he had authorised unlawful and/or undue payment to himself and third parties whilst in office. It was alleged further that the first respondent had admitted liability, and had undertaken to repay the money from the proceeds of the sale of his immovable property. The property was sold on 12
December 2011, for a purchase price of R5,2m, and the net proceeds of the sale, were held in trust by the transferring attorneys, the second respondent, who undertook to maintain the status quo, pending the finalisation of this application. The applicant now sought an order for the second respondent to retain the proceeds of the sale in its trust account, pending the outcome of the applicant’s claim to be instituted, for payment of the amount of approximately R1,9m pursuant to the first respondent’s undertaking to pay.
Held that the main consideration was whether the applicant had satisfied the requirement of showing a
prima facie case, although open to some doubt. Although the applicant’s allegations were not supported by any details, the first respondent’s version suffered from the same defect. He merely denied the allegations of having misappropriated the funds or having agreed to repayment thereof. However, an email annexed to the replying affidavit could not be reconciled with the first respondent’s bare denial of the allegations made against him. The Court was satisfied that the applicant’s allegations concerning the alleged fraud and agreement to refund, were sufficient to establish a prima facie case, although open to some doubt. The balance of convenience clearly favoured the applicant, and the granting of interim relief was deemed appropriate in the circumstances of this case.
Abseq Properties (Pty) Ltd v Maroun Square Shopping Centre (Pty) Ltd & others
[2012] JOL 28813 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Interim relief –– Requirements
Mini Summary:
27808 / 2011
02 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
A Gautschi AJ
The first and second respondents owned two contiguous pieces of land in the close vicinity of the applicant's shopping centre. They intended to rezone and develop their land to build a considerably larger shopping centre as well as offices and residential accommodation thereon. The applicant sought an interim interdict to stop the township establishment process, pending determination of final relief in the form of a declarator and/or review of certain decisions of the third respondent.
The respondents alleged that the applicant had delayed unreasonably in bringing the application for interim relief, both under the common law and under section 7 of the Promotion of Administrative Justice
Act 3 of 2000.
Held that in terms of section 7(1), any proceedings for judicial review in terms of section 6(1) must be instituted without unreasonable delay and not later than 180 days after the date – “subject to subsection
(2)(c), on which any proceedings instituted in terms of internal remedies as contemplated in subsection
(2)(a) have been concluded; or where no such remedies exist, on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons”. The clock starts ticking not only when the person concerned becomes aware of the administrative action, but also where it

might reasonably have been expected to have become aware of the administrative action and the reasons.
The Court rejected the respondents’ submission that the applicant should have become aware of the action at an earlier stage. It also referred to the discretion which a court has to refuse to grant an interim interdict when there was an undue delay in launching or pursuing the proceedings.
However, the Court went on to find that the other requirements for interim relief had not all been met in this case. The application was accordingly dismissed.
Dis-Chem Pharmacies (Pty) Ltd v Edrei Investments 9 Ltd (in liquidation) & others
[2010] JOL 26007 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3711 / 09
25 / 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Civil procedure – Interim interdict – Appeal
Mini Summary:
On application by the respondents, the court had granted an interim interdicting preventing the applicant from vacating the premises which it leased from the first respondent pending the final determination of an action by the respondents.
The present application was for leave to appeal against that order.
Held that the appealability of the order was in issue.
To qualify as an order in terms of the Supreme Court Act 59 of 1959, it must have three attributes. The order must be final in effect and not subject to alteration by the court of first instance; it must be definitive of the rights of the parties; and it must have the effect of disposing of at least a substantial portion of the relief claimed.
The court found the latter requirement not to have been met, with the result that the order was not appealable. The application was thus refused.
Margo & another v Gardner; Gardner & another v Margo & another
[2010] JOL 26137 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
564 / 09; 511 / 09
17 / 09 / 2010
South Africa
Supreme Court of Appeal
LTC Harms DP, JB Shongwe, JA Heher, LE Leach JJA, Ebrahim AJA
Contract – Claim for interest on capital debt – In duplum rule – Interest does not run only until the amount thereof reaches double the capital amount outstanding in terms of the judgment but also runs pendente lite because, as a rule, the in duplum rule is suspended during litigationStandard Bank of South
Africa Ltd v Oneanate Investments (Pty) Ltd (in liquidation) 1998 (1) SA 811 (SCA) – Referred toCommercial Bank of Zimbabwe Ltd v M M Builders and Suppliers (Pvy) Ltd & others and three similar cases 1997 (2) SA 285 (ZH) – Referred toLTA Construction Bpk v Adminstrateur, Transvaal 1992 (1) SA
473 (A) – Referred toBellingan v Clive Ferreira & Associates CC 1998 (4) SA 382 (W) – Referred toMeyer v
Catwalk Investments 354 (Pty) Ltd 2004 (6) SA 107 (T) – Referred toTitus v Union & SWA Insurance Co
Ltd 1980 (2) SA 701 (Tk SC) 704 – Referred to
Mini Summary:
Two appeals before the court, were argued as one due to the similar facts and issues. The parties were also essentially the same. As the appellant in one appeal was the respondent in the other, they are referred to by name henceforth.

The dispute concerned the application of the old common law rule known as the in duplum rule. It means in general terms that a creditor is not entitled to claim unpaid interest in excess of the capital outstanding.
In 1999, Margo (the first appellant in the first appeal) sued Gardner (the respondent in that appeal) for payment of R15 000 000. On appeal, the amount was reduced. Pursuant to the order issued o appeal,
Gardner made two payments amounting to R3 022 864. He contended that after the second payment he understood that the two payments were made in full and final settlement of the capital. That was disputed by Margo, which eventually in 2007, sent a writ of execution to Gardner's attorneys as well as to the
Sheriff for service, claiming the sum of R185 983 being the balance of the interest owing on the judgment debt. Gardner brought an urgent application to have the writ suspended, pending the outcome of an application for a declaratory order that the judgment had been satisfied, and for the setting aside of the writ. Both the application for a declarator and an application for leave to appeal were dismissed. The court found that the in duplum rule did not apply in the present instance.
In 2008, Margo caused a second writ of execution to be issued alleging that the first one reflected incorrect amounts and was therefore withdrawn. Gardner launched another urgent application to suspend the second writ and later launched another application to have the aforesaid writ set aside and to declare that he was not indebted to Margo for any capital sum, interest or costs. The high court found in favour of
Gardner and ordered Margo to pay to Gardner the amount by which it found Gardner had overpaid, and also set aside the second writ and declared that Gardner was no longer indebted to Margo. Unlike the court referred to above, this court found that the in duplum rule was applicable. Leave to appeal to the present court was granted.
Held that the in duplum rule forms part of South African law. It prevents unpaid interest from accruing further, once it reaches the unpaid capital amount. However, a creditor is not prevented by the rule from collecting more interest than double the unpaid capital amount provided that he at no time allows the unpaid arrear interest to reach the unpaid capital amount. The aim of the in duplum rule is to protect borrowers from exploitation by lenders who permit interest to accumulate, but essentially also to encourage plaintiffs to issue summons and claim payment of the debt speedily. Delays inherent in litigation cannot be laid at the door of litigants and it would be unfair to penalise a creditor with the application of the in duplum rule while proceedings are pending.
The court in the second appeal, in finding in favour of Gardner that the in duplum rule was applicable, failed to recognise the suspension of the in duplum rule during the period when the matter was pending before court. Interest does not run only until the amount thereof reaches double the capital amount outstanding in terms of the judgment but it also runs pendente lite because, as a rule, the in duplum rule is suspended during the litigation. The present court therefore found in favour of Margo.
Ryton Estates (Edms) Bpk & andere v Land & Landbou Ontwikkelings Bank van SA
[2012] JOL 28600 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
33482 / 2010
09 / 03 / 2012
South Africa
High Court
North Gauteng, Pretoria
WRC Prinsloo J
Keywords:
Contract – Loan agreements – Charging of interest – Rate of interest – Method of computation
Mini Summary:
The plaintiffs were farmers who had loan accounts with the Land Bank (the defendant). They were concerned that the bank had debited their loan accounts with too much interest. In essence, the plaintiffs complained that the defendant had debited their accounts with compound as opposed to simple interest, and that it had also wrongly imposed various charges.
The parties were in agreement that the Land Bank Act 13 of 1944 was applicable to their dispute.
Held that the issues in dispute between the parties related specifically to the rate of interest and the method used to calculate such interest.
On the first issue, the plaintiffs bore the onus of proving that the defendant failed to properly exercise its discretion to adjust the rate of interest charged. That onus was not discharged, and the court resolved the first issue in the defendant’s favour.
On the second issue, the Court held that the loan agreements made provision for simple interest, which does not allow for interest on interest. The defendant was therefore not allowed to charge compound interest, nor were the administrative charges complained of by the plaintiffs permissible. The defendant was ordered to repay the amounts charged in that regard.

Mokala Beleggings (Pty) Ltd & another v Minister of Rural Development & Land Reform &
others
[2012] JOL 28933 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
276 / 2011
23 / 03 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, SA Majiedt, MS Navsa, S Snyders, MJD Wallis JJA
Keywords:
Contract – Sale agreement – Deliberate delay by purchaser – Liability for mora interest –– Mora ex persona –– Where a contract does not contain an express or tacit stipulation with regard to the date when performance is due, a demand is needed to place the debtor in mora – –Words and phrases – Mora –
Means default or delay and finds application when the consequences of a failure to perform a contractual obligation within the agreed time are determined
Mini Summary:
The appellants owned immovable property which they agreed to sell to the state as the property was the subject of a land claim. As the property consisted of two separate pieces of land, two agreements of sale were drawn up. The agreements provided, in clause 5.2 that the transferring attorney would effect the transfer of the properties in the name of the National Department of Land Affairs (“the department”) within two months from the date of signature of the agreement by all concerned parties. The conveyancers were ready to lodge papers in order to effect the transfer during the middle of June 2009 but were instructed by the department, to delay lodgement indefinitely due to a lack of funds. When letters of demand sent by the appellants yielded no results, the appellants launched an urgent application in the Land Claims Court for various orders, including a claim for mora interest. That galvanised the department into action, and payment of the purchase price was made. However, the department opposed the claim for mora interest. The Land Claims Court refused to grant the mora interest claimed by the appellants, leading to the present appeal. It was common cause that the state was in mora regarding the performance of its obligations before the application was brought. However, the department resisted the claim for mora interest on the ground that it was not obliged in law to pay interest. The Land Claims Court decided the matter on the basis that the agreement did not make provision for the payment of interest; that payment of the purchase price depended on the registration and transfer of the property and that the appellants had failed to show when registration was effected and when payment was received in order to calculate a date from which interest should run.
The appellants’ case for mora interest was based in the main on mora ex re in reliance on clause 5.2 of the contracts and secondly, on mora ex persona by virtue of the written letters of demand.
Held that the question on appeal was whether a purchaser who deliberately delays effecting the transfer of property and payment of the purchase price can be held liable for mora interest.
Mora means default or delay and finds application when the consequences of a failure to perform a contractual obligation within the agreed time are determined. Where a contract fixes the time for performance, mora ex re flows from the contract itself and there is no need for a demand to place the debtor in mora. The appellants relied on clause 5.2, referred to above, for mora ex re. in finding that clause 5.2 was to be regarded as pro non scripto, since the Registrar of Deeds, and not the department’s conveyancers, was responsible for effecting the registration of transfer of the property, the Land Claims
Court committed a misdirection. What was required of the Land Claims Court was to interpret the clause, not to summarily dismiss it in the fashion that it did. While the clause was, on the face of it, plain and unambiguous, it was fraught with difficulties. The present court held that clause 5.2 could not and did not establish mora ex re.
Accordingly, the breach provisions in the sale agreements and the written notices had to be considered.
Where a contract does not contain an express or tacit stipulation with regard to the date when performance is due, a demand is needed to place the debtor in mora, ie mora ex persona. Mora in the present matter concerned a delay in the payment of the purchase price as a result of the department’s delay in having the registration of transfer effected by its conveyancers. All that is required in our law is proof that the debtor is in mora.
The department did not deny receipt of the notices in question, but raised a bare denial that the notices had been sent as alleged. In that regard, the court held that the department had not raised a real and bona fide factual dispute in its answer but contented itself with an evasive answer to which it was bound.
The letters were sent to the department’s postal address and copied to the Deputy Director of Finance in the office of the Chief Land Claims Commissioner and to the department’s conveyancers. The agreements designated the Deputy Director of Finance as the official responsible for making payment of the purchase price. The inference was compelling that receipt of the letters could not be denied in view of that fact. The appellants had consequently established that the letters of demand had been received and that the department had been properly placed in mora. In the circumstances, mora interest commenced running

28 days after the date of dispatch of the letters by pre-paid registered post, ie as from 28 November
2009.
It was common cause that the appellants had suffered loss as a result of the delay. The court upheld the appeal, replacing the Land Claims Court’s order with one in terms of which the respondents were directed to pay interest as claimed.
Firstrand Bank Ltd v Fillis & another
[2010] JOL 26112 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
1796 / 10
17 / 08 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Credit agreements – Loan – Debt review – Rearrangement order – Default – Summary judgment
Mini Summary:
A credit agreement entered into between the defendants and the plaintiff was secured by a mortgage bond registered over certain immovable property. Alleging that the plaintiffs were in default of the credit agreement, the plaintiff sought summary judgment and an order declaring the immovable property to be executable. Prior to that, the defendants had approached a debt counsellor and applied for debt review in terms of the provisions of section 86 of the National Credit Act 34 of 2005. A magistrate then made an order restructuring their debts. However, at the time action was instituted, they had defaulted on the rearrangement order as well.
The defendants raised three defences to the application for summary judgment. The first was a point in
limine to the effect that the person who attested to the affidavit filed in support of the application for summary judgment in terms of the provisions of rule 32(2), had not established that he was authorised to depose to the affidavit. The second defence was that once an order is made to re-arrange the defendants' debt no legal action may be taken by the credit provider to enforce a credit agreement which is subject to the order unless and until the re-arrangement order has been rescinded in terms of the provisions of section 36 of the Magistrates' Court Act, 32 of 1944, irrespective of the fact that the defendants are in breach of the provisions of the re-arrangement order. Finally, it was argued that, notwithstanding that the defendants had failed to meet the required payments stipulated in the re-arrangement order, they should nevertheless not have been held to be in default.
Held that the deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. The first point was thus dismissed.
The second point was also dismissed. The court pointed out that the rearrangement order was a means to assist the defendants, but if they defaulted on that order, then the common law could run its course.
The third point was dismissed for reasons similar to those set out above.
Concluding that the defendants had set out no defence to the claims, the court granted judgment in the plaintiff's favour.
Structured Mezzanine Investments (Pty) Ltd v Davids & others
[2010] JOL 26097 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
9587 / 10
08 / 09 / 2010
South Africa
High Court
Western Cape, Cape Town
NJ Yekiso J
Keywords:
Contract – Loan – Rate of interest – Lawfulness
Mini Summary:
In terms of a loan agreement between the applicant and a third party, the applicant would advance money to the third party, and interest of 1.25% would be payable from date of commencement of the loan to the agreed date of payment. If the capital plus interest were not paid by the agreed date of payment, then al

alternative rate of 1.5% interest would apply. As the debt was not paid by the agreed date, the applicant claimed payment of capital and interest at the initial rate and then at the alternative rate.
The respondents had bound themselves as sureties in the loan agreement.
When the matter went before court, the court raised concerns about the lawfulness of the interest rate.
The parties addressed the present court on just that issue.
Held that the lawfulness of the interest rate charged is regulated by legislation such as the Conventional
Penalties Act 15 of 1962 and the National Credit Act 34 of 2005. The court had to determine whether the interest rates charged in this case contravened either of those Acts, or offended public policy. It was found that the National Credit Act did not apply to the present matter. Secondly, the applicable interest rates did not contravene the provisions of the Conventional Penalties Act.
Considering the public policy aspect, the court could not find that the rate of interest was disproportionate to the risk undertaken by the applicant.
Judgment was granted in applicant's favour.
Adventure Golf Bruma CC v Redefine Properties Limited and another
[2015] JOL 33070 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Contract – Lease agreement – Interpretation
Mini Summary:
6836 / 2013
02 / 09 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
I Opperman AJ
A written lease agreement was concluded between the applicant and the first respondent, in terms of which the applicant took occupation of the leased property from 1 August 2010. The agreement specified charges over and above rental, for which the applicant would be liable. According to the applicant, on a proper interpretation of the relevant clause, the first respondent was not entitled to calculate the consumption of electricity, gas and water by the utilisation of installed sub-meters and was obliged to calculate the consumption of electricity, gas and water on a pro-rata basis calculated on an agreed area of the kiosk of 100 square metres. The respondent on the other hand, contended that on a proper interpretation of the lease agreement they were entitled to calculate the consumption of electricity, gas and water by means of sub-meters and to charge the applicant for such consumption accordingly.
The Court invited argument on the question of what role, if any, the canons of interpretation as developed in our common law, now play in interpreting agreements. That request came about primarily by virtue of applicant’s counsel relying on deleted portions of the lease agreement for purposes of interpreting the relevant clause and by virtue of respondents’ counsel wishing to have certain matter struck out due to such matter offending the parol evidence rule.
Held that the applicant placed much reliance on the deletion of the first sentence of the clause. The question was whether a court can have any regard to such deleted portion in interpreting the agreement – and whether the expunged portions of the agreement was matter which should be included in interpreting the agreement ie matter which could well resort under the rubric “context” and which a court would be obliged to consider having regard to the recent developments in our law.
The Court established that the “new” approach to interpretation is such that interpretation is an exercise in ascertaining the objective meaning of the language of the provision itself – and not the intention of the parties. Interpretation is a matter of law and not of fact. The meaning of a provision is determined with reference to its language and in the light of its factual context, which includes what has previously been referred to as “background circumstances”. The factual context is ascertained by reading the provision having regard to the document as a whole and the circumstances attendant upon its coming into existence. Consideration must be given to the language used in the light of the ordinary rules of grammar and syntax, the context in which the provision appears; the apparent purpose to which the provision is directed, and the material known to those responsible for its production. Although extrinsic evidence of a provision’s context, purpose and material known to those responsible for its production is admissible, one must use it as conservatively as possible. A sensible meaning should be preferred to one “that leads to insensible or unbusinesslike results.
Having regard to the integration rule, the Court held that deleted portions of a contract cannot be regarded as part of its content.

Ultimately, the Court concluded that the agreement did not prohibit the first respondent from charging the applicant for its actual consumption of electricity, gas and water on the readings of sub meters.
Bula and others v Minister of Home Affairs and others
[2012] JOL 29379 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
589 / 11
29 / 11 / 2011
South Africa
Supreme Court of Appeal
MS Navsa, TD Cloete, MML Maya, LO Bosielo, LE Leach JJA
Courts – Presiding officers – Role of – Irregularities committed in conduct of proceedings – Presiding officer making unwarranted statements about foreigners, running counter to proper administration of justice – International Law – Immigration – Applications for asylum – Where a foreign national indicates an intention to apply for asylum, the regulatory framework of the Refugees Act 130 of 1998 kicks in – In terms of section 22 of the Refugees Act, an asylum seeker has the protection of the law pending the determination of his application for asylum
Mini Summary:
The appellants were all Ethiopian nationals who had applied firstly for the review and setting aside of the extension of their warrants of detention, and secondly for an interdict preventing the Minister of Home
Affairs and the Director-General of the Department of Home Affairs (“the DG”) from deporting them until their status under the Refugees Act 130 of 1998, was lawfully and finally determined. The High Court, faced with the application, refused the above relief, as well as other relief sought by the appellants. The dismissal of the application led to the present appeal.
According to the appellants, they fled Ethiopia to escape political persecution and in fear of their lives, and crossed the South African/Mozambique border without being stopped by any immigration officials. They were assisted in South Africa by a Somalian who took them to a house and gave them a meal. Whilst there, a fight broke between two other people, and the police arrived. When the appellants were unable to provide documentation to prove that they were lawfully resident in South Africa, they were arrested as illegal foreigners. They were detained at a police station for nine days and were then transferred to
Lindela, a holding facility and repatriation centre controlled by the Department of Home Affairs.
Approximately a month later, a letter on their behalf was sent to the Department of Home Affairs in which their lawyers demanded that all deportation proceedings against them be halted and that they be released immediately and afforded the opportunity to apply for asylum. No response was received. They then approached the High Court for the relief set out hereinabove.
Held that the appeal was about the principle of legality. It involved the interpretation and application of provisions of the Refugees Act and of regulations issued thereunder.
The manner in which the High Court conducted proceedings was a matter of grave concern as fundamental rules of litigation were flagrantly flouted. The court below misconceived its function and misidentified the issues that required decision. Some of the irregularities which were committed were a referral to oral evidence in the absence of a request n that regard by the parties; the failure to swear in the first two witnesses; and the judge indicating that he would accept an advocate’s word above the word of the appellants on whether or not the former had been properly authorised to bring an earlier application. The judge also made comments about foreigners which indicated bias on his part.
Distancing itself from the approach of the court a quo, the present Court set out the proper approach which should have been followed. It began by setting out the relevant provisions of the Refugees Act, and the regulations promulgated thereunder. An important regulation was Regulation 2(2) which provides that any person who enters South Africa and is “encountered in violation of the Aliens Control Act, who has not submitted an application pursuant to subregulation 2(1), but indicates an intention to apply for asylum shall be issued with an appropriate permit valid for 14 days within which they must approach a Refugee
Reception Office to complete an asylum application”. The regulation does not require an individual to indicate an intention to apply for asylum immediately he or she is encountered, nor should it be interpreted as meaning that when the person does not do so there and then he or she is precluded from doing so thereafter. The purpose of subsection 2 is to ensure that where a foreign national indicates an

intention to apply for asylum, the regulatory framework of the Refugees Act kicks in, ultimately to ensure that genuine asylum seekers are not turned away. It is clear that the appellants, when they were detained at Lindela, communicated to the Department’s officials and enforcement officers by the letter referred to earlier in this judgment that they intended to apply for asylum. Once the appellants, through their attorneys, indicated an intention to apply for asylum they became entitled to be treated in terms of
Regulation 2(2) and to be issued with an appropriate permit valid for 14 days, within which they were obliged to approach a Refugee Reception Office to complete an asylum application. No decision on the
bona fides of the application is made upfront. Once the application has been made at a Refugee Reception
Office, in terms of section 21 of the Refugees Act, the Refugee Reception Officer is obliged to accept it, see to it that it is properly completed, render such assistance as may be necessary and then ensure that the application together with the relevant information is referred to a Refugee Status Determination
Officer. In terms of section 22 of the Refugees Act , an asylum seeker has the protection of the law pending the determination of his application for asylum.
The principle of legality, an incident of the rule of law, dictates that officials must act in accordance with legal prescripts. Accordingly, once an intention to apply for asylum is evinced the protective provisions of the Refugees Act and the associated regulations come into play and the asylum seeker is entitled as of right to be set free subject to the provisions of the Act.
The appeal was upheld and the High Court’s order set aside. Subject to the appellants approaching a
Refugee Reception Office as set out in the order, the respondents were interdicted from deporting the appellants unless and until their status under the Refugees Act had been lawfully and finally determined.
BoE Trust Limited NO and others
[2013] JOL 30123 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
846 / 11
28 / 09 / 2012
South Africa
Supreme Court of Appeal
TD Cloete, FR Malan, JB Shongwe, Pillay JJA, NC Erasmus AJA
Civil procedure – Joinder – Common law rule – Anyone with a direct and substantial interest in a matter must be joined – Trusts and Estates – Wills – Interpretation of – Freedom of testation – Golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used –
Racially discriminatory provision in will – Testatrix clearly intended that should it prove impossible, for whatever reason, to give effect to the racially discriminatory provisions of the bequest, the money should go to stipulated charitable organisations – Instead of deleting the racially exclusive provision, effect had to be given to the wishes of the testatrix so that the bequest to the named charitable organisations was enforced
Mini Summary:
The appellants were the trustees in a testamentary trust. In her will, the testatrix had, after making bequests to family, stipulated that a bursary be established to assist White South African students studying in a certain field at any of four South African universities. Should it not be possible for the testatrix’s wish not to be implemented, then the trustees were to make donations to 10 charitable organisations listed in the will. The trustees of the trust contacted the four universities to establish whether the universities would accept the bursary bequests, on the conditions stipulated in the will. All the universities indicated that the racial selection criterion attached to the bursary made it impossible for them to accept the bequests. The appellants therefore approached the High Court for a rule nisi calling upon all interested parties to show cause why the word “White” should not be deleted from the will. The rule nisi was granted and served on the Master of the High Court and the universities concerned. It was not served on the charitable organisations. No opposition to the rule nisi was received and a final order was sought.
In approaching the High Court, the trustees contended that the word “White” fell to be deleted as it was discriminatory against potential beneficiaries of the bursaries contemplated in the will, on the basis of race. Consequently, they contended, the will was contrary to public policy; the right to equality as enshrined in the Constitution; the provisions of section 7 of the Promotion of Equality and Prevention of
Unfair Discrimination Act 27 of 1996; and the principles contemplated in sections 3 and 4 of the National
Education Policy Act 4 of 2000.
The High Court found that the bursary bequest was rendered impossible as a result of the universities’ stance. It went on to find that such eventuality was, however, expressly and in terms provided for by the testatrix in that the trust income would then go to the charitable organisations. The appellants applied for

leave to appeal, but leave was refused on the basis that the testatrix had foreseen the possibility that the bursary bequest might prove impossible to carry out, and had provided an alternative to which effect had to be given. The appellants were before the present court with its leave.
Before the appeal was heard, the present Court raised the issue of non-joinder of the charitable organisations named in the will.
Held that the common law rule regarding the obligatory joinder of parties is that anyone with a direct and substantial interest in a matter must be joined. The charitable organisations clearly had a substantial legal interest in these proceedings. The Court considered whether an informal letter informing the charitable organisations of the proceedings and asking them if they wished to intervene at the appeal stage constituted sufficient notice, and found that it did.
The main issue on appeal was whether the Court should uphold the appeal and allow a deletion of a word
“White” in the testatrix’s last will and testament.
Section 25(1) of the Constitution provides that no one may be deprived of property, except where the deprivation is done in terms of a law of general application. It also entrenches the principle that no law may permit the arbitrary deprivation of property. Section 25 has also been seen as protecting a person’s right to dispose of their assets as they wish, upon their death. Furthermore, not to give due recognition to freedom of testation, will fly in the face of the constitutional principle of human dignity. Freedom of testation, and the rights underlying it, are however, not absolute. The golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used. And when those wishes are ascertained, the court is bound to give effect to them, unless prevented by some rule of law from doing so. The testatrix in this matter clearly intended that should it prove impossible, for whatever reason, to give effect to the provisions of the educational bequest, the money should go to the charitable organisations. The testatrix clearly set out a general scheme in which she provided for foreseen eventualities. Therefore, the fact that the universities would not participate as a result of the racially exclusiveness of the bequest was an impossibility in respect of the bursary bequest. The result had to be that effect had to be given to the wishes of the testatrix so that the bequest to the named charitable organisations was enforced.
The appeal was accordingly dismissed.
Moosa NO and others v Moosa and others
[2014] JOL 32461 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A146 / 13
18 / 09 / 2014
South Africa
High Court
Gauteng Division, Pretoria
PM Mabuse, L Windell, MW Msimeki JJ
Keywords:
Civil procedure – Special plea – Jurisdiction
Mini Summary:
The present appeal had to be determined only in respect of the claims of the fourth to seventh appellants against the first respondent. The appellants sued in their capacities as trustees of a trust (“the trust”). At the heart of the appeal was the question of whether the court a quo was correct in finding that it had no jurisdiction to entertain the matter that was before it or whether it was correct in upholding the first respondent’s plea of lack of jurisdiction against the appellants’ action.
The background facts were as follows. The third respondent was a property holding company. The first respondent was the registered holder of 10 shares and 50% of the loan account in the third respondent as monies owed to the first respondent. The trust claimed to be the lawful and true owner of one of the shares registered in the name of the first respondent, and the true beneficiary of 10% of the loan account recorded as owing to the first respondent in the books of account of the third respondent. The appellants alleged that the first respondent was the nominee of the trust in respect of the one share registered in the first respondent’s name and the 10% of the value of the loan account. The appellants relied on an alleged

oral agreement with the first respondent, in terms of which the latter had agreed to act as nominee as described above. They alleged further that the first respondent had expressly, alternatively impliedly or tacitly, agreed to retransfer the shares and the loan account to the trustees of the trust on demand and for no value.
Three special pleas were raised by the first respondent, namely a lack of jurisdiction, prescription, and non-joinder. The court a quo upheld the jurisdictional objection, on the ground that the first respondent resided in Pietermaritzburg and the alleged oral agreement was entered into there. Therefore, a party against whom substantial portion of the relief was sought did not reside within the area of jurisdiction of this Court.
Held on appeal that it was essential for the appellants to allege in the summons and to prove in court all the underlying facts which were necessary to establish that this Court had jurisdiction in the matter and over the respondents. The first respondent erred in looking only at his residence and the place of conclusion of the agreement without considering other crucial factors that normally or statutorily confer jurisdiction on a court such as set out in section 19(1)(b) of the of the Supreme Court Act 59 of 1959.
Significantly, the appellants were entitled to initiate their application for the rectification of the company’s share register in this Division because the company’s registered office was situated within its area of jurisdiction. The principle of our law is that where more than one court have jurisdiction in the matter or in a particular matter, the plaintiff, as dominus litis, has the right to choose the Court in which to institute his action. Therefore, the present Court did have jurisdiction in the matter. The appeal was accordingly upheld.
Thembani Wholesalers (Proprietary) Limited v September and another
[2014] JOL 32099 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
47 / 2014
26 / 06 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
D Chetty, M Makaula JJ, RWN Brooks AJ
Keywords:
Civil procedure – High Court divisions – Jurisdiction – Superior Courts Act 10 of 2013 – Local seats of a division enjoying concurrent jurisdiction with main seat of the division – Civil procedure – Summary judgment – A defendant, in resisting an application for summary judgment, must disclose the defences relied upon on affidavit – Defences raised from bar not capable of being upheld
Mini Summary:
In an opposed application for summary judgment, the defence raised was one of jurisdiction. The principal place of business of both parties to the lis was specified in the particulars of claim as an area over which the Eastern Cape High Court, Mthatha, exercised jurisdiction. However, the present Court was specially constituted pursuant to the provisions of section 14(1)(a) of the Superior Courts Act 10 of 2013 (“the
Act”), to primarily determine whether the Eastern Cape High Court, Grahamstown, had the requisite jurisdiction to adjudicate upon the application.
Held that section 6 of the Act established the nine divisions of the High Court and identified the main seat of each division. Section 21 provides that a division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance. The provision has given rise to conflicting statutory interpretations. It was submitted for the defendants that the words “a division” in section 21 refers to a local seat within the division and not the division itself, and there could not be concurrent jurisdiction between the main and local seats of the division in non-appeal matters. The plaintiff, on the other hand, argued that the section was unambiguous. The Court referred to the transitional arrangements embodied in section 50 of the Act, the meaning of which was clear and unambiguous. It provided that the local seats of the division, identified as the Eastern Cape High Courts, Bhisho, Mthatha and Port Elizabeth, were endowed with concurrent jurisdiction over smaller areas than that enjoyed by the main seat. The division’s area of jurisdiction, conferred by section 21, comprised the entire Province of the
Eastern Cape. A local seat therefore could not be endowed with original territorial jurisdiction when the Act itself merely vested it with concurrent jurisdiction. Section 27 provides the machinery for the removal of a matter to another court on application. However, there was nothing to preclude a judge, sitting as a court of first instance in the Eastern Cape High Court, Grahamstown, from mero motu concluding that, notwithstanding the Court having original territorial jurisdiction, the balance of convenience dictated that the matter properly be heard at a particular local seat and order that it be so removed.
Several other defences were raised from the bar, but as a defendant, in resisting an application for summary judgment, must disclose the defences relied upon on affidavit, those defences could not be relied upon in this case.

The only defences raised which required consideration was that pertinently raised in opposition and the issue relating to authority. However, the Court found no merit in the said defences.
As the defendants failed to disclose a bona fide defence to the plaintiff’s claim, an order for summary judgment had to follow.
Although costs would normally follow the result, the Court decided that the defendants should not be mulcted with costs in a matter which served before this Court as a test case on the issue of jurisdiction.
Each party was therefore ordered to bear its own costs.
Zwelibanzi Utilities (Pty) Ltd t/a Adams Mission Service Centre v TP Electrical Contractors CC
[2011] JOL 26967 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
160 / 10
25 / 03 / 2011
South Africa
Supreme Court of Appeal
JA Heher, TD Cloete, S Snyders, SA Majiedt JJA, C Plasket AJA
Keywords:
Civil procedure – Magistrate’s Court – Special plea to jurisdiction – Appeal against dismissal of plea –
Section 28 of the Magistrates’ Courts Act 32 of 1944 provides that the persons in respect of whom the court shall have jurisdiction shall be any defendant who appears and takes no objection to the jurisdiction of the court – Accords with general principle of the common law, as stated in case law, is that that where a defendant without having excepted to the jurisdiction, joins issue with a plaintiff in a court which has material jurisdiction, but has no jurisdiction over the defendant because he resides outside the jurisdiction of the court, the defendant is deemed to have waived his objection and thereby conferred jurisdiction upon the court
Mini Summary:
In August 2004, the respondent issued summons against the appellant, claiming the balance of payment for the installation of electrical services. In June 2005, the appellant pleaded to the merits, and filed a counter-claim for damages arising from breach of contract. In April 2007, the appellant amended its plea by the addition of a special plea that the court lacked jurisdiction as the appellant neither resided nor carried on business within its area of jurisdiction. The respondent pointed out that the appellant had appeared and taken no objection to the court’s jurisdiction in the proceedings relating to convention and reconvention.
The magistrate, asked to rule in limine on the special plea, dismissed it. He ruled that the defendant had acquiesced in the jurisdiction of the court. On appeal the full bench of the High Court dismissed the appeal with costs and confirmed the magistrate’s ruling. The present appeal was accordingly noted.
Held that section 28 of the Magistrates’ Courts Act 32 of 1944 provides that the persons in respect of whom the court shall have jurisdiction shall be any defendant (whether in convention or reconvention) who appears and takes no objection to the jurisdiction of the court. The meaning of the provision was discussed in the case of William Spilhaus & Co (M.B.) (Pty) Ltd v Marx. In his judgment, Theron J stated that our courts in general will give effect to the rule of the common law, as it is to be gathered from Voet, that a defendant who has pleaded to the plaintiff’s main claim without objecting to the jurisdiction must, at least after litis contestatio has been reached, be considered to have bound himself irrevocably to accept the jurisdiction of the court –where his failure to raise the question of jurisdiction might have been due to some mistake on his part.
The general principle of the common law, as stated in case law, is that where a defendant without having excepted to the jurisdiction, joins issue with a plaintiff in a court which has material jurisdiction, but has no jurisdiction over the defendant because he resides outside the jurisdiction of the court, the defendant is deemed to have waived his objection and thereby conferred jurisdiction upon the court. In considering section 28 of the Magistrate Courts Act against the backdrop of the common law, the present court pointed to the additional factor of the presumption that the legislature in enacting legislation intends to depart as little as possible from the common law, and held that section 28(1)(f) contains no indication to the contrary.
In an effort to get around the above statement of the law, the appellant argued that the respondent did not oppose the appellant’s amendment by which the special plea was introduced, and the amendment was accordingly granted by consent. The consequence, it was submitted, was that the respondent was bound to submit to the trial of the merits of the jurisdictional plea. It was also argued that the effect of the amendment to the plea was retrospective in operation to the stage of the original plea, preceding the filing of the counterclaim and, therefore, negating the effects of the apparent reliance upon the jurisdiction of the court to decide the merits of the claim and counterclaim. The court rejected the arguments. It stated that the fact that an amendment operates retrospectively is a procedural consequence. It does not affect accrued rights. Nor can jurisdiction already vested by the appellant’s failure to object to its absence before

litis contestatio be rendered non-existent by subsequent amendment. As the establishing of jurisdiction in this manner gives rise to an objective fact without the intervention of the plaintiff in the action, the latter’s inaction in opposing the amendment is of no consequence.
The appeal was accordingly dismissed.
Mangangeni Emmaus Westmead Returners Community Trust & others v Minister of Rural
Development and Land Reform & others
[2012] JOL 29096 (SCA)
Case Number: 361 / 2011
Judgment Date: 31 / 05 / 2012
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
IG Farlam, MS Navsa, SA Majiedt JJA, BR Southwood, XM Petse AJJA
Keywords:
Civil procedure – Special plea of jurisdiction – Court a quo erring in deciding that high court lacked jurisdiction in respect of appellants’ claims aimed at securing control of funds paid pursuant to settlement of land restitution claim – Issue of jurisdiction should not have been decided on basis of whether or not appellants had entered into agreement in terms of section 42D of Restitution of Land Rights Act 22 of
1994 – Property – Land – Restitution claim – Agreements to regulate holding and control of funds paid pursuant to settlement of claims not shown to be invalid or to have lapsed as alleged by appellants –
Appeal dismissed on basis that no entitlement to relief sought was established
Mini Summary:
In August 1995, a land restitution claim was lodged by a community in respect of four farms. Acting in terms of section 11(1) of the Restitution of Land Rights Act 22 of 1994 (“the Act”), the second respondent
(being the regional land claims commissioner) published a notice of the claim. Representatives of the claimants and the second respondent then met on a number of occasions with a view to reaching agreement on the restitution award. A settlement agreement was reached, in terms of which the first respondent would pay a restitution award of R6 770 500 to the claimants; a portion of the award would be used to pay the owner of the land for the land to be purchased by the claimants; the claimants would establish a trust to represent the claimants; and the first respondent would pay the balance of the restitution award to the trust after the purchase price of the property had been paid. The first appellant was the trust which was formed in compliance with the agreement. Its account was held with the third respondent, an investment bank.
Thereafter, the parties attempted to reach agreement on how the funds should be managed to ensure that all the claimants would benefit equally. In July 2003, the first appellant and the respondents entered into a section 42D agreement in terms of which it was agreed that the total value of the 250 claims was
R6 770 500; the state agreed to restore some of the land to the claimants; the remainder of the total value of the claims after purchase of the land from the owners would be held by the first appellant in an interest-bearing account; the first appellant and the department would enter into an agreement containing the terms and conditions pertaining to the transfer of funds to the first appellant; and prior to or simultaneously with the transfer of the land to the first appellant the state would pay to the first appellant the balance of the total claim together with the restitution discretionary grant of R3 000 per claimant and the first appellant would hold these amounts in an interest-bearing account for the benefit of the claimants and such amount would together with the interest thereon be utilised by the first appellant in accordance with the provisions of the agreement. The parties then signed transfer of fund agreements. The first respondent accordingly paid two amounts (R5 445 468 for the restitution capital award and R732 865,75 for the restitution discretionary award) to the third respondent pursuant to the agreement. Since receiving the funds, the third respondent continued to hold them and disbursed funds from time to time to or on behalf of the first appellant, but only with the approval of the respondents. The respondents raised concerns about the appellants’ management of the trust.
The appellants approached the court a quo for declarators that the two transfer of funds agreements were invalid or had lapsed, and that it was in the interests of the first appellant and its members that the first appellant took control and management of the funds held by the third respondent. The appellants also sought an order that the third respondent pay to the first appellant the balance of the restitution capital award, and the balance of the restitution discretionary award.
The court a quo upheld the respondent’s objection that it did not have jurisdiction to decide the claims.
The present appeal was against that decision.

Held that the first issue to be decided was whether the court a quo had jurisdiction in respect of the appellants’ claims, and if it did, the second issue was that it should have granted the appellants the relief which they sought.
The court a quo’s upholding of the respondents’ point in limine that the high court had no jurisdiction to decide the matters raised in the affidavits, as the respondents had not signed the section 42D agreement and by implication had not entered into such an agreement, was contrary to the respondents’ concession in their Heads of Argument and the other undisputed facts. The Special Plea on Jurisdiction should therefore not have been decided on the basis that no section 42D agreement had been entered into.
Agreement had been reached that a restitution capital award and a restitution discretionary award would be paid and the Court had to decide whether the two transfer of funds agreements were invalid or, if valid, had lapsed, and whether in the light of the section 42D agreement and the transfer of funds agreements the first appellant was entitled to payment of the balances owing in the two accounts managed and controlled by the third respondent. That was to be decided in terms of the law of contract and the interpretation of the agreements concerned, and did not involve the application or interpretation of the
Act. The point in limine regarding jurisdiction should therefore have been dismissed.
Next, the Court considered the appellants’ entitlement to the relief sought in their Notice of Motion. In seeking a declaratory that the transfer of funds agreements were invalid, the appellants relied on the averment that the agreements had been entered into without their consent. The Court held that the mere fact that the agreements were entered into without the appellants’ consent would not render them invalid.
Furthermore, in respect of the appellants’ contention that the transfer of funds agreements were in conflict with the settlement agreement, the Court held that the contrary was in fact true. It had also not been shown that the two transfer of funds agreements had lapsed with the effluxion of time. As the appellants had not established an entitlement to any of the relief sought, the appeal was upheld only in respect of the issue of jurisdiction.
Ravfin 1 (Pty) Ltd v The Dunes Partnership
[2011] JOL 27801 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 739 / 2010
14 / 09 / 2011
South Africa
High Court
Western Cape, Cape Town
PB Fourie J, JI Cloete AJ
Keywords:
Civil procedure – Jurisdiction – Appeal
Mini Summary:
The appellant had instituted action against the respondent in the magistrate's court in respect of various claims relating to the payment of estate agent's commission. The issue of jurisdiction was contended, and the parties agreed that it would be dealt with as a special plea.
The evidence and argument centred around whether the court a quo had jurisdiction on the basis that the respondent was carrying on business within the area of the court’s jurisdiction.
Held that before dealing with the merits of the appeal it was necessary to consider the appellant's two applications for condonation. The first application related to non-compliance with rule 50(4)(a) as to the period within which the appellant should have applied for a date for the hearing of the appeal, coupled with a prayer that the appeal be reinstated. The second application related to non-compliance with rule
50(9) as to the time period within which the appellant should have filed its heads of argument. Our courts have refrained from attempting to formulate any comprehensive definition of what constitutes good or sufficient cause for the granting of condonation of procedural shortcomings in appeals. The overriding consideration is that the matter rests in the judicial discretion of the court, to be exercised with regard to all the circumstances of the case. The Court formed the view that both applications for condonation should be granted, but it made an appropriate costs order against the appellant's instructing attorneys as a mark of its displeasure.
Turning to the merits of the appeal, the court held that jurisdictional requirements are set out in section
28 of the Magistrate's Court Act 32 of 1944.
Having regard to the facts, the Court concluded that at the time when the appellant instituted action against the respondent, the latter was conducting business within the area of jurisdiction of the court a quo as envisaged in section 28(1)(a) of the Act. The magistrate was thus wrong in deciding to the contrary. The appeal was upheld.

Calcutt (Born Hyde) & others v Maclean & others
[2010] JOL 26117 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
871 / 09
23 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Property – Subdivision – Consolidation of erven – Application to reverse
Mini Summary:
The second and third applicants were trustees of a trust ("the KB trust") which owned immovable property, and the seventh and eighth respondents were the trustees of another trust ("the KM trust"), which owned an adjacent property. A dwelling built on the latter property enjoyed sea views which were sought to be protected. The seventh and eighth respondents accordingly entered into negotiation with the second and third applicants to acquire a portion of their property together with an undertaking that they would not construct any building thereon which would impede the sea view from the balcony of the dwelling erected on the respondent's property. That culminated in a deed of donation entered into in July
2001. Six months later, the KB Trust entered into a deed of sale in terms of which it sold its entire property to the first applicant without any mention of the donation. At the same time the first applicant also purchased, from a third party, an adjoining property, with the intention of extending the dwelling which had previously been erected on that property onto portion of the KB trust's property.
When she learnt of the existence of the deed of donation, the first applicant attempted to challenge its validity, but an arbitration award was issued confirming its validity.
In 2002, the KM trust sold its property to the fourth and fifth respondents. Subsequent thereto, litigation around the donation was concluded, and a subdivision was effected. A new erf was created and a fresh deed of donation ("the second deed of donation") was entered into in terms of which the newly subdivided erf was donated directly from the KB trust to the fourth and fifth respondents. The new erf was consolidated with the KM trust's property, which was then sold to the first respondent.
In 2007, the first applicant discovered that a change had occurred in the boundary line of the property which had originally been donated, resulting in the remainder of the KB trust's property which had been transferred to her being smaller than anticipated. The applicants therefore sought to reverse the donation, the subdivision, the consolidation and the transfer of the property.
Held that the first deed of donation was not cancelled and was novated by the second deed of donation.
The second deed of donation substituted the first deed of donation as the instrument containing the obligation to pass transfer of the subdivided portion. By the signature of the second deed of donation fourth and fifth respondents accepted the KB Trust as its debtor in lieu of the KM Trust to pass transfer to it of the subdivided erf and the KB Trust accepted the obligation to fourth and fifth respondent. All that occurred with the agreement of the KM Trust. In the event of the second deed of donation being void ab
initio then the first deed of donation survived. It was accordingly necessary to consider the validity of the second deed of donation. The court found that it was valid.
The application was dismissed.
Body Corporate of Dolphin Cove v KwaDukuza Municipality & another
[2012] JOL 28771 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8513 / 10
20 / 02 / 2012
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
Keywords:
Property – Rights of owners – Encroachment on property rights
Mini Summary:
In the wake of a severe storm, a promenade on the dunes of the coastline on which the applicant’s property was built was eroded. The applicant was the body corporate of a sectional title scheme known as
Dolphin Cove. The first respondent municipality reconstructed the promenade, but was met with a demand by the applicant for the removal thereof. According to the applicant, the promenade had been rebuilt on

Dolphin Cove’s property, and the municipality acted unlawfully and in breach of the National
Environmental Management Act 107 of 1998 (“NEMA”) by constructing the promenade without prior authorisation of the second respondent. It was contended that the promenade would compromise the integrity of the dunes, and therefore that the stability of Dolphin Cove was threatened.
The municipality, although denying the encroachment, could not say where the boundary was until the
High Water Mark (“HWM”) settled in about two years. However, as the property was defined by its extent which was fixed in its title deed it was ager limitatus, and the applicant could not claim more land than that registered against its title in the deeds registry.
Held that while the property’s title deed defined the property by measurement by giving the length and angles of all its co-ordinates, that alone would not suffice to define the boundaries of the property as the seaward side of the property was defined by the HWM. As the seaward boundary could only be positioned once the HWM was re-established, the property was ager non limitatus.
Having erected the promenade, the municipality bore the onus of proving that it had acted lawfully. It therefore had to show that it had not encroached on property rights of owners. It was unable to do so for the reason set out above. The conclusion was that the promenade encroached on Dolphin Cove.
A further problem for the municipality was the fact that authorisation for the construction of a new promenade after the storm damage did not include approval for the promenade in front of Dolphin Cove.
Without authorisation or condonation for the construction of the promenade, the municipality had committed an offence in terms of section 24F of NEMA.
The municipality was ordered to remove the promenade and to make good the damage caused to Dolphin
Cove in the construction of the promenade.
Body Corporate of Dolphin Cove v KwaDukuza Municipality & another
[2012] JOL 28771 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8513 / 10
20 / 02 / 2012
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
Keywords:
Property – Rights of owners – Encroachment on property rights
Mini Summary:
In the wake of a severe storm, a promenade on the dunes of the coastline on which the applicant’s property was built was eroded. The applicant was the body corporate of a sectional title scheme known as
Dolphin Cove. The first respondent municipality reconstructed the promenade, but was met with a demand by the applicant for the removal thereof. According to the applicant, the promenade had been rebuilt on
Dolphin Cove’s property, and the municipality acted unlawfully and in breach of the National
Environmental Management Act 107 of 1998 (“NEMA”) by constructing the promenade without prior authorisation of the second respondent. It was contended that the promenade would compromise the integrity of the dunes, and therefore that the stability of Dolphin Cove was threatened.
The municipality, although denying the encroachment, could not say where the boundary was until the
High Water Mark (“HWM”) settled in about two years. However, as the property was defined by its extent which was fixed in its title deed it was ager limitatus, and the applicant could not claim more land than that registered against its title in the deeds registry.
Held that while the property’s title deed defined the property by measurement by giving the length and angles of all its co-ordinates, that alone would not suffice to define the boundaries of the property as the seaward side of the property was defined by the HWM. As the seaward boundary could only be positioned once the HWM was re-established, the property was ager non limitatus.
Having erected the promenade, the municipality bore the onus of proving that it had acted lawfully. It therefore had to show that it had not encroached on property rights of owners. It was unable to do so for the reason set out above. The conclusion was that the promenade encroached on Dolphin Cove.
A further problem for the municipality was the fact that authorisation for the construction of a new promenade after the storm damage did not include approval for the promenade in front of Dolphin Cove.
Without authorisation or condonation for the construction of the promenade, the municipality had committed an offence in terms of section 24F of NEMA.

The municipality was ordered to remove the promenade and to make good the damage caused to Dolphin
Cove in the construction of the promenade.
Pick 'n Pay Retailers (Pty) Limited v Masstores (Pty) Limited and another
[2014] JOL 32403 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
46501 / 2014
26 / 09 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
JW Louw J
Keywords:
Contract – Lease agreement – Exclusivity clause – Unlawful competition – Unlawful interference with contractual relationship
Mini Summary:
In February 2006, the first respondent concluded an agreement with a joint venture, in terms of which the joint venture leased premises in a shopping centre to the first respondent. In May 2006, the applicant entered into a lease agreement with the joint venture in terms whereof the applicant leased supermarket premises in the shopping centre. The second respondent was the successor in title to the joint venture.
The terms of the applicant’s lease agreement incorporated an exclusivity clause, to the effect that the second respondent would not permit businesses in competition with the applicant to lease premises in the centre.
In the present matter, the applicant’s cause of action was based on the delict of unlawful competition, more particularly what was referred to as interference with a contractual relationship, namely the contractual relationship between the applicant and second respondent.
Held that an example of unlawful interference with a contractual relationship is where a third party intentionally induces a party to a contract to commit a breach of his / her contract with another party. In the present matter, the first respondent did not induce or assist the second respondent to commit a breach of its lease agreement with the applicant – as the first respondent was not aware of the applicant’s exclusivity rights until later. In the context of the present matter, the question was whether, if a lessee acts in breach of the terms of its lease agreement with a lessor by conducting a trade which is prohibited by its lease agreement, thereby causing the lessor to be in breach of its obligation to another lessee not to permit such trade by other lessees, such conduct will constitute unlawful interference with the contractual relationship between the other lessee and the lessor. In the absence of knowledge of the terms of the other lessee's lease, there can be no intention to commit such delict. But once it becomes aware of the rights of the other lessee, its continued breach of its lease agreement will constitute an unlawful interference with the rights of the other lessee.
In the present matter, the rights to exclusivity contained in the applicant’s lease agreement were not collateral rights unconnected with the lease. They were directly connected to the applicant's rights in terms of the lease. They were rights which the applicant had, qua lessee, in respect of the second respondent's obligations under the lease. They obliged the second respondent not to permit any of the businesses listed in the relevant clause to be conducted in the shopping centre during the currency of applicant's lease. The second respondent accepted that it was bound by that obligation.
Consequently, the applicant had established its entitlement to a final interdict against the first respondent.
Bedford Square Properties (Pty) Limited v Pakon Restaurants (Pty) Limited t/a Ciao Baby
Cucina and another
[2014] JOL 32409 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2013 / 27964
15 / 07 / 2014
South Africa
High Court
South Gauteng, Local Division
Opperman AJ

Keywords:
Contract – Lease agreement – Breach of contract – Cancellation of – Claim for damages – Holding over
Mini Summary:
The applicant and first respondent entered into a lease agreement in respect of commercial property. The first respondent fell into arrears and cancelled the lease agreement on 22 June 2011. After the applicant instituted eviction proceedings, the first respondent's eviction from the premises was ordered on 28
November 2012. The first respondent vacated the premises on 31 March 2013.
In the present matter, the applicant claimed damages consisting of, inter alia, arrear rental, for holding over relating to the period 22 June 2011 (date of cancellation) to 31 March 2013 (date the first respondent vacated the premises). The second defendant was cited in his capacity as surety.
After the filing of answering and the replying affidavits, and on the eve of the hearing, the respondents filed a supplementary affidavit in terms of which they contended that the applicant had divested itself of the power to sue for the damages forming the subject matter of this application. They contended that a mortgage bond was registered over the premises, and that only the bank had the right to claim rentals.
Held that the first question was whether the respondents should be permitted to place the further affidavit before the court. The evidence sought to be introduced was material. Without a response, it would divest the applicant of the right to sue for the damages forming the subject matter of this application. While the reason why the evidence was not produced earlier and as part of the answering affidavit was inadequate, the court, by virtue of my findings in respect of the substance of the points raised by the respondents, found it unnecessary to decide whether or not under those circumstances, the additional affidavit ought to have been allowed.
The applicant, in response to the supplementary affidavit filed by the respondents, filed an affidavit incorporating a re-cession agreement between itself and the bank. In terms of that agreement, the bank re-ceded the relevant rights to the applicant. The re-cession took place after the application was launched.
The general approach is that a cause of action should exist at the time of the institution of the action.
Applicants are allowed to deviate from this principle in exceptional and unusual circumstances. The court found such circumstances to exist in this case. It held that the applicant was entitled to seek to recover the debt forming the subject matter of the application.
It was found that the applicant’s claim for holding over had to succeed. The court computed the amount to be paid by the respondents, and granted judgment in the applicant’s favour.
Instand Trade 110 CC v Lewis and others
[2013] JOL 30950 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 247 / 13
25 / 10 / 2013
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Koen, Vahed, Nkosi JJ
Keywords:
Contract – Lease agreement – Option to renew
Mini Summary:
The first respondent was the owner of immovable property (“the property”), and the second respondent was her husband. In June 1999, describing himself as “the landlord”, the second respondent entered into a lease agreement in respect of the property with a third party. The agreement contained an option to renew, and if that option was exercised, a right of first refusal could be exercised.
In February 2001, the second respondent, the tenant and the appellant concluded a written deed of assignment of lease in terms of which the tenant ceded and assigned to the appellant all his rights and obligations as tenant under the lease agreement. The second respondent accepted the cession. Pursuant thereto, the appellant took occupation of the premises. No written notice to exercise the option to renew was given, and the lease expired in July 2004. In August 2004, an addendum to the lease was concluded between the second respondent and the appellant, extending the lease for five years. Before the five year period expired, the appellant gave notice of its intention to renew the lease for a further five years.
In June 2012, the first respondent sold the property to the third respondent. That led to the appellant obtaining a rule nisi calling on the respondents to show cause why the transfer of the property should not be interdicted. The contention was that the appellant had not established that it had any right (prima facie or otherwise) warranting the grant of the interim interdictory relief pending the outcome of an action to be instituted. The present appeal was against the discharge of the rule nisi.
Held that in the court a quo, the appellant was simply seeking an interim interdict pending the action. to succeed with such an application, the appellant had to demonstrate a clear right, or, if not clear, is prima

facie established, though open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; the absence of any other satisfactory remedy; and that the balance of convenience favoured the granting of such an interim interdict.
The Court found that a prima facie case even if open to some doubt was established, justifying the grant of the relief claimed. The appeal was therefore upheld.
Revertex Chemicals (Pty) Ltd v Climax Lift Hire (Pty) Ltd
[2012] JOL 28760 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
908 / 2010; 369 / 2002
06 / 03 / 2012
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Koen, Mokgohloa, Ploos van Amstel JJ
Keywords:
Contract – Lease agreement – Termination of – Cancellation of contract – Validity
Mini Summary:
As plaintiff in the court a quo, the respondent sued the appellant for payment based on a number of claims. All the claims were dismissed except for that based on contractual damages.
The parties had entered into a lease agreement for the hire by the appellant of five fork lifts. Some three years later, the appellant complained of poor service. The parties met to resolve the issue, and the appellant continued using the equipment. However, in 2001, it cancelled the agreement. The issues for determination were whether the cancellation was proper, and whether the respondent suffered damages in the amount claimed.
Held that the agreement clearly provided for recourse in the event of unsatisfactory service. The Court was satisfied that the appellant had suffered poor service. In those circumstances, it was entitled to cancel the agreement, and its notice of termination did not constitute repudiation entitling the respondent to damages.
It was found further, that the respondent had failed to prove the quantum of damages allegedly sustained.
The appeal was upheld and the respondent’s claim dismissed with costs.
Merebank Hotel (Pty) Ltd v Chetty
[2010] JOL 26355 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3564 / 10
29 / 10 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Ngwenya AJ
Keywords:
Contract – Lease agreement – Existence of – Eviction
Mini Summary:
In an application for the eviction of the respondent, the court had to decide whether as averred by the respondent, there existed an oral lease agreement between the parties. The applicant’s contention was that the lease was on a month to month basis.
Held that the version of the applicant was the more credible one. The applicant had adduced evidence of the way it normally conducted business, and established that it had entered into written leases with all its tenants. It was unlikely that it would out of twenty one tenants, decide to enter into an oral lease agreement with the respondent only.
The eviction order was accordingly granted.
Gaap Point of Sale (Pty) Ltd v Valjee NO & others
[2010] JOL 26353 (KZD)
Case Number:
Judgment Date:
953 / 10
01 / 11 / 2010

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
KwaZulu-Natal, Durban
Hughes-Madondo AJ
Keywords:
Contract – Lease agreement – Duration – Existence of agreement – Offer and counter-offer
Mini Summary:
The applicant was a company which leased two floors of a building from the respondents’ predecessor in title. The tenancy was subject to a written lease agreement that terminated on the 31 January 2009. The parties entered into negotiations in order to conclude a new lease agreement. According to the applicant, it did not conclude a lease agreement with the respondents, and its occupation of the property was on a month to month tenancy. The respondents on the other hand contended that the applicant’s occupation of the premises was subject to a written lease agreement which expired on the 31 January 2014. They averred that once the negotiations on the new contract were complete, a written lease agreement was drawn up by the respondents and sent to the applicant for signature. The applicant signed the lease agreement, but deleted the clause pertaining to the payment of a rental deposit.
Consequently, the applicant sought a declaratory order to the effect that its right of occupation of the premises was in terms of a monthly tenancy.
Held that the issue to be determined was whether there was a written lease agreement between the parties. A further issue was whether the applicant could seek a declarator, in light of the facts as they appeared in the papers. The court also had to decide whether on the facts before it, the applicant was entitled to the grant of a declaratory order.
It was clear to the court that a dispute of fact existed between the parties as to whether the tenancy was month to month or was for a fixed period up until 31 January 2014. In motion proceedings when a dispute of fact exists, relief may only be granted if those facts averred by the applicant that have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.
Applying the above principle, the court found that no lease agreement was concluded as the applicant’s deletion of the clause pertaining to the payment of a rental deposit amounted to a counter-offer which did away with the original offer of the respondents. As the respondents had then rejected the applicant’s counter-offer, there was no longer an offer for the respondents to accept and thus no agreement existed between the parties.
The application was dismissed.
Nippon Import and Export CC v Paladin Properties (Pty) Ltd
[2010] JOL 25855 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
12123 / 07
29 / 03 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
MJD Wallis J
Keywords:
Contract – Lease agreement – Claim for damages – Alleged breach of contract
Mini Summary:
The parties herein had concluded a written agreement of lease in terms of which the plaintiff leased from the defendant certain business premises. The lease was to endure for seven years. The plaintiff however, fell into arrears with the payment of rentals, and by the end of 2004, the defendant cancelled the lease by way of service of a summons for ejectment.
The validity of the cancellation was challenged by the plaintiff.
In the present action the plaintiff contended that the defendant failed to give it possession and beneficial occupation of the leased premises during the period from 1 April 2004 until May 2005 and only gave it possession of part of the second, third and fourth floors of the leased premises during May 2005. It claimed damages for the alleged breach of the terms of the agreement.
Held after a consideration of all the evidence that the plaintiff had wholly failed to discharge the onus of proof that rested upon it in respect of its claim. It was clear from the evidence that no complaint was ever made to the defendant, through its managing agents, that the plaintiff had not been afforded use and occupation of the leased premises in terms of the lease. No demand was addressed to the landlord that it should remedy a breach of the lease in that regard. The plaintiff's claim was dismissed with costs.

Avnit v First Rand Bank Trading, inter alia, as Westbank and Wesbank Aviation Finance
[2014] JOL 32336 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
20233 / 14
23 / 09 / 2014
South Africa
Supreme Court of Appeal
L Mpati P
Civil procedure – Leave to appeal – Refusal of – Application in terms of section 17(2)(f) of the Superior
Courts Act 10 of 2013 to refer refusal to court for reconsideration, and if necessary, variation – Section
17(2)(f) provides that the decision to grant or refuse an application is final – provided that the President of the Supreme Court of Appeal may in exceptional circumstances, whether of his own accord or on application filed within one month of the decision, refer the decision to the Court for reconsideration and, if necessary, variation – What constitutes “exceptional circumstances” – As the power under section
17(2)(f) is one that can be exercised even when special leave has been refused, “exceptional circumstances” must involve more than satisfying the requirements for special leave to appeal
“exceptional circumstances” – Section 17(2)(f) of the Superior Courts Act 10 of 2013 – The decision to grant or refuse an application for leave to appeal is final - provided that the President of the Supreme
Court of Appeal may in exceptional circumstances, whether of his own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation
Mini Summary:
Having granted judgment against the applicant, the High Court then refused leave to appeal. An application to the present court was also refused. The present application was brought in terms of section
17(2)(f) of the Superior Courts Act 10 of 2013 (“the Act”) to refer that refusal to the court for reconsideration, and if necessary, variation.
Held that section 17(2)(f) was a new section vesting the President of this court with a power not previously possessed. Section 17(2) prescribes the manner in which this court is to deal with applications to it for leave to appeal. They are referred to two judges for consideration. If they disagree the President appoints a third judge and the decision of the majority is the decision of the court. Sub-section (f) provides that the decision to grant or refuse an application is final - provided that the President of the
Supreme Court of Appeal may in exceptional circumstances, whether of his own accord or on application filed within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation.
What constitutes “exceptional circumstances” was the focus of the present judgment. As the enquiry is a factual one, no general rule or definition is laid down. The court referred to the case of MV Ais Mamas
Seatrans Maritime v Owners, MV Ais Mamas, and another [2000] JOL 7119 (C) in which the meaning of
“exceptional circumstances” was explored. It was stated that the term refers to something out of the ordinary and of an unusual nature and to which the general rule does not apply. The existence of exceptional circumstances is a factual enquiry. Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will, generally best be given to the intention of the legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional. In the context of section 17(2)(f), the
President will need to be satisfied that the circumstances are truly exceptional before referring the view of two judges of this court to the court for reconsideration. The section is not intended to afford disappointed litigants a further attempt to procure relief that has already been refused. It is intended to enable the
President of this Court to deal with a situation where otherwise injustice might result. The power under section 17(2)(f) is one that can be exercised even when special leave has been refused, so “exceptional circumstances” must involve more than satisfying the requirements for special leave to appeal. The power is likely to be exercised only when the President believes that some matter of importance has possibly been overlooked or grave injustice will otherwise result.
The Court was not satisfied that the factors relied upon by the applicant constituted exceptional circumstances as envisaged by the provisions of the Act. The issues alleged to constitute exceptional circumstances were considered not only by the two judges of this Court who dismissed the applicant’s application for leave to appeal to this Court, but also by the High Court, who dealt with them in the judgment of the application for leave to appeal.
The application was accordingly refused.

PriceWaterhouseCoopers Incorporated and others v National Potato Co-Operative Limited and
another
[2013] JOL 30830 (SCA)
Case Number: 451 / 2012; 468 / 2012
Judgment Date: 23 / 09 / 2013
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
MS Navsa ADP, FDJ Brand, ZLL Tshiqi, SA Majiedt JJA, KGB Swain AJA
Keywords:
Civil procedure – Leave to appeal – Application to expand restricted grounds on which leave to appeal was granted – Court granting application on basis that reasonable prospects of success on appeal were established
Mini Summary:
The applicants were auditing firms who were sued by the respondents in the High Court. In essence, the first respondent’s claim in that court was one based principally on the negligent performance of the second to fifth applicants’ contractual duties as auditors. The trial court issued a declaratory order in terms of which the second to fifth applicants were held liable for damages sustained by the first respondent. The first respondent joined the first applicant as a party to the action even though it had not existed during the period relevant to the trial on the basis that it was a successor in title to preceding auditors. In the court below, the applicants applied for leave to appeal the whole of the judgment and related orders. The
Court granted leave to appeal against its main finding that the second to fifth applicants were liable for loss suffered by the first respondent. In the present application, the applicants sought to expand the restricted grounds on which leave to appeal was granted by the court below. They contended that it was clear from the order of the court below, in relation to the application for leave to appeal, that the court had inadvertently omitted to grant them leave to appeal against the overall costs order granted against them.
Held that the court dealt ad seriatim with the points that arose from the application to expand the grounds of appeal.
The first issue involved the setting aside by the court below of an initial application for leave to appeal on the basis that it had been an irregular step. The present Court was of the view that this issue was best dealt with by an informed court with full knowledge of the totality of relevant facts. Having regard to the submissions of the parties and the available information, we are of the view that there is a reasonable prospect of success. Another ground for granting leave to appeal was the fact that the trial judge had erred in not granting the first applicant leave to appeal against costs orders relating to the first respondent’s amendment of its pleadings. Based on those points, and others raised by the applicants, the
Court found that reasonable prospects of success had been established, and leave to appeal had to be granted.
Mdwaba & another v Tarsus Technology (Pty) Ltd In re: Tarsus Technology (Pty) Ltd v Mdwaba
& others
[2011] JOL 27955 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2008 / 21161
02 / 02 / 2010
South Africa
High Court
South Gauteng, Johannesburg
A Gildenhuys J
Keywords:
Civil procedure – Leave to appeal – Grounds of appeal – Further evidence
Mini Summary:
The respondent sued the applicants for payment of a debt due by a company for which they had bound themselves as sureties. After an appearance to defend was filed, the respondent successfully applied for summary judgment. The present application for leave to appeal was brought as a result. According to the applicants, there were further defences which were not raised before the court when it granted summary judgment, and those defences were bona fide defences. If leave to appeal was granted, they hoped to persuade the court of appeal to allow them to present fresh evidence to substantiate the further defences.
Held that the principles governing applications to a court of appeal for leave to adduce further evidence are well established. If a party has elected to stand by evidence which he has adduced in the court a quo, he should not be allowed to adduce further evidence at a later stage, except in very exceptional

circumstances. A party who applies for leave to adduce further evidence must show that the failure to adduce the evidence in the court a quo was not due to any remissness on his part. The further evidence tendered must be weighty, material to the outcome of the trial and likely to be true.
The Court found that there was no reasonable possibility that the evidence now advanced by the applicant could persuade a court of appeal to overturn the summary judgment and to allow the introduction of further evidence. The application for leave to appeal was dismissed.
Mnisi v RAF
[2010] JOL 25857 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
37233 / 09
18 / 05 / 2010
South Africa
High Court
North Gauteng, Pretoria
BR Southwood J
Keywords:
Legal practice – Attorneys – Contingency fees agreement – Lawfulness
Mini Summary:
In a dependants' action, the plaintiff claimed damages from the Road Accident Fund in her personal capacity and on behalf of her minor children for the loss of support which they suffered as a result of the death of the plaintiff’s husband in a motor vehicle accident.
The present judgment was not concerned with any issues raised in the trial but with the manner in which the plaintiff's attorney conducted the trial and purported to charge fees for his services. During the course of considering a draft settlement agreement, the court discovered that the plaintiff and her attorney had entered into a contingency fees agreement.
Held that the Contingency Fees Act 66 of 1997 provides for two forms of contingency fee agreements which attorneys and advocates may enter into with their clients. The first, is a "no win, no fees" agreement and the second is an agreement in terms of which the legal practitioner is entitled to fees higher than the normal fee if the client is successful. The latter type of agreement is subject to limitations.
Higher fees may not exceed the normal fees of the legal practitioner by more than 100% and in the case of claim sounding in money this fee may not exceed 25% of the total amount awarded or any amount obtained by the client in consequence of the proceedings, excluding costs.
The fees claimed by the attorney in terns of the agreement in this case was not covered by the Act and the agreement was illegal. The court referred the matter to the law society for investigation.
A Company and others v Commissioner for the South African Revenue Services
[2014] JOL 32040 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
16360 / 2013
17 / 03 / 2014
South Africa
High Court
Western Cape, Cape Town
AG Binns-Ward J
Legal privilege – Scope of – Attorney’s fee notes
Mini Summary:
In the course of an audit of the applicants’ tax affairs, the respondent (“the Commissioner”) indicated his requirement that the applicants provide SARS with copies of certain documentation. That included a request for a breakdown of an identified trial balance account in respect of professional fees in the books of one of the applicant companies pertaining to the 2009 year of assessment. On identifying the relevant fee notes, the applicants noted that the fees concerned had been raised in respect of legal professional services rendered by the attorneys to the first and third applicants. Privilege was claimed on the basis that

the nature of the advice sought by the first and third applicants was discernible from the invoices, and the applicants refused to provide the invoice, except in redacted form.
Held that legal advice privilege covers communications between lawyers and their clients whereby legal advice is sought or given. The requirements are that the legal advisor must have been acting in a professional capacity at the time; the advisor must have been consulted in confidence; the communication must have been made for the purpose of obtaining legal advice; the advice must not facilitate the commission of a crime or fraud; and the privilege must be claimed.
The applicants provided no basis for the court to examine the assertion of legal advice privilege other than the applicants’ say so. In general, it is not possible to judge whether privilege is validly claimed or not if the context is not provided. The applicants’ papers provided virtually nothing by way of relevant legal context. They also did not explain how mere reference in the fee notes to work done or documents considered would undermine their privilege in respect of the content of communications with their attorneys concerning the seeking and giving of advice. On the other hand, the respondent’s answering papers explained the context in which SARS’s insistence on being furnished with uncensored copies of the fee notes was being pursued. The Commissioner considered that the content of the invoices might go to confirm that the applicants, or fellow entities in the group of companies of which they were part, had knowledge of the flow of funds involved in certain structured finance arrangements in respect of which
SARS had decided to reassess the third applicant’s liability for payment of income tax and secondary tax on companies.
There being no South African case law dealing with the question before the court, regard was had to foreign jurisprudence. Based on English law, the conclusion was that attorneys’ fee notes are not amenable to any blanket rule that would characterise them as privileged communications per se. Mere reference in fee notes to advice sought or given does not equate to disclosure of the substance of the advice. The position would be different if the fee note set out the substance of the advice, or contained sufficient particularity of its substance to constitute secondary evidence of the substance of the advice.
Only one of the invoices in question contained information from which the nature of the legal advice could be discerned. The remaining invoices would have to be furnished as requested by the respondent.
Guman NO v Ansari & others
[2011] JOL 27841 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2011 / 2648
23 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Property – Eviction application – Defence – Lien
Mini Summary:
The applicant sought an order for the eviction from certain premises, of the first respondent and anyone occupying and claiming occupation under or through her. The first respondent contended that she was a
bona fide possessor of the property and that she had incurred necessary expenses for the maintenance and improvement of the property as a result of which the owner of the property had been enriched in respect of the overall value of the property. She accordingly contended that she had a valid enrichment claim against the estate for R70 000.
Held that a lien (right of retention, ius retentionis) is the right to retain physical control of another’s property, whether movable or immovable, as a means of securing payment of a claim relating to the expenditure of money or something of monetary value by the possessor (termed “retentor” or “lien
holder”, while exercising his or her lien) on that property, until the claim has been satisfied. A person who has spent money or done work on another person’s property generally has a right of retention over that property, operating against the entire world. This right may be either a real lien, a salvage and improvement lien, or an enrichment lien. The lien enables the retentor to retain possession of the property in question until the expenditure on the property has been compensated. A lien for the recovery of necessary expenses is traditionally called a salvage lien or a lien for repairs, while the one for the recovery of useful expenses is termed an improvement lien. If successfully raised, the owner may not recover possession of the property from a person who is lawfully in possession and who has an underlying valid enrichment claim, unless and until the defendant has been compensated.
To successfully raise the defence of a lien, the defendant must allege and prove lawful possession of the object; that the expenses incurred were necessary for the salvation of the thing or useful for its improvement; the actual expenses and the extent of the enrichment of the plaintiff. Both have to be given

because the lien covers the lesser of the two amounts only; that the plaintiff’s enrichment is iniusta
(unjustified); and that there was no contractual arrangement between the parties (or a third person) in respect of the expenses.
The general principle that applies to (real) security that in the absence of an agreement to the contrary, the secured party is not permitted to use the encumbered asset for his or her benefit, also applies to liens.
The Court found that the first respondent had failed to make the necessary allegations to uphold the alleged defence of an improvement lien.
SM Fraser t/a Salka Enterprises v Counter point Furnishers CC
[2010] JOL 26415 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10061 / 10
22 / 09 / 2010
South Africa
High Court
South Gauteng, Johannesburg
R Mokgoatlheng J
Keywords:
Civil procedure – Provisional sentence – Liquid document
Mini Summary:
Based on a written deed of sale in terms of which the plaintiff sold immovable property to the defendant, the plaintiff instituted action for provisional sentence.
The defendant’s opposition to the action was predicated on the contention that the document the plaintiff relied on for provisional sentence was not a liquid one in that, it did not encapsulate an unconditional acknowledgement of indebtedness for an ascertained amount.
Held that as a general rule, provisional sentence is only granted on a liquid document. A liquid document is one which on a proper construction thereof evidences by its terms and without resort to extrinsic evidence.
Applying the above legal principles, the court found that the deed of sale was a liquid document, which encapsulated an unconditional indebtedness and an ascertained liability (namely the purchase price). In the premises, provisional sentence was granted against the defendant.
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012] JOL 28621 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
920 / 2010
16 / 03 / 2012
South Africa
Supreme Court of Appeal
MJD Wallis, Farlam, BJ van Heerden, A Cachalia, LE Leach JJA
Civil procedure – Litis contestatio – Refers to close of pleadings, but when pleadings are re-opened by amendment, the initial situation of litis contestatio falls away and is only restored once the issues have once more been defined in the pleadings – Interpretation – Approach to be adopted by courts –
Consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production – Context and language be considered together, with neither predominating over the other – Pensions – Payment of adjusted contribution by participating

employer – In terms of proviso to the definition of “pensionable emoluments” in the regulations governing the operations of the fund, fund was entitled to direct the respondent to pay an adjusted contribution to the fund arising out of the increase in the employee’s pensionable emoluments
Mini Summary:
A superannuation and retirement fund and a provident fund established by legislation for employees of local authorities in KwaZulu-Natal were managed in terms of a single set of regulations, and were referred to collectively as the entity cited as the appellant in this dispute. The appellant, as well as the two funds it encompassed, was a registered pension fund. Each fund had its own set of rules. The respondent was a participant in the appellant and its employees were entitled to select which of the three funds they wished to join.
The present dispute arose after a senior employee of the respondent was able, at age 43, to resign from employment and receive a pension payout of R2.7 million, based on 46 years of service. He was immediately re-employed on a contract basis in his former position. Although his resignation was clearly stage-managed so that he could claim the pension benefit referred to, his conduct was accepted as legitimate. In order to achieve a benefit based on more years of service than he actually had, the employee changed his membership from the superannuation fund to the provident fund, reduced his pensionable emoluments to R5 000 per month whilst a member of the latter and then rejoined the superannuation fund and, with immediate effect, increased his pensionable emoluments to R34 000 per month. The amount of his withdrawal benefit was determined by two factors: the years of service attributed to him and his final average pensionable emoluments in the twelve months prior to his resignation. The withdrawal benefit was accordingly calculated on the basis of some 46 years of service and average pensionable emoluments of around R34 000 per month.
Faced with the employee’s claim, the fund’s difficulty was that it had not received the benefit of contributions by the employee and the respondent for 46 years and the contributions made during his membership of the provident fund had been reduced to well below his actual earnings. As the premise underlying the operation of a defined benefit pension fund, such as the superannuation fund, is that the contributions of the member and the member’s employer, plus the investment earnings of the fund, should be sufficient to provide the agreed benefits, the result in this case was that the lump sum withdrawal benefit paid to the employee was underfunded. To help overcome the problem, the fund sought to claim an adjusted contribution from the respondent under the proviso to the definition of
“pensionable emoluments” in the regulations governing the operations of the superannuation fund.
The respondent resisted the claim on the grounds that the proviso to the regulations was inserted by an amendment which was not registered in terms of section 12(4) of the Pension Funds Act 24 of 1956 until after pleadings had closed and litis contestatio had been reached; that the regulation, properly interpreted, did not permit the appellant to make the claim that it did for an adjusted contribution; and that the necessary formalities for the exercise of that power were not satisfied. The court a quo upheld the second argument, leading to the present appeal.
Held that the primary question for determination on appeal was the meaning of the proviso. Before addressing that question, it was necessary to determine whether the contention that there was no valid claim at the time of litis contestatio was correct, because if it was, then the question of construction would not arise.
Generally, litis contestatio is taken as being synonymous with close of pleadings. However, when pleadings are re-opened by amendment, the initial situation of litis contestatio falls away and is only restored once the issues have once more been defined in the pleadings. Accordingly, when in this case the parties chose to reformulate the issues at the commencement of the trial, a fresh situation of litis
contestatio arose and the rights of the appellant were fixed afresh on the basis of the facts prevailing at that stage. Those facts were that the amendment embodying the proviso had been registered at least a year earlier with retrospective effect to 1 July 2004, which was prior to all relevant events in this case.
Next, the court dealt with the interpretation of the proviso. Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Thus, our courts should generally follow the approach that context and language be considered together, with neither predominating over the other.
The proviso in this case empowered the superannuation fund to direct a local authority to pay an adjusted contribution. The purpose of the proviso was to address the problem of excessive increases in pensionable emoluments leading to a funding deficit. The court concluded that the committee of the superannuation fund was entitled to direct the respondent to pay an adjusted contribution to the fund arising out of the increase in the employee’s pensionable emoluments.
The appeal was accordingly upheld.

Born Free Investments 364 (Pty) Limited v Firstrand Bank Limited
[2014] JOL 31371 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
973 / 2012
27 / 11 / 2013
South Africa
Supreme Court of Appeal
VM Ponnan, LO Bosielo, R Pillay JJA, Van der Mewe, Zondi AJJA
Keywords:
Contract – Loan agreement – Alleged repudiation of agreements – Cession of claims – Validity of cession –
Loan agreement containing pactum de non cedendo preventing cession of any rights under the agreement without the respondent’s prior written consent – Where pactum created in contract created nontransferable right, it was enforceable against liquidator in insolvency and cession was of no force and effect –
Mini Summary:
Two companies, now in liquidation, had borrowed money from the respondent, and at the time of their liquidation owed the latter R49,2 million and R25,1 million, respectively. The respondent’s claims were admitted by the liquidators, and it was a major creditor in each insolvent estate. The liquidators ceded the claims to the appellant, which, as cessionary, sued the respondent in the High Court. It alleged that the respondent had repudiated the loan agreements which it had entered into with each of the two companies, causing the companies to suffer significant losses.
In its defence, the respondent denied the validity of the cession on the basis that its contract with each of two companies contained a pactum de non cedendo preventing the companies from ceding any of their rights under the agreement without the respondent’s prior written consent. Although two other challenges to the cession were also raised, the court restrict itself to a consideration of only the first as it would be dispositive of the appeal if upheld.
Held that the question raised by the appeal was whether the right, title and interest in and to the claims in question were capable of being ceded by the duly appointed liquidators of the two companies in view of the stipulation referred to above.
The appellant argued that the liquidators entered into each sale and cession in accordance with their duties in terms of the insolvency law and that the clause containing the pactum de non cedendo was in law inapplicable to and of no effect as against them – as a pactum de non cedendo does not bind a liquidator who cedes a contractual right pursuant to his duties as liquidator. Referring to the authorities, the Court confirmed that a distinction must be drawn between a pactum de non cedendo which prohibits the cession of an existing right, ie one which pre-existed the conclusion of the pactum, on the one hand, and a pactum de non cedendo of a right which, by means of the pactum itself, was created ab initio as a non-transferable right, on the other. It therefore had to be determined whether the rights which the liquidators had ceded to the appellant had been created ab initio as non-transferable rights. If they were, then it would follow that the cession in each instance was invalid and would thus be of no force or effect.
On the plain and ordinary meaning of the words used, it was clear that it was the intention of the parties to the agreements, when they concluded them, to render all rights acquired by the two liquidated companies under those agreements non-transferable. Accordingly, the cession of the claims of the companies against the respondent to the appellant by the liquidators of those companies, was invalid and of no force or effect.
The appeal was dismissed with costs.
Structured Mezzanine Investments (Pty) Ltd v Davids & others
[2010] JOL 26097 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
9587 / 10
08 / 09 / 2010
South Africa
High Court
Western Cape, Cape Town
NJ Yekiso J

Contract – Loan – Rate of interest – Lawfulness
Mini Summary:
In terms of a loan agreement between the applicant and a third party, the applicant would advance money to the third party, and interest of 1.25% would be payable from date of commencement of the loan to the agreed date of payment. If the capital plus interest were not paid by the agreed date of payment, then al alternative rate of 1.5% interest would apply. As the debt was not paid by the agreed date, the applicant claimed payment of capital and interest at the initial rate and then at the alternative rate.
The respondents had bound themselves as sureties in the loan agreement.
When the matter went before court, the court raised concerns about the lawfulness of the interest rate.
The parties addressed the present court on just that issue.
Held that the lawfulness of the interest rate charged is regulated by legislation such as the Conventional
Penalties Act 15 of 1962 and the National Credit Act 34 of 2005. The court had to determine whether the interest rates charged in this case contravened either of those Acts, or offended public policy. It was found that the National Credit Act did not apply to the present matter. Secondly, the applicable interest rates did not contravene the provisions of the Conventional Penalties Act.
Considering the public policy aspect, the court could not find that the rate of interest was disproportionate to the risk undertaken by the applicant.
Judgment was granted in applicant's favour.
Firstrand Bank Ltd v Fillis & another
[2010] JOL 26112 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1796 / 10
17 / 08 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Credit agreements – Loan – Debt review – Rearrangement order – Default – Summary judgment
Mini Summary:
A credit agreement entered into between the defendants and the plaintiff was secured by a mortgage bond registered over certain immovable property. Alleging that the plaintiffs were in default of the credit agreement, the plaintiff sought summary judgment and an order declaring the immovable property to be executable. Prior to that, the defendants had approached a debt counsellor and applied for debt review in terms of the provisions of section 86 of the National Credit Act 34 of 2005. A magistrate then made an order restructuring their debts. However, at the time action was instituted, they had defaulted on the rearrangement order as well.
The defendants raised three defences to the application for summary judgment. The first was a point in
limine to the effect that the person who attested to the affidavit filed in support of the application for summary judgment in terms of the provisions of rule 32(2), had not established that he was authorised to depose to the affidavit. The second defence was that once an order is made to re-arrange the defendants' debt no legal action may be taken by the credit provider to enforce a credit agreement which is subject to the order unless and until the re-arrangement order has been rescinded in terms of the provisions of section 36 of the Magistrates' Court Act, 32 of 1944, irrespective of the fact that the defendants are in breach of the provisions of the re-arrangement order. Finally, it was argued that, notwithstanding that the defendants had failed to meet the required payments stipulated in the re-arrangement order, they should nevertheless not have been held to be in default.
Held that the deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. The first point was thus dismissed.
The second point was also dismissed. The court pointed out that the rearrangement order was a means to assist the defendants, but if they defaulted on that order, then the common law could run its course.
The third point was dismissed for reasons similar to those set out above.
Concluding that the defendants had set out no defence to the claims, the court granted judgment in the plaintiff's favour.

ABSA Bank Ltd v SACCAWU National Provident Fund (under curatorship)
[2011] JOL 27997 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
697 / 10
27 / 09 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, VM Ponnan, A Cachalia, LO Bosielo, JB Shongwe JJA
Keywords:
Contract – Lease agreements – Authority – Whether principal officer of provident fund had authority to bind fund – Fund’s rules requiring meeting of trustees and contracts to be signed by three trustees for contracts entered into on behalf of fund – Where such requirement was not complied with, resulting agreements not binding on fund
Mini Summary:
The respondent had entered into fifteen contracts for the lease of office equipment to it. The lessor ceded its rights under the agreements to the appellant which instituted action against the respondent for payment of arrears in respect of each of the leases. Defending the claims, the respondent averred that its principal officer did not have the authority to conclude the contracts. a stated case was placed before the high court on that issue alone, and the high court found that the principal officer was not authorised to enter into contracts on behalf of the respondent and that the contracts were thus ultra vires and not binding. That led to the present appeal.
The respondent’s argument was that in order for it to be bound by the rental agreements, the agreements had to have been executed in a particular fashion prescribed by the respondent’s rules. The rule in question provided that all documents or contracts effected by the respondent would be binding upon the respondent provided that they were signed by the chairperson and another two trustees at a duly constituted meeting, or after such a meeting, provided that authorisation for the signing of these documents or contracts was granted at such meeting.
Held that the principal question was whether, notwithstanding non-compliance with the relevant rule, the respondent was nonetheless bound by the lease agreements.
The appeal turned upon the interpretation to be placed on the respondent’s rules. It was necessary in interpreting the rules, to examine the general framework according to which the respondent had been constituted.
The Pension Funds Act 24 of 1965 read together with the regulations and the rules defined the limits of the respondent’s contractual capacity. The regulations promulgated under the Act stated that the rules should provide for the manner in which contracts and other documents binding the respondent should be executed. That rule in the respondent’s rules was the one referred to above. It constituted the only effective overriding control over the legal capacity of the respondent to enter into written contracts. It was common cause that it had not been complied with.
While it might be desirable that there should be a provision in the rules that would enable the principal officer to enter into written contracts with regard to the day-to-day functioning of the respondent, there was no such express provision. The question that then arose was whether it could be inferred by necessary implication from the rules. The court emphasised that it would be slow to imply a term into the rules, and found no basis for doing so.
The appeal was therefore dismissed by the majority of the court.
In the dissenting judgment, it was held that the issue was whether there was compliance with the peremptory formalities laid down by the respondent’s rules. That raised the question of whether the rule referred to above was applicable to the contracts that the principal officer had concluded.
The rules had to be examined having regard to their purpose and the context in which they operated.
Although the respondent’s rules did not indicate what contracts had to comply with the rule, nor why the trustees, as non-executive officers, should be burdened with the daily administration of the respondent’s business, the judge pointed out that rules must be given a sensible meaning in interpreting them. It was not sensible or reasonable to require that at least 13 trustees should meet and authorise the hiring of office equipment. That was the function of the principal officer.
The rules provided for the conclusion of investment contracts, the prime business of the respondent, to be delegated to a subcommittee of members or a financial institution. If such contracts that were crucial to the respondent could be concluded by other bodies, it made no sense for contracts for the rental of office equipment to have to comply with unnecessary and burdensome procedures. That was not a reasonable or sensible interpretation of the rules. And it undercut the role of a principal officer who was the only executive employed by the respondent and who, in the preamble to the rules, was expressly said to represent the respondent in the acquisition and holding of property.

Satisfied that the principal officer was charged with the administration of the office of the respondent, the dissenting judge would have upheld the appeal.
Cosira Developments (Pty) Ltd v Sam Lubbe Investments CC t/a Lubbe Construction & others
[2011] JOL 27763 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 20062
09 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J
Keywords:
Contract – Specific performance – Locus standi – Privity of contract
Mini Summary:
The third respondent, a local authority (the council), was the owner of three vacant stands. In 2002, the council invited tenders to purchase and develop the properties. The party (“Lubbe”) that was awarded the tender concluded two agreements of sale in June 2005. The agreements imposed an obligation on the purchaser to commence with the development of the properties within six months from the date of transfer of the properties and to complete such development within eighteen months thereafter.
Negotiations between the applicant and Lubbe resulted in them concluding a sale agreement, which was according to the applicant, superseded by two separate subsequent agreements concluded in August
2005. The August 2005 agreements were, except for the names of the purchaser, identical to the June
2005 agreements.
Relying on the August 2005 agreements, the applicant sought specific performance of the alleged contractual obligations embodied in the two agreements.
Held that the general rule is that a person who claims relief from a court must establish an interest in that matter in order to acquire the necessary locus standi to seek relief. Applied to the facts of this matter the question arising was whether the August 2005 agreements for the purchase of the subject matter of the
June 2005 agreements, gave the applicant, as the successive purchaser, a sufficient legal interest or locus
standi to enforce such agreement as against the original seller.
The June 2005 agreements and the August 2005 agreements were entirely distinct agreements providing, in effect, for two separate transactions. The relationship between parties in all respects was governed by the agreements and was therefore contractual. No contractual relationship existed between the applicant and council. In the absence of privity of contract between the applicant and the council, the applicant did not have the necessary locus standi to bring the present application against the council.
Furthermore, the grant or refusal of specific performance is entirely a matter for the discretion of the
Court. The Court explained why it would not have exercised its discretion in the applicant’s favour.
The application was dismissed.
Phineas v Road Accident Fund
[2012] JOL 29015 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
63500 / 2009
17 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
Kubushi AJ
Keywords:
Delict – Motor vehicle accidents – Personal injury – Claim for damages – Past loss of earnings – General damages
Mini Summary:
While driving a bus, the plaintiff was involved in a motor vehicle collision with a motor vehicle insured by the defendant. Flowing from the injuries which he sustained, the plaintiff claimed damages in respect of past hospital and medical costs; estimated future medical costs to be provided for in terms of section

17(4)(a) of the Road Accident Fund Act 56 of 1996; loss of earnings and earning capacity; and general damages. By the time the matter came before the present Court, only the damages for loss of earnings and loss of earning capacity, as well as general damages remained in contention.
Rather than leading evidence, the parties agreed that the various expert witness reports obtained by the plaintiff would be admitted into the record as evidence.
Held that the two versions before the Court regarding loss of earnings were as follows. The plaintiff alleged that he had been a driver, and with the loss of vision in one eye as a result of the accident, his livelihood was affected. The defendant, on the other hand, disputed that the eye was injured in the accident. Based on the medical reports, the Court was satisfied that the plaintiff’s eye was injured in the accident.
A patrimonial claim in respect of future loss of earnings requires a loss of earning capacity as a result of a damage causing event, and an actual patrimonial loss of income as a result of the abovementioned loss of earning capacity. Flowing from the experts’ reports, it was found that the plaintiff had established that his earning capacity had been compromised as a result of the injuries he sustained in the accident. He was found to have succeeded in proving his claim for loss of earnings. The amount awarded was R81 588,55.
On the issue of general damages, the Court was satisfied that the plaintiff was able to prove that he had experienced pain and suffering and had also suffered the loss of amenities of life. Consequently an amount of R200 000 was considered fair, just and reasonable compensation.
Road Accident Fund v Coughlan NO
[2014] JOL 32245 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
702 / 2013
03 /09 / 2014
South Africa
Supreme Court of Appeal
CH Lewis, Theron, Pillay, Mbha JJA, Mathopo AJA
Keywords:
Delict – Motor vehicle accidents – Compensation by Road Accident Fund – Whether dependants are entitled to compensation for loss of support where foster child grants had been paid as a result of the death of mother – Foster child grants made to the dependants of a deceased killed in a collision covered by the Road Accident Fund Act 56 of 1996 should, as a rule, be deducted from any award of damages for loss of support made by the Road Accident Fund
Mini Summary:
The respondent was the curator ad litem for two children whose mother was killed when she was knocked over by the driver of a motor car. The appellant (“the RAF”) admitted that the driver was 100% to blame for the collision such that it was liable for damages suffered by the children for loss of support. After the death of the children’s mother, the grandmother applied to the Children’s Court to be appointed as a foster parent to her grandchildren and was so appointed in terms of the Child Care Act 74 of 1983. As a result she was entitled to receive foster child grants in terms of the Social Assistance Act 59 of 1992, replaced by the Social Assistance Act 13 of 2004. The RAF contended that the children were not entitled to compensation for loss of support as the foster child grants had been paid as a result of the death of their mother and that they had therefore already been compensated for loss of support. The curator contended, on the other hand, that the payments of the grants were acts of gratuity by the State - paid to people who elected to become foster parents, and were not compensation for losses sustained by accident victims.
Held that generally, dependants are not permitted to get double compensation. The Court was of the view that there is no difference in substance between child support grants and foster child grants. It accepted the argument of the RAF that, but for the death of the mother in a collision for which the RAF accepted liability, the foster parent would not have claimed foster child grants. There was no evidence to support the proposition that the foster parent would have applied for grants had the mother of the children not died.
The conclusion was that the High Court erred in finding that the children were entitled to damages for loss of support from the RAF. The foster child grants served the very purpose which an award of damages would do, namely providing the children with the financial support lost as a result of the death of their mother. The court explained that its finding did not mean that there is any general principle precluding an

award of damages for loss of support where dependants have had the benefit of social support grants. The enquiry must involve considerations of public policy, reasonableness and justice.
The grants made to the foster parent exceeded the amounts that the children would have been entitled to had their foster parent not received the grants. The question put to the High Court in the stated case should have been answered on the basis that the dependants were not entitled to both the benefit of the foster child grants and to damages for loss of support. The appeal was accordingly upheld.
Basdew NO v Minister of Safety & Security
[2011] JOL 28066 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14271 / 2007
04 / 11 / 2011
South Africa
High Court
KwaZulu-Natal, Durban
Steyn J
Keywords:
Delict – Loss of support – Shooting of claimants’ mother – Claim against police – Negligent omission –
Liability for damages
Mini Summary:
The plaintiff was an adult female advocate, acting as, and suing in her capacity as curator-ad-litem to the minor children of a woman who was shot and killed by her ex-husband. The deceased was killed at a time when she sought protection from the South African Police.
The action was for loss of support. At the present stage, the Court was called upon to decide on the issue of liability only.
Held that the case involved an alleged omission by the police. The critical issue was the wrongfulness of the omission in circumstances where there was a positive duty on the police officers to act in accordance with their duties. The Court had to consider the reasonableness of the conduct of the police. It was also necessary to determine whether there was a factual causation between the police’s omission and the deceased’s death. The most common test used in determining factual causation is the sine qua non test.
In determining wrongfulness, it was also necessary to consider whether the omission of the officers in not seizing the firearm of the deceased’s ex-husband would have led to the foreseeable harm, ie the death of the deceased as caused by him.
There were clear warning signs to the police that the ex-husband of the deceased posed a serious threat to her physical safety. She was fearful and informed them that her ex-husband was in possession of a firearm. Under those circumstances it was reasonable to expect that the police officers would have done more than just putting one question to the ex-husband, ie whether he was in possession of a firearm.
Reasonable policemen would have guarded the husband and not let him out of sight, given the earlier information relayed to them by the deceased. The failure on that regard rendered the defendant liable for all such damages as might be proven by the plaintiff.
Jonathan obo Jonathan & another v RAF
[2011] JOL 26955 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
731 / 08
17 / 03 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Loss of support
Mini Summary:
The first plaintiff was married until her divorce in 1999. Three children were born of that union. In 2004, her ex-husband was killed in a motor vehicle accident. The first plaintiff sued on behalf of the youngest child of the marriage, while the second plaintiff (also born of the marriage) sued in her own capacity, having attained majority. The claims were for loss of support.
While the defendant fully conceded the merits of the plaintiffs’ claims, the parties were in dispute regarding the extent of the damages which the plaintiffs were able to prove that they were entitled to receive in consequence of the death of the deceased.

Held that the claim by a dependant for loss of support has historically been regarded as a right of property. The deprivation of which, by a wrongful act of a defendant, would found a claim for patrimonial damages. As patrimonial loss is a sine qua non for any action under the lex Aquilia the action can only succeed where there has been a legal duty on the deceased to maintain the plaintiff and where he in fact did so. The right of the dependants of the deceased to receive maintenance and support was not in issue nor was it disputed that the deceased made such contributions. It was accordingly clear that each of the plaintiffs had in fact suffered patrimonial damages.
The court found the evidence to clearly establish that the deceased did have the ability to have paid the maintenance which the plaintiffs claimed that he did pay. Assessing the evidence, the court awarded
R242 261 to the first plaintiff in her representative capacity and R60 441 to the second plaintiff.
Zwelibanzi Utilities (Pty) Ltd t/a Adams Mission Service Centre v TP Electrical Contractors CC
[2011] JOL 26967 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
160 / 10
25 / 03 / 2011
South Africa
Supreme Court of Appeal
JA Heher, TD Cloete, S Snyders, SA Majiedt JJA, C Plasket AJA
Civil procedure – Magistrate’s Court – Special plea to jurisdiction – Appeal against dismissal of plea –
Section 28 of the Magistrates’ Courts Act 32 of 1944 provides that the persons in respect of whom the court shall have jurisdiction shall be any defendant who appears and takes no objection to the jurisdiction of the court – Accords with general principle of the common law, as stated in case law, is that that where a defendant without having excepted to the jurisdiction, joins issue with a plaintiff in a court which has material jurisdiction, but has no jurisdiction over the defendant because he resides outside the jurisdiction of the court, the defendant is deemed to have waived his objection and thereby conferred jurisdiction upon the court
Mini Summary:
In August 2004, the respondent issued summons against the appellant, claiming the balance of payment for the installation of electrical services. In June 2005, the appellant pleaded to the merits, and filed a counter-claim for damages arising from breach of contract. In April 2007, the appellant amended its plea by the addition of a special plea that the court lacked jurisdiction as the appellant neither resided nor carried on business within its area of jurisdiction. The respondent pointed out that the appellant had appeared and taken no objection to the court’s jurisdiction in the proceedings relating to convention and reconvention.
The magistrate, asked to rule in limine on the special plea, dismissed it. He ruled that the defendant had acquiesced in the jurisdiction of the court. On appeal the full bench of the High Court dismissed the appeal with costs and confirmed the magistrate’s ruling. The present appeal was accordingly noted.
Held that section 28 of the Magistrates’ Courts Act 32 of 1944 provides that the persons in respect of whom the court shall have jurisdiction shall be any defendant (whether in convention or reconvention) who appears and takes no objection to the jurisdiction of the court. The meaning of the provision was discussed in the case of William Spilhaus & Co (M.B.) (Pty) Ltd v Marx. In his judgment, Theron J stated that our courts in general will give effect to the rule of the common law, as it is to be gathered from Voet, that a defendant who has pleaded to the plaintiff’s main claim without objecting to the jurisdiction must, at least after litis contestatio has been reached, be considered to have bound himself irrevocably to accept the jurisdiction of the court –where his failure to raise the question of jurisdiction might have been due to some mistake on his part.
The general principle of the common law, as stated in case law, is that where a defendant without having excepted to the jurisdiction, joins issue with a plaintiff in a court which has material jurisdiction, but has no jurisdiction over the defendant because he resides outside the jurisdiction of the court, the defendant is deemed to have waived his objection and thereby conferred jurisdiction upon the court. In considering section 28 of the Magistrate Courts Act against the backdrop of the common law, the present court pointed to the additional factor of the presumption that the legislature in enacting legislation intends to depart as little as possible from the common law, and held that section 28(1)(f) contains no indication to the contrary.

In an effort to get around the above statement of the law, the appellant argued that the respondent did not oppose the appellant’s amendment by which the special plea was introduced, and the amendment was accordingly granted by consent. The consequence, it was submitted, was that the respondent was bound to submit to the trial of the merits of the jurisdictional plea. It was also argued that the effect of the amendment to the plea was retrospective in operation to the stage of the original plea, preceding the filing of the counterclaim and, therefore, negating the effects of the apparent reliance upon the jurisdiction of the court to decide the merits of the claim and counterclaim. The court rejected the arguments. It stated that the fact that an amendment operates retrospectively is a procedural consequence. It does not affect accrued rights. Nor can jurisdiction already vested by the appellant’s failure to object to its absence before
litis contestatio be rendered non-existent by subsequent amendment. As the establishing of jurisdiction in this manner gives rise to an objective fact without the intervention of the plaintiff in the action, the latter’s inaction in opposing the amendment is of no consequence.
The appeal was accordingly dismissed.
Haywood v Haywood and another
[2014] JOL 31970 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5995 / 14; 11887 / 12; 3801 / 12
25 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
Gamble J
Keywords:
Family law – Divorce settlement – Court order – Maintenance of minor child – Consequence of child achieving majority age
Mini Summary:
The applicant and first respondent were engaged in divorce litigation. They entered into a settlement agreement, which was presented to Court for an order in terms thereof to be taken by agreement. In terms of the agreement the applicant undertook to maintain the parties’ minor son by the payment of cash in the amount of R7 000 per month to the first respondent, by covering his reasonable medical expenses and by paying his school fees. The applicant continued to pay the maintenance in respect of his son up to the beginning of 2014. He then discovered that the first respondent decided to enrol the boy into a college to able him to improve his Matric grades. The applicant was not happy at not having been consulted, and obtained advice from his attorney. He was advised that since the boy was then 18, the rule
43 order no longer applied and that the applicant was no longer required to pay maintenance directly to the first respondent.
Flowing from the applicant’s stance, the first respondent obtained a writ of execution for the attachment of movables belonging to the applicant, for an amount representing one month’s maintenance, and the college fees.
In an urgent application, the applicant sought a declaration that the order made pursuant to the settlement agreement had lapsed due to the applicant’s son having attained majority.
Held that ordinarily, the position is that upon the attainment of majority of the child, the parent in whose care the child is, no longer has the locus standi to claim payment of maintenance on behalf of the child.
The principles which have been applied in respect of agreements to pay maintenance incorporated into orders of divorce can usefully be applied to agreements in relation to Rule 43 applications. The Court had to determine the parties’ intention when they concluded the agreement embodied in the draft order. The golden rule is to have regard to the language of the written instrument in question, and to give it its grammatical and ordinary meaning. The Court was satisfied that the parties contemplated continued payments by the applicant directly to the first respondent after their son’s majority.
Van der Westhuizen v Van der Westhuizen
[2011] JOL 26942 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
55831 / 08
28 / 03 / 2011
South Africa
High Court

Division:
Bench:
North Gauteng, Pretoria
BR Southwood J
Keywords:
Persons – Marriage – Termination of – Divorce – Maintenance
Mini Summary:
In the present divorce action, the plaintiff sued the defendant for divorce and ancillary relief and the defendant counterclaimed for divorce and maintenance.
Held that the only issues to be decided were whether the plaintiff was obliged to pay maintenance to the defendant and, if so, the quantum of such maintenance.
In terms of section 7(2) of the Divorce Act 70 of 1979, the trial court has a wide discretion to determine the question of maintenance requirements. The court must conclude that in the light of all the relevant factors it is just for the order to be made. It is clear from the wide discretion which is conferred on the trial court, that it is not bound to refuse a wife’s claim for maintenance simply because she can support herself.
The facts showed the plaintiff to be a very wealthy man. Having regard to the respective parties’ financial needs and obligations, their ages, the duration of their marriage, their standard of living and their conduct relevant to the breakdown of the marriage, the court considered it just that the plaintiff be ordered to pay maintenance to the defendant to enable her to enjoy, as far as possible, the same standard of living which she enjoyed while married to the plaintiff.
The plaintiff was ordered to pay maintenance to the defendant in the amount of R35 000 per month, plus an immediate payment of R275 601.
Jonathan obo Jonathan & another v RAF
[2011] JOL 26955 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Loss of support
Mini Summary:
731 / 08
17 / 03 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
The first plaintiff was married until her divorce in 1999. Three children were born of that union. In 2004, her ex-husband was killed in a motor vehicle accident. The first plaintiff sued on behalf of the youngest child of the marriage, while the second plaintiff (also born of the marriage) sued in her own capacity, having attained majority. The claims were for loss of support.
While the defendant fully conceded the merits of the plaintiffs’ claims, the parties were in dispute regarding the extent of the damages which the plaintiffs were able to prove that they were entitled to receive in consequence of the death of the deceased.
Held that the claim by a dependant for loss of support has historically been regarded as a right of property. The deprivation of which, by a wrongful act of a defendant, would found a claim for patrimonial damages. As patrimonial loss is a sine qua non for any action under the lex Aquilia the action can only succeed where there has been a legal duty on the deceased to maintain the plaintiff and where he in fact did so. The right of the dependants of the deceased to receive maintenance and support was not in issue nor was it disputed that the deceased made such contributions. It was accordingly clear that each of the plaintiffs had in fact suffered patrimonial damages.
The court found the evidence to clearly establish that the deceased did have the ability to have paid the maintenance which the plaintiffs claimed that he did pay. Assessing the evidence, the court awarded
R242 261 to the first plaintiff in her representative capacity and R60 441 to the second plaintiff.
Mbhele v Mbhele & others
[2010] JOL 25651 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
AR 118 / 10
03 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg

Bench:
Keywords:
K Pillay, P Koen and K Swain JJ
Maintenance – Maintenance of major – Need for curator bonis
Mini Summary:
In 2003, the Maintenance Court granted an order by consent directing the first respondent to pay maintenance for his minor child. The applicant was the child's guardian. In 2008, the applicant obtained a rule nisi preventing the second respondent (a bank) from paying out any pension benefit to the first respondent. In terms of the rule nisi the bank was called upon to show cause why it should not be ordered to determine the net amount owing to the first respondent and to pay the said amount to the Master of the High Court, to be held in the Guardian's Fund, for the future maintenance of the first respondent's son who was disabled.
On the return date, the magistrate discharged the rule and granted an order in terms of which the first respondent was interdicted from using the sum of R50 000 for his benefit. He was ordered to pay that amount to the master, to be held in trust in the Guardian's Fund and payment thereof to be made to the child in accordance with any order of the Maintenance Court or any competent court. As the child was a major by the time the application was heard, the master refused to accept a cheque from the bank for payment into the Guardian's Fund. The cheque was paid into the trust account at the Magistrates' Court, but the Area Court Manager then advised that the Department of Justice had no accounting system that allows for the receipt of lump sums of money, to be dispensed monthly to third parties.
The magistrate sought to refer the problem to the high court, by way of a special review, to resolve the issue of how provision could be made for the retention of money in a fund, and the periodical payments therefrom, to provide for the maintenance of a major.
Held that the solution to the impasse lay in the common law, rendering it unnecessary and inappropriate to decide whether the Guardian's Fund was the appropriate, or permissible, receptacle for the receipt of monies to provide for the needs of a major, who is in need of maintenance.
A major child who is incapable of supporting himself, is entitled to support from a parent who is able to do so. If such a major is incapable of managing his affairs, a curator bonis can be appointed to administer such affairs and provide the necessary maintenance from funds made available to the curator. The applicant was advised to launch an application in the appropriate forum for the appointment of herself, or a suitable person, as a curator bonis to the child if the evidence revealed that he was unable to administer his own affairs.
Staats (born Coetzer) v Staats
[2010] JOL 25912 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Marriage – Divorce – Maintenance
EL 276 / 10
19 / 08 / 2010
South Africa
High Court
East London Circuit Local
SD Ndengezi AJ
Mini Summary:
The parties were married to each other after the commencement of the Matrimonial Property Act 88 of
1984 in terms of a duly registered antenuptial contract wherein community of property, profit and loss was excluded. The marriage had broken down.
In the present rule 43 application, the applicant sought an order that the respondent pay maintenance
pendente lite for the couple's minor child, to retain the applicant and the minor child as beneficiaries of the respondent's Medical Aid Scheme and pay the contributions in respect thereof as well as anything not covered by the respondent's Medical Aid, to pay pendente lite for the school fees of the minor child and for all other reasonable expense related to her schooling, including but not limited to, extramural equipment and extramural costs and clothes, to pay pendente lite the costs of the minor child's casual clothing and to contribute towards the applicant's costs.
Held that the applicant failed to prove on a balance of probability that she need assistance towards costs in this matter, taking into account her income and what would be reasonable expenses.
The court granted an order that the parties be joint caregivers of the minor child whose place of primary / physical residence would vest jointly with the parties; that the respondent pay the school fees, cost of school books and cost of school uniforms; that the respondent retain the applicant and the minor child as beneficiaries in his Medical Aid Scheme; that the applicant pay for the minor child's hair-do's, casual clothing and pocket money; and that each party pay their own costs.

Staats (born Coetzer) v Staats
[2010] JOL 25912 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Marriage – Divorce – Maintenance
EL 276 / 10
19 / 08 / 2010
South Africa
High Court
East London Circuit Local
SD Ndengezi AJ
Mini Summary:
The parties were married to each other after the commencement of the Matrimonial Property Act 88 of
1984 in terms of a duly registered antenuptial contract wherein community of property, profit and loss was excluded. The marriage had broken down.
In the present rule 43 application, the applicant sought an order that the respondent pay maintenance
pendente lite for the couple's minor child, to retain the applicant and the minor child as beneficiaries of the respondent's Medical Aid Scheme and pay the contributions in respect thereof as well as anything not covered by the respondent's Medical Aid, to pay pendente lite for the school fees of the minor child and for all other reasonable expense related to her schooling, including but not limited to, extramural equipment and extramural costs and clothes, to pay pendente lite the costs of the minor child's casual clothing and to contribute towards the applicant's costs.
Held that the applicant failed to prove on a balance of probability that she need assistance towards costs in this matter, taking into account her income and what would be reasonable expenses.
The court granted an order that the parties be joint caregivers of the minor child whose place of primary / physical residence would vest jointly with the parties; that the respondent pay the school fees, cost of school books and cost of school uniforms; that the respondent retain the applicant and the minor child as beneficiaries in his Medical Aid Scheme; that the applicant pay for the minor child's hair-do's, casual clothing and pocket money; and that each party pay their own costs.
Haywood v Haywood and another
[2014] JOL 31970 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5995 / 14; 11887 / 12; 3801 / 12
25 / 06 / 2014
South Africa
High Court
Western Cape, Cape Town
Gamble J
Keywords:
Family law – Divorce settlement – Court order – Maintenance of minor child – Consequence of child achieving majority age
Mini Summary:
The applicant and first respondent were engaged in divorce litigation. They entered into a settlement agreement, which was presented to Court for an order in terms thereof to be taken by agreement. In terms of the agreement the applicant undertook to maintain the parties’ minor son by the payment of cash in the amount of R7 000 per month to the first respondent, by covering his reasonable medical expenses and by paying his school fees. The applicant continued to pay the maintenance in respect of his son up to the beginning of 2014. He then discovered that the first respondent decided to enrol the boy

into a college to able him to improve his Matric grades. The applicant was not happy at not having been consulted, and obtained advice from his attorney. He was advised that since the boy was then 18, the rule
43 order no longer applied and that the applicant was no longer required to pay maintenance directly to the first respondent.
Flowing from the applicant’s stance, the first respondent obtained a writ of execution for the attachment of movables belonging to the applicant, for an amount representing one month’s maintenance, and the college fees.
In an urgent application, the applicant sought a declaration that the order made pursuant to the settlement agreement had lapsed due to the applicant’s son having attained majority.
Held that ordinarily, the position is that upon the attainment of majority of the child, the parent in whose care the child is, no longer has the locus standi to claim payment of maintenance on behalf of the child.
The principles which have been applied in respect of agreements to pay maintenance incorporated into orders of divorce can usefully be applied to agreements in relation to Rule 43 applications. The Court had to determine the parties’ intention when they concluded the agreement embodied in the draft order. The golden rule is to have regard to the language of the written instrument in question, and to give it its grammatical and ordinary meaning. The Court was satisfied that the parties contemplated continued payments by the applicant directly to the first respondent after their son’s majority.
Minister of Safety and Security NO and another v Schubach
[2015] JOL 32615 (SCA)
Case Number: 437 / 13
Judgment Date: 01 / 12 / 2014
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
MS Navsa ADP, DH Zondi, JB Shongwe JJA, I Schoeman, Meyer AJJA
Keywords:
Delict – Malicious prosecution – Claim for damages – Respondent found to be entitled to damages for both injury to personality and pecuniary loss suffered, but not to unproved legal costs – Where quantum was incorrectly assessed by trial court, award adjusted on appeal – Delict – Malicious prosecution –
Requirements – Requirements for a successful claim for malicious prosecution are that the defendants instituted the proceedings; acted without reasonable and probable cause; acted with malice; and that the prosecution had failed. The appellants challenged the finding of the court below that the decision to prosecute the respondent on some of the charges was without reasonable cause and malicious
Mini Summary:
Whilst the respondent was employed within the South African Police Service (“SAPS”), holding the rank of colonel, he was arrested for the unlawful possession of firearms and ammunition. The arrest followed the discovery of various firearms and ammunition including weapons owned by the respondent, his wife and third parties as well as flares or explosives used by members of the SAPS for operational purposes in a walk-in safe at the offices of the unit in which the respondent was commanding officer. The respondent’s explanation that the firearms and ammunition found were all licensed and owned by either him, his wife or third parties for whom they were kept in safe custody and that the rest of the weapons and explosives were either found or owned by the SAPS, were ignored.
After the respondent was acquitted of all charges brought against him, he instituted action against the appellants in the high court, for damages sustained as a result of what was alleged to be an unlawful arrest and malicious prosecution. The high court found that the prosecution of the respondent on the charges relating to the possession of explosives, his service pistol and the firearms and ammunition owned by him or his wife was not based on reasonable and probable cause and was malicious. The Court found that there was a reasonable and probable cause to prosecute the respondent on the remaining charges and that the prosecution in that regard was not malicious. The Court awarded the respondent
R120 000 for general damages and R93 000 for the legal costs he had incurred in defending the action.
The appellants appealed against that order.
Held that the requirements for a successful claim for malicious prosecution are that the defendants instituted the proceedings; acted without reasonable and probable cause; acted with malice; and that the prosecution had failed. The appellants challenged the finding of the court below that the decision to prosecute the respondent on some of the charges was without reasonable cause and malicious. The appellants’ case was that the decision to prosecute constituted a single intent and a single act, and that its reasonableness had to be evaluated in its entirety, and it was thus wrong to conduct such an evaluation

separately since it was inconceivable that the prosecutor would have a malicious intent for one set of charges and not for the other. The Court rejected that argument. It stated that the fact that there was a reasonable and probable cause to prosecute on one set of charges has no effect on the outcome of the enquiry in relation to the other set of charges. The test for absence of reasonable and probable cause contains both a subjective and objective element which means that there must be both actual belief on the part of the prosecutor and that that belief must be reasonable in the circumstances. It was common cause that there was no probable cause to prosecute the respondent on the charges relating to the firearms and ammunition for which he and his wife had licences because the Directorate of Public prosecutions had given instructions that those charges had to be withdrawn. The prosecution on those charges was malicious. The appellants attempted to rely on section 42 of the National Prosecuting
Authority Act 32 of 1998 as creating a legal immunity in favour of a person who in good faith exercises a power conferred under the Act even in cases where that person is negligent. The Court held that section
42 does not protect the officials of the National Prosecuting Authority who in the performance of their duties under the Act exercise act maliciously from civil liability.
While confirming that the respondent was entitled to damages for both injury to personality and pecuniary loss suffered, the Court held that the High Court had erred in awarding him damages for the legal costs which the respondent alleged he had incurred in defending the criminal proceedings which were terminated in his favour as there was no proof that he had in fact incurred those costs. With regard to the amount awarded to the respondent for general damages the Court held that the high court had incorrectly assessed the damages suffered by the respondent by ignoring the fact that his prosecution on the other charges was reasonable and therefore not malicious. On the ground that the damages were assessed at an amount too generous, the Court reduced the quantum awarded
Joubert Scholtz Inc & others v Elandsfontein Beverage Marketing (Pty) Ltd
[2012] JOL 28817 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
307 / 11; 765 / 11
09 / 03 / 2012
South Africa
Supreme Court of Appeal
JA Heher, FDJ Brand, NZ Mhlantla, FR Malan, SA Majiedt JJA
Keywords:
Agency – Attorney’s mandate – Funds paid into attorney’s trust account – Terms of mandate in respect of use of funds in dispute – Whether instruction to attorney was such as to limit use of funds deposited by the respondent to strict adherence to payment of debts for which respondent had assumed liability, or whether it conferred a broader authority – Probabilities found to favour attorney’s version that mandate was not limited as alleged by respondent – Enrichment – Allegation of unjust enrichment – Payment by attorney in whose trust account funds had been paid – Claim against payees on basis that attorney had acted beyond mandate in paying them moneys – Claim failing where respondent failed to establish a lack of just cause for the payments, and where it was not shown that respondent had been impoverished by payments
Mini Summary:
In terms of a written agreement entered into between the respondent and a group of entities including the third and fourth appellants, the respondent purchased the group’s business. In so doing, it accepted responsibility in respect of the liabilities of the businesses and its immovable property. According to the respondent, it mandated the first appellant, a firm of attorneys, to investigate, negotiate, settle and pay the relevant debts, and to that end it paid certain moneys into the first appellant’s trust account.
However, the attorneys refused either to account for the moneys received or to repay such moneys as had not been applied to the execution of its mandate. While admitting receipt of the money paid into the trust account by the respondent, the first appellant alleged that it had paid out all moneys so received as it had been instructed to do so by one of the sellers (“Goosen”). The first appellant denied the terms of the mandate as alleged by the respondent.
In the high court, the respondent claimed from the first appellant, specific performance of the alleged oral mandate calling for the repayment of the surplus funds held in trust as referred to above. In the same action, the respondent sued the second appellant (the trustees of Goosen, who had since been sequestrated) and the third and fourth appellants for payment of amounts paid to them or their creditors

by the first appellant from the moneys paid by the respondent into the trust account. The respondent contended that such payment by the first appellant was in breach of its mandate and without legal obligation, and resulted in the unjust enrichment of those appellants at the expense of the respondent.
The trial court dismissed the respondent’s claims, but upheld a claim in reconvention by Goosen for a statement and debatement of his capital loan account in the respondent.
On appeal, the full court set aside the trial court’s order in respect of the respondent’s claims and replaced it with money judgments against each of the appellants. The appeal against the order on the claim in reconvention was dismissed. The appellants were granted special leave to appeal.
Held that the terms of the respondent’s mandate to the first appellant was central to the respondent’s case. The question was whether the instruction to the first appellant was such as to limit the use of the funds deposited by the respondent to strict adherence to the payment of the debts for which the respondent had assumed liability, or whether it conferred a broader authority to take and give effect to instructions from Goosen as to the disposal of the money. The respondent bore the onus of proof throughout the trial.
Assessing the probabilities against the evidence before it, the Court found that the respondent had failed to prove that it conferred a mandate on the first appellant in the terms pleaded by it. Consequently, as found by the trial court, the respondent failed to prove that the first appellant was under a duty to account for and return surplus funds to it.
In respect of the claim of unjust enrichment, the Court found the second to fourth appellants to be correct in contending that the claim had to fail. As submitted by the said appellants, the respondent had failed to prove that the first appellant did not act in accordance with a mandate properly given and, therefore, on the case pleaded, had failed to prove a lack of just cause for the payments. Secondly, even if Goosen acted beyond his authority in receiving the payments to and appropriating them to liabilities not the subject of agreement, the respondent had not been impoverished by such receipts or appropriations.
The appeal was accordingly upheld, and the trial court’s order reinstated.
Fizzy Investments CC v Collins NO and others: In re: Collins NO and others v Fizzy Investments
CC
[2014] JOL 31643 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5470 / 2013
29 / 11 / 2013
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Sishi J
Keywords:
Property – Spoliation – Interdictory relief – Requirements
Mini Summary:
In May 2012, the applicant and respondents entered into a lease agreement in terms of which the applicant rented restaurant premises from the respondents. The respondents wished to cancel the agreement, leading to a dispute which was referred to arbitration. A consent award was signed by the parties’ representatives and the arbitrator. The terms of the award were that the agreement be cancelled and an order for the ejectment of the applicant from the premises be made. The applicant was subsequently evicted from the premises.
It therefore brought an urgent application seeking, inter alia, an order that the respondents be directed to restore possession to the applicant of the property. Essentially, the applicant sought a spoliation order and orders restraining and interdicting the respondents.
Held that the reason for the recognition of the remedy afforded by a spoliation order is to put a stop to the unlawful taking of the law into one’s own hands. Two factors are requisites to found a claim for an order for restitution of possession on an allegation of spoliation. The first is that applicant was in possession of the property and, the second is that he had been wrongfully deprived of that possession against his wish. There must be clear proof of possession and of the illicit deprivation before an order should be granted. The issue was whether or not the applicant had complied with the requirements of a
mandament van spolie.
Although a mandament van spolie or a spoliation order is the final order, in the present matter it is sought
pendente lite.

In this case, the applicant could neither contend that it was in peaceful and undisturbed possession of the property nor that the deprivation of the possession by the respondents was unlawful. The deprivation or the dispossession has to be without the other party’s consent or without due legal process. In the present matter, it was common cause between the parties that dispossession occurred in circumstances where there was a court order. The Court agreed with the respondents that the applicant’s version that its legal representative had no authority to sign the consent agreement was so inherently improbable that it should be rejected outright.
Finding that the applicant had not shown any basis upon which it was entitled to remain in occupation of the premises, the Court refused the spoliation order.
As far as interdictory relief was concerned, the Court refused that relief too. The applicant had failed to establish any right to the relief sought.
Nondudule v Minister of Safety & Security & others
[2011] JOL 28017 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
1926 / 2010
10 / 11 / 2011
South Africa
High Court
Eastern Cape, Mthatha
LP Pakade ADJP
Property – Mandament van spolie – Requirements
Mini Summary:
The applicant stated that he had purchased a motor vehicle from a third party, and had paid half the purchase price as a deposit and was paying the balance in monthly instalments when the vehicle was seized by a police officer.
In the present application, the applicant sought a declaration that the search, seizure and continued detention of the vehicle was unlawful. He also sought the release of the vehicle back into his possession.
The application was based on the mandament van spolie, with the applicant alleging that he was in peaceful and undisturbed possession of his motor vehicle when it was seized, and that the dispossession was unlawful.
Held that the applicant had to prove possession of the motor vehicle and how he acquired it before he could show that he was unlawfully dispossessed of such possession in order to succeed in spoliation proceedings.
The applicant’s explanation of his possession of the vehicle involved a contradiction in that he stated that he had acquired the vehicle from two different individuals. That was clearly not possible, and created a reasonable suspicion that the vehicle was stolen and that the applicant was unable to furnish the police with a satisfactory explanation as to how he acquired possession thereof.
The application was thus dismissed.
Ivanov v North West Gambling Board & others
[2012] JOL 29125 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
312 / 2011
31 / 05 / 2012
South Africa
Supreme Court of Appeal
NZ Mhlantla, Cloete, Heher, Snyders JJA & McLaren AJA
Criminal Procedure – Search warrant – Whether search and seizure can remain lawful is warrant is declared invalid after search and seizure operation has been conducted – A declaration of invalidity of a search warrant operates retrospectively, with result that search and seizure effected in terms thereof cannot be lawful – Property – Spoliation – mandament van spolie – An applicant is entitled to a mandament van spolie restoring the status quo ante upon proving firstly that the applicant was in possession of the spoliated thing, and secondly the wrongful deprivation of possession – Fact that possession is wrongful or illegal is irrelevant
Mini Summary:

The first respondent was a provincial gambling board (“the board”). In terms of section 4 of the North
West Gambling Act 2 of 2001 (“the Act”), the board enjoyed certain powers, including the powers to oversee gambling activities and investigate illegal gambling throughout the province and to exercise such powers and perform such functions and duties as may be assigned to it in terms of the Act and any other law. The board and the South African Police Service (“SAPS”) agreed to co-operate with regard to the investigation of illegal gambling in the province.
In January 2010, the third respondent, who was an inspector employed by the board, inspected the appellant’s business premises. Suspecting that gambling activities were taking place in contravention of the Act, the third respondent requested members of the SAPS to conduct further investigations and to apply for a search warrant. The sixth respondent was a magistrate in the court having jurisdiction over the appellant's business premises. On application by the SAPS, the sixth respondent issued the search warrant in terms of sections 20, 21 and 25 of the Criminal Procedure Act 51 of 1977 read with section 65(6) to (8) of the Act.
The search warrant was executed by the second and third respondents and some employees of the board.
They confirmed that the appellant was contravening section 9(1) of the National Gambling Act 7 of 2004 by being in possession of gambling machines and other gambling devices without the requisite licence and or authority by the board to possess the machines.
In an urgent ex parte application the appellant sought an order, cancelling the search warrant and directing the members of SAPS to restore possession of his business premises to him, averring that the warrant was invalid. The magistrate granted an order for the restoration of his business premises but made no order that affected the validity of the warrant.
The appellant was charged with illegal gambling, and the police and members of the board returned to his premises where they seized the machines and equipment which appeared to be gambling machines. That caused the appellant to institute an ex parte application in the High Court against the first to fifth respondents. He attacked the validity of the search warrant, and sought an order directing the respondents to restore the machines to him with immediate effect. The court granted a rule nisi with immediate effect pending the return day, declaring the search warrant null and void and ordering the first to fifth respondents to restore possession of the machines to the appellant. The respondents complied with the order and returned the machines to the appellant.
Opposing the confirmation of the rule nisi, the third respondent deposed to an affidavit on behalf of the respondents (except for the sixth respondent). He objected to the manner in which the appellant had launched the application, stating that the appellant had failed to comply with the provisions of section 35 of the General Law Amendment Act 62 of 1955, as no notice had been given to them. He conceded that the warrant might have been defective but stated that the respondents were justified in their actions and had met the requirements of sections 20, 21 and 25 of the Criminal Procedure Act; that the appellant had contravened the provisions of section 9(1) of the National Gambling Act and that he was conducting an illegal casino contrary to the provisions of section 50(1) of the Act. He averred that by virtue of section 79 of the Act, the gambling machines and other articles that were used in the commission of the offence were liable to forfeiture upon the appellant's conviction. He therefore sought that the rule nisi be discharged and the appellant be ordered to return the machines to the board. The court considering the matter discharged the rule nisi in part. It declared the warrant invalid for being too general and vague and accordingly set it aside. The search and seizure were held not to be unlawful because although the search warrant was invalid, it had not yet been set aside when the police executed it and it had empowered the police to conduct the search and seizure. It was further held that the appellant was not entitled to a spoliation order and that he had adopted the wrong procedure and relied on a wrong cause of action. The
Court ordered the appellant to return the machines to the respondents with the qualification that he was only entitled to the return of the items which he might lawfully possess. Leave to appeal was granted to the present Court.
Held that the two issues raised on appeal were whether the declaration of invalidity of the search warrant could transform a bona fide search that was executed under a warrant into a spoliation; and whether as a result of the declaration of invalidity of the search warrant, the appellant was entitled to unqualified restoration of the machines the possession of which without a licence is prohibited by the Act.
In concluding that the search warrant was invalid, the court a quo was correct. However, the court erred in concluding that the order declaring the search warrant invalid did not affect the lawfulness of the search and seizure. As a warrant is written authority to perform an act that would otherwise be unlawful, the respondent’s contention that the search and seizure were lawful as the warrant had not been declared invalid when the police executed it and that it remained valid until set aside on review, could not be sustained. The warrant must comply with the statutory provisions. If it is subsequently declared invalid, the invasion of privacy and the search and seizure cannot retain the lawfulness thereof as the essence of what made the dispossession lawful, falls away. The declaration of invalidity operates retrospectively and not prospectively. In this case, the police had no authority to seize the appellant's goods, even though they acted in good faith and believed that they had the power to search in terms of the warrant. Once the order of invalidity was issued, the necessary consequence was that the police acted unlawfully. It was therefore competent for the appellant in this case to apply for a Spoliation Order. The court below

accordingly erred when it concluded that the appellant had used a wrong procedure and relied on a wrong cause of action.
Turning to the issue of spoliation, the Court set out the general principles underlying the mandament van
spolie. Spoliation is the wrongful deprivation of another's right of possession. An applicant is entitled to a
mandament van spolie restoring the status quo ante upon proving firstly that the applicant was in possession of the spoliated thing, and secondly the wrongful deprivation of possession. The fact that possession is wrongful or illegal is irrelevant.
The last question addressed by the Court was whether, in bringing his applications on an ex parte basis, the appellant was guilty of abusing the Court’s process. Although there was no reason why notice should not have been given to the respondents and ex parte proceedings were not justified, the appellant could not be non-suited because of that.
The appeal was upheld with costs.
Owners of the MV Silver Star v Hilane Limited
[2015] JOL 32697 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
82 / 2014
28 / 11 / 2014
South Africa
Supreme Court of Appeal
MJD Wallis, VM Ponnan, Pillay, DH Zondi JJA, TR Gorven AJA
Maritime law – Associated ship arrest – Prerequisites – In terms of section 3(7)(c) of the Admiralty
Jurisdiction Regulation Act 105 of 1983, the charterer or sub-charterer of a vessel who is personally liable in respect of a maritime claim is deemed, for the purposes of association alone, to be the owner of the chartered vessel – Onus of proving that arrest was justified includes proving the alleged association on a balance of probabilities – “Maritime claim” – Admiralty Jurisdiction Regulation Act 105 of 1983, section 1 –
Any claim for, arising out of or relating to the carriage of goods in a ship, or any agreement for or relating to such carriage; any charterparty or the use, hire, employment or operation of a ship, whether such claim arises out of any agreement or otherwise; any judgment or arbitration award relating to a maritime claim, whether given or made in the Republic or elsewhere; or any contribution, indemnity or damages with regard to or arising out of any claim in respect of any matter mentioned above
Mini Summary:
The respondent was the owner of the Sheng Mu. In July 2011, it concluded a charterparty agreement with a third party (“Phiniqia”) for the carriage of cargo from Iran to India. It pursued claims arising from the charterparty claims by way of the arrest of the Silver Star as an associated ship in relation to the Sheng
Mu, in terms of section 3(6), read with section 3(7), of the Admiralty Jurisdiction Regulation Act 105 of
1983. The registered owners of the Silver Star brought an application for the release of the vessel. The dismissal of the application led to the present appeal.
The charterparty provided for the issue of two sets of bills of lading. A second set of bills could only be issued against a letter of indemnity (LOI) given to Hilane by Phiniqia. Phiniqia executed an LOI in favour of
Hilane indemnifying it in respect of any liability, loss, expenses or damage of whatsoever nature that
Hilane might sustain by reason of having issued two sets of bills of lading in accordance with Phiniqia's request. The LOI also provided that if the Sheng Mu or any other property belonging to Hilane should be arrested or detained, or such an arrest or detention be threatened, by reason of issuing two sets of bills of lading, Phiniqia undertook to provide immediately on demand such bail or other security as might be required to prevent such arrest or detention or to secure the release of the vessel or such other property and to indemnify Hilane in respect of any loss, damage or expenses. Once the second set of bills of lading had been issued and the LOI furnished to Hilane’s agents, Hilane asked for the cancellation and return of the first set of bills of lading as it was entitled to do. Shortly before the vessel was due to arrive at its destination, Phiniqia's agents indicated to Hilane that the original bills of lading might not be available upon arrival. The shipper (“Golden Waves”) cited on the first bill of lading then informed Hilane that it had not been paid for the coal. Hilane passed that message to Phiniqia, but Golden Waves’ claims were not resolved. Golden Waves proceeded to enforce its claim by arresting the Sheng Mu. Hilane demanded that

Phiniqia fulfil its obligations under the two LOIs and reinforced the demand with an order of the High Court in England, but Phiniqia did not respond. Eventually Hilane had to procure a guarantee from its own bankers to secure the release of the Sheng Mu from arrest. It then referred a dispute to arbitration in
London, contending that Phiniqia was obliged to indemnify it against the claim by Golden Waves and for the damages it said that it suffered in consequence of the arrest of the Sheng Mu. It obtained an award in its favour.
Following therefrom, the respondent sought to enforce its claims in an action in rem in South Africa brought against the Silver Star as an associated ship in relation to the Sheng Mu. The appellant (the owners of the Silver Star) contended that Hilane was not entitled in law to invoke the associated ship arrest provisions in order to pursue them against the Silver Star. It was argued that Hilane’s claims against the Silver Star were claims that arose from the arbitration award it obtained against Phiniqia in
London – the effect of which was to extinguish the underlying claims on which the award was based and to replace those claims with a claim based on the award itself. The appellant contended that the claim was no longer one that related to the Sheng Mu and accordingly that there was no longer a ship concerned the existence of which is the foundation for an associated ship arrest, because the associated ship is arrested instead of the ship concerned.
Held that an associated ship arrest can be sought in the following circumstances. There must be a ship in respect of which a maritime claim has arisen. This is referred to as the ship concerned. Then there must be another ship – the associated ship – that satisfies the requirements of section 3(7)(a) of the Act, in that it is either in the same ownership as the ship concerned, or where both ships are owned by companies, as is ordinarily the case, control of the company owning the ship concerned at the time the claim arose must be the same as control of the company that owns the associated ship at the time of its arrest. However, in many maritime situations, the claims arising in respect of a ship might not fall into either category because they were claims that lay in personam against the charterer of the vessel. The problem was addressed by the deeming provision in section 3(7)(c) of the Act. In terms of the section, the charterer or sub-charterer of a vessel who is personally liable in respect of a maritime claim is deemed, for the purposes of association alone, to be the owner of the chartered vessel. For the purposes of determining whether an association exists, the question is who is the owner of the ship concerned at the time the maritime claim arose. That is clear from the language of the various sub-sections of section 3(7)(a). All that the deeming provision does is to place a charterer or sub-charterer of a vessel who incurs, but does not pay, a debt arising from its having been the charterer of the vessel, in the same position as the owner of the vessel would be if the owner incurred the same debt and did not pay it.
The appellant’s proposition that, because an English arbitration award extinguishes the underlying claim on which the award was based, it is not made in respect of a particular ship and therefore there can be no ship concerned for the purposes of an associated ship arrest, was held to be problematic. The Court was not satisfied that an arbitration award of the nature of the present award would in English law be regarded as extinguishing the claim or claims on which the award was based. Any judgment or arbitration award relating to a maritime claim is itself a maritime claim. In this case, the maritime claims that underpinned the award arose from a charterparty dispute and any claim for, arising out of or relating to a charterparty was a maritime claim.
Addressing the question of whether, on a proper interpretation of the Act, a claim in respect of an arbitration award relating to a maritime claim is a claim in respect of the ship in respect of which the original maritime claim lay, the court answered the question in the affirmative. Hilane’s maritime claims under the charterparty arose in respect of the Sheng Mu and Phiniqia, which was liable in respect of those claims, was deemed to be its owner for the purpose of an associated ship arrest.
The issue of whether, on the facts, the requisite association had been established, was dealt with in a concurring judgment. It was accepted that Hilane bore the onus of demonstrating that the arrest was justified and that included proving the alleged association on a balance of probabilities. The crux of the factual dispute related to the ownership or control of the Silver Star. Despite the appellant’s denials, the evidence established that the vessel was owned by a company with the same controlling company as the ship concerned.
The appeal was dismissed.
Maloba v Dube & others
[2010] JOL 25852 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
08 / 3077
23 / 06 / 2008
South Africa
High Court

Division:
Bench:
Keywords:
Customary law – Marriage – Validity
South Gauteng, Johannesburg
Mokgoatlheng J
Mini Summary:
The applicant sought a declaration that her late husband ("the deceased") was never married to the first respondent in accordance with customary law or the Recognition of Customary law Marriages Act 120 of
1998, and that the certificate of registration of the customary marriage issued by the Department of Home
Affairs was invalid.
Essentially, the applicant averred that the posthumous registration of the customary marriage between the first respondent the deceased was not valid, as no customary marriage in accordance with customary law was ever concluded.
According to the applicant, after lobolo negotiations between the deceased's family and the first respondent's family, the deceased informed his mother that he no longer wished to marry the first respondent, and his family formally informed the first respondent's family that a marriage would not be concluded.
Held that it was clear that lobolo was agreed upon by the deceased and the first respondent's family. The question was whether or not the marriage was entered into or celebrated in accordance with customary law. The objective facts showed that the marriage was negotiated and entered into in accordance with customary law. A customary marriage can only be dissolved by a competent court. When the deceased or his family purported to withdraw his consent to the customary marriage, after the payment of lobolo or part payment thereof, a valid customary marriage had already come into being. The purported withdrawal of consent would have been a nullity and would not have lawfully dissolved the customary marriage.
The application was dismissed with costs
Lushaba v Member of the Executive Council for Health, Gauteng
[2015] JOL 32897 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17077 / 2012
16 / 10 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
RM Robinson AJ
Keywords:
Delict – Medical negligence – Claim for damages – Liability
Mini Summary:
The plaintiff, at 36 weeks’ pregnant, went to a state hospital under the control of the defendant, as she had been experiencing dizziness and constant pain in her abdomen. She was admitted at 12pm, but was only attended to at about 1:45pm. By that time it was too late. The plaintiff was saved but her child was severely disabled, suffering from spastic quadriplegic cerebral palsy and unable to sit or walk. According to the plaintiff, the defendant was negligent in not providing her with adequate medical care upon her arrival. The delay, so the plaintiff claimed, in performing the caesarean, was negligent, permitted the progression of abruptio that cut off the baby’s supply of oxygen, and which in turn led to the cerebral palsy. The defendant denied negligence, in what amounted to a bare denial.
Held that a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill but he is bound to employ reasonable skill and care. In determining what is reasonable, the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs. Applying the relevant test for negligence, the court found that there was little doubt that the defendant was negligent. In failing to perform a caesarean on the plaintiff shortly after 12pm the defendant breached its duty of care towards the plaintiff and her child. The delay in treating the plaintiff was causally linked to the child’s suffering from cerebral palsy.
The Court referred to the defendant’s proceeding with its defence when it should have been obvious that there was no merit therein. Consequently, the defendant was held liable for costs on the attorney and client scale. It was also held 100% liable for the plaintiff’s damages.

Goliath v Member of the Executive Council for Health in the Province of the Eastern Cape
[2015] JOL 32577 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
085 / 2014
25 / 11 / 2014
South Africa
Supreme Court of Appeal
Ponnan JA
Keywords:
Delict – Medical negligence – Consideration of applicability of res ipsa loquitur maxim in medical negligence actions – Whether or not the maxim is applicable, the only enquiry at the end of the case is whether the plaintiff has discharged the onus resting upon her in connection with the issue of negligence –
In light of evidence of negligence, High Court should have found for appellant
Mini Summary:
In April 2011 the appellant underwent a routine hysterectomy at a provincial hospital. Two months later, she was re-admitted to the hospital with severe pain and a wound abscess. The abscess was to be operated on a day or two after she was admitted, but that did not happen, and three days after her admission, the abscess burst, leading to the cancellation of the operation and appellant’s discharge on no treatment. Two weeks later, she was re-admitted to the hospital complaining of a hard swelling in the abdominal scar but, after examination by the medical staff, was re-assured that nothing was amiss and she was sent home. She sought treatment at another hospital, where a laparotomy was performed, and a septic gauze swab was removed from her abdomen.
The appellant sued the respondent (as the authority responsible for the provincial hospital) for damages.
The high court dismissed her claim, finding that it had not been proved that the doctor or nursing staff treating the appellant had been shown to be negligent in leaving the swab behind in the appellant’s abdomen. In the course of the judgment, the Court stated that the majority judgement in Van Wyk v
Lewis [1924 AD 438] eschewed the application of res ipsa loquitur maxim in medical negligence actions, and our courts have declined to apply the doctrine in such cases because it has been held that in the medical context, the requirement that the occurrence must fall within the scope of the ordinary knowledge and experience of the reasonable man cannot be met.
Held that the general rule is that she who asserts must prove. Thus in a case such as this, a plaintiff must prove that the damage that she has sustained has been caused by the defendant’s negligence. The failure of a professional person to adhere to the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which he or she belongs would normally constitute negligence.
Broadly stated, res ipsa loquitur (the thing speaks for itself) is a convenient Latin phrase used to describe the proof of facts which are sufficient to support an inference that a defendant was negligent and thereby to establish a prima facie case against him. It is not a presumption of law, but merely a permissible inference which the court may employ if upon all the facts it appears to be justified. In every case, including one where the maxim res ipsa loquitur is applicable, the enquiry at the end of the case is whether the plaintiff has discharged the onus resting upon her in connection with the issue of negligence.
The high court appeared to have been diverted from the obvious inference of negligence dictated by the evidence in this case by virtue of the heightened focus on the applicability of the maxim res ipsa loquitur to cases based on alleged medical negligence. As the matter had been fully explored in the evidence, at the conclusion of the trial the task of the Court was to decide whether, on all of the evidence and the probabilities and the inferences, the appellant had discharged the onus of proof resting upon her on a preponderance of probability. The present Court was of the view that she unquestionably had, with the result that the appeal had to succeed.
Ntaba v Member of the Executive Council of the Department of Health of the Eastern Cape
Government, Bhisho
[2015] JOL 32712 (ECB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Medical negligence – Claim for damages
Mini Summary:
175B / 2012
07 / 02 / 2014
South Africa
High Court
Eastern Cape, Bhisho
JM Roberson J

The plaintiff sued the defendants for damages after her daughter’s finger was amputated after she had sought treatment at a provincial hospital for a sore and swollen index finger. A splint was applied to the finger, but the finger subsequently became gangrenous and had to be amputated. The plaintiff alleged that the medical and hospital staff treated her daughter negligently and without the requisite professional skill and diligence, resulting in the amputation.
Held that the expert evidence adduced in court established that gangrene sets in following the deprivation of oxygen to the finger. Thus, the Court held that it was overwhelmingly probable that the arteries in the finger were compromised as a result of the bandage being applied too tightly. It was held that the plaintiff had proved that the gangrene was caused as a result of the bandage being applied too tightly. The Court was satisfied from the evidence of the expert that the incorrect application of the bandage fell below the requisite standard of professional skill and diligence, as did the failure of the hospital personnel to warn the plaintiff of the potential complications and symptoms.
The defendant was held liable to the plaintiff for such damages as she might prove.
Medi-Clinic Limited v Vermeulen
[2014] JOL 32360 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
504 / 13
26 / 09 / 2014
South Africa
Supreme Court of Appeal
DH Zondi, VM Ponnan, MJD Wallis, Pillay JJA, NC Dambuza AJA
Delict – Medical negligence – Test – A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill but is required to employ reasonable skill and care – In determining what is reasonable, the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs – Evidence – Expert witnesses – Assessment of evidence – Court required to be satisfied that expert opinions had a logical basis and whether in forming their views, the experts had directed their minds to the question of comparative risks and benefits and reached a defensible conclusion on the matter
Mini Summary:
After contracting cerebral malaria while on holiday in Mozambique during April 2007, the respondent was hospitalised at a hospital operated by the appellant. Whilst in hospital, he developed a pressure sore to the sacral area and heels of his feet, which led to bilateral sciatic nerve injuries with severe impediment of mobility. The respondent became paralysed and was then wheelchair-bound. He sued the appellant for damages in the High Court, contending that the injuries he sustained were caused by the negligence of the defendant’s nursing staff who had failed to take sufficient preventative measures to avoid the onset of the sacral bedsore. In that regard, he averred that the bedsore could have been prevented from developing by the nurses regularly turning him so as to remove continuous pressure from his sacrum. The appellant disputed that, contending that such a course of action at a time when the respondent was gravely and critically ill would have been dangerous.
The present appeal was against the High Court’s order in the respondent’s favour.
Held that the legal test to apply in the determination of the issue of medical negligence is that a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill but is required to employ reasonable skill and care. In determining what is reasonable, the court will have regard to the general level of skill and diligence possessed and exercised at the time by the members of the branch of the profession to which the practitioner belongs.
In the present case, the respondent bore the onus of proving that the defendant’s nursing staff was negligent. Each of the parties called expert witnesses to support their stance. To determine whether or not the defendant’s nurses were negligent, the court below had to have regard to the views of the parties’ experts. In doing so, the court had to be satisfied that their opinions had a logical basis and whether in forming their views, the two experts had directed their minds to the question of comparative risks and benefits and reached a defensible conclusion on the matter. The Court held that the High Court erred in accepting the evidence of the respondent’s expert, and deciding the issue of negligence on the basis thereof. Highlighting the difficulties with the said expert’s theory, the Court held that the conclusion that the appellant’s nursing staff were negligent and that their negligence caused the respondent’s present condition could not be sustained.
The appeal was upheld with costs.

Premier of the Western Cape Province & another v Loots NO
[2011] JOL 27067 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
214 / 10
25 / 03 / 2011
South Africa
Supreme Court of Appeal
FDJ Brand, PE Streicher, JB Shongwe, Theron JJA
Delict – Medical negligence – Sterilisation operation done incorrectly – Mother falling pregnant after operation, and due to complications in pregnancy, suffering brain damage – Causation – Whether doctor’s negligent conduct was linked sufficiently closely or directly to the harm suffered by patient for legal liability to ensue – Court finding that causation was established –Delict – Medical negligence – Sterilisation operation done incorrectly – Mother falling pregnant after operation, and due to complications in pregnancy, suffering brain damage – Negligence of doctor in not performing sterilisation operation correctly clearly established –
Mini Summary:
The respondent was the curator ad litem of a person (Mrs Erasmus) who had gone to a State Hospital for a sterilisation operation. The operation was performed by the second appellant, who was employed as a clinical assistant in the Department of Obstetrics and Gynaecology at the hospital. The operation involved a laparoscopic occlusion of both fallopian tubes. It was later discovered, however, that the second appellant had mistakenly occluded the round ligaments of the patient instead of her fallopian tubes with the result that she had not been sterilised at all. A few months later, she fell pregnant. The pregnancy was did not end well, as towards the end of the pregnancy, Mrs Erasmus was rushed to the hospital as she had high blood pressure. An emergency Caesarean section was performed but the baby was severely compromised and did not survive. It appeared that Mrs Erasmus must have developed amniotic fluid embolism which caused severe haemorrhaging and cardiac arrest, which in turn led to brain anoxia and eventually to the irreversible brain damage that Mrs Erasmus suffered.
In a delictual action, the respondent claimed damages arising from the harm caused to Mrs Erasmus as a result of the failed sterilisation operation. The high court decided that the appellants were liable for such damages as the respondent might prove , leading to the present appeal.
On appeal, the two defences relied on by the appellants were that the second appellant had not been negligent, and that the causal link between the second appellant’s negligence (if proved) and the harm suffered by Mrs Erasmus was too tenuous to justify the imposition of delictual liability on the appellants for that harm.
While the expert evidence adduced by the respondent was unequivocally that the second appellant had been negligent, the appellants based their argument on the so-called concrete or relative approach to negligence. According to such approach it cannot be said that someone acted negligently because harm to others in general was reasonably foreseeable. A person’s conduct can only be described as negligent with reference to specific consequences. Yet, the relative approach does not require that the precise nature and extent of the actual harm which occurred was reasonably foreseeable. Nor does it require reasonable foreseeability of the exact manner in which the harm actually occurred. What it requires is that the general nature of the harm that occurred and the general manner in which it occurred was reasonably foreseeable. For the factual basis of their argument the appellants relied on the proposition that the harm which Mrs Erasmus actually suffered was not of a general kind reasonably foreseeable. That proposition, in turn, rested mainly on the concessions by the expert as to the unforeseeability of amniotic fluid embolism.
The general harm consequent upon a failed sterilisation, so the argument went, was pregnancy and the general risks associated with that condition. But the harm that actually occurred resulted from amniotic fluid embolism, which was not reasonably foreseeable.
Held that as the appellants conceded, pregnancy was a generally foreseeable consequence of a failed sterilisation. As pointed out by the expert testimony, pregnancy comes with the potential for many complications and risks – one of which is amniotic fluid embolism. As the latter was reasonably foreseeable, it followed that the second appellant was negligent with regard to the harm that Mrs Erasmus had suffered.
On the issue of causation, the court pointed out that in the law of delict, causation involves two distinct enquiries. First there is the so-called factual causation which is generally conducted by applying the “but for” test. In this case, it was common cause that the harm suffered by Mrs Erasmus resulted from her pregnancy, and but for the failed sterilisation, the inherent likelihood was that she would not have fallen pregnant. Therefore, but for the second appellant’s negligence, Mrs Erasmus would not have suffered the harm. Factual causation was therefore not the real issue.
The real issue turned on the second enquiry under the rubric of causation, namely, whether the second appellant’s negligent conduct is linked sufficiently closely or directly to the harm suffered by Mrs Erasmus for legal liability to ensue. The criterion in our law for determining remoteness is a flexible test, also

referred to as a supple test. In accordance with the test, issues of remoteness are ultimately determined by broad policy considerations as to whether right-minded people, including judges, would regard the imposition of liability on the defendant for the consequences concerned as reasonable and fair.
In relying on causation as a defence, the appellants first relied on the direct consequences theory. A key element of this theory is the concept of a novus actus interveniens. The independent intervening cause relied upon by the appellants for its argument was the decision by Mrs Erasmus not to accept the offer of an abortion tendered by the hospital when she discovered that she was pregnant. In order to qualify as a
novus actus interveniens in the context of legal causation, the plaintiff’s conduct must be unreasonable.
Reasonable conduct on the part of the plaintiff cannot free the defendant from the imputation of liability.
The court pointed out that Mrs Erasmus and her husband had opted for sterilsation as they could not afford to have another child. The hospital’s offer of an abortion was because the sterilisation operation had not been properly done, and not for medical reasons. For religious reasons, the Erasmuses could not accept that offer. The court found that it was not unreasonable of them to make such a decision.
Next, the appellants relied on the reasonable foreseeability test. Their argument in that regard rested on the concession by the expert witness that the complication of amniotic fluid embolism that led to the harm was so rare that it would not have been foreseen by the reasonable surgeon. The court rejected this contention, pointing out that while rare, the condition was not unforeseeable.
The court concluded that in all the circumstances, considerations of reasonableness, justice and fairness dictated that the appellants should be held liable for the harm suffered by Mrs Erasmus.
The appeal was dismissed.
Wilson v Gillespie & another
[2011] JOL 27623 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17521 / 2006
17 / 03 / 2008
South Africa
High Court
Witwatersrand Local
A Gildenhuys J
Keywords:
Delict – Motor vehicle collision – Claim for damages – Negligence – Quantum of damages – Patrimonial loss
Mini Summary:
The plaintiff was involved in a motor vehicle collision, in which the driver of the other vehicle in the collision was the first defendant. The vehicle being driven by the first defendant was owned by the second defendant.
The plaintiff instituted action against the first and second defendants for damages arising from the accident.
Held that the issues for determination were whether the first defendant was negligent; whether her negligence was a cause of the collision; whether there was contributory negligence on the part of the plaintiff; whether, at the time of the collision, the first defendant was acting in the course and scope of her employment with the second defendant; whether the second defendant was vicariously liable for damages to the plaintiff’s vehicle resulting from negligence on the part of the first defendant; and what was the quantum of the plaintiff’s damages.
The evidence, which included that of an objective eye-witness, established that the first defendant had executed a right turn manoeuvre in the face of oncoming traffic which had the right of way. She was therefore negligent.
No negligence for the collision could be attributed to the plaintiff.

On the issue of vicarious liability of the second defendant, the Court held that on the facts of the case, a sufficiently close connection could not be said to exist between the first defendant’s conduct and her employment.
The onus was on the plaintiff to prove quantum by producing sufficient evidence, to enable the Court to make an award which did not amount to a speculative assessment. In determining patrimonial loss, the test, in essence, was to ascertain whether or not it would be cheaper to repair the plaintiff’s vehicle or to replace it. The repair costs should not exceed the difference between the pre-delict and the post-delict market value.
On the best evidence available, it was apparent that the motor vehicle was uneconomical to repair. The plaintiff had therefore made out a case of damages suffered in the amount of R616 000.
Masilela v Road Accident Fund
[2012] JOL 29013 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
64322 / 2010
03 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
N Ranchod J
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Assessment of evidence
Mini Summary:
The plaintiff was a passenger in a vehicle when it was involved in a motor vehicle accident. In suing for damages, he was required to prove 1% negligence on the part of the defendant's insured driver if his claim was in excess of R25 000, which was the limit he could claim if the driver of the vehicle in which he was a passenger was negligent.
Due to a separation of issues, the matter proceeded on the issue of merits of the claim only.
Held that the Court was confronted with two mutually destructive versions of how the accident occurred.
It therefore had to decide on a balance of probabilities, whether the plaintiff's version, that the insured driver veered into his lane of travel was more probable than the defendant's three witnesses' evidence that the plaintiff's motor vehicle came from behind the insured vehicle at high speed and scraped the rear right side of the insured vehicle, and then lost control and collided with a lamppost on the island separating the two lanes of travel in each direction. When faced with two conflicting versions, the Court must make its findings on the credibility of the various factual witnesses; their reliability; and the probabilities.
Applying that approach, the Court found in favour of the defendant. It was highly improbable that the three witnesses for the defendant would lie when they had no reason to do so, whereas the plaintiff had everything to gain from the version that would suit his case. Both the plaintiff's witnesses were found not to be credible witnesses. The Court found on a balance of probabilities, that the collision took place in the insured driver's lane and that no negligence could be attributed to her.
The plaintiff’s claim was dismissed with costs.
MEC for Transport, Province of KwaZulu-Natal v Eastman & others
[2011] JOL 26943 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
680 / 09
28 / 03 / 2011
South Africa
Supreme Court of Appeal
MS Navsa, FR Malan, ZLL Tshiqi, WL Seriti JJA, C Plasket AJA
Delict – Claim for damages – Personal injury sustained as a result of vehicle veering off road – Appeal against finding that failure to maintain the roads and to erect road signs warning motorists about the hazards contributed to accident – Court finding no fault on appellant’s part, and that sole cause of accident was the excessive speed at which the driver of the vehicle negotiated the road –
Mini Summary:
The respondents were all Australian nationals who, while visiting South Africa, were involved in an accident. While touring, the motor vehicle they occupied left a gravel road and landed in a donga. The third respondent was driving the vehicle and the first two respondents were passengers. As a result of the

accident, the first respondent was rendered a paraplegic and both the second respondent’s arms were badly broken.
Following the accident, the first two respondents instituted action against the third respondent and the
Member of the Executive Council for Transport for the Province of KwaZulu-Natal (“MEC”), claiming damages for the consequences flowing from the accident. The basis of their claim against the third respondent was that the accident was due to his negligence in that he failed to keep a proper lookout, drove at an excessive speed, failed to keep the vehicle under proper control and failed to avoid the accident when, by the exercise of reasonable care, he could and should have done so. The basis of the claim against the MEC was that his employees were negligent in that they had failed in their legal duty to properly maintain the roads under his control, which included the road on which the respondents had been travelling. Negligence was also alleged in the form of the failure to erect signs warning of the state of the road and a barrier to prevent vehicles from sliding into the donga.
The high court concluded that the third respondent had been travelling at 50 kilometres per hour, which it held was excessive in the prevailing conditions. Having regard to the conclusion the court reached in respect of the MEC’s failure to maintain the roads and to erect road signs warning motorists about the hazards, it went on to apportion negligence between the two defendants. The third respondent was directed to pay to the plaintiffs 30% of their proven damages, and the MEC was to pay 70% of such damages.
The MEC appealed against the correctness of the conclusions referred to above. The third respondent cross-appealed on the basis that the court below erred in attributing any negligence to him, alternatively, that the apportionment of blame in relation to him should be reduced to 10%.
Held that the third respondent’s assertion that he had driven solely was rejected. The court found him to be an unimpressive witness. The court was satisfied that the speed at which he drove was excessive in the circumstances and he was thus negligent. The excessive speed was a cause of the accident. The question that remained was whether it was the sole cause. That was linked to the question of whether there was substance to the complaint of the respondents that there was a lack of maintenance of the road in question to the extent that it was excessively dangerous and contributed to the accident.
The onus of proving the allegations concerning the inaction or omission of the MEC’s employees, in relation to the maintenance of the roads, rested on the first two respondents. The court below erred in approaching the matter on the basis that the MEC had failed to show that his department had maintained the road thereby failing to prevent the dangerous situation complained of. The court could find no fault on the part of the MEC, which contributed to the accident. The court’s conclusion was that it was the speed at which the third respondent was driving that caused the vehicle to slide off the road. Thus, the court below erred in not holding the third respondent solely responsible for the accident.
The appeal was upheld, and the high court’s order replaced with one in which the third respondent was held to be solely liable for the cause of the accident. The claims against the appellant were dismissed.
Coetzee v Steenkamp
[2010] JOL 25798 (NCK)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
579 / 09
18 / 06 / 2010
South Africa
High Court
Northern Cape, Kimberley
FD Kgomo JP
Keywords:
Delict – Claim for damages – nemo ex suo delicto meliorem suam conditionem facere potest
Mini Summary:
During a hunting trip, the vehicle in which plaintiff was a passenger capsized and he sustained various injuries. He claimed damages from the defendant, on the basis of his alleged negligent or reckless driving.
The defendant denied negligent culpability, and alleged contributory negligence by the plaintiff; relied on the principle of volenti no fit iniuria or voluntary assumption of risk or that which is done with consent, within legal limits, is not wrongful or injurious; and on the basis that the hunting trip was an illegal one, argued that the plaintiff was precluded in law from claiming from the defendant in terms of the principle
nemo ex suo delicto meliorem suam conditionem facere potest (Nemo ex suo delicto) or no one can improve his or her own condition by means of a crime or through a crime.
Held that that the plaintiff could not invoke his professed ignorance of the law to excuse his illegal hunting.
The court found that the plaintiff was not a passive partner to the illegal trip. It therefore decided the issue of nemo ex suo delicto meliorem suam conditionem facere potest in favour of the defendant.

The action was dismissed with costs.
Nkosi v Mbatha
[2010] JOL 25884 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 20 / 10
06 / 07 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MI Madondo, JB Mnguni JJ
Keywords:
Delict – Claim for damages – Doctrine of subrogation
Mini Summary:
The present appeal was noted against the Magistrate's Court's dismissal of the appellant's claim against the respondent for the payment of damages. The claim arose out of a motor vehicle collision between the appellant's vehicle and respondent's vehicle. The damages the appellant sought related to fair, reasonable and necessary costs to restore her motor vehicle to its pre-collision condition.
At the hearing, the appellant had informed the court that she had already been fully indemnified for the loss she had suffered by her insurer. She was proceeding against the respondent on behalf of her insurer for the recovery of the amount her insurer had paid to her as costs of repair to her vehicle.
Held that the wronged party is entitled to be compensated for the consequences of the unlawful conduct.
The wronged party is to be placed in the position that he or she would have been in had the wrongful and negligent conduct had not occurred. The litigant who sues in delict sues to recover the loss which he had sustained because of the wrongful conduct of another. The plaintiff's damages must be assessed at the time of the injury done to him.
The general principle in cases of this nature is that a person who has more than one claim to indemnity is not entitled to be paid more than once for the same loss. One of the exceptions to the general principle is where the defendant had a contract with an insurer to repair the motor vehicles that had been involved in collision and as a result of such contract the defendant had repaired the plaintiff's vehicle.
In the present case the insurer having fully compensated the plaintiff, it had a subrogated claim against the defendant, whose negligence caused the loss in respect of which compensation was paid, for the recovery of the amount it paid to the plaintiff as the costs of repairs.
The prerequisites for the doctrine of subrogation are that payment or reinstatement has been made, secondly, a valid and subsisting policy, and thirdly, that the insured must have had right to claim compensation from a third party.
The appellant had not satisfied the requirements set out above, and the appeal was thus dismissed.
Posthumus v RAF
[2010] JOL 26012 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
268 / 09
18/ 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
BR Tokota AJ
Keywords:
Civil Procedure – Motor vehicle accidents – Claim for damages – Liability
Mini Summary:
The plaintiff was involved in a motor vehicle collision while riding his motorcycle. He sustained injury and sued the defendant fund for damages.
The court granted a separation of issues, resulting in the only issue to be determined at the present stage being that of liability.
At the hearing, the fund conceded that the insured driver was negligent, but argued that there was contributory negligence on the plaintiff's part.
Held that the fund bore the onus of proof on a balance of probabilities in respect of its contention. The only point in dispute was whether the plaintiff had indicated an intention to turn left. The testimony of the

insured driver in this regard was unsatisfactory. The court accepted evidence to the contrary, that the plaintiff had not indicated that he was turning left.
The defendant was held liable for plaintiff's proven damages.
Janion v RAF
[2010] JOL 25925 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Liability
Mini Summary:
1597 / 08
01 / 04 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JD Pickering J
The plaintiff was involved in a motor vehicle accident in which, he alleged, he sustained severe injury. He sued the defendant fund for damages.
Held that the plaintiff was unable to testify due to his injuries, but his two witnesses satisfied the court as being credible witnesses. The insured driver and his witness on the other hand were found to be unconvincing. Their testimony was described by the court as improbable and contradictory.
In argument, the defence conceded that the evidence of its two witnesses could not be relied upon, and that the matter had to be decided on the basis of the plaintiff's evidence. The defence’s attempt to contend for contributory negligence on the part of the plaintiff was rejected by the court, as lacking in any factual basis.
The defendant was held liable for the plaintiff's proven damages.
Guga v Minister of Safety & Security & others
[2010] JOL 26107 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Police – Seizure of vehicle – Lawfulness
2268 / 09
09 / 09 / 2010
South Africa
High Court
Eastern Cape, Mthatha
LP Pakade ADJP
Mini Summary:
The applicant's motor vehicle was seized by members of the South African Police service in a road block.
The applicant sought the setting aside of the seizure of his motor vehicle and the certificate purporting to authorise it issued in terms of section 13(8) of the Police Act 68 of 1995. He also sought a restraining order interdicting the respondents from further unlawfully seizing the motor vehicle from the possession of the applicant as well as a mandamus that they should release the vehicle to the applicant.
Held that in light of the constitutional protection of property, a seizure of property is prima facie unlawful and will need to be justified. The need for strict interpretation of a statutory provision which authorises the seizure of a person's property arises from the fact that it limits the individual right to property.
Section 13(8) of the Police Act regulates the setting up of police road blocks and the procedure to be followed in a road block. The element of reasonable suspicion in section 20 of the Act is a common jurisdictional factor which precedes the issuing of both a search warrant in terms of section 21(1)(a) and a certificate in terms of section 13(8) of the Police Act.
The court found that the respondents had not shown that the applicant's motor vehicle was an item to be seized under section 13(8) of the Police Act as they failed to satisfy the requirements of section 20 of the
Act.
Having found that the search and seizure were unlawful, the court turned to consider whether or not the applicant could lawfully possess the motor vehicle notwithstanding the finding of discrepancies on its engine and chassis numbers. The applicant's explanation was satisfactory to the court, and the application succeeded.

Butise v City of Johannesburg & others
[2011] JOL 23875 (GSJ)
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
01 / 08 / 2011
South Africa
High Court
South Gauteng, Johannesburg
Mokgoatlheng J
Keywords:
Delict – Personal injury – Hole in pavement – Liability
Mini Summary:
Whilst walking on a pavement, the plaintiff fell into an uncovered valve chamber. He sued the municipality for payment of the amount of R436 200, in respect of damages arising from a fracture sustained in the fall. He contended that the defendants and their servants were negligent in that a legal duty rested on them to install or ensure the installation of an inspection cover over the uncovered valve chamber or to warn the public of its absence, and the danger it posed.
Due to a separation of issues, the Court was required to decide only on the issue of liability at this stage.
Held that as set out in case law, the issue of negligence essentially involves a threefold enquiry. The first is whether the harm was reasonably foreseeable. The second is whether the diligens paterfamilias would have taken reasonable steps to guard against such occurrence. The third is whether the diligens
paterfamilias failed to take those steps.
It was common cause that the valve chamber into which the plaintiff fell was uncovered. The first defendant conceded that it owed a legal duty to the public to guard against such harm. Consequently, the first leg of the test (that of reasonable foreseeability) was established. The question was whether the second and third legs of the inquiry were satisfied in that the first defendant undertook reasonable steps to guard against the harm the uncovered chamber constituted to the public.
There was a positive legal duty on the first defendant to ensure that uncovered valve chambers did not constitute a danger to the public, and because of the endemic massive scale theft of inspection valve chamber covers, a greater duty rested on the first defendant to ensure the public’s safety through the regular consistent inspection of valve chambers. The Court found the defendants to have been remiss in the carrying out of their duties. They were therefore liable for the plaintiff’s proven damages.
Judd v Nelson Mandela Bay Municipality
[2010] JOL 26010 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2361 / 08
23 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
Chetty J
Keywords:
Delict – Personal injury – Fall on pavement – Negligence
Mini Summary:
In July 2008, while walking to church, the plaintiff tripped on a pavement and fell, seriously injuring herself. She sued the defendant municipality for damages, alleging that she had tripped and fell over a raised and cracked portion of the sidewalk and that the defendant, who was responsible for the maintenance and upkeep of the sidewalk, owed her a duty of care. She alleged further that her fall was occasioned by the negligence of the defendant's employees who had failed to warn pedestrians of the danger posed by the cracked and raised pavement; failed to take any and/or adequate measures to prevent members of the public having access to the dangerous portion of the pavement; failed to maintain the pavement at a reasonable standard when consideration is had to the purpose of which it was used; and failed to take any and/or adequate measures to prevent the pavement from cracking and lifting thereby posing a danger to pedestrians.
Held that the case was concerned with delictual liability for an omission. The defendant's admission that it was under a legal duty to take reasonable precautions in order to avoid or minimise injury to pedestrians on the sidewalks carried with it the necessary corollary that if it was found to have negligently failed to take such precautions its conduct would not only be negligent but also wrongful.

The court held that in a large metropole such as that managed by the defendant no reasonable municipality could be expected to keep its roads and sidewalks in a perfect condition. The court took cognisance of the fact that the defendant's invitation to the general public to report defects in its roads and sidewalks network by utilising both the office and after hours telephone numbers was frequently made use of. That system did not cast an onerous burden upon the metropole's inhabitants.
Finding no negligence on the part of the defendant, the court dismissed the claim.
Thabo Mofutsanyana District Municipality v Steyn Enslin & Partners & others
[2010] JOL 25901 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4281 / 08
23 / 02 / 2010
South Africa
High Court
Free State, Bloemfontein
BC Mocumie J
Keywords:
Administrative law – Municipality's powers – Regional services levies – Estimation of
Mini Summary:
The plaintiff was a district municipality governing the affairs of various local municipalities. The defendants were employers and/or persons or entities carrying on business enterprises within the plaintiff's region as contemplated in section 12 of the Regional Services Act 109 of 1985. They were duly registered as levy payers in terms of the said Act.
The plaintiff lodged numerous claims against several levy payers including the defendants. The defendants excepted to the particulars of claim on the grounds of lack of locus standi; that the action was premature; unauthorised estimation of levies; and the absence of legal basis for delivery of a statement of account and the debatement thereof.
Held that an exception is a valuable part of our system of procedure if legitimately employed. Its principal use is to raise and obtain a speedy and economical decision of questions of law which are apparent on the face of the pleadings. It also serves as a means of taking objection to pleadings which are not sufficiently detailed or otherwise lack lucidity and are thus embarrassing. In a case where an exception is raised an excipient has a duty to persuade the court that upon every interpretation which the pleading in question can reasonably bear no cause of action is disclosed.
The present application involved the validity of para 11(1) of Government Notice R 340 for the Calculation and Payment of Regional Services Levy and Regional Establishment Levy, dated 17 February 1987, which empowers a council to estimate the amount of any levy prescribed by the Regional Services Act which, in the council's opinion, is payable where a registered levy payer has failed to furnish any return.
The court confirmed that the plaintiff had locus standi to institute proceedings and issue summons for the payment of taxes and levies to the extent provided for in the Regional Services Act.
The remaining question was whether the plaintiff was empowered and/or authorised to assess or estimate levies payable in the event that a levy payer failed to submit any returns for a specific period and that such assessment could form the basis upon which the plaintiff could institute legal proceedings against such transgressor. The court found against the plaintiff, and upheld the exception in this regard.
Kubyana v Standard Bank (CCT65/13)
The Constitutional Court has warned indebted South Africans that they need to be responsible when it comes to their debt, notes a City Press report. In a unanimous judgment handed down yesterday and penned by acting Justice Nonkosi Mhlantla, the court ruled that Standard Bank was within its rights to institute legal proceedings against a customer who had defaulted on payments. The judgment dealt with the steps a credit provider had to take before it took a customer
– who had defaulted on a credit repayment – to court.
The Constitutional Court ruled that a credit provider did not have to ensure a notice of pending court action – required by the National Credit Act – was personally served on a creditor. In the case of registered mail, the bank only had to ensure the notice was dispatched, reached the correct branch of the Post Office and that the customer was notified there was registered post before legal proceedings

could be instituted. The court also used the opportunity to ‘clarify’ a previous judgment in the
Sabelo case, which has caused confusion and contradictory verdicts in the High Court. In a separate but concurring judgment, Justice Chris Jafta wrote that the Sabelo judgment simply meant that the ‘notice must reach the consumer, but this does not mean that the notice must actually be viewed by the consumer’.
Zokufa v Compuscan (Credit Bureau)
[2010] JOL 25756 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1751 / 08
01 / 07 / 2010
South Africa
High Court
Eastern Cape, Mthatha
S Alkema J
Keywords:
Civil procedure – National Credit Act 34 of 2005 – Credit information – Right of access – Jurisdiction
Mini Summary:
The applicant was an incola of the present court. The respondent carried on business as a credit bureau, and was a peregrinus of the court.
The applicant had, in 2008, been refused credit facilities for which she had applied, based on adverse credit reports obtained from the respondent. that led the applicant to request information relating to her credit profile, as possessed by the respondent. The respondent refused to release the report unconditionally, and the applicant instituted the present application. Essentially, the applicant sought an order directing the respondent to make available the credit record, file and information concerning applicant in terms of the National Credit Act 34 of 2005.
Opposing the application, the respondent argued that the present court lacked jurisdiction to entertain the application; that the prerequisites for its release of the report were necessary; and that the failure by the applicant to exhaust alternative remedies available to her under Chapter 7 of the Act, and in particular her failure to refer her complaint to the National Credit Regulator in terms of section 136 thereof was fatal to her case. The latter point was abandoned in argument.
Held that the issue on the first point was whether the legal proceedings in the application could be said to have arisen within the area of jurisdiction of the present court.
The court found that the applicant essentially sought to enforce a right guaranteed by the constitution and that such right vested within the area of jurisdiction of the present court, and that the breach affected her constitutional rights in the area of jurisdiction of the court. Thus, every consideration of convenience, fairness and common sense indicated that she should be able to enforce her rights where she was most affected by the infringement.
The conclusion was the responded was obliged to deliver the requested information to the applicant, and that the court had jurisdiction to entertain the application.
Standard Bank of SA Ltd v Deepchun Siamnath Maharaj t/a Sanrow Transport
[2010] JOL 26042 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2216 / 10
06 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
KGB Swain J
Keywords:
Civil procedure – Credit transaction – National Credit Act 34 of 2005 – National Credit Act 34 of 2005, section 129 – Sending of notice
Mini Summary:
In terms of a credit transaction, the applicant financed the purchase by the respondent of a truck tractor.
The vehicle was to be owned by the applicant, until the respondent had paid in full, the amount owed by the respondent to the applicant. The agreement provided that the respondent would be in default if he failed to pay any of the monthly instalments payable on the due date.
It was common cause that by October 2008, the respondent was in arrears with payments and in consequence, the applicant sought an order directing the respondent to return the vehicle to the applicant,

to be held by the applicant, pending the final decision of the Magistrates' Court in the action instituted by the applicant against the respondent, for the return of the vehicle.
The applicant sent the respondent a notice in terms of section 129(1) of the National Credit Act 34 of 2005
(the Act) by pre-paid registered post to the domicilium address chosen by the respondent. The defences raised by the respondent related to that notice. He argued that the notice was defective in that it did not contain a "proposal" as required by section 129 of the Act and that he did not receive the notice.
Held that what is intended in section 129(1)(a) is that the first objective is to bring to the attention of the consumer the default complained of. The second objective is to propose to the consumer that the consumer seeks the assistance of one of the entities enumerated in the section, in order to attain the third objective, being a resolution of the dispute under the agreement, or the development and agreement of a plan to bring the payments under the agreement up to date.
The section 129 notice, in the present case, set out clearly the requirements of the section. In the premises there was no basis for the first ground of defence.
The court also rejected the second defence, as the applicant had sent the relevant notice by way of prepaid registered post to the respondent's chosen address.
The application accordingly succeeded.
Geodis Wilson SA (Pty) Ltd v ACA (Pty) Ltd & others
[2010] JOL 25956 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
08 / 41609
30 / 08 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Civil procedure – Contractual claim – Claim for payment – National Credit Act 34 of 2005 – Applicability
Mini Summary:
The plaintiff and first defendant had entered into a contract in terms of which the plaintiff undertook to render certain services and make disbursements on behalf of the first defendant. The remaining defendant bound themselves as sureties for the debts of the first defendant under the agreement.
In the present action, the plaintiff sued for payment in respect of services rendered and disbursements made. As the first defendant was placed in liquidation, the matter proceeded against the remaining defendants only.
Held that the issues for determination at this stage were whether or not the provisions of the National
Credit Act 34 of 2005 were applicable to the proceedings between the plaintiff and the defendants in the main action; and whether or not the plaintiff was obliged to give notice to the second and third defendants in terms of section 129 of the Act, prior to the institution of the action. It was common cause that the plaintiff did not give a notice in terms of section 129(1) of the Act to any of the defendants.
The court found that the provisions of the National Credit Act were not applicable to the proceedings between the plaintiff and the defendants, and that the plaintiff was not obliged to give notice to the second defendant and third defendant in terms of section 129.
Jacobs and another v Transnet Limited t/a Metrorail and another
[2014] JOL 32306 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
803 / 13
17 / 09 / 2014
South Africa
Supreme Court of Appeal
MS Navsa ADP, SA Majiedt, HK Saldulker, KGB Swain, DH Zondi JJA

Keywords:
Delict – Personal injury – Claim for damages – Alleged negligence – Speed limit allocated to railway crossing shown to be excessive, and railway operator was negligent in not taking preventative step of reducing speed limit – Evidence – Expert evidence – Conflicting expert opinions – Court required to decide which opinion, if any, to accept
Mini Summary:
The appellants were injured in a collision between a high speed commuter train and a stationary truck. In consequence of the injuries they sustained in the collision, they sued the respondents for damages. The
High Court dismissed the actions, but granted leave to appeal to the present Court.
The only issue before the High Court was the alleged negligence on the part of the respondents in causing the collision. The appellants alleged negligence in that the speed limit of 90 km/h was inappropriate and excessive for the particular crossing where the collision occurred; that the road signage was inadequate to warn motorists of the crossing; and that the respondents failed to put up a boom or barrier to prevent vehicles crossing the railway line simultaneously with the train.
Held that the test for negligence is that for the purposes of liability culpa arises if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person on property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence; and the defendant failed to take such steps. The test rests on two bases, namely reasonable foreseeability and the reasonable preventability of damage.
The court set out the duties of users of a level crossing. A train has the right of way at a level crossing.
Reasonable measures have to be put in place to prevent the foreseeable harm from occurring.
All the experts called by the appellants opined that the 90 km/h speed restriction was excessive. The respondents’ expert expressed the contrary opinion. Faced with conflicting expert opinions on the issue of an excessive speed limit the High Court had to decide which, if any, to accept. It failed to make any finding on the reliability of the various expert opinions. There were no reasons advanced for the implied rejection of the appellants’ experts. Assessing the expert opinions, the present court found the respondents’ expert’s testimony to be of poor quality and lacking impartiality and objectivity. His opinion lacked proper motivation and was rejected. On the accepted evidence the speed restriction of 90 km/h was excessive for that railway section. The possibility of harm was reasonably foreseeable, and the preventive measure of reducing the speed limit to 40 km/h was eminently reasonable.
In the circumstances the respondents were held jointly and severally liable for the damages caused by the collision. The appeal was upheld.
Pitzer v Eskom
[2012] JOL 29007 (SCA)
Case Number: 336 / 11
Judgment Date: 29 / 03 / 2012
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
RW Nugent, A Cachalia, LO Bosielo JJA, P Boruchowitz, XM Petse AJJA
Keywords:
Delict – Claim for damages – Causation – Test – Whether, but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred – Delict – Electrocution in high voltage yard of electricity supplier – Presumption of negligence – Section 26 of the Electricity Act 41 of 1987 provides that in an action for damages arising out of injury caused by means of electricity generated or transmitted by or leaking from the plant or machinery of an undertaker, the injury shall be presumed to have been caused by the negligence of the undertaker, unless the contrary is proved – Delict
– Negligence – Test – For the purposes of liability, culpa arises if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence; and the defendant failed to take such steps
Mini Summary:
In July 2006, the appellant was employed by a private electrical contracting company to carry out electrical work in a control room located outside a high voltage yard on the respondent’s premises. At the time the high voltage yard was under the control and supervision of an official employed by the respondent. That person left work early on the day in question, and when the appellant emerged from the control room he noticed that the main gate to the high voltage yard was open. The appellant knew that the gate should have been closed and locked unless work was being performed under supervision inside.
He therefore decided to close the gate, but before doing so he wanted to satisfy himself that all the painters had vacated the yard. Upon entering the yard, the appellant observed that the door to the live

chamber was open. A live chamber is an enclosed room or area in which a high voltage electrical apparatus is housed. In order to satisfy himself that no one was in the blockhouse, he went up the stairs and into the live chamber. He sustained an electric shock and was rendered unconscious.
He sued the respondent for damages in the high court, alleging that it had been negligent in various respects. The trial proceeded on the issue of liability only. At its conclusion, the claim was dismissed, the court holding that the appellant’s injury was caused solely by his own negligence and that there had been a voluntary assumption of risk. The present appeal was directed at the finding.
Held that a presumption of negligence operated in favour of the appellant. Section 26 of the Electricity Act
41 of 1987 provides that in an action for damages arising out of injury caused by means of electricity generated or transmitted by or leaking from the plant or machinery of an undertaker, the injury shall be presumed to have been caused by the negligence of the undertaker, unless the contrary is proved. The respondent was an “undertaker” as contemplated in the section. The effect of the section was to cast upon the respondent the onus of proving on a balance of probabilities that it was not negligent or, if it was, that there was no causal link between that negligence and the injury sustained by the appellant. On appeal, the respondent disputed that it had been negligent.
Of the three requirements necessary for liability under the Aquilian action, only fault (culpa) and causation were in issue. Wrongfulness was not in contention.
The test for determining negligence is that of the diligens paterfamilias. For the purposes of liability, culpa arises if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence; and the defendant failed to take such steps.
In the present matter, the supervisor of the high voltage yard must have foreseen, or at least ought reasonably to have foreseen, that some person might enter the yard and be exposed to the danger of electrocution if the gate to the yard was left open while it was not under supervision. The Court held that the supervisor should reasonably have foreseen that even a qualified electrician like the appellant might come to harm if the entrances to the premises were left open. The harm being reasonably foreseeable, the yard supervisor was obliged to take reasonable steps to avoid it occurring. All that was required in that regard was for him to lock the gate. His failure to do so was negligent.
On of causation, the Court confirmed the test as being whether, but for the negligent act or omission of the defendant, the event giving rise to the harm in question would have occurred. Had the gate to the high voltage yard and the exit door to the live chamber been closed, the appellant would not have had access to the substation and the incident would not have occurred. There was thus a causal link between the respondent’s conduct in failing to properly secure the yard and the live chamber and the appellant’s injury.
The Court then turned to consider whether the appellant was contributorily negligent. It was found that a reasonable person in the position of the appellant ought to have made such enquiries before entering the live chamber. He was undoubtedly negligent in either touching or standing in close proximity to the high voltage equipment which injured him. Consequently, the court reduced the appellant’s damages by 50%.
Seti v South African Rail Commuter Corporation Limited
[2013] JOL 30676 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Personal injury – Negligence
10026 / 2009
08 / 08 / 2013
South Africa
High Court
Western Cape, Cape Town
Samela J
Mini Summary:
The plaintiff sustained injury when he fell while attempting to board a train operated by the defendant.
The train had left the station with the doors of the carriage open. The plaintiff sued for damages. The defendant denied liability and raised the defences of volenti non fit injuria; disclaimer and alternatively, contributory negligence.
Held that the Court had to decide whether the plaintiff was negligent in attempting to board a moving train with its doors open; whether the defendant was negligent in allowing the train to depart the station with its doors open; whether the defendant’s defences of volenti non fit injuria and disclaimer were to be regarded as complete justification; and whether there was contributory negligence between the plaintiff and the defendant.
The well-known test for negligence is that of the diligens paterfamilias. Applying that test, the Court found that the defendant owed it to the public or its commuters to take reasonable steps to provide a safe and

secure rail for all its passengers. The guard was duty bound in accordance with the general operating rules of the defendant to ensure or make certain the train doors were closed before its departure. The defendant could have taken reasonable steps to guard against the possibility of the train departing with its doors open. Therefore, the defendant, by allowing the train to leave the station with its doors open, was guilty of negligence as that was an invitation to commuters to board the train. The defendant should have taken reasonable steps to guard against such possibility. The evidence clearly showed that the defendant failed to do so.
However, the plaintiff was guilty of contributory negligence in attempting to board the moving train. He was therefore entitled to recover only 50% of his proven damages from the defendant.
Malatjie v Passenger Rail Agency of South Africa
[2012] JOL 29012 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
2377 / 11
20 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
AP Ledwaba J
Delict – Claim for damages – Alleged negligence
Mini Summary:
The plaintiff was seriously injured on 30 April 2010 when he was attacked whilst he was a passenger in a train operated by the defendant. In the course of the attack, he was thrown off the train, and his injuries left him in a wheelchair.
As a result of a separation of issues, the trial proceeded only on the issue of liability.
Held that the issue of the train doors being open at the time the plaintiff fell from the train was not raised by the plaintiff timeously. The plaintiff denied the defendant’s allegation that the issue was raised as an afterthought in order to cast blame on the defendant. The court held that as the plaintiff was unexpectedly attacked just after the train left the station, he did not have ample opportunity to observe whether the doors were opened whilst the train was in motion. There was a possibility that the doors could have been opened by the attackers after the train left the station. Concluding that it would be unreasonable to impute liability on the defendant, the Court dismissed the plaintiff’s claim.
Seletela v SA Rail Commuter Corporation Ltd
[2012] JOL 28709 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
46347 / 09
16 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
R Mathopo J
Keywords:
Delict – Personal injury – Claim for damages – Liability – Alleged negligence
Mini Summary:
The plaintiff sued the defendant for damages, alleging that she had sustained injury when she fell onto the platform. She alleged that the accident was due to the negligence of the defendant or its employees in,
inter alia, allowing the train to be overcrowded with the result that the plaintiff was pushed off the train whilst it was still in motion, and in allowing the train to be in motion whilst the doors were open.
Denying liability, the defendant alleged that the plaintiff had sustained injury when she was bumped by a commuter while she was running to catch the train.
Held that the issue to be decided was whether or not the plaintiff was indeed inside the train and if so whether or not plaintiff was injured as alleged in her particulars of claim.
There were irreconcilable differences regarding the above issues. On a proper assessment of the evidence, the court found that the events on the day in question did not occur as pleaded by the plaintiff but as alleged by the defendant. No finding of liability on the part of the defendant could be made and the claim was dismissed.

SA Rail Commuter Corporation Ltd v Thwala
[2011] JOL 27888 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
661 / 2010
29 / 09 / 2011
South Africa
Supreme Court of Appeal
MML Maya, KK Mthiyane, JA Heher, SA Majiedt, MJD Wallis JJA
Delict – Claim for damages – Respondent sustaining personal injury when falling during alighting from appellant’s train – No negligence established on part of appellant – Delict – Delictual liability – Test –
Delictual liability involves, depending upon the particular circumstances of each case, the questions whether a reasonable person in the defendant’s position would foresee the reasonable possibility of his conduct causing harm resulting in patrimonial loss to another; would take reasonable steps to avert the risk of such harm; and the defendant failed to take such steps –
Mini Summary:
Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F; Mkhatshwa v Minister of Defence 2000 (1) SA 1104
(SCA) – Approved
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA) –
Approved
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority 2006 (1) SA 461 (SCA)
– Approved
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) – Approved
Charter Hi (Pty) Ltd v Minister of Transport [2011] ZASCA 89 – Approved
Trustees,Two Oceans above para 11; Shabalala v Metrorail 2008 (3) SA 142 (SCA) – Approved
Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) – Referred to
The respondent was a regular commuter on the appellant’s train service, when in June 2007, she boarded her usual train to work. Due to a strike, the train was more crowded than usual. The respondent found standing space only in the crowded coach. As the train approached her station, disembarking passengers pushed their way to the doors sweeping her along with the tide. She was pushed in that throng and fell on the station platform, where she was trampled whilst lying there in a daze. Arising from the injuries thus sustained, the respondent sued the appellant for damages. The trial proceeded only on the issue of liability (which the appellant denied). At the conclusion of the trial, the Court found that the appellant’s negligence caused the respondent’s injury and that it was consequently liable for her damages. The present appeal was against that decision.
The only dispute which arose related to whether the train was in motion or stationary when the respondent was pushed and fell. The respondent’s testimony was that she noticed that the train doors were open only when it pulled in at her station, and that jostling passengers, who pushed her causing her fall, started disembarking before the train came to a complete standstill. However two officials who testified for the appellant, were adamant that the respondent had reported that the train had already stopped when she was pushed to the platform and fell. The driver of the train also testified that the train guards would only open the doors when it was safe for passengers to board or disembark. From his account, there appeared to have no deviation from such procedure on the relevant morning.
The Court below rejected the respondent’s evidence that the train was moving when the accident occurred, but accepted the respondent’s version that the train was overcrowded. On that basis it found that the harm suffered by the respondent was foreseeable and that the appellant was under an obligation to take steps to prevent it. The Court consequently held that by allowing the train to be overcrowded, the appellant negligently failed to take reasonable steps to prevent harm which was foreseeable and that such negligent omission was the direct cause of the respondent’s injuries giving rise to liability for her damages.
Held that the test by which to determine delictual liability involves, depending upon the particular circumstances of each case, the questions whether a reasonable person in the defendant’s position would foresee the reasonable possibility of his conduct causing harm resulting in patrimonial loss to another; would take reasonable steps to avert the risk of such harm; and the defendant failed to take such steps.
Not every act or omission which causes harm is actionable. For liability for patrimonial loss to arise, the negligent act or omission must have been wrongful. It is the reasonableness or otherwise of imposing liability for such a negligent act or omission that determines whether it is to be regarded as wrongful. The onus to prove negligence rests on the plaintiff and it requires more than merely proving that harm to others was reasonably foreseeable and that a reasonable person would probably have taken measures to avert the risk of such harm. The plaintiff must adduce evidence as to the reasonable measures which could have been taken to prevent or minimise the risk of harm.

Based on the evidence, it had to be accepted that that the train must have stopped before the respondent was ejected from her coach.
The difficulty which the Court had was with the factual finding made by the court below that the train and, in particular, the respondent’s coach, was overcrowded, from which the inference of negligence was drawn. The respondent led no evidence as to exact numbers in the coach, and the passenger capacity of the coach. It could not be assumed, simply from the fact that there were standing passengers, that the coach carried an impermissible number as the appellant’s policy and applicable safety standards might well legitimately have allowed that practice. Apart from the fact that the evidence did not establish that the respondent was pushed and fell because the coach was overcrowded, and her failure to establish the reasonable precautionary measures that the appellant could have taken to prevent passengers knocking one another down when disembarking from stationary trains, the respondent’s single, insurmountable hurdle was her failure to establish that the train was in motion when she was ejected from it. The Court a
quo erred in finding the appellant to have been negligent, and the appeal was upheld. The order of the
Court below was set aside and substituted with an order granting absolution from the instance.
Loureiro & others v Imvula Quality Protection (Pty) Ltd
[2011] JOL 27991 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 15228
30 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
K Satchwell J
Keywords:
Delict – Contract – Claim for damages – Duty of care – Negligence
Mini Summary:
The defendant was a security company hired by the plaintiffs to provide security services at their home. In
January 2009, the plaintiffs were robbed by persons who gained access to the plaintiff’s home, posing as members of the South African Police.
Held that the liability of the defendant essentially boiled down to the question of negligence. The robbers had gained access to the plaintiff’s property when the security guard employed by the defendant unlocked the gate to see what they wanted. The Court found that the reasonable security company would reasonably have foreseen the possibility inter alia of unlawful intruders attempting to gain access to the premises; that such intruders might use disguise and guile to facilitate such unlawful access; that the only point of access to the premises over which the company and its employee exercised control was the pedestrian gate which therefore required particular surveillance and management; the only means of communication from the guardhouse to the family home, the company and the outside world was through the intercom in the guardhouse which functionality required to be checked; that clear, understandable or accessible instructions must be given and remain available from the company to the employee; that the employee in the guardhouse would require means to contact a supervisor for guidance or backup. In all these instances the company failed to take the reasonably appropriate steps to eliminate or ameliorate problems arising therefrom and were therefore in breach of their contract with the first plaintiff, negligent in failing to meet the standards required of a security company and the duty of care which they had assumed.
The security guard’s failure to exercise the appropriate caution constituted breaches of contract, failure to meet the duty of care expected, failure to meet the standards required of both security company and security employee and therefore negligence.
The defendant was held liable in both contract and delict to the respective plaintiffs.
Butise v City of Johannesburg & others
[2011] JOL 23875 (GSJ)
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Personal injury – Hole in pavement – Liability
Mini Summary:
01 / 08 / 2011
South Africa
High Court
South Gauteng, Johannesburg
Mokgoatlheng J

Whilst walking on a pavement, the plaintiff fell into an uncovered valve chamber. He sued the municipality for payment of the amount of R436 200, in respect of damages arising from a fracture sustained in the fall. He contended that the defendants and their servants were negligent in that a legal duty rested on them to install or ensure the installation of an inspection cover over the uncovered valve chamber or to warn the public of its absence, and the danger it posed.
Due to a separation of issues, the Court was required to decide only on the issue of liability at this stage.
Held that as set out in case law, the issue of negligence essentially involves a threefold enquiry. The first is whether the harm was reasonably foreseeable. The second is whether the diligens paterfamilias would have taken reasonable steps to guard against such occurrence. The third is whether the diligens
paterfamilias failed to take those steps.
It was common cause that the valve chamber into which the plaintiff fell was uncovered. The first defendant conceded that it owed a legal duty to the public to guard against such harm. Consequently, the first leg of the test (that of reasonable foreseeability) was established. The question was whether the second and third legs of the inquiry were satisfied in that the first defendant undertook reasonable steps to guard against the harm the uncovered chamber constituted to the public.
There was a positive legal duty on the first defendant to ensure that uncovered valve chambers did not constitute a danger to the public, and because of the endemic massive scale theft of inspection valve chamber covers, a greater duty rested on the first defendant to ensure the public’s safety through the regular consistent inspection of valve chambers. The Court found the defendants to have been remiss in the carrying out of their duties. They were therefore liable for the plaintiff’s proven damages.
SBV Services Ltd v Kogana & another
[2011] JOL 27065 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2722 / 07
01 / 04 / 2011
South Africa
High Court
Eastern Cape, Port Elizabeth
BR Tokota AJ
Keywords:
Delict – Loss of property – Claim for damages – Negligence – Causation – Collateral source rule
Mini Summary:
The plaintiff was a private security provider which maintained cash centres throughout the country. The centres stored cash used for banks’ ATMs. When banks need to refill an ATM, the plaintiff would deliver cash to the ATM in question. For that purpose, it employed registered security officers. The first defendant was such an officer. In 2007, while he was delivering cash to an ATM with the second defendant and one other officer, an armed robbery occurred at the ATM. The robbers escaped with the cash.
The plaintiff issued summons against the defendants on the basis that they had colluded with the robbers, alternatively, that they were negligent in the performance of their duty and thereby caused the loss to the plaintiff.
As the plaintiff had recovered the money lost from its insurer, the defendants argued that it suffered no damages.
Held that as a general rule the patrimonial delictual damages suffered by a plaintiff is the difference between his patrimony before and after the commission of the delict. But it has been recognised that there are exceptions to this general rule. What was relevant to the present dispute was the “collateral source rule” ie the rule that generally any compensation for damages that the injured party receives from a collateral source, wholly independent of the wrongdoer or his insurer, does not operate to reduce the damages recoverable by him. The court found the rule to be applicable in this case.
In this case, the first defendant had acted negligently in alighting from the delivery vehicle to attend to a problem with the petrol cap, and had failed to keep a proper lookout for danger despite it being reasonably foreseeable that a cash-in-transit vehicle might be robbed. Causation was also clearly established.
Judgment was awarded to the plaintiff.
Pitzer v Eskom
[2010] JOL 26505 (GSJ)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 24486
29 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
DSS Moshidi J
Keywords:
Delict – Claim for damages – Personal injury – Electrocution – Negligence
Mini Summary:
The plaintiff sued the defendant for damages after he sustained an electrical shock at the defendant’s substation.
By agreement between the parties, and in terms of rule 33(4) of the Uniform Rules of Court, the court ruled that the merits of the plaintiff’s claim be first adjudicated upon and that the question of the quantum of the claim be dealt with later.
Held that it was common cause that the plaintiff sustained injury when he was shocked by high voltage electric current at the defendant’s premises.
Section 26 of the Electricity Act 41 of 1987 is such that the onus rested on the defendant to prove on a balance of probabilities that it was not negligent, or if it was, that there was no causal connection between such negligence and the injuries sustained by the plaintiff.
The classical test for negligence is that liability in delict based on negligence will be established against a defendant if a diligens paterfamilias in the position of the defendant would foresee the reasonable possibility of his conduct injuring another in his personal property and causing him patrimonial loss; would take reasonable steps to guard against such occurrence, and that the defendant failed to take such steps.
Examining the evidence, the court found no negligence on the part of the defendant. The defendant proved, on a balance of probabilities, that the plaintiff knew of the risk, appreciated the ambit of the risk, and in fact consented to the risk.
The plaintiff’s claim was dismissed with costs.
Jacobs v The Chairman of the Governing Body Rhodes High School & others
[2010] JOL 26376 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7953 / 2004
04 / 11 / 2010
South Africa
High Court
Western Cape, Cape Town
Moosa J
Keywords:
Delict – Personal injury – Attack on educator – Claim for damages – Legal duty – Negligence – Quantum of damages
Mini Summary:
The first defendant school, due to its location, drew learners from previously disadvantaged communities.
The fourth defendant’s son was a learner at the school. On the day of the incident underlying the case, the learner bludgeoned the plaintiff, an educator, with a hammer in the class in the presence of other learners. As a result of the incident, he was charged with and convicted of attempted murder and in terms of section 290(1)(d) of the Criminal Procedure Act 51 of 1977, he was referred to a Youth Centre as defined in the Child Care Act of 1983.
Arising from the incident, the plaintiff instituted action for damages against the defendants. The claim was subsequently confined to the second and third defendants (the principal of the school and the Member of the Executive Committee for Education, Western Cape).
Held that the issues for determination were whether there was a legal duty to take reasonable steps to ensure that the plaintiff was not harmed by the learner and if so, whether the defendants and/or their servants breached that duty; whether the conduct of the defendants or their servants was culpable, that is, whether they were negligent and whether there was a causal connection between such negligent breach of duty and the loss or damage suffered by the plaintiff; and whether the plaintiff suffered any loss or damage in consequence of any wrongful and negligent breach of duty and if so, what the quantum of such damages was.
Negligent conduct giving rise to damages will only be actionable if it is "wrongful". Liability does not usually arise from an omission in the strict sense of the word. There are, however, exceptions to the general rule. The court found that in this case, there was a legal duty on the part of the defendants and

their servants, to act positively in order to ensure the security and safety of the plaintiff at the hands of the learner and that the culpable breach of such duty amounted to negligence, which was actionable in law.
The fact that the defendants were aware of the learner’s propensity for violence, and that he had a history of troublesome behaviour at school, made their failure to act negligent.
Going on to find that the plaintiff had established causation, the court awarded damages in the amount of
R1 114 685,53.
Judd v Nelson Mandela Bay Municipality
[2010] JOL 26010 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2361 / 08
23 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
Chetty J
Keywords:
Delict – Personal injury – Fall on pavement – Negligence
Mini Summary:
In July 2008, while walking to church, the plaintiff tripped on a pavement and fell, seriously injuring herself. She sued the defendant municipality for damages, alleging that she had tripped and fell over a raised and cracked portion of the sidewalk and that the defendant, who was responsible for the maintenance and upkeep of the sidewalk, owed her a duty of care. She alleged further that her fall was occasioned by the negligence of the defendant's employees who had failed to warn pedestrians of the danger posed by the cracked and raised pavement; failed to take any and/or adequate measures to prevent members of the public having access to the dangerous portion of the pavement; failed to maintain the pavement at a reasonable standard when consideration is had to the purpose of which it was used; and failed to take any and/or adequate measures to prevent the pavement from cracking and lifting thereby posing a danger to pedestrians.
Held that the case was concerned with delictual liability for an omission. The defendant's admission that it was under a legal duty to take reasonable precautions in order to avoid or minimise injury to pedestrians on the sidewalks carried with it the necessary corollary that if it was found to have negligently failed to take such precautions its conduct would not only be negligent but also wrongful.
The court held that in a large metropole such as that managed by the defendant no reasonable municipality could be expected to keep its roads and sidewalks in a perfect condition. The court took cognisance of the fact that the defendant's invitation to the general public to report defects in its roads and sidewalks network by utilising both the office and after hours telephone numbers was frequently made use of. That system did not cast an onerous burden upon the metropole's inhabitants.
Finding no negligence on the part of the defendant, the court dismissed the claim.
MEC for Transport, Province of KwaZulu-Natal v Eastman & others
[2011] JOL 26943 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
680 / 09
28 / 03 / 2011
South Africa
Supreme Court of Appeal
MS Navsa, FR Malan, ZLL Tshiqi, WL Seriti JJA, C Plasket AJA
Keywords:
Delict – Claim for damages – Personal injury sustained as a result of vehicle veering off road – Appeal against finding that failure to maintain the roads and to erect road signs warning motorists about the hazards contributed to accident – Court finding no fault on appellant’s part, and that sole cause of accident was the excessive speed at which the driver of the vehicle negotiated the road –

Mini Summary:
The respondents were all Australian nationals who, while visiting South Africa, were involved in an accident. While touring, the motor vehicle they occupied left a gravel road and landed in a donga. The third respondent was driving the vehicle and the first two respondents were passengers. As a result of the accident, the first respondent was rendered a paraplegic and both the second respondent’s arms were badly broken.
Following the accident, the first two respondents instituted action against the third respondent and the
Member of the Executive Council for Transport for the Province of KwaZulu-Natal (“MEC”), claiming damages for the consequences flowing from the accident. The basis of their claim against the third respondent was that the accident was due to his negligence in that he failed to keep a proper lookout, drove at an excessive speed, failed to keep the vehicle under proper control and failed to avoid the accident when, by the exercise of reasonable care, he could and should have done so. The basis of the claim against the MEC was that his employees were negligent in that they had failed in their legal duty to properly maintain the roads under his control, which included the road on which the respondents had been travelling. Negligence was also alleged in the form of the failure to erect signs warning of the state of the road and a barrier to prevent vehicles from sliding into the donga.
The high court concluded that the third respondent had been travelling at 50 kilometres per hour, which it held was excessive in the prevailing conditions. Having regard to the conclusion the court reached in respect of the MEC’s failure to maintain the roads and to erect road signs warning motorists about the hazards, it went on to apportion negligence between the two defendants. The third respondent was directed to pay to the plaintiffs 30% of their proven damages, and the MEC was to pay 70% of such damages.
The MEC appealed against the correctness of the conclusions referred to above. The third respondent cross-appealed on the basis that the court below erred in attributing any negligence to him, alternatively, that the apportionment of blame in relation to him should be reduced to 10%.
Held that the third respondent’s assertion that he had driven solely was rejected. The court found him to be an unimpressive witness. The court was satisfied that the speed at which he drove was excessive in the circumstances and he was thus negligent. The excessive speed was a cause of the accident. The question that remained was whether it was the sole cause. That was linked to the question of whether there was substance to the complaint of the respondents that there was a lack of maintenance of the road in question to the extent that it was excessively dangerous and contributed to the accident.
The onus of proving the allegations concerning the inaction or omission of the MEC’s employees, in relation to the maintenance of the roads, rested on the first two respondents. The court below erred in approaching the matter on the basis that the MEC had failed to show that his department had maintained the road thereby failing to prevent the dangerous situation complained of. The court could find no fault on the part of the MEC, which contributed to the accident. The court’s conclusion was that it was the speed at which the third respondent was driving that caused the vehicle to slide off the road. Thus, the court below erred in not holding the third respondent solely responsible for the accident.
The appeal was upheld, and the high court’s order replaced with one in which the third respondent was held to be solely liable for the cause of the accident. The claims against the appellant were dismissed.
Pierce v Padongeluk Fonds
[2010] JOL 26493 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
21591 / 08
08 / 11 / 2010
South Africa
High Court
North Gauteng, Pretoria
C Pretorius J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Contributory negligence
– Apportionment of damages
Mini Summary:
The plaintiff sustained personal injuries in a motor vehicle accident, and sued the defendant fund for damages. The only issue in dispute was whether the plaintiff or the insured driver was negligent, and if the insured driver was negligent, whether there was contributory negligence on the part of the plaintiff.
Held that the evidence showed that the plaintiff had been driving at an excessive speed at a time when his vision was impaired by the bright lights of an approaching vehicle. However, the negligence of the insured driver was far worse.
The court apportioned blame as 15% to the plaintiff and 85% to the insured driver.

Posthumus v RAF
[2010] JOL 26012 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
268 / 09
18/ 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
BR Tokota AJ
Keywords:
Civil Procedure – Motor vehicle accidents – Claim for damages – Liability
Mini Summary:
The plaintiff was involved in a motor vehicle collision while riding his motorcycle. He sustained injury and sued the defendant fund for damages.
The court granted a separation of issues, resulting in the only issue to be determined at the present stage being that of liability.
At the hearing, the fund conceded that the insured driver was negligent, but argued that there was contributory negligence on the plaintiff's part.
Held that the fund bore the onus of proof on a balance of probabilities in respect of its contention. The only point in dispute was whether the plaintiff had indicated an intention to turn left. The testimony of the insured driver in this regard was unsatisfactory. The court accepted evidence to the contrary, that the plaintiff had not indicated that he was turning left.
The defendant was held liable for plaintiff's proven damages.
Spring Forest Trading 599 CC v Wilberry (Pty) Ltd t/a Ecowash and another
[2015] JOL 32555 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
725 / 13
21 / 11 / 2014
South Africa
Supreme Court of Appeal
Lewis, Cachalia, Bosielo, Swain JJA and Mocumie AJA
Keywords:
Contract – Non-variation clause – Requirement that cancellation be in writing and signed by parties –
Whether cancellation by e-mail was valid – Section 13(3) of the Electronic Communications and
Transactions Act 25 of 2002 being applicable, the typewritten names of the parties at the foot of the emails, which were used to identify the users satisfied the requirement of a signature and had the effect of authenticating the information contained in the emails
Mini Summary:
The respondent’s business involved washing cars in the parking lots of shopping malls, office parks, hotels and hospitals. In terms of a written agreement concluded with the appellant, the respondent appointed the appellant as its operating agent. The agreement contained a non-variation clause providing that no variation or consensual cancellation would be effective unless reduced to writing and signed by both parties. Subsequently, the parties concluded four subsidiary rental agreements all of which were subject to the respondent’s standard terms of business as set out in the master agreement.
When the appellant was unable to meet its rental commitments under the rental agreements, the parties discussed the way forward. One of the options discussed by e-mail was to cancel the agreements. The appellant chose that option and communicated its election by return e-mail, but continued operating its car washing business at the locations covered by the rental agreements, claiming that it was entitled to do so as both the master and rental agreements between it and the respondent had been cancelled. The respondent denied that the agreements were validly cancelled. It therefore sought and was granted interdictory relief. Its case was that the emails did not comply with section 13(1) of the Electronic
Communications and Transactions Act 25 of 2002 because the section requires an advanced electronic signature to be used on an email when a signature is required by law – as specified by the non-variation clause in this case – and no such signature appeared on the emails.

The present appeal was against the High Court’s granting of the interdict as sought by the respondent.
Held that the e-mails stated unambiguously that once the appellant settled the arrear rental and returned the respondent’s equipment it could walk away without any further legal obligation. As the appellant had complied with the above requirements, a consensual cancellation had occurred. It then had to be considered whether the cancellation by email fulfilled the requirements of the non-variation clauses to be in writing and signed by both parties. That required a consideration of the relevant provisions of the Act.
The real dispute was about whether or not the names of the parties at the foot of their emails constituted signatures as contemplated in sections 13(1) and (3).
The Act distinguishes between instances where the law requires a signature and those in which the parties to a transaction impose this obligation upon themselves. Where a signature is required by law and the law does not specify the type of signature to be used, section 13(1) says that this requirement is met only if an “advanced electronic signature” is used. Where, however, the parties to an electronic transaction require this but have not specified the type of electronic signature to be used, the requirement is met if a method is used to identify the person and to indicate the person’s approval of the information communicated. In this case, the non-variation clauses were agreed upon by the parties and were not imposed by law. Having regard to the purpose for which an advanced electronic signature was required, it was apparent that it did not apply to the private agreements between these parties. The Court held section 13(1) to be inapplicable and section 13(3) to be applicable. The typewritten names of the parties at the foot of the emails, which were used to identify the users satisfied the requirement of a signature and had the effect of authenticating the information contained in the emails.
The appeal was upheld with costs.
Laynes v Coco Haven 1100 CC and another
[2014] JOL 32047 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
25220 / 2013
10 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Mashile J
Keywords:
Contract – Sale agreement – Cancellation of – Novation
Mini Summary:
The applicant sought an order compelling the first respondent to do all things necessary and to sign all documents to enable the second respondent to register a Sectional Scheme in terms of the Sectional Titles
Act 95 of 1986 and register transfer of the relevant unit in the said sectional scheme into the applicant’s name.
In terms of a sale agreement, the first respondent had sold the unit to the applicant. The registration of transfer of the property was to be effected by the second respondent within a reasonable time after the applicant complied with the relevant clauses of the agreements and made payment of transfer duty, stamp duty and all other costs of transfer and matters incidental thereto. The agreement also had a nonvariation clause. About three months after the agreement referred to above, the parties concluded another deed of sale largely containing similar provisions as the earlier agreement except for a change in the purchase price. The parties then resolved to cancel the second deed of sale. Following that, the first respondent entered into a deed of sale with the applicant’s father. The agreement was once again similar in most respects except that the purchase price was again changed.
The first respondent argued that the first agreement was replaced when the second agreement was entered into.
Held that the Court had to decide, what effect, if any at all, the conclusion of the second agreement had on the first agreement; what the result of the mutual cancellation of the second agreement was; and which of the two agreements, the first or the third, should be operative for purposes of the sale.
Novation means replacing an existing obligation by a new one, the existing obligation being thereby discharged, but novation is not to be regarded as a form of payment. It requires the presence of intention and consensus of the contracting parties. The evidence pointed to the conclusion that the parties meant to proceed with the first agreement. The conclusion and the subsequent cancellation of the second

agreement would have had no effect on the validity of the first agreement as there was no novation and the parties had not cancelled the first agreement.
The application succeeded.
Growthpoint Properties Ltd v SACCAWU & others
[2010] JOL 26099 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6467 / 10
03 / 09 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
Keywords:
Public law – Nuisance – Constitutional rights – Picketing – Infringement of rights
Mini Summary:
The applicant was the owner of s shopping mall, where striking workers made up of the first and further respondents, were picketing during a strike. The applicant obtained an interim interdict against the striking employees, on the ground that their conduct amounted to a nuisance.
Held that the dispute involved balancing the constitutional rights of owners and occupiers to their property, to the environment and to trade on the one hand, and the right of strikers to freedom of expression, to bargain collectively, to picket, protest and demonstrate peacefully on the other hand.
The first question was whether the High Court had jurisdiction over what the first respondent submitted was a labour matter. The court held that its jurisdiction depended on what the cause of action was and how it was framed. The applicant based its case on the common law of nuisance and its constitutional rights to property, to trade and to a healthy environment. Those causes of action fell squarely within the jurisdiction of High Court.
The second question was whether the applicant had locus standi in the matter. The court held that the applicant had an interest as the owner of the premises and the landlord of the tenants conducting businesses on its property to apply to court to protect and enforce its rights. The rights in question were its rights to peaceful and undisturbed occupation of its property, to trade and to a healthy environment.
Next, the court considered the conflicting rights of the parties. The court held that the workers could exercise their rights reasonably without interfering with the applicant, its tenants and the public.
Interference with their rights to the extent that tenants could not conduct business was an unacceptable and unjustifiable limitation on their right to their property, to trade and to a healthy environment.
The interim order was confirmed.
Gani Osman Building Supplies v Brits & others
[2012] JOL 29001 (GNP)
Case Number:
Judgment Date:
A 1063 / 10
12 / 04 / 2012

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
North Gauteng, Pretoria
RG Tolmay, VV Tlhapi JJ
Keywords:
Contract – Claim for payment – Onus of proof
Mini Summary:
The appellant, a supplier of building material, sued the respondents for payment in respect of building material which they bought and then failed to fully pay for.
The first and second respondents denied that they entered into any agreement with the appellant and alleged that they did not owe any money to appellant. The third respondent admitted buying building material from the appellant but denied that she owed appellant the amount claimed as he delivered wood which did not comply with SABS standards, contrary to the quotation that he gave.
After hearing the evidence, the court below refused the appellant’s claim and granted a counter-claim for damages, brought by the third respondent. That led to the present appeal.
Held that the appellant bore the onus of proving his claim on a preponderance of probabilities. It could not be found that he had discharged that onus. On the other hand, the third respondent had adduced sufficient evidence in support of her counter-claim. Finding no misdirection on the part of the court below, the Court dismissed the appeal.
Grey Global Group Inc v Khumalo & another
[2011] JOL 28002 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
725 / 10
28 / 09 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, MML Maya, FR Malan, L Theron JJA, XM Petse AJA
Keywords:
Contract – Option – Sale of shares – Once the holder of a right to an option exercises the right – accepting the offer to buy – a sale is concluded – Prescribed modes of performance of obligations do not make sale conditional Benavidez v Benavidez Court of Appeals of New Mexico (2006) 145 P.3d 117 – Referred to
McMillan Ltd v Warrior Drilling & Eng’s Co 512 So 2d 14, 23 (Ala 1986) – Referred to
Mini Summary:
In 2003, the appellant sold 25.1% of the shares on the second respondent to the first respondent. The sale agreement was made conditional on the conclusion of a shareholders’ agreement. The latter agreement granted the first respondent an option to sell his shares to the appellant after the fifth anniversary of the conclusion of the shareholders’ agreement, at a price to be determined in accordance with a formula. The first respondent exercised the option, but when the price was determined at zero, he asserted that the option was conditional and that he was not obliged to deliver the share certificate to the appellant. The appellant applied for an order compelling the first respondent to deliver the share certificate. The high court held that the option was conditional and dismissed the application. but granted leave to appeal to this Court.
The dispute between the parties centred on the interpretation of three provisions in a clause dealing with the future sales of shares by the parties. In terms thereof, the appellant had the right to purchase the first respondent’s shares on or within 90 days of the fifth anniversary of the agreement (the call right). That right had to be exercised by written notice. It was further provided that the closing for the purchase and sale of shares (the “closing”) pursuant to an exercise of the call right was to be within 60 days after the exercise of the applicable right.
In September 2008, the first respondent exercised his right by sending a written notice to the appellant in accordance with the provisions of the shareholders’ agreement. He undertook in the notice to lodge his share certificate in trust with the company’s auditors within 48 hours, as required by the agreement. The appellant appointed a third party to determine the purchase price of the shares, and using the formula agreed, the third party determined that the price was zero. The first respondent was dissatisfied with that, and argued that while he had “effectively” exercised his right, he was not aware of any sale that had come

into existence as the appellant had not complied with the provisions of the agreement. He contended in that regard that no sale of shares agreement had been drawn up, and there was thus no obligation to sell the shares nor to deliver the share certificate. The basis of his argument was that the exercise of the put right was conditional on closing taking place. The high court accepted that argument.
The appellant’s case on appeal was that the relevant clause dealing with closing, did not impose any conditions, and that once the first respondent had exercised his right to sell the shares, a binding contract of sale came into existence.
Held that once the holder of a right to an option exercises the right – accepting the offer to buy – a sale is concluded. That is the usual construction of an option. It is an irrevocable offer which, when accepted, becomes a binding contract.
The construction of the provisions of the clause dealing with closing, as imposing conditions on the sale, was also incorrect. A condition in the true sense is the occurrence (uncertain at the time of entering into the contract) of an event that is not entirely dependent on the will of any of the parties. In this case, the relevant clause imposed obligations to perform on the exercise of the call rights. The seller was required to deliver the share certificate and the buyer to pay the price. Whereas a condition cannot be made to materialise by any of the parties, each has the right to compel performance of an obligation imposed on the other. Thus once the put right was exercised by the first respondent, he had the right to demand payment of the price and the appellant had the right to compel delivery of the share certificate and transfer form. While citing American case law in support of his case, the first respondent did not point to any authority that suggested that a sale is conditional on closing. And since the contract was governed by
South African law, the relevant clause governed the mode of performance of the parties’ respective obligations and did not make the sale conditional.
The appeal was upheld.
Matadin v Parma & others
[2010] JOL 25834 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4638 / 09
07 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
TR Gorven J
Keywords:
Property – Rights of owners – actio communi dividundo
Mini Summary:
The dispute between the parties in this matter centred around certain immovable property. The title deed reflected the owners as being the applicant, the first respondent and a third party, now deceased ("the deceased") and whose estate representative was the second respondent.
The first respondent and some of the children of the deceased occupied a portion of the property.
According to the third respondent, the deceased died intestate and, accordingly, it would appear that his children would be his intestate heirs. The applicant, the first respondent and the children of the deceased were unable to reach agreement on the use of the property. The first respondent and the children refused to accede to the applicant's request to sell the property. That attitude led to this application.
The cause of action invoked by the applicant was the actio communi dividundo. The underlying rationale is that every co-owner of property may insist on a partition of the property at any time unless there is an agreement between the co-owners not to do so within a certain period.
Held that the principles relating to the actio communi dividundo are that no co-owner is normally obliged to remain a co-owner against his will. The action is available to those who own specific tangible things (res
corporales) in co-ownership, irrespective of whether the co-owners are partners or not, to claim division of the joint property. It may be brought by a co-owner for the division of joint property where the co-owners cannot agree to the method of division. It is for purposes of the action immaterial whether the co-owners possess the joint property jointly or neither of them possesses it or only one of them is in possession thereof. A court has a wide equitable discretion in making a division of joint property.
The court exercised its discretion in favour of selling the property.

Pintado Trading 800 (Pty) Ltd v Fleet Africa (Pty) Ltd
[2010] JOL 25698 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5866 / 09
09 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Hughes-Madondo AJ
Keywords:
Civil procedure – Particulars of claim – Leave to amend – Court's discretion
Mini Summary:
In terms of rule 28 of the Uniform Rules of Court, the plaintiff sought leave to amend their particulars of claim.
In the particulars of claim, the plaintiffs sought a debatement arising from a fiduciary relationship between the parties. The defendants had raised an exception to the claim, leading to the present application. The crux of the defendants' objection was that the plaintiffs had not set out clearly the basis upon which they relied in respect of the legal conclusion sought in their prayer.
Held that the court has discretion to grant an amendment. Such discretion must be exercised judicially in light of the facts and circumstances before it. When deciding whether to grant an amendment, the crucial issue is whether the amendment would cause the other party such prejudice as cannot be cured by an order for costs and where appropriate postponement.
The court exercised its discretion in favour of the plaintiff.
Aveng (Africa) Ltd v Varicor Six (Pty) Ltd t/a Sigma Consulting
[2010] JOL 25924 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1613 / 09
09 / 04 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
CT Sangoni J
Keywords:
Civil procedure – Particulars of claim – Claim for damages – Details of claim – Exception
Mini Summary:
The plaintiff had appointed the defendant as an engineer in a building project. Alleging that the defendant had not performed his contractual obligations with the required care and skill, and setting out the alleged defects in workmanship, the plaintiff claimed damages for breach of contract. The amount claimed was that allegedly spent by the plaintiff in remedying the defects.
The defendant raised an exception to the summons. He contended that there was no nexus, in the particulars of claim, between the sum claimed and the alleged breaches of contract such that the defendant would be enabled to assess the quantum thereof for the purposes of pleading.
Held that the issue of when a declaration or particulars of claim may be excepted to on the basis of it being vague and embarrassing has been addressed in case law. Generally the information in a declaration or particulars of claim need only be sufficient for the defendant to plead thereto. The exception stage is not the time for the defendant to complain that he does not have enough information to prepare for trial or may be taken by surprise at the trial. That comes later.
In casu the defendant contended that the plaintiff had supplied particulars that failed to give the defendant any guidance in respect of assessment of damages. One of the requirements to prove in a claim for damages arising out of a breach of contract, is a causal link between the breach and damages. Another element is that the loss must not be too remote. The breach must be a causa sine qua non for the loss.
The court agreed that the plaintiff was required to detail the remedial work done by it, failing which the defendant would be no position to know the nature and amount of the remedial work. The exception was upheld, and the plaintiff given leave to amend the particulars of claim.

Lob v Carribean Estates (Pty) Ltd
[2010] JOL 26096 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
07 / 16441
30 / 04 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Civil procedure – Plea – Application for amendment
Mini Summary:
The applicant, the defendant in the main action, sought an order allowing him to amend his plea and counterclaim. The plaintiff objected to the amendment on the ground that it would render the plea and counterclaim excipiable as the proposed new pleading was vague and embarrassing and did not disclose a defence to the plaintiff's claim and a valid cause of action in respect of the defendant's counterclaim.
The dispute arose from a two-fold agreement entered into between the parties. The first was referred to as a letter of intent agreement and the second an asset management agreement. The plaintiff claimed to have validly exercised a call option provided for in the letter of intent, pursuant to which it paid the defendant R1 268 350,86 for his 12% share in the asset management agreement. It therefore sought a declaratory that it had acquired the defendant's interest in the net capital profit due to the plaintiff upon a sale of its interest in the asset management agreement. The defendant disputed the validity of the exercising of such call option and contended that the correct amount payable to him was in fact R8.4 million, which was the subject matter of the counterclaim.
Held that the terms of the letter of intent lay at the heart of the defendant's proposed amendment. The defendant referred to a clause in the letter of intent, imposing certain good faith obligations on the parties, the defendant averred that the exercise of the call option was rendered invalid by virtue of the plaintiff's breach of its good faith obligations, in that the plaintiff had not disclosed that it intended to dispose of its interest in the management agreement to a third party. The proposed amended plea and counterclaim was, in many respects, a mere repetition of the existing plea and counterclaim. However, certain new allegations were introduced.
Flowing from Rule 23 of the Uniform Rules of Court, an amendment ought not be allowed when its introduction into a pleading would render such pleading excipiable. Rule 23 deals with a situation where a pleading is vague and embarrassing and lacks averments which are necessary to sustain an action or defence. an amendment should be refused on the grounds of excipiability if it is clear that the amended pleading "will", rather than "may" be excipiable.
The court found that the proposed amended plea did not disclose a defence to the plaintiff's claim for declaratory relief with regard to the exercise of its option rights; nor did the proposed amended counterclaim disclose any cause of action which would entitle the defendant to payment of the amount claimed by him
Chemical Specialities (Pty) Ltd v Humansdorp Paint Centre CC
[2010] JOL 26114 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
227 / 09
30 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Civil procedure – Particulars of claim – Amendment to
Mini Summary:
The plaintiff applied for the amendment of its particulars of claim.
Held that the court will usually allow an application to amend unless it is made mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs. Where, however, the granting of the application for amendment would render the pleading excipiable (as contended by the defendant in this case) the court will not grant an amendment.
The court agreed that the amendment would render the particulars of claim excipiable and accordingly dismissed the application.

Bamfo v RAF
[2011] JOL 27932 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
666 / 08
20 / 10 / 2011
South Africa
High Court
Eastern Cape
Griffiths J
Keywords:
Delict – Motor vehicle accidents – Personal injury – Claim for damages – Loss of income
Mini Summary:
Having sustained serious injury in a motor vehicle accident, the plaintiff claimed damages from the defendant fund.
The defendant accepted that it was liable for 100% of any damages which the plaintiff might establish, and general damages were agreed upon. The question of the quantum of plaintiff's loss of earnings was adjourned, and was the issue now before the court.
Held that the only two issues in dispute were the question of the employment history of the plaintiff and, the question of the contingencies to be applied. During the course of the hearing it became clear that the first issue was to be narrowed down even further and that the only real issue was whether the plaintiff had in fact been earning any income whatsoever as at the time when the accident occurred and, if so, how much. Having regard to the evidence, the court was satisfied that the plaintiff had given a truthful account of his employment history and there was nothing to gainsay his evidence that he was in fact earning a salary of R7 600 per month as at the time when the accident occurred.
On a consideration of all the evidence, together with the various expert reports, and in particular the fact that the plaintiff appeared to have held down jobs or made a living on a freelance basis within the construction industry since he left school up until the time of the accident, and the fact that he was no longer young, the court was of the view that contingency deductions of 5% and 15% in respect of past and future loss of income respectively were reasonable. The amount thus awarded was R1 214 640.
Van Eck & another v RAF (Basson as third party); Basson v RAF
[2010] JOL 25942 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1377 / 07; 1376 / 07
20 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
F Kroon J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Patrimonial loss – Liability for damages –
Assessment of evidence
Mini Summary:
Two actions before the court arose from the same incident.
The plaintiff in the second case was driving his vehicle when he collided with a stationery vehicle. His girlfriend ("the deceased"), who was a passenger in the vehicle with him, died as a result of the injuries she sustained in the collision.
In the first case, the father of the deceased instituted action in terms of the Road Accident Fund Act 56 of
1996, claiming damages for emotional shock and post-traumatic stress disorder, and associated patrimonial loss.
The plaintiff in the second action, sued for damages arising from his own injuries.
The two plaintiffs alleged in the main that the collision was due to the driver of the stationery vehicle, in that he had parked his vehicle on the tarred road and not the gravel roadside. In the alternative, the father of the deceased, claimed that should the insured driver not be found to have been negligent, then the plaintiff in the second action should be found negligent.

Held that the plaintiffs sought to adduce into evidence certain statements which amounted to hearsay evidence. Setting out what was required of them in that regard, the court found that they had not met the requirements, and refused to admit the statements into evidence.
Assessing the evidence, the court found the plaintiff in the second case to be a poor witness. His allegations against he insured driver were without basis and were not supported by the evidence. The claims of both plaintiffs against the insured driver were dismissed.
The claim of the plaintiff in the first action, against the plaintiff in the second action, was upheld.
De Beer v Tshwane Municipal Provident Fund
[2011] JOL 28025 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA / GA / 20332 / 2007 / TD
18 / 08 / 2011
South Africa
Tribunal of the Pension Funds Adjudicator
Johannesburg
Dr EM De la Rey
Keywords:
Pensions – Divorce – Amendment to section 37D of the Pension Funds Act 24 of 1956, so as to accelerate the date of accrual of the benefit to the member spouse and in turn the date on which the divorce benefit accrues to the non-member spouse which is the date of divorce – Financial Services Laws General
Amendment Act 22 of 2008 makes new section 37D retrospective in application
Mini Summary:
The complainant and her husband were divorced in 2006. The divorce order stipulated that the complainant would be entitled to half of her spouse’s pension interest as at date of divorce. When the complainant requested payment, the respondent refused to accede to the request on the basis that the
Pension Funds Amendment Act 11 of 2007, which came into operation on 13 September 2007, does not refer to any divorce orders granted before that date nor does it state that it applies retrospectively to any divorce orders prior to 13 September 2007.
Held that the issue for determination was whether or not the respondent’s refusal to pay the complainant her 50% portion of pension interest was reasonable and justifiable in terms of the Act, read together with the Divorce Act 70 of 1979.
Since the issuing of the complainant’s divorce order, the law had changed. In terms of section 7(8)(a)(i) of the Divorce Act, a court granting a decree of divorce may make an order that the share of the pension interest allocated to the non-member spouse be paid by the fund to such spouse when any pension benefits accrue in respect of the member spouse which can either be on retirement, resignation, retrenchment or dismissal. As that undermined the clean-break principle, the Pension Funds Amendment
Act sought to address the problem by amending section 37D of the Pension Funds Act 24 of 1956. The new section 37D(1)(e) accelerates the date of accrual of the benefit to the member spouse and in turn the date on which the divorce benefit accrues to the non-member spouse which is the date of divorce.
To deal with the issue of retrospectivity, section 37D(4)(d) of the Financial Services Laws General
Amendment Act 22 of 2008 states that any portion of the pension interest that is payable to a nonmember spouse that was granted prior to 13 September 2007 is deemed to have accrued to the nonmember spouse on 13 September 2007. Section 37D(4)(a), in turn states that the pension interest that is assigned to the non-member spouse is deemed to accrue to the member spouse on the date on which the divorce order was granted. The amended section 37D of the Pension Funds Act applies to divorce orders granted prior to 13 September 2007 and the mere fact that the date of accrual of the benefit to the member spouse is accelerated does not mean that the Amendment Act applies retrospectively. The respondent’s submission that it could not apply the Pension Funds Amendment Act as if it applied retrospectively could not be sustained, and its decision to refuse the complainant’s request for payment was set aside.

Stow & another v SA Post office Ltd & another
[2010] JOL 25920 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1694 / 08
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
F Kroon J
Keywords:
Pension funds – Disability benefits – Computation of – Applicable fund rule
Mini Summary:
The plaintiffs used to be employed by the first defendant. In 2002, their services were terminated on grounds of ill health. At all material times they were members of the second defendant, a pension fund.
The fund’s rules set out the benefits payable to members such as the plaintiffs. Where the member had become disabled as a result of an injury arising in the course of his employment, he would retire with increased benefits.
Both plaintiffs had, on separate occasions, been held up in armed robberies whilst at work. The psychological trauma suffered by each of them as a result, led to their respective retirements. Each of them instituted action, claiming a declaratory order that he r she was entitled to the enhanced benefits referred to in the preceding paragraph. However, the defendants did not agree with that, and calculated the disability payments in terms of another provision of the fund’s rules. The fund's board of trustees delegated its power to decide whether the plaintiffs were disabled to the first respondent's general manager of human resources.
In a special stated case, the plaintiffs sought a ruling by the court on which provision of the fund's rules applied to the computation of their disability benefits.
Held that while the general manager had found that the plaintiffs were disabled as defined in the fund's rules, he did not find that the disability was the result of an injury arising out of and in the course of the plaintiffs' employment. The court could not sanction the general manager's conclusions. It was clear to the court that the disability of the plaintiffs was post-traumatic stress disorder which was a direct result of the armed robbery at their workplaces. The medical reports handed into evidence confirmed that. Therefore, the general manager's conclusion to the contrary amounted to an unreasonable exercise of his discretion.
The court issued a declaratory order confirming the plaintiffs' averments.
Hamnca v Alexander Forbes Core Plan (Provident Section) & others
[2011] JOL 28026 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
PFA / GA / 4175 / 2011 / RK
11 / 08 / 2011
South Africa
Tribunal of the Pension Funds Adjudicator
Johannesburg
Dr EM De la Rey
Trusts and Estates – Pensions – Death benefit – Distribution of – Departure from wishes expressed by deceased fund member in nomination form – Although the deceased may have expressed an intention to benefit a nominated beneficiary, it did not necessarily follow that a benefit would in fact be awarded to the nominee because the deceased’s intentions as contained in the nomination form were only one of the factors taken into consideration when allocating a death benefit – Trusts and Estates – Pensions – Death benefits – Duties of fund’s trustees – Trustees must conduct a thorough investigation to determine the potential beneficiaries, to thereafter decide on an equitable distribution and finally to decide on the most appropriate mode of payment of the benefit allocated – Trustees must properly exercise discretion in above regard –
Mini Summary:
The Pension Funds Adjudicator received a complaint from the brother of a member of the first respondent
(“the fund”) who died in 2009. At the time of his death, the deceased was still an active member of the fund. Upon his death, a death benefit in the amount of R26 422,15 became available for distribution. The board of trustees resolved to allocate the death benefit to the deceased’s three minor children, awarding
20% to his 17-year-old daughter, 25% to his 11-year-old son, and 55% to his 2-year old son.
It was unclear whether the complaint was submitted on behalf of the deceased’s mother in her personal capacity or in her capacity as the care-giver of the two older children of the deceased. The complainant submitted that the trustees ought to have respected the deceased’s wishes as set out in the beneficiary nomination form and paid out the death benefit to his mother.

Held that the issue for determination was whether or not the distribution of the death benefit by the first respondent was in accordance with the provisions of section 37C of the Pension Funds Act 24 of 1956. The payment of death benefits is regulated by section 37C of the Act, read in conjunction with the definition of a “dependant” in section 1. The primary purpose of the section is to protect those who were financially dependent on the deceased during his lifetime.
Although the deceased may have expressed an intention to benefit a nominated beneficiary, it did not necessarily follow that a benefit would in fact be awarded to the nominee because the deceased’s intentions as contained in the nomination form were only one of the factors taken into consideration when allocating a death benefit.
In dealing with payment of death benefits, the fund’s trustees must conduct a thorough investigation to determine the potential beneficiaries, to thereafter decide on an equitable distribution and finally to decide on the most appropriate mode of payment of the benefit allocated.
The law recognises three categories of dependants based on the deceased member’s liability to maintain such a person, namely, legal dependants, non-legal dependants and future dependants. A member is legally liable for the maintenance of a spouse and children. Parents may qualify as dependants but an allegation of a parent-child relationship is insufficient and the parent must prove the need for support. In order for a child to be legally liable to maintain his parents, the parents must be indigent.
The fact that a person is a nominee does not automatically entitle the person to share in the benefit. The fund’s trustees have to exercise discretion in determining who is to share in the benefit and in what proportions. The factors taken into account in the exercise of that discretion include the age of the parties; the relationship with the deceased; the extent of the dependency; the financial affairs of the dependant; and the future earning potential and prospects of the dependants.
The adjudicator could not find that the trustees had exercised their discretion wrongly. As long as the trustees properly considered all the relevant factors, ignored irrelevant ones and did not unduly fetter their discretion, no court or reviewing tribunal would lightly interfere with their decision. No grounds existing for setting aside the decision, the complaint was dismissed.
Johannesburg Municipal Pension Fund v Pension Funds Adjudicator & others
[2010] JOL 25978 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 46280
11 / 08 / 2010
South Africa
High Court
Johannesburg, South Gauteng
GSS Maluleke J
Keywords:
Pensions – Pension benefit – Computation of – Complaint – Time-barring
Mini Summary:
The second and third respondents ("the employees") were employed by the fifth respondent, a local municipality, until they were dismissed on grounds of incapacity. During the course of their employment, they were members of the applicant pension fund. The employees were medically boarded in 1995. They thenceforth began to receive their pension from the applicant and would continue to receive their pension for life.
The applicant calculated the pension of the employees by applying the rate of 1,7516% in accordance with the provisions of the fund's rules. The rate in question was the prescribed rate for members whose exact age at retirement was under 60 years. In their complaint to the adjudicator, the employees maintained that the applicant had incorrectly calculated their pension as the pensionable age of 63 should be the basis for determining the percentage rate.
Pursuant to the adjudicator's determining that the applicant should recalculate the pension of the employees at the rate of 2,0108% as was contended for by them, the applicant noted the present appeal.
The first ground of appeal was in the form of an in limine objection that the employees' complaints to the adjudicator were time barred in terms of section 301 of the Pension Funds Act 24 of 1956 and were also prescribed in terms of section 12 of the Prescription Act 68 of 1969. Secondly, the applicant contended that on a proper interpretation of its rules, the pensions of members whose membership was terminated when their ages were below 60 years had to be calculated at the rate of 1,7516% and not at the rate of
2,0108% as determined by the adjudicator.
Held that it was common cause that the pensions were calculated in 1995, and the complaint was submitted to the adjudicator some 10 years later. The court confirmed that the complaint to the adjudicator was time barred in terms of section 301 of the Pension Funds Act and was also prescribed in terms of section 12 of the Prescription Act. The adjudicator did not and could not extend the period of

prescription in terms of section 301(3), and had no power or authority to revive a prescribed complaint in circumstances where the complaint had already prescribed in terms of the Prescription Act.
Secondly, the adjudicator erred by equating the "exact age of retirement" to the pensionable age of 63 years in determining the percentage rate of calculation.
The appeal was upheld on both grounds.
Mokala Beleggings (Pty) Ltd & another v Minister of Rural Development & Land Reform &
others
[2012] JOL 28933 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
276 / 2011
23 / 03 / 2012
South Africa
Supreme Court of Appeal
L Mpati P, SA Majiedt, MS Navsa, S Snyders, MJD Wallis JJA
Keywords:
Contract – Sale agreement – Deliberate delay by purchaser – Liability for mora interest –– Mora ex persona –– Where a contract does not contain an express or tacit stipulation with regard to the date when performance is due, a demand is needed to place the debtor in mora – –Words and phrases – Mora –
Means default or delay and finds application when the consequences of a failure to perform a contractual obligation within the agreed time are determined
Mini Summary:
The appellants owned immovable property which they agreed to sell to the state as the property was the subject of a land claim. As the property consisted of two separate pieces of land, two agreements of sale were drawn up. The agreements provided, in clause 5.2 that the transferring attorney would effect the transfer of the properties in the name of the National Department of Land Affairs (“the department”) within two months from the date of signature of the agreement by all concerned parties. The conveyancers were ready to lodge papers in order to effect the transfer during the middle of June 2009 but were instructed by the department, to delay lodgement indefinitely due to a lack of funds. When letters of demand sent by the appellants yielded no results, the appellants launched an urgent application in the Land Claims Court for various orders, including a claim for mora interest. That galvanised the department into action, and payment of the purchase price was made. However, the department opposed the claim for mora interest. The Land Claims Court refused to grant the mora interest claimed by the appellants, leading to the present appeal. It was common cause that the state was in mora regarding the performance of its obligations before the application was brought. However, the department resisted the claim for mora interest on the ground that it was not obliged in law to pay interest. The Land Claims Court decided the matter on the basis that the agreement did not make provision for the payment of interest; that payment of the purchase price depended on the registration and transfer of the property and that the appellants had failed to show when registration was effected and when payment was received in order to calculate a date from which interest should run.
The appellants’ case for mora interest was based in the main on mora ex re in reliance on clause 5.2 of the contracts and secondly, on mora ex persona by virtue of the written letters of demand.
Held that the question on appeal was whether a purchaser who deliberately delays effecting the transfer of property and payment of the purchase price can be held liable for mora interest.
Mora means default or delay and finds application when the consequences of a failure to perform a contractual obligation within the agreed time are determined. Where a contract fixes the time for performance, mora ex re flows from the contract itself and there is no need for a demand to place the debtor in mora. The appellants relied on clause 5.2, referred to above, for mora ex re. in finding that clause 5.2 was to be regarded as pro non scripto, since the Registrar of Deeds, and not the department’s conveyancers, was responsible for effecting the registration of transfer of the property, the Land Claims
Court committed a misdirection. What was required of the Land Claims Court was to interpret the clause, not to summarily dismiss it in the fashion that it did. While the clause was, on the face of it, plain and

unambiguous, it was fraught with difficulties. The present court held that clause 5.2 could not and did not establish mora ex re.
Accordingly, the breach provisions in the sale agreements and the written notices had to be considered.
Where a contract does not contain an express or tacit stipulation with regard to the date when performance is due, a demand is needed to place the debtor in mora, ie mora ex persona. Mora in the present matter concerned a delay in the payment of the purchase price as a result of the department’s delay in having the registration of transfer effected by its conveyancers. All that is required in our law is proof that the debtor is in mora.
The department did not deny receipt of the notices in question, but raised a bare denial that the notices had been sent as alleged. In that regard, the court held that the department had not raised a real and bona fide factual dispute in its answer but contented itself with an evasive answer to which it was bound.
The letters were sent to the department’s postal address and copied to the Deputy Director of Finance in the office of the Chief Land Claims Commissioner and to the department’s conveyancers. The agreements designated the Deputy Director of Finance as the official responsible for making payment of the purchase price. The inference was compelling that receipt of the letters could not be denied in view of that fact. The appellants had consequently established that the letters of demand had been received and that the department had been properly placed in mora. In the circumstances, mora interest commenced running
28 days after the date of dispatch of the letters by pre-paid registered post, ie as from 28 November
2009.
It was common cause that the appellants had suffered loss as a result of the delay. The court upheld the appeal, replacing the Land Claims Court’s order with one in terms of which the respondents were directed to pay interest as claimed.
Seletela v SA Rail Commuter Corporation Ltd
[2012] JOL 28709 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
46347 / 09
16 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
R Mathopo J
Keywords:
Delict – Personal injury – Claim for damages – Liability – Alleged negligence
Mini Summary:
The plaintiff sued the defendant for damages, alleging that she had sustained injury when she fell onto the platform. She alleged that the accident was due to the negligence of the defendant or its employees in,
inter alia, allowing the train to be overcrowded with the result that the plaintiff was pushed off the train whilst it was still in motion, and in allowing the train to be in motion whilst the doors were open.
Denying liability, the defendant alleged that the plaintiff had sustained injury when she was bumped by a commuter while she was running to catch the train.
Held that the issue to be decided was whether or not the plaintiff was indeed inside the train and if so whether or not plaintiff was injured as alleged in her particulars of claim.
There were irreconcilable differences regarding the above issues. On a proper assessment of the evidence, the court found that the events on the day in question did not occur as pleaded by the plaintiff but as alleged by the defendant. No finding of liability on the part of the defendant could be made and the claim was dismissed.
Swartbooi v Road Accident Fund
[2012] JOL 28896 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
20352 / 2008
17 / 04 / 2012
South Africa
High Court
Western Cape, Cape Town
Mantame AJ

Delict – Motor vehicle accidents – Claim for damages – Emotional shock – Section 18 of Road Accident
Fund Act 56 of 1996 – Effect of section 18 –
Mini Summary:
The plaintiff’s son died as a result of injuries sustained in a motor vehicle accident that occurred on 24
September 2006. as a result of the death of her son, the plaintiff suffered emotional shock and psychological trauma.
The defendant was the Road Accident Fund (“RAF”) established in terms of Road Accident Fund Act 56 of
1996, and was responsible for payment of compensation in terms of the said Act for loss or damage wrongfully caused by the driving of motor vehicles.
Held that the case raised the important legal question of whether the plaintiff’s claim for emotional shock was limited in terms of section 18 of the Act.
Section 18(1) was set to operate in a situation where the claim is for compensation of third parties, or losses resulting from bodily injuries or death of a person who was conveyed in an insured motor vehicle, ie a passenger. Such a claim is limited to an amount of R25 000. In casu, the plaintiff did not fall under the category of persons mentioned in section 18. She suffered from emotional shock as a result of the negligent driving of the insured driver that caused death of her son. The Court’s conclusion was that the claim or liability should not be capped or limited in terms of section 18 of the Act.
The plaintiff was therefore entitled to whatever damages she could prove.
Jomovest Twenty-Five CC t/a Chas Everitt City Bowl v Engel & Volker Western Cape (Pty) Ltd
[2010] JOL 25791 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10887 / 04
17 / 06 / 2010
South Africa
High Court
Western Cape, Cape Town
E Moosa J
Keywords:
Civil procedure – Plea – Admission – Application to withdraw admission
Mini Summary:
The defendant in the main action between the parties herein, applied to withdraw an admission made in its plea to the plaintiff's claim for commission.
Held that the plea amounted to a confession and avoidance. The defendant had made certain clear and unequivocal admissions which constituted the confession. It then in clear and unequivocal terms, denied that there was an oral agreement between the parties that the commission would be shared equally. Such denial constituted the avoidance. The result was that the plaintiff was called upon to prove the oral agreement in question.
The general rule is that an application to amend pleadings will be granted unless mala fide, or prejudicial to the other party, and cannot be compensated by a costs order or postponement. The general rule for withdrawal of admissions is that it will not be allowed unless evidence is tendered showing a reasonable basis for making the mistaken admission.
The court found that the defendant had failed to establish the necessary jurisdictional fact, and the application was thus dismissed.
Dakin NO & another v Cronje NO
[2010] JOL 26009 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Plea – Exception to
1321 / 09
26 / 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
M Makaula AJ

Mini Summary:
In their capacities as trustees of a family trust, the plaintiffs sued the defendant in his capacity as executor of a deceased estate. The trust had entered into an agreement of lease with the deceased. It subsequently sued for non-payment of rentals. The defendant defended the action. Leading to an exception to the plea by the trust. In the exception, it was contended that the plea did not disclose a defence.
Held that rule 22(2) of the Uniform Rules of Court provides that the defendant in his plea shall either admit or deny or confess or avoid all the material facts alleged in the summons, and shall clearly and concisely state what material facts he relies upon. The defendant in this case failed to meet the latter requirement. The exception was upheld, and the defendant was granted leave to amend his plea within a stipulated time.
Lob v Carribean Estates (Pty) Ltd
[2010] JOL 26096 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
07 / 16441
30 / 04 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Civil procedure – Plea – Application for amendment
Mini Summary:
The applicant, the defendant in the main action, sought an order allowing him to amend his plea and counterclaim. The plaintiff objected to the amendment on the ground that it would render the plea and counterclaim excipiable as the proposed new pleading was vague and embarrassing and did not disclose a defence to the plaintiff's claim and a valid cause of action in respect of the defendant's counterclaim.
The dispute arose from a two-fold agreement entered into between the parties. The first was referred to as a letter of intent agreement and the second an asset management agreement. The plaintiff claimed to have validly exercised a call option provided for in the letter of intent, pursuant to which it paid the defendant R1 268 350,86 for his 12% share in the asset management agreement. It therefore sought a declaratory that it had acquired the defendant's interest in the net capital profit due to the plaintiff upon a sale of its interest in the asset management agreement. The defendant disputed the validity of the exercising of such call option and contended that the correct amount payable to him was in fact R8.4 million, which was the subject matter of the counterclaim.
Held that the terms of the letter of intent lay at the heart of the defendant's proposed amendment. The defendant referred to a clause in the letter of intent, imposing certain good faith obligations on the parties, the defendant averred that the exercise of the call option was rendered invalid by virtue of the plaintiff's breach of its good faith obligations, in that the plaintiff had not disclosed that it intended to dispose of its interest in the management agreement to a third party. The proposed amended plea and counterclaim was, in many respects, a mere repetition of the existing plea and counterclaim. However, certain new allegations were introduced.
Flowing from Rule 23 of the Uniform Rules of Court, an amendment ought not be allowed when its introduction into a pleading would render such pleading excipiable. Rule 23 deals with a situation where a pleading is vague and embarrassing and lacks averments which are necessary to sustain an action or defence. an amendment should be refused on the grounds of excipiability if it is clear that the amended pleading "will", rather than "may" be excipiable.
The court found that the proposed amended plea did not disclose a defence to the plaintiff's claim for declaratory relief with regard to the exercise of its option rights; nor did the proposed amended counterclaim disclose any cause of action which would entitle the defendant to payment of the amount claimed by him
Du Plessis v Stander
[2014] JOL 31992 (FB)
Case Number:
Judgment Date:
570 / 2014
03 / 07 / 2014

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Free State, Bloemfontein
NM Mbhele AJ
Keywords:
Civil procedure – Particulars of claim – Exception to
Mini Summary:
The plaintiff sued the defendant in a defamation action, alleging that the defendant had mentioned within earshot of third parties, the allegation that the plaintiff had engaged in an extra-marital relationship while his wife was alive. The defendant filed an exception to the particulars of claim on the ground that they were vague and embarrassing.
Held that an exception that a pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations will not be expunged. It must be determined in each case whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice.
In the present case, the defendant averred that the details regarding the time and place when the defamatory statements were made were not provided. High Court Rule 18(4) provides that every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto. A pleading may be vague if it is either meaningless or capable of one meaning, or if it lacks the particularity and clarity necessary to inform the other party of the case to be answered. The Court could not find that the particulars of claim were so wanting in clarity and particularity that the defendant should have difficulty pleading thereto.
The exception was dismissed with costs.
Bezuidenhout v Lindelo Projects CC and another
[2014] JOL 31987 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4990 / 2013
26 / 06 / 2014
South Africa
High Court
Free State, Bloemfontein
NM Mbhele AJ
Keywords:
Civil procedure – Particulars of claim – Breach of contract – Exception
Mini Summary:
The plaintiff sued the defendants, arising from an alleged breach of contract. The parties had entered into a contract, using a pro-forma document to express their intentions. The defendant argued that on the face of the contract, it showed that the parties did not intend to give the plaintiff a sole mandate to sell the property. The reference in the pro-forma document to “multi-listing services” had been deleted, and the space meant for the identification of the person in whose favour the mandate was granted, had been left blank and scratched out.
Held that an exception that a pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations will not be expunged. It must be determined in each case whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice. The excipient must work out his case for embarrassment by reference to the pleadings alone. The Court will not decide by way of exception, the validity of an agreement relied upon, or whether a purported contract may be void for vagueness.
In the present case, the dispute regarding the contract could not be resolved at the present stage of the proceedings. The Court was not of the view that the particulars of claim lacked particularity and clarity so that the first and second defendants would have difficulty pleading thereto.
The Court dismissed the exception.

Becker v Member of the Executive Council for the Department of Economic Development and
Environmental Affairs and others
[2014] JOL 31969 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3366 / 2013
24 / 06 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
G Goosen J
Keywords:
Civil procedure – Pleadings – Amendment of – Failure to object – Effect of
Mini Summary:
The applicant’s property sustained damage when a nearby river flooded. The Department of Water Affairs reported that the problem was caused by the diversion of water from the river. On learning of the report, the applicant applied in terms of section 18(1) of the Promotion of Access to Information Act 2 of 2000
(“the Act”), to the first, second and third respondents, requesting access to records relevant to the application to divert water into river’s catchment area. The dispute with the first and third respondents had been settled and the Court was concerned with only the third respondent, who had refused the applicant’s request.
The present application was to compel production of the requested information.
In its notice of motion the applicant sought orders for the production of the information only against the first and second respondents, although the terms of the notice of motion indicated that it sought a cost order against all of the respondents. On 17 January 2014, the applicant filed a notice of intention to amend its notice of motion to introduce reference to the third respondent. The respondents did nothing in response to that.
Shortly before the matter was to be heard the third respondent applied for condonation for the late filing of its heads of argument in which two points in limine were raised. The third respondent raised the legal argument in its heads of argument that the amendment was of no force and effect. It also raised another legal point relating to the alleged failure to comply with the provisions of the Act. The contention was that the applicant’s failure to file its amended notice of motion within the time period provided for in rule 28(5) had the effect that such amendment had lapsed and, accordingly, that on the notice of motion as it originally read, no substantive relief was sought against the third respondent.
Held that absent the delivery of amended pages pursuant to rule 28(5), there is in fact no amendment.
Accordingly, the failure to deliver an amendment within the stipulated time period cannot have the effect that such “amendment” lapses. Rule 28(5) confers on a party seeking to amend its pleadings a right to do so in the light of the absence of an objection and a deemed consent to such amendment. Where a party exercises the right to amend pursuant to no objection and a deemed consent, but does so outside of the time period stipulated in rule 28 (5), such step may constitute an irregular step. However, the third respondent did not react to the allegedly irregular filing of the amended notice of motion timeously and within the time periods provided for in rule 30.
Regarding the alleged failure to comply with the provisions of the Act, the Court pointed out that the application was not brought in terms of the latter Act, but in terms of the Promotion of Access to
Information Act.
The third respondent’s objections were dismissed and the application succeeded.
Van Reenen v Santam Limited
[2014] JOL 31528 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
623 / 12
29 / 05 / 2013
South Africa
Supreme Court of Appeal
Maya, Leach, Theron, Willis JJA , Meyer AJA
Keywords:
Civil procedure – Prescription – When debt claimed in terms of section156 of the Insolvency Act 24 of
1936 becomes due under section 12(1) and (3) of the Prescription Act 68 of 1969 – Prescription running

from date of winding-up of debtor, and where summons was issued over three years after the date, claim had prescribed
Mini Summary:
In 1993, the appellant entered into an agreement with a supplier, for the supply of tallow to be used as an ingredient in the appellant’s cattle feed. In 1997, problems concerning the quality of the tallow arose.
According to the appellant, between February and August 1997, he was supplied with tallow that had latent defects in the form of water and impurities which substantially impaired its utility and caused him damages. He therefore sued the supplier for breach of warranty and damages resulting from the latent defects. Before the matter could be heard, the supplier was liquidated. However, during the material time, the supplier was insured by the respondent (“Santam”) who indemnified the supplier against any liability incurred against third parties for claims arising from the sale and supply of defective tallow up to the sum of R1,5 million.
In January 2004, the appellant issued summons against Santam for payment of the sum of R1,5 million for which Santam was obliged to indemnify the supplier under the insurance policy. The claim was brought on the basis that the contract of insurance obliged Santam to indemnify the supplier towards a third party as contemplated in section 156 of the Insolvency Act 24 of 1936.
Santam disputed liability and raised a special plea that the appellant’s claim had been extinguished by prescription under section 11 of the Prescription Act 68 of 1969 because his summons was issued more than three years after the debt became due. It was argued that the claim became due upon application for
Abakor’s winding-up, on 10 October 2000, alternatively on 31 October 2000 when it was made final. It was further contended that the appellant knew the debtor’s identity and the facts from which the debt arose; or could have acquired such knowledge by the exercise of reasonable care by the dates of Abakor’s provisional and final winding-up, alternatively 27 November 2000 when he admittedly became aware of the liquidation. In his replication, the appellant denied that his claim had prescribed. He pleaded that the debt became due no earlier than 10 April 2001 when Santam repudiated the supplier’s claim for indemnification arising out of liquidators’ failure to comply with certain obligations under the insurance contract. Thus, it was contended, the period of prescription ran afresh from that date.
The court below dismissed the claim on the basis that the appellant’s right to institute action against
Santam arose when the supplier was liquidated on 31 October 2000, that his summons was therefore late and that prescription had not been interrupted.
On appeal, the Court had to determine when the appellant’s claim became due to determine if it was extinguished by prescription.
Held that in terms of section 12 of the Prescription Act, prescription commences running as soon as the debt is due. A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises - provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care. For the debt to be due, there must be a debt immediately claimable by the creditor or, put differently, there must be a debt in respect of which the debtor is under an obligation to pay immediately.
The Court examined the appellant’s contention.
..
Authorities and the clear wording of section 156 showed that its provisions create a right which does not exist before insolvency. Whilst it allows the third party to exercise the insured’s rights against the insurer, it nonetheless confers upon the third party no greater rights than those enjoyed by the insured. And, importantly, the section does not transfer to, nor vest the existing rights of an insolvent in the third party. The section rather creates a new and distinct cause of action for the third party, on the sequestration of the insured, as a means to recover from the insurer precisely what the latter owes the insured under the insurance contract.
Thus, the appellant’s cause of action against Santam had fully accrued in terms of section 12(3) of the
Prescription Act by the date of winding-up of the supplier. As summons was issued over three years after that date, the claim had prescribed. The appeal was accordingly dismissed.
Mzileni v Minister of Safety & Security
[2010] JOL 26065 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
488 / 09
03 / 09 / 2009
South Africa
High Court
Eastern Cape, Mthatha
Miller J

Delict – Claim for damages – Unlawful arrest – Detention – claim for damages
Mini Summary:
The plaintiff sued the defendant for damages for unlawful arrest and detention and deprivation of liberty.
She testified that she had been visited by the police at her home, and informed that she had to accompany them to the police station as a certain police officer had a case against her.
Held that the court found the plaintiff not to be a satisfactory witness. Her description of the events surrounding the incident, and the duration of her stay at the police station did not add up.
Accepting certain aspects of the plaintiff's evidence, the court still found that the request by the police for the plaintiff to go to the police station did not in itself constitute an arrest or a deprivation of the plaintiff's freedom. However, the insistence by the police officers that the plaintiff immediately go with them in the police van to the police station was both unnecessary and unreasonable in the circumstances. By causing the plaintiff to get into the back of the police van the police officers assumed control over her movements and accordingly arrested her and deprived her of her freedom unlawfully.
The plaintiff was awarded R15 000 as damages.
Jordaan v Minister of Safety & Security
[2010] JOL 25919 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2012 / 08
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
R Pillay J
Keywords:
Delict – Shooting by police – Claim for damages – Onus of proof
Mini Summary:
After being shot and injured by members of the South African Police Services, the plaintiff sued the defendant for damages. The cause of action was based on an alleged deliberate and intentional assault by shooting, alternatively reckless or negligent shooting by a member of police, acting within the course and scope of his employment of the defendant.
Only the issue of the defendant's liability was required to be determined.
Held that the defendant bore the onus of proving that the shooting was justified. The versions of the parties differed drastically, and the court found that the overall probabilities favoured the version of the plaintiff. His version was accepted as being probably true and that of the defendant rejected as improbable.
The defendant, having failed to discharge the onus as set out above, was held liable for plaintiff's damages arising out of the incident.
Pangarker v Botha and another
[2014] JOL 32106 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
446 / 13
29 / 05 / 2014
South Africa
Supreme Court of Appeal
Mthiyane DP, Lewis, Mhlantla, Wallis JJA, Legodi AJA
Civil procedure – Failure by court to postpone hearing mero motu, and proceeding in absence of party –
Whether amounting to gross irregularity – History of postponements and competing right of opposing party to have matter brought to finality justifying refusal of postponement – Civil procedure – Trial –
Postponements – Where a postponement is sought, it is determined at the court’s discretion, and a party seeking a postponement must demonstrate a full and satisfactory explanation of the circumstances’ underlying the indulgence
Mini Summary:

The divorce proceedings between the respondents came before the appellant as acting Magistrate. A divorce order was granted together with an order for the partial forfeiture of the benefits of the marriage.
The first respondent launched an application in the High Court, to review and set aside the proceedings and the judgment. Granting the review of the divorce proceedings, the High Court ordered that the matter be referred back to the regional court for trial de novo before a Regional Magistrate other than the appellant. The appellant and the first respondent were ordered to pay the second respondent’s costs jointly and severally on the scale as between party and party. Furthermore, they had to bear their own costs in the review application. The present appeal was against that decision.
Held that the first issue for determination was whether the appellant had committed a gross irregularity by not postponing the trial mero motu and proceeding with the trial in the absence of the first respondent when she was aware that the attorney he wished to engage was not available on the days allocated for the hearing. The first respondent alleged that his rights to be heard and to be afforded a fair trial were violated. The second issue was whether, in the event that the latter constituted a gross irregularity, the appellant should be held liable for the costs of the review application in her personal capacity.
The High Court’s granting of the review application was based on its view that the appellant should have
mero motu postponed the matter to enable the first respondent to obtain a legal representative of his own choice and that failure to do so resulted in him not getting a fair trial. On appeal, it was accordingly necessary to determine whether a failure to consider a postponement mero motu constituted a gross irregularity sufficient to ground a review application. Section 24 of the Supreme Court Act 59 of 1959 outlines the grounds upon which the proceedings of inferior courts may be brought under review before a provincial division. In terms thereof, the grounds of review of proceedings of inferior courts include an interest in the cause, bias, malice or the commission of an offence on the part of the presiding judicial officer, and gross irregularity in the proceedings. Rule 31(1) of the Magistrates’ Court Rules provides that the trial of an action or the hearing of an application or matter may be adjourned or postponed by consent of the parties or by the court, either on application or request or of its own motion. Where a postponement is sought, it is determined at the court’s discretion. A party seeking a postponement must demonstrate a full and satisfactory explanation of the circumstances’ grounding the indulgence.
The question of whether the appellant was obliged to postpone the trial mero motu after refusing the recusal application required the court to consider any prejudice suffered by the parties, the history of the proceedings, the first respondent’s numerous struggles with his legal representation and the circumstances and competing rights of the second respondent. The Court found that the appellant’s approach was appropriate in the circumstances. She was faced with a trial that had already been postponed three times to accommodate the first respondent, and the second respondent clearly wished to achieve finality. She considered what was fair to both parties, including the possibility of a postponement, and decided that the matter should proceed. The record showed that she deliberated properly before reaching that decision. Her conduct could not be faulted. The judgment of the High Court in finding that the failure to postpone the trial constituted a gross irregularity was not supported by the facts. It failed to attach any weight to the competing right of the second respondent to have the dispute settled swiftly, and did not take into account the history of postponements in the matter. The first respondent’s right to legal representation had to be considered against that backdrop. He had ample time to secure himself a legal representative who was both well-apprised of the dispute and available to attend the Court proceedings, but failed to do so.
Upholding the appeal, the Court replaced the High Court order with one dismissing the review application.
Thompson v Investec Bank Limited
[2014] JOL 31990 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
864 / 2010
01 / 07 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Civil procedure – Sequestration order – Rescission application – Postponement application – Applicable principles – Locus standi
Mini Summary:
The applicant was a former trustee of a trust. Relying on a loan agreement entered into with the trust, the respondent bank sued the trustees (including the applicant) in their representative capacities, alleging that the trust had breached its obligations under the loan agreement. The trustees did not enter an appearance to defend and judgment was granted by default. In February 2013, the bank obtained a final sequestration order against the trust. An application for rescission was launched on 4 October 2013, some seven and a half months after the sequestration.

The applicant later applied for a postponement. The Court dismissed the application, and now furnished its reasons for so doing, as well as its judgment in the main action.
Held that as a party seeking a postponement is seeking an indulgence, he must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised. The court is entrusted with a discretion as to whether to grant or refuse the indulgence, and should be slow to refuse a postponement where the reasons for the applicant's inability to proceed have been fully explained. The prejudice that the parties may suffer must be considered and the usual rule is that the party who is responsible for the postponement must pay the wasted costs.
The Court was not satisfied that the applicant had fully explained the reasons for the delay and accordingly her inability to proceed. The postponement was therefore refused.
Another issue addressed was that of the applicant’s locus standi. The Court considered whether she had brought the application in her capacity as trustee or in her personal capacity. It found that she had brought the application on her own and only in her personal capacity. As she had no locus standi to bring the application for rescission of judgment whether in her personal capacity or on behalf of the erstwhile trustees, the application fell to be dismissed on that ground alone.
Even assuming that the application was brought on behalf of the trustees in the insolvent estate of the trust (which it was not) no case for rescission had been made whether in terms of rule 42, rule 31 or under the common law.
Emfuleni Resorts (Pty) Ltd & another v Mazizini Community & others (Prudhoe Community
intervening)
[2011] JOL 27935 (SCA)
Case Number: 655 / 2010
Judgment Date: 23 / 09 / 2011
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
LTC Harms DP, KK Mthiyane, S Snyders, LO Bosielo JJA, XM Petse AJA
Keywords:
Civil procedure – Postponement – Principles governing the granting or refusal of a postponement – Good cause for the postponement is one of the fundamental preconditions to the granting of an application for postponement – Property Law – Land – Restitution of land rights – Competing claim for land not brought to Land Claims Court’s attention due to failure by Regional Land Claims Commissioner – As competing claimant had shown that it was affected by the order made by the Land Claims Court, the order was rescinded and the matter remitted to the court a quo for reconsideration – Property Law – Land –
Restitution of land rights – Validity of claim – Where claimant had established an arguable case, it was entitled to have the claim considered by the Land Claims Court –
Mini Summary:
Deciding on a claim for restitution of land rights, the Land Claims Court, in terms of section 35(1) of the
Restitution of Land Rights Act 22 of 1994 (‘the Act”), awarded the first respondent (the Mazizini community) land on which a hotel owned by the appellants was located. The appellants were granted leave to appeal to the present Court. Their attack on the Court’s judgment was confined to the question of whether the order granted was appropriate. In their appeal the appellants contended for a compensatory award instead.
Prior to the hearing of the appeal, the Prudhoe community, a community which was not involved in the proceedings in the court a quo, applied for the rescission of the Land Claims Court order awarding restoration of the relevant properties to the first respondent.
Before the Prudhoe community’s rescission application was heard, the third respondent (the Regional Land
Claims Commissioner) applied for a postponement of the appeal and the rescission application as he needed time to determine the validity of the claim by the Prudhoe Community. The latter community and the Mazizini community had each lodged their claims with the third respondent at about the same time.
The third respondent proceeded to investigate and pursue the claim of the Mazizini community, and did nothing about the claim of the Prudhoe Community apart from publishing a notice in the Government
Gazette. A new incumbent now occupied the position of commissioner, and claimed to be in no position to explain why the claim of the Prudhoe Community was not processed over a period of 12 to 13 years. In the main, the third respondent contended that the community’s claim was not validly lodged.
Held that the third respondent’s reliance on an incomplete form in its arguing that the Prudhoe claim was not validly lodged, was an opportunistic and futile attempt to cover up for the dereliction of duty by the officials concerned. As argued by the appellants, it was not for the present Court to, at the present stage, debate the validity or otherwise of the Prudhoe community’s claim. Nor was it the function of the Regional
Land Claims Commissioner to adjudicate upon the merits of claims for restitution. What was required, is

for a claimant to put up an arguable case. The Court confirmed that the appellants had complied with the latter requirement and were therefore entitled to have their claim considered by the Land Claims Court.
Postponement of the application would serve only to delay the finalisation of the matter that had dragged on for more than a decade. The public interest required that there should be an end to the litigation.
Setting out the principles governing the granting or refusal of a postponement as summarised in case law, the court concluded that good cause for the postponement was one of the fundamental preconditions to the granting of such an application. The third respondent had not made out a case for the granting of a postponement and had failed to meet any of the threshold requirements laid down for the granting of such relief.
The appellants did not oppose the Prudhoe community’s application for rescission, and were of the view that had the third respondent properly investigated the matter from the outset, the parties would not be in the position in which they find themselves now.
Addressing the third respondent’s opposition of the rescission application, the Court rejected the submission that the validity or otherwise of the claim was a necessary pre-condition for the granting of the rescission application. It was not for the present court, at this stage, to determine the validity of the
Prudhoe community’s claim. Disputes as to the validity of claims is a matter ultimately for the Land Claims
Court to decide.
As a result of the third respondent’s failure, neither the judge a quo nor the parties involved in the matter in the Land Claims Court were apprised of the Prudhoe community’s competing claim. As a result, all the other interested parties including the court a quo laboured under the mistaken belief that the Mazizini community was the sole claimant of the land in question. The Prudhoe community had shown that they were affected by the order made by the Land Claims Court as provided for in section 35(11) of the Act.
The order of the court a quo was set aside and the matter was remitted to the court a quo for reconsideration. All costs incurred in the matter were to be borne by the third respondent.
Betterbridge (Pty) Ltd v Masilo NO and others
[2015] JOL 33113 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
54727 / 2011
17 / 10 / 2014
South Africa
High Court
North Gauteng Division, Pretoria
DN Unterhalter AJ
Keywords:
Civil procedure – Prescription – Delay of completion of prescription – Filing of claim against liquidated company – Meaning of “filing”
Mini Summary:
The plaintiff sued the appellants, as liquidators of a company which the plaintiff alleged owed it money.
The claim was based on an alleged loan to the provisionally liquidated company, in respect of which the company (Crystal Lakes) had failed to make repayment.
In a special plea, the defendants alleged that as the loan was repayable on or before
31 October 2007, prescription had commenced to run by no later than that date, and that the plaintiff’s claim was extinguished on 30 October 2010. The plaintiff instituted its action and effected service on the defendants by 26 September 2011. Replicating to the special plea, the plaintiff contended that the completion of prescription was delayed in terms of section 13(1)(g) of the Prescription Act 68 of 1969 by the filing of a claim against Crystal Lakes by no later than 4 October 2010, thereby extending the date on which the claim prescribed to 4 October 2011.
Held that the central issue that the present Court had to determine was whether prescription was delayed by reason of the application of section 13(1)(g) and (i) of the Prescription Act. In particular, the parties advanced opposing interpretations on the meaning of the phrase “the debt is the object of a claim filed against …a company in liquidation”. The plaintiff submitted that a claim is filed when it is submitted to the presiding officer who is to preside at the meeting of creditors. And the defendants submitted that a claim is filed when the claim is in fact proved, that is to say that the claim is admitted by the officer presiding.
The interpretation of language, including statutory language, is a unitary endeavour requiring the consideration of text, context and purpose. Based on a decision of the full bench, the Court found that a claim has been filed against the company in liquidation when the presiding officer at either the first or second meeting of creditors admits the claim for purposes of proof in the sense of allowing the claim to go

forward to the meeting of creditors so as determine whether the claim should be admitted or rejected.
Thus is filing does not require proof of the claim but rather the admission of the claim to proof, then the claim must be taken to have been filed.
Applying that to the facts, the Court dismissed the special plea of prescription
Balduzzi v Rajah and another
[2014] JOL 32332 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17136 / 2007
04 / 04 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Wepener J
Keywords:
Civil procedure – Ownership of property – Claim for transfer – Prescription
Mini Summary:
The plaintiff was the owner of immovable property which was in the possession of the first defendant. The latter was the wife of a deceased person and the second defendant the executor of the deceased’s estate.
The Court referred to the first and second defendants collectively as “the defendant”.
The plaintiff sought the vindication of the property from the defendant. The defendant pleaded that the plaintiff was not entitled to vindicate the property as the defendant was the true owner of the property.
After the defendant pleaded its right of ownership to the immovable property and counterclaimed for transfer of the immovable property, the plaintiff responded with a special plea that the defendant’s right to claim transfer had prescribed.
Held that the general rule is that ownership of immovable property can, generally, only pass by registration of transfer into the name of the owner. Such registration, in the main, follows upon the parties’ concluding a written deed of sale. There are, however, exceptions to this general proposition.
Such an exception is contained in section 48 of the Abolition of Racially Based Land Measures Act 108 of
1991. That section provides that the acquisition of immovable property by a person on behalf of another person, contrary to the Group Areas Act of 1966, was deemed not to be illegal. The parties to the transaction could, within 30 days of the commencement of section 48, apply to the registrar of deeds to transfer the property from the nominee owner to the principal. Various requirements for that process are specified in section 48. The Court held that although there are procedures prescribed in terms of which an easy transfer into the name of the true owner or as referred to in the Act, the principal, could be effected, the wording of the Act does not make it obligatory to utilise the measures therein provided in order to effect transfer of the property.
On the issue of prescription, the Court held that the only relevant period, should the plea of prescription prevail, was that contained in section 11(d) of the Prescription Act 68 of 1969, being a period of three years. The defendant relied on case authority for the contention that a vindicatory action was not a debt within the meaning of sections 10 and 11 of the Prescription Act and that it is not subject to the prescriptive periods therein contained. Having regard thereto, it was argued that the claim by the defendants for registration of transfer of the property into the name of the defendant had not prescribed.
The court pointed out that the case relied upon dealt with a vindicatory action and not with a claim such as that which the defendant instituted for the registration of transfer of the property into the defendant’s name, which property was in the possession of the defendant. It was found that the defendant’s claim for transfer of the property had prescribed.
Van Reenen v Santam Limited
[2014] JOL 31528 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
623 / 12
29 / 05 / 2013
South Africa
Supreme Court of Appeal
Maya, Leach, Theron, Willis JJA , Meyer AJA
Keywords:
Civil procedure – Prescription – When debt claimed in terms of section156 of the Insolvency Act 24 of
1936 becomes due under section 12(1) and (3) of the Prescription Act 68 of 1969 – Prescription running from date of winding-up of debtor, and where summons was issued over three years after the date, claim had prescribed

Mini Summary:
In 1993, the appellant entered into an agreement with a supplier, for the supply of tallow to be used as an ingredient in the appellant’s cattle feed. In 1997, problems concerning the quality of the tallow arose.
According to the appellant, between February and August 1997, he was supplied with tallow that had latent defects in the form of water and impurities which substantially impaired its utility and caused him damages. He therefore sued the supplier for breach of warranty and damages resulting from the latent defects. Before the matter could be heard, the supplier was liquidated. However, during the material time, the supplier was insured by the respondent (“Santam”) who indemnified the supplier against any liability incurred against third parties for claims arising from the sale and supply of defective tallow up to the sum of R1,5 million.
In January 2004, the appellant issued summons against Santam for payment of the sum of R1,5 million for which Santam was obliged to indemnify the supplier under the insurance policy. The claim was brought on the basis that the contract of insurance obliged Santam to indemnify the supplier towards a third party as contemplated in section 156 of the Insolvency Act 24 of 1936.
Santam disputed liability and raised a special plea that the appellant’s claim had been extinguished by prescription under section 11 of the Prescription Act 68 of 1969 because his summons was issued more than three years after the debt became due. It was argued that the claim became due upon application for
Abakor’s winding-up, on 10 October 2000, alternatively on 31 October 2000 when it was made final. It was further contended that the appellant knew the debtor’s identity and the facts from which the debt arose; or could have acquired such knowledge by the exercise of reasonable care by the dates of Abakor’s provisional and final winding-up, alternatively 27 November 2000 when he admittedly became aware of the liquidation. In his replication, the appellant denied that his claim had prescribed. He pleaded that the debt became due no earlier than 10 April 2001 when Santam repudiated the supplier’s claim for indemnification arising out of liquidators’ failure to comply with certain obligations under the insurance contract. Thus, it was contended, the period of prescription ran afresh from that date.
The court below dismissed the claim on the basis that the appellant’s right to institute action against
Santam arose when the supplier was liquidated on 31 October 2000, that his summons was therefore late and that prescription had not been interrupted.
On appeal, the Court had to determine when the appellant’s claim became due to determine if it was extinguished by prescription.
Held that in terms of section 12 of the Prescription Act, prescription commences running as soon as the debt is due. A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises - provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care. For the debt to be due, there must be a debt immediately claimable by the creditor or, put differently, there must be a debt in respect of which the debtor is under an obligation to pay immediately.
The Court examined the appellant’s contention.
..
Authorities and the clear wording of section 156 showed that its provisions create a right which does not exist before insolvency. Whilst it allows the third party to exercise the insured’s rights against the insurer, it nonetheless confers upon the third party no greater rights than those enjoyed by the insured. And, importantly, the section does not transfer to, nor vest the existing rights of an insolvent in the third party. The section rather creates a new and distinct cause of action for the third party, on the sequestration of the insured, as a means to recover from the insurer precisely what the latter owes the insured under the insurance contract.
Thus, the appellant’s cause of action against Santam had fully accrued in terms of section 12(3) of the
Prescription Act by the date of winding-up of the supplier. As summons was issued over three years after that date, the claim had prescribed. The appeal was accordingly dismissed.
Aeronexus (Pty) Ltd v FirstRand Bank Ltd t/a Wesbank
[2011] JOL 27102 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
249 / 10
17 / 03 / 2011
South Africa
Supreme Court of Appeal
MML Maya, CH Lewis, WL Seriti JJA
Keywords:
Civil procedure – Amendment of summons to clarify basis of claim – Special plea of prescription – Whether the original summons interrupted the running of prescription in terms of section 15 of the Prescription Act
68 of 1969 – Where amendment to summons merely presented different basis for same claim in attempt to properly clarify claim, it was not tantamount to the introduction of a new debt – Original summons therefore did interrupt prescription –Words and phrases – “debt” – Prescription Act 68 of 1969, sections

10-15 – A debt shall be extinguished by prescription after the lapse of a term of three years after the date from which the debt becomes due and the running of prescription shall be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt – Courts have held that the term “debt” as used in the Act refers more generally to the claim and is wider than the technical term
“cause of action”, and have cautioned against confusing a debt with the cause of action which begets it –
Mini Summary:
The appellant (“Aeronexus”) was a company which maintained and repaired aircraft. In 2001, it was contracted by a company (“Million Air”) to perform work on aircraft owned by the respondent (a bank). In
2004, Million Air was liquidated. It owed Aeronexus R1 916 395.56 for services rendered in terms of their contract, and was unable to pay the amount. As Aeronexus held liens over the aircraft under the agreement, in the exercise of its liens, it retained control and possession of the aircraft’s logbooks. In order to secure the release of the aircraft, the bank, issued a bank guarantee to Aeronexus, stipulating that it held at the appellant’s disposal, an amount of R1 959 240.30, which would be paid upon the successful conclusion of an action (in respect of the liens) to be instituted by the appellant against the bank.
Action was instituted by the appellant in April 2004. Almost three years later, it filed a declaration in which it fully set out the facts underlying its claim and specifically pleaded its reliance on the guarantee. In
March 2007, the bank noted an exception, averring that the declaration, which relied on the bank guarantee issued pursuant to a lien exercised against a third party, was vague and embarrassing and that its allegations differed materially from those set out in the summons which relied on a debt in respect of services rendered and goods sold and delivered. The appellant responded with a notice to amend its summons. The bank’s plea included a special plea of prescription - based on an allegation that the debt claimed in the amended summons was not the same or substantially the same debt claimed in the original summons, so that the original summons failed to interrupt prescription in respect of the amended claim.
In the high court, the matter was decided on the basis of the special plea. The court found that the bank’s liability arose not from the debtor and creditor relationship alleged in the original summons but wholly from the guarantee, which was an undertaking to pay the relevant amount upon proof of the legality of
Aeronexus’ liens. The court found further that the prescriptive period of three years applied to the written guarantee and not to the contract of goods sold and delivered and that the amended claim which was not recognisable in the original summons, was filed beyond the period of prescription. The court then concluded that the latter pleading did not interrupt prescription. That led to the present appeal.
Held that the critical issue was whether the original summons interrupted the running of prescription in terms of section 15 of the Prescription Act 68 of 1969 (“the Act”). Central to that question was whether the debt claimed was recognisable from the original summons.
In terms of sections 10(1), 11(d), and 12(1) of the Act, a debt shall be extinguished by prescription after the lapse of a term of three years after the date from which the debt becomes due. Section 15(1) provides that the running of prescription shall be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. The courts have held that the term “debt” as used in the Act refers more generally to the claim and is wider than the technical term “cause of action”, and have cautioned against confusing a debt with the cause of action which begets it.
The question whether a summons interrupts prescription requires a comparison of the allegations and relief claimed in the summons with the allegations and relief claimed in the amendment to assess if the debt is the same or substantially the same. In deciding whether prescription was interrupted by legal process (such as a summons), the right or debt sought to be enforced by means of the amendment must be the same or substantially the same as that alleged in the original process. Accordingly, the substance rather than the form of the original process must be considered.
In the present case, Aeronexus’ original summons was clearly defective in that it did not make clear the basis of the claim against the bank. The amendment which introduced the guarantee therefore presented a different basis for the claim, in an attempt to clarify the claim properly. The court held that that was not tantamount to the introduction of a new debt in the circumstances of this case. It also pointed out that the purpose of the Act is to punish inaction rather than legal ineptitude, and that even an excipiable summons which does not set out a cause of action can serve to interrupt prescription as long as it is not so defective that it amounts to a nullity.
What was sought to be enforced in the original summons was payment of a debt in the sum of
R1 959 240.30 accruing originally from services rendered and goods sold and delivered. The same relief was sought in the amendment. Apart from the omission of the guarantee – which served as security for payment in respect of the same services rendered and goods sold and delivered averred in the original summons – there was no inconsistency between the allegations made in the unamended claim and those set out in the amended claim.
Concluding that the special plea should have been dismissed, the court upheld the appeal.

BBS Empangeni CC (formerly ZTC Cash Build CC) v Phoenix Industrial Park (Pty) Ltd & another
[2012] JOL 28711 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
203 / 11
29 / 03 / 2012
South Africa
Supreme Court of Appeal
A Cachalia, FDJ Brand, BJ van Heerden JJA, P Boruchowitz AJA
Keywords:
Civil procedure – Claim for damages based on alleged breach of contract – Prescription – Prescription running from time suspensive conditions in contract were fulfilled, and contractual obligations were no longer enforceable after three years from that date
Mini Summary:
On 11 January 1990, the appellant bought certain land from the respondents in terms of a sale agreement. It paid ten per cent of the purchase price as a deposit, with the balance to be paid upon registration of transfer.
Two suspensive conditions governed the sale agreement. Firstly, the sale was subject to the Surveyor-
General’s approval of the sub-divisional diagram consolidating the four lots of land that were the subject of the agreement, and secondly, a certificate of compliance had to be obtained from the City Engineer in terms of section 148 of the Durban Extended Powers Consolidated Ordinance 18 of 1976.
The sole member of the appellant subsequently grew concerned about starting a business in the area for reasons largely related to security. He approached the respondents to cancel the agreement, but was unsuccessful in that regard. The respondents insisted that he pay the balance of the purchase price, and maintained that he was bound to take transfer. The deadlock led the respondents to seek recourse in the high court, where the appellant delivered its answering affidavit in which it asserted that the agreement was to be rectified to include the security features referred to in a pamphlet provided by the respondents, so as to accord with the common intention of the parties. The appellant also disputed that the second suspensive condition referred to above had been fulfilled. The said condition was later fulfilled, but the appellant still refused to take transfer of the property on the basis that the issues pertaining to its security concerns had not been resolved. Some years later, the respondents, unbeknown to the appellant, sold the property to a third party. About five years later, the appellant made enquiries about the property, and on discovering that it had been sold to someone else, took the stance that the sale and transfer of the property was a breach of its agreement with the respondents. The appellant instituted action against the respondents for recovery of the deposit as well as damages for breach of contract amounting to R3
125 500.
The central issue before the trial court was whether the respondents had repudiated the agreement with the appellant by selling the property to the municipality in October 2000. The appellant’s case was that they had, which entitled it to cancel the agreement. The respondents pleaded that they had cancelled the agreement before selling the property and had informed the appellant that they had done so, after the appellant had repudiated the agreement by refusing to take transfer. Amongst the defences raised was the defence that the appellant’s claim had become prescribed. Two distinct periods were in issue. The first was the period from the time when the suspensive conditions had ultimately been satisfied on 4 October
1994 and the transfer of the property to the municipality on 20 December 2002, when the respondents were alleged to have repudiated the agreement, and the second was the period between 20 December
2002 and the issue of summons on 21 August 2006. Concerning the first period, the trial court held that prescription had begun to run in respect of the respondents’ right to claim payment and also of the appellant’s right to claim transfer on 4 October 1994, when the suspensive conditions were satisfied. It held that the appellant ought reasonably to have ascertained this fact by December 1994 due to correspondence between the parties. The appellant’s claim had thus prescribed. That conclusion made it unnecessary for the trial court to consider the second period, although the judge did consider it for the sake of completeness and once again found against the appellant.
Held that the lower court’s finding that prescription had begun to run on 4 October 1994, when the suspensive conditions were fulfilled, and that the appellant’s claim had become prescribed well before the respondents transferred the property to the municipality in December 2002, disposed of the appeal.
The first challenge to the finding in question was that the Court had erred in assuming that the appellant’s cause of action was for the transfer of the property because of the respondents’ correlative right to demand payment as at 4 October 1994. The present Court rejected the notion that the lower court had misunderstood the nature of the appellant’s claim. It was clear that the suspensive conditions were fulfilled by 4 October 1994 and that the respondents’ claim for payment of the purchase price as against their obligation to transfer the property to the appellant therefore arose then. Prescription would thus have begun to run against that claim – and the appellant’s correlative claim for transfer of the property – on 4 October 1994, when the debt became due in terms of section 12(1) of the Prescription Act 68 of
1969 (“the Act”). Both claims, being reciprocal, would thus have become prescribed three years later, on

3 October 1997. If, as alleged by the appellant, the respondents had wilfully withheld information regarding the fulfilment of the suspensive conditions – and that the debt was therefore due – from the appellant, prescription would not have commenced running until the appellant became aware of the existence of the debt. The appellant took issue with the high court’s findings that the respondent had not withheld the relevant facts. Setting out the relevant evidence, the present Court confirmed that the evidence fell far short of establishing that the respondents deliberately withheld the information from the appellant. The Court also confirmed the correctness of the high court’s finding that that the appellant ought to have known by no later than December 1994 that the property had become registrable had it exercised reasonable care.
A final argument raised by the appellant was that, if prescription had begun to run against it on 4 October
1994, the respondents’ admission in their founding papers in the application that they were obliged to give transfer to the appellant upon fulfilment of the suspensive conditions, amounted to an express or tacit admission of liability to give transfer to the appellant against payment of the purchase price. Therefore, so the submission went, in terms of section 14(1) of the Act the running of prescription was interrupted when these admissions were made. Section 14(1) of the Act says that the running of prescription is interrupted when a debtor acknowledges liability, and section 14(2), that prescription runs afresh from the day of the interruption. Again, the High Court was correct in stating that the respondents’ acknowledgment was not an admission of liability as contemplated by the section.
The appeal was dismissed with costs.
Group Five Construction (Pty) Ltd v The Minister of Water Affairs and Forestry
[2011] JOL 26892 (SCA)
Case Number: 379 / 2010
Judgment Date: 14 / 03 / 2011
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
LTC Harms DP, PE Streicher, FDJ Brand, Theron and JB Shongwe JJA
Keywords:
Civil procedure – Claim for payment – Prescription – Section 12(1) of the Prescription Act 68 of 1969 provides that prescription commences to run as soon as the debt is due
Mini Summary:
In an action instituted by the appellant against the respondent, the latter raised a special plea of prescription and the court below decided to hear that issue separately.
The dispute arose from a contract for the construction of a dam and appurtenant works by the appellant.
The payment sought by the appellant related to claims submitted by it in terms of the contract, which entitled it to claim for additional payment or compensation in prescribed circumstances.
Held that the validity of the special plea depended on the interpretation of the complicated contract which had to be read with two amendments agreed to between the parties. The amendments provided for a new dispute resolution mechanism by using a dispute review board (“the board”), in lieu of mediation. The amendment provided that the board had to make a recommendation to the parties. The recommendation became final and binding on the parties if accepted by them in writing. To the extent that a recommendation was not acceptable in writing by the parties, either party was entitled to refer the unresolved matter to court provided that the particular party had within 60 days, given written notice of its intention to do so.
The issue between the parties was whether the appellant’s claims, became due at the stage when the said written notice was given or whether the claims only became due after completion of the works as defined in the contract (as contended by the appellant). The relevance of the issue was to be found in section
12(1) of the Prescription Act 68 of 1969, which provides that prescription commences to run as soon as the debt is due. It was common cause that if the appellant’s causes of action were ripe and complete when the notices were given, then the claims had become prescribed.
The court could not find fault with the lower court’s reasoning, and its conclusion that the claims had indeed prescribed.
The appeal was dismissed.
Huisman and another v Lakie and others
[2014] JOL 31377 (ECG)
Case Number:
Judgment Date:
3248 / 10
09 / 01 / 2014

Country:
Jurisdiction:
Division:
Bench:
South Africa
High Court
Eastern Cape, Grahamstown
C Plasket J
Keywords:
Civil procedure – Special plea – Prescription – Res judicata – Issue estoppel
Mini Summary:
The plaintiffs sued the defendants for damages arising from the publication of an article which was alleged to be defamatory of the first plaintiff. Summons was issued on 7 December 2010, two weeks short of three years from the publication of the letter. More than three years after the publication of the letter, on
5 July 2011, the plaintiffs applied to amend the summons and particulars of claim. Despite an objection by the defendants, leave to amend was granted. Subsequent to the amendment, the defendants filed their plea in which they raised a special plea of prescription.
In terms of the special plea, it was contended that the plaintiffs’ claims were based on publication of a letter on 21 December 2007, and any claims which the plaintiffs might have had against the second and third defendants pursuant to such publication would have become prescribed on 20 December 2010. The amended summons in which the second and third defendants were cited for the first time, was only served on the second and third defendants on 17 September 2012. In the premises, the plaintiffs’ claims against the second and third defendants became prescribed in terms of the provisions of the Prescription Act 68 of
1969. In a replication to the special plea, the plaintiffs stated that the issue of prescription raised by the defendants had already been decided against the second and third defendants and in favour of the plaintiffs in this action in a judgment handed down in September 2012. The plaintiffs accordingly contended that the second and third defendants were estopped from pleading prescription.
Held that the special plea and the replication thereto would be decided separately from other issues.
In strict terms, a plea of res judicata may be raised when, one dispute having been terminated (by an order that is final in effect), another is set in motion and both involve the same parties, concern the same thing and the same cause of action. In this case, the court was satisfied that the issue which had already been decided was the same issue that is raised in the special plea, and therefore the requirements for res
judicata in the form of issue estoppel had been met.
It remained to consider whether it would be inequitable to apply res judicata in the circumstances of this case. The Court was not persuaded that the application of res judicata in the form of issue estoppel would lead to the unfairness contended for by counsel for the second and third defendants. On the other hand, the issue having been fully ventilated and decided upon finally, to allow the second and third defendants to raise it again would create precisely the type of prejudice the res judicata principle is intended to prevent.
The special plea was dismissed with costs.
Buitendach v South Vereeniging Properties (Edms) Bpk
[2012] JOL 29117 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
12942 / 2007
13 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
BR du Plessis J
Keywords:
Contract – Validity of – Claim for repayment – Prescription
Mini Summary:
In June 2003, the plaintiff, acting on behalf of a trust to be formed, entered into a sale agreement in terms of which the trust was to purchase a farm from the defendant. Three amounts were paid in that regard, the last payment being on 1 June 2004. In April 2006, the plaintiff’s attorney advised him that the sale agreement was invalid as the plaintiff had acted on behalf of a trust which was not in existence. The plaintiff accordingly sued for repayment of the amounts paid to the defendant under the agreement. The defendant pleaded that the plaintiff’s claim had prescribed.
Held that the question was whether the plaintiff’s knowledge that the contract was invalid was one of the facts giving rise to the cause of action. The Court found that at the time the plaintiff made the payments, he knew that the payments were not due as the trust had not yet been formed. The special plea of prescription was upheld, and the plaintiff’s claims dismissed.

Mpato v Hlatswayo-Mhaise Incorporated
[2011] JOL 27925 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2010 / 28156
14 / 10 / 2011
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener J
Keywords:
Civil procedure – Claim for damages – Prescription
Mini Summary:
On January 2004, the plaintiff mandated the defendant to file a claim for damages against a third party
(the plaintiff’s employer until his dismissal). The defendant failed to issue summons within the required period, rendering the plaintiff’s claim unenforceable. As a result, the plaintiff sued the defendant for damages. The summons was served on the defendant in August 2010. It was common cause that the plaintiff was aware that the claim against his previous employer would prescribe on 27 July 2004, and that the plaintiff was aware of the identity of the defendant on 27 July 2004.
The defendant argued that all the facts upon which a claim against it could be founded were known to the plaintiff by no later than 27 July 2004 when the failure to issue and serve a summons on the third party occurred. The plaintiff, however, argued that one of the factors required in order to assert and enforce a claim against the defendant was the question of the defendant’s negligence which “fact” the plaintiff only had knowledge of on 8 June 2010 when a court upheld a plea of prescription against the plaintiff in his case against the third party.
Held that as attested to by the plaintiff in an affidavit, his knowledge that the conduct of the defendant caused him loss was gained on 27 July 2004. The summons was served on the defendant more than three years after the plaintiff obtained such knowledge of the causative conduct of the defendant. In the circumstances, the plaintiff’s claim against the defendant had become prescribed.
The plaintiff’s claim was accordingly dismissed.
Essack & another v Suliman
[2011] JOL 28013 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 42376
10 / 11 / 2011
South Africa
High Court
South Gauteng, Johannesburg
P Boruchowitz J
Keywords:
Civil procedure – Prescription – Judgment debt
Mini Summary:
Litigation between the parties herein resulted in a settlement agreement in terms of which the respondent was obliged to apply for the subdivision of certain property and to thereafter transfer a subdivided portion to each of the applicants. In the present application, the applicants sought an order to compel the respondent to take all steps and sign all documents necessary to effect transfer to them of certain subdivided portions of the property.
The only defence of substance before the Court was whether the applicants’ claim had prescribed.
The applicants contended that the obligation sought to be enforced constituted a judgment debt as envisaged in section 11(a)(ii) of the Prescription Act 68 of 1969, and that accordingly the applicable prescriptive period was 30 years. The respondent argued that the normal period of prescription of three years applied.
Held that section 10(1) of the Act stipulates that a “debt” shall be extinguished after the lapse of the relevant prescriptive period. The term “debt”, in the context of section 10(1), is not defined but has a wide and general meaning and includes an undertaking to procure registration of transfer of immovable property. It has been held in case law that the term “judgment debt” in section 11(a)(ii) is a reference not only to a money debt, but would include judgments for the delivery of property or specific performance. It refers, in the case of money, to the amount in respect of which execution can be levied by the judgment creditor and, in the case of any other debt, to the steps that can be taken by the judgment creditor to exact performance.

Although not in every case, the entry of judgment may create a new debt, independent of the original debt on which the judgment is founded. Instead of creating a new debt, the judgment may simply have the effect of strengthening and reinforcing the original cause of action without necessarily novating the underlying debt or cause of action. It is a matter of interpretation of the court order and agreement as to whether what is contained therein is to be accorded the status of a judgment debt. So too, whether or not the judgment has a novating effect will depend on the terms of the order and agreement.
Examining the facts of the present case, the Court concluded that the applicants’ claim constituted a judgment debt as envisaged in section 11(a)(ii) of the Act, and that the applicable period of prescription was 30 years. The plea of prescription was thus dismissed.
Xaba v Ekurhuleni Metropolitan Municipality
[2011] JOL 27098 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17720 / 10
07 / 04 / 2011
South Africa
High Court
South Gauteng, Johannesburg
DSS Moshidi J
Keywords:
Civil procedure – Action against State – Prescription
Mini Summary:
The applicant sought an order condoning the late service on the respondent of the notice as contemplated by section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. He also sought an order for leave to institute legal proceedings against the respondent for damages for assault, arrest and detention arising from an incident in February 2007. In the alternative, he sought condonation relief on terms and conditions in the discretion of the court.
The respondent opposed the application on the ground that the applicant’s claims had prescribed.
Held that section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act provides that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question notice in writing of his or its intention to institute legal proceedings in question; or the organ of state has consented in writing to the institution of such legal proceedings without notice. Thus, written notice must be given to the respondent within six months from the date of the cause of action; and such notice must set out the facts relied upon and within the knowledge of the applicant which give rise to the action. If the organ of state to be sued raises the question of no notice having been given, the applicant may apply to court for condonation for such failure.
The court in hearing such application may grant such condonation, if satisfied, firstly, that the intended claim has not become prescribed, secondly, that good cause exists for the failure by the applicant, and thirdly, that the organ of state to be sued has not been unreasonably prejudiced by such failure to comply.
In regard to prescription, the intended proceedings must be brought within a period of three years from the date on which the cause of action arose.
The time begins to run against a creditor when it has the minimum facts that are necessary to institute action. The running of prescription is not postponed until a creditor becomes aware of the full extent of its legal rights.
In terms of the evidence, the applicant’s claims had clearly prescribed. The application for condonation was thus dismissed.
Muller v BOE Bank Ltd & others
[2010] JOL 25642 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8723 / 98
25 / 05 / 2010
South Africa
High Court
Western Cape
AG Binns-Ward J
Keywords:
Contract – Rectification – Claims for payment – Prescription– Evidence – Photocopy of affidavit –
Admissibility
Mini Summary:

At a time when he was an insolvent, the plaintiff instituted action against the defendants. The second, third and fourth defendants were the joint trustees of his insolvent estate. Between the institution of action and the commencement of the trial, the plaintiff became automatically rehabilitated in terms of the
Insolvency Act. The trial related therefore only the first defendant (a bank).
The plaintiff's claims against the bank arose from an agreement in terms of which the bank would purchase the plaintiff's shares in his company, so as to enable him to settle his debts to the bank as well as his other creditors.
The court decided to deal with three of the claims separately and prior to any of the other issues in dispute. Thus the issues for determination were the plaintiff’s claim for rectification of the agreement; the proper meaning of the agreement; whether the bank was liable to the plaintiff in terms of the third claim; and whether the plaintiff's money claims in terms of the second and third claims were extinguished by prescription as contended in the bank's special plea.
Before the trial commenced, the bank sought to introduce into evidence the content of an affidavit made by a person who had since died. The bank sought to introduce the affidavit as evidence in terms of section 34 the Civil Evidence Proceedings Act 25 of 1965; alternatively, in terms of section 3 of the Law of
Evidence Amendment Act 45 of 1988.
Held that the document that the bank sought to introduce was a photocopy of the one actually signed by the deponent. Section 34(2) of the Civil Evidence Proceedings Act affords the court a discretion to admit a copy of the document proven to be a true copy of the original or the part thereof relied upon if, having regard to all the circumstances of the case, the presiding officer is satisfied that undue delay or expense would otherwise be caused, and that the copy sought to be introduced has been proved to be a true copy of the original. All that is required is that the copy in question be proved to be a true copy. There is no prescription of what evidence should constitute such proof. The court pointed out that the measure of proof would be proof on a balance of probabilities. Based on the evidence of three witnesses, the court was satisfied that the photocopy of the affidavit was a true copy of the original document. It was also satisfied that the affidavit fell to be admitted in evidence in terms of Part VI of the Civil Proceedings
Evidence Act.
Regarding the claim for rectification, the plaintiff bore the onus of proving that the agreement fell to be rectified in the respects claimed. He was unable to discharge that onus, and the claim was dismissed.
The court found further that the second and third claims were extinguished by prescription as contended by the bank.
Burnett v Deloitte & Touche & another
[2010] JOL 26129 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4254 / 08
20 / 04 / 2010
South Africa
High Court
Western Cape, Cape Town
LJ Bozalek J
Keywords:
Civil procedure – Claim for damages – Special plea – Prescription
Mini Summary:
Plaintiff claimed damages as against the first defendant, a partnership of public accountants and auditors, alternatively, as against second defendant who at the material time was either a partner or an employee of first defendant. The claim arose out of the alleged breach of an agreement in terms whereof second defendant was required to make a determination of the value of the equity and shareholders loan account in a company previously purchased by plaintiff.
Pursuant to an order in terms of rule 33(4) of the court's rules, the first and second defendant's special plea of prescription had to be determined prior to the remaining issues in the matter.
Held that section 12(1) and (3) of the Prescription Act provides that prescription shall commence to run as soon as the debt is due. A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises - provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.
The central issue in the present matter was when the plaintiff acquired knowledge of the identity of the debtor and the facts in terms of which the debt arose. The court found that prescription did not commence running in the present matter until, at the earliest, 26 February 2007. Thus, the special plea of prescription had to fail since the present action was instituted within a period of three years from that date.

Nelson Mandela Bay Metropolitan Municipality v Fourie & others
[2010] JOL 26066 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Contract – Sale of property – Validity
2958 / 09
10 / 08 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
Y Ebrahim J
Mini Summary:
The applicant sought an order declaring certain sale agreements invalid for want of compliance with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981.
A clause in the agreements of sale stipulated that the purchase price and various preliminary expenses were due and payable by the purchaser and sets out two options for payment of the amounts with the direction that one of the options be deleted. The purchaser had therefore to elect which option would be applicable and the other had to be deleted. Due to the failure to delete one of the options it was unclear whether the purchase price and other amounts were to be paid in terms of option 1 or option 2. The applicant contended that the absence of consensus regarding the method of payment of the purchase price rendered the agreements invalid.
Held that all the material terms of the sale must be set out in a written contract. The material terms of a contract of sale are not confined to those prescribing the essentialia of a contract of sale, namely the parties to the contract, the merx and the pretium but include, in addition all other material terms.
Consensus must be evident from the contract itself. In certain circumstances a court may have recourse to extraneous evidence regarding the intention of the parties. This, however, was manifestly not the position here. The court concluded that each of the agreements was invalid for want of compliance with section 2(1) of the Alienation of Land Act.
The application succeeded.
Matadin v Parma & others
[2010] JOL 25834 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
4638 / 09
07 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
TR Gorven J
Keywords:
Property – Rights of owners – actio communi dividundo
Mini Summary:
The dispute between the parties in this matter centred around certain immovable property. The title deed reflected the owners as being the applicant, the first respondent and a third party, now deceased ("the deceased") and whose estate representative was the second respondent.
The first respondent and some of the children of the deceased occupied a portion of the property.
According to the third respondent, the deceased died intestate and, accordingly, it would appear that his children would be his intestate heirs. The applicant, the first respondent and the children of the deceased were unable to reach agreement on the use of the property. The first respondent and the children refused to accede to the applicant's request to sell the property. That attitude led to this application.
The cause of action invoked by the applicant was the actio communi dividundo. The underlying rationale is that every co-owner of property may insist on a partition of the property at any time unless there is an agreement between the co-owners not to do so within a certain period.
Held that the principles relating to the actio communi dividundo are that no co-owner is normally obliged to remain a co-owner against his will. The action is available to those who own specific tangible things (res
corporales) in co-ownership, irrespective of whether the co-owners are partners or not, to claim division of

the joint property. It may be brought by a co-owner for the division of joint property where the co-owners cannot agree to the method of division. It is for purposes of the action immaterial whether the co-owners possess the joint property jointly or neither of them possesses it or only one of them is in possession thereof. A court has a wide equitable discretion in making a division of joint property.
The court exercised its discretion in favour of selling the property.
Municipality of Mossel Bay v The Evangelical Lutheran Church and another
[2013] JOL 30995 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
443 / 12
24 / 05 / 2013
South Africa
Supreme Court of Appeal
SA Majiedt, CH Lewis, L Theron JJA, C Plasket, Zondi AJJA
Keywords:
Property law – Title deed restrictions – Property to be used solely for church or educational purposes and if no longer required for such purpose, was to revert to municipality – Interpretation of title deed restrictive conditions – Where properties were no longer used for educational or church purposes, title deed conditions were breached and re-transfer to municipality was called for
Mini Summary:
The first respondent was a church which owned immovable property within the municipal area under the control of the appellant. The title deeds to the property contained restrictive conditions in favour of the appellant. In terms thereof, the property was to be used solely for church or educational purposes. If at any time it ceased to be used for such purpose, or was no longer required for such purpose, it was to revert to the appellant’s council without payment of compensation for any improvement effected on or to the land.
On the ground that the church had not complied with the title deed conditions, the appellant sought a retransfer of the properties to it.
It was common cause that the church had erected a school and an outbuilding on one of the two erven involved and conducted schooling activities there until December 2005. The adjoining stand was used as school grounds until that date. Since January 2006, no schooling activities took place and the buildings were standing vacant and were in fact derelict.
Held that the critical question was whether the church had, in contravention of the restrictive conditions, ceased using the property solely for church or educational purposes or no longer required the land for those purposes.
Before addressing that question, the Court commented on the manner in which the answering affidavit was drafted. In response to the appellant’s factual allegations regarding the transfer of the properties, the restrictive conditions and the present state of disuse of the properties, the church replied with terse, noncommittal bare denials. A bare or unsubstantiated denial will only pass muster where there is no other option available to a respondent due to, for example, a lack of knowledge. A proper answer to material averments under reply requires, at the least, a separate and unequivocal traversal of each and every such allegation which the party seeks to contest. The important allegation in the founding affidavit that the properties had fallen into disuse since January 2006 and that no one had been attending to the maintenance of the buildings since then therefore, in the face of this bare, unsubstantiated denial, had to be accepted as correct.
The church’s defence, in essence, was that it had always used and intended to continue using the properties for church or educational purposes and its temporary cessation of schooling activities there was purely as a consequence of its temporary impecuniosity. The court a quo accepted that explanation, and refused the appellant the relief sought.
The issue before the Court required an interpretation of the relevant restrictive conditions. When the restrictive conditions were wholistically interpreted by giving the words therein their ordinary grammatical meaning, in their contextual setting, the church was plainly in contravention of the restrictions, it being common cause that the properties were no longer used for educational or church purposes. Whatever the stated intent of the church as to its future usage might be, that could not salvage its breach. The court below erred in finding to the contrary and the appeal had to succeed.
Municipality of Mossel Bay v The Evangelical Lutheran Church and another
[2013] JOL 30995 (SCA)
Case Number:
Judgment Date:
Country:
443 / 12
24 / 05 / 2013
South Africa

Jurisdiction:
Division:
Bench:
Keywords:
Supreme Court of Appeal
SA Majiedt, CH Lewis, L Theron JJA, C Plasket, Zondi AJJA
Property law – Title deed restrictions – Property to be used solely for church or educational purposes and if no longer required for such purpose, was to revert to municipality – Interpretation of title deed restrictive conditions – Where properties were no longer used for educational or church purposes, title deed conditions were breached and re-transfer to municipality was called for
Mini Summary:
The first respondent was a church which owned immovable property within the municipal area under the control of the appellant. The title deeds to the property contained restrictive conditions in favour of the appellant. In terms thereof, the property was to be used solely for church or educational purposes. If at any time it ceased to be used for such purpose, or was no longer required for such purpose, it was to revert to the appellant’s council without payment of compensation for any improvement effected on or to the land.
On the ground that the church had not complied with the title deed conditions, the appellant sought a retransfer of the properties to it.
It was common cause that the church had erected a school and an outbuilding on one of the two erven involved and conducted schooling activities there until December 2005. The adjoining stand was used as school grounds until that date. Since January 2006, no schooling activities took place and the buildings were standing vacant and were in fact derelict.
Held that the critical question was whether the church had, in contravention of the restrictive conditions, ceased using the property solely for church or educational purposes or no longer required the land for those purposes.
Before addressing that question, the Court commented on the manner in which the answering affidavit was drafted. In response to the appellant’s factual allegations regarding the transfer of the properties, the restrictive conditions and the present state of disuse of the properties, the church replied with terse, noncommittal bare denials. A bare or unsubstantiated denial will only pass muster where there is no other option available to a respondent due to, for example, a lack of knowledge. A proper answer to material averments under reply requires, at the least, a separate and unequivocal traversal of each and every such allegation which the party seeks to contest. The important allegation in the founding affidavit that the properties had fallen into disuse since January 2006 and that no one had been attending to the maintenance of the buildings since then therefore, in the face of this bare, unsubstantiated denial, had to be accepted as correct.
The church’s defence, in essence, was that it had always used and intended to continue using the properties for church or educational purposes and its temporary cessation of schooling activities there was purely as a consequence of its temporary impecuniosity. The court a quo accepted that explanation, and refused the appellant the relief sought.
The issue before the Court required an interpretation of the relevant restrictive conditions. When the restrictive conditions were wholistically interpreted by giving the words therein their ordinary grammatical meaning, in their contextual setting, the church was plainly in contravention of the restrictions, it being common cause that the properties were no longer used for educational or church purposes. Whatever the stated intent of the church as to its future usage might be, that could not salvage its breach. The court below erred in finding to the contrary and the appeal had to succeed.
West Dune Properties 296 (Pty) Ltd & another v Baront Investments (Pty) Ltd & others
[2010] JOL 25560 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
490 / 09
14 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
JB Mnguni J
Keywords:
Property – Rights of property owners – Servitude
Mini Summary:
In an urgent application, the first applicant had sought the restoration of a right of way for use as the entrance to its property, and registration of a road servitude on the property of the first respondent in

favour of the second respondent as a public road. An order was granted, directing the first respondent to remove any obstruction on the servitude which prevented the applicants having access to their property.
The remaining issues were whether the first respondent should be ordered to cause the relevant servitude to be registered over its property in favour of the second respondent for purposes of a public road and, whether the second respondent should be ordered to pay the costs of registering the above mentioned servitude.
Held that a purchaser of immovable property is bound by an unregistered agreement between the predecessor-in-title and a third party granting such third party a servitude over the property, provided that the purchaser had knowledge of such servitude at the time of purchasing. The first respondent lacked such knowledge at the relevant time, and therefore it would not be appropriate for the court to direct it to register the servitude on its property.
The furthest the court would go was to direct that the applicants be restored to the position in which they were prior to the purported cancellation of the temporary servitude.
Body Corporate of Dolphin Cove v KwaDukuza Municipality & another
[2012] JOL 28771 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8513 / 10
20 / 02 / 2012
South Africa
High Court
KwaZulu-Natal, Durban
D Pillay J
Keywords:
Property – Rights of owners – Encroachment on property rights
Mini Summary:
In the wake of a severe storm, a promenade on the dunes of the coastline on which the applicant’s property was built was eroded. The applicant was the body corporate of a sectional title scheme known as
Dolphin Cove. The first respondent municipality reconstructed the promenade, but was met with a demand by the applicant for the removal thereof. According to the applicant, the promenade had been rebuilt on
Dolphin Cove’s property, and the municipality acted unlawfully and in breach of the National
Environmental Management Act 107 of 1998 (“NEMA”) by constructing the promenade without prior authorisation of the second respondent. It was contended that the promenade would compromise the integrity of the dunes, and therefore that the stability of Dolphin Cove was threatened.
The municipality, although denying the encroachment, could not say where the boundary was until the
High Water Mark (“HWM”) settled in about two years. However, as the property was defined by its extent which was fixed in its title deed it was ager limitatus, and the applicant could not claim more land than that registered against its title in the deeds registry.
Held that while the property’s title deed defined the property by measurement by giving the length and angles of all its co-ordinates, that alone would not suffice to define the boundaries of the property as the seaward side of the property was defined by the HWM. As the seaward boundary could only be positioned once the HWM was re-established, the property was ager non limitatus.
Having erected the promenade, the municipality bore the onus of proving that it had acted lawfully. It therefore had to show that it had not encroached on property rights of owners. It was unable to do so for the reason set out above. The conclusion was that the promenade encroached on Dolphin Cove.
A further problem for the municipality was the fact that authorisation for the construction of a new promenade after the storm damage did not include approval for the promenade in front of Dolphin Cove.
Without authorisation or condonation for the construction of the promenade, the municipality had committed an offence in terms of section 24F of NEMA.
The municipality was ordered to remove the promenade and to make good the damage caused to Dolphin
Cove in the construction of the promenade.
Matadin v Parma & others
[2010] JOL 25834 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
4638 / 09
07 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg

Bench:
Keywords:
TR Gorven J
Property – Rights of owners – actio communi dividundo
Mini Summary:
The dispute between the parties in this matter centred around certain immovable property. The title deed reflected the owners as being the applicant, the first respondent and a third party, now deceased ("the deceased") and whose estate representative was the second respondent.
The first respondent and some of the children of the deceased occupied a portion of the property.
According to the third respondent, the deceased died intestate and, accordingly, it would appear that his children would be his intestate heirs. The applicant, the first respondent and the children of the deceased were unable to reach agreement on the use of the property. The first respondent and the children refused to accede to the applicant's request to sell the property. That attitude led to this application.
The cause of action invoked by the applicant was the actio communi dividundo. The underlying rationale is that every co-owner of property may insist on a partition of the property at any time unless there is an agreement between the co-owners not to do so within a certain period.
Held that the principles relating to the actio communi dividundo are that no co-owner is normally obliged to remain a co-owner against his will. The action is available to those who own specific tangible things (res
corporales) in co-ownership, irrespective of whether the co-owners are partners or not, to claim division of the joint property. It may be brought by a co-owner for the division of joint property where the co-owners cannot agree to the method of division. It is for purposes of the action immaterial whether the co-owners possess the joint property jointly or neither of them possesses it or only one of them is in possession thereof. A court has a wide equitable discretion in making a division of joint property.
The court exercised its discretion in favour of selling the property.
Nelson Mandela Bay Metropolitan Municipality v African Catholic Church & others
[2010] JOL 26049 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2957 / 09
04 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
N Dambuza J
Keywords:
Contract – Sale of land – Validity of agreements
Mini Summary:
Through a number of sale agreements, the applicant sold immovable properties to the various respondents. According to the applicant, the present application was the result of its discovery that a person in its employ was conducting irregular property sales. The applicant ought to have the agreements set aside on the ground that they did not comply with the formalities set out in the Alienation of Land Act
61 of 1981. More particularly, in each agreement, the number and amount of instalments by which the balance of the purchase price was to be paid was not set out. There was also no stipulation as to when such instalments were due and payable, when the purchaser would take occupation or possession of the property and when the purchaser would be liable for rates and taxes on the property.
Held that the essentials of a written contract of sale of land are the subject-matter of the sale; the parties thereto; and the price of the land sold. As the price is an essential term of any contract of sale, the method of payment of the price is also an essential or, at least, a material term. So a written contract that leaves the method of payment vague or leaves it over for further negotiation is void and cannot be rectified.
The court found that the agreements in this case fell foul of the provisions of not only the provisions of the
Alienation of Land Act but also the general principles of law relating to purchase and sale agreements. The agreements were declared to be of no force and effect.
Nelson Mandela Bay Metropolitan Municipality v Fourie & others
[2010] JOL 26066 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
2958 / 09
10 / 08 / 2010
South Africa
High Court

Division:
Bench:
Keywords:
Contract – Sale of property – Validity
Eastern Cape, Port Elizabeth
Y Ebrahim J
Mini Summary:
The applicant sought an order declaring certain sale agreements invalid for want of compliance with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981.
A clause in the agreements of sale stipulated that the purchase price and various preliminary expenses were due and payable by the purchaser and sets out two options for payment of the amounts with the direction that one of the options be deleted. The purchaser had therefore to elect which option would be applicable and the other had to be deleted. Due to the failure to delete one of the options it was unclear whether the purchase price and other amounts were to be paid in terms of option 1 or option 2. The applicant contended that the absence of consensus regarding the method of payment of the purchase price rendered the agreements invalid.
Held that all the material terms of the sale must be set out in a written contract. The material terms of a contract of sale are not confined to those prescribing the essentialia of a contract of sale, namely the parties to the contract, the merx and the pretium but include, in addition all other material terms.
Consensus must be evident from the contract itself. In certain circumstances a court may have recourse to extraneous evidence regarding the intention of the parties. This, however, was manifestly not the position here. The court concluded that each of the agreements was invalid for want of compliance with section 2(1) of the Alienation of Land Act.
The application succeeded.
Dainfern Valley Home Owners Association v Falconer & others
[2010] JOL 26086 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Residential estate – Conducting of business – Consent of neighbours – Compliance order
Mini Summary:
2009 / 51286
19 / 02 / 2010
South Africa
High Court
South Gauteng, Johannesburg
The applicant was a voluntary association constituted in respect of a residential estate. All registered owners of properties in the estate were automatically members of the applicant. The first respondent ("the respondent") was one such property owner. She had been conducting a nursery school on her property since 2006. The applicant sought interdictory relief against the respondent, preventing her from operating or conducting the playgroup on the property until she had complied with certain statutory requirements and other formalities.
It was common cause that the statutory requirements referred to were of application and had to be complied with and secondly, that they had not been complied with.
Held that the main source of contention between the parties was the obtaining of consent of neighbours of the respondent. The court held that such requirement had to be complied with, due to the communal rights and interests of the owners and residents in the estate. However, the court agreed with the respondent that an interdict would not be the best remedy. Instead, it ordered the respondent to comply with the relevant requirements within a specified time period.
SM Fraser t/a Salka Enterprises v Counter point Furnishers CC
[2010] JOL 26415 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10061 / 10
22 / 09 / 2010
South Africa
High Court
South Gauteng, Johannesburg
R Mokgoatlheng J

Keywords:
Civil procedure – Provisional sentence – Liquid document
Mini Summary:
Based on a written deed of sale in terms of which the plaintiff sold immovable property to the defendant, the plaintiff instituted action for provisional sentence.
The defendant’s opposition to the action was predicated on the contention that the document the plaintiff relied on for provisional sentence was not a liquid one in that, it did not encapsulate an unconditional acknowledgement of indebtedness for an ascertained amount.
Held that as a general rule, provisional sentence is only granted on a liquid document. A liquid document is one which on a proper construction thereof evidences by its terms and without resort to extrinsic evidence.
Applying the above legal principles, the court found that the deed of sale was a liquid document, which encapsulated an unconditional indebtedness and an ascertained liability (namely the purchase price). In the premises, provisional sentence was granted against the defendant.
G Liviero & Son Building (Pty) Ltd v IFA Fair-Zim Hotel & Resort (Pty) Ltd: In re IFA Fair-Zim
Hotel & Resort (Pty) Ltd v G Liviero & Son Building (Pty) Ltd & another
[2010] JOL 25958 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7802 / 09; 7803 / 09 In re 7434 / 09
27 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
TA Sishi J
Keywords:
Civil procedure – Provisional sentence – Interdict – Further affidavits – Leave to file – Application to strike out – Hearsay evidence
Mini Summary:
In the first two cases before the court, plaintiff sued the defendant for provisional sentence on two interim payment certificates issued in term of a building contract by the principal agent. The defendant contended that the plaintiff sought to obtain payment in circumstances where it had no right to do so because it knew that the two certificates had been issued otherwise than in accordance with the provisions of the principal building contract and as such were invalid.
In the third application, the applicant (the employer in terms of a building contract) sought to interdict the first respondent, the main contractor on the project, from claiming payment in terms of two guarantees issues by the second respondent.
The court was also required to deal with two preliminary applications. The first was the application for leave to file further affidavits in the matters. And the second was an application to strike out certain allegations contained in an affidavit in the provisional sentence proceedings.
Held that as the applicant had advanced good reasons why the further affidavits should be filed at this stage and provided a satisfactory explanation for the lateness, the first preliminary application was granted.
In considering the application to strike out, the court expounded on the admissibility of hearsay evidence
(as contained in the impugned affidavit). It set out the law in that regard, and concluded that the hearsay evidence should not be allowed. The application to strike out was granted.
The next aspect considered was the provisional sentence proceedings. The test as to when provisional sentence should be granted is that – where, as in the present instance, the plaintiff sues for provisional sentence on an illiquid document - the court will ordinarily grant provisional sentence unless the defendant produces such counter proof as it would satisfy the court that the probability of success in principle case is against the plaintiff. The defendant must show on a preponderance of probabilities that it has a valid defence in law. In this case, such onus was not discharged, and provisional sentence was granted.
Flowing from the findings in the provisional sentence application, the court dismissed the application for an interdict.

Macdonald and others v Road Accident Fund
[2012] JOL 29313 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
453 / 2011
24 / 05 / 2012
South Africa
Supreme Court of Appeal
FDJ Brand, MS Navsa, NZ Mhlantla JJA
Keywords:
Delict – Claim for damages – Loss of support – Application of Assessment of Damages Act 9 of 1969 –
Where damages are assessed for loss of support as a result of a person’s death, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account – Calculations based on assumptions and contingencies not appropriate where actual figures available
Mini Summary:
The appellants lost their parents in a motor vehicle accident in 1994. The respondent is the Road Accident
Fund, a statutory insurer, established in terms of the Road Accident Fund Act 56 of 1996 (“the Act”).
Action was instituted on the appellants’ behalf, by a curator ad litem, claiming damages for the loss of support that they had suffered due to the death of their parents. The appellant were now cited in their own names as they had since reached majority.
The respondent conceded that the collision was caused by the negligence of the insured driver, who collided with the vehicle of the deceased parents and that, in consequence, it was liable for the appellants for whatever loss of support they could establish at the trial. The issues presented to the court a quo for determination, thus turned on the quantum of the appellants’ respective claims. An actuary was instructed on behalf of the appellants, to calculate the quantum of the loss of the support they each suffered. These calculations by Ennis, in turn, formed the basis of their claims in the court a quo. The Court granted the respondent absolution from the instance on the basis that the appellants had failed to establish that their reasonable maintenance needs could not be met by the proceeds of the deceased father’s estate. The present appeal was directed at that conclusion.
Held that loss of support is confined to actual pecuniary loss. In the first place that means that the dependants cannot claim compensation in the form of a solatium for the grief, the stress and the hurt brought about by the death of a loved one, because these are not capable of being calculated in money. It also means that the dependants are not allowed to profit from the wrongdoing of the defendant.
Accordingly, the actual pecuniary loss to which the dependants are entitled, can only be ascertained by a balance of losses and gains, that is by having regard not only to the losses suffered, but also to the pecuniary advantage which may come to the dependants by reason of the breadwinner’s death. That requires account to be taken of any income available to the dependants by way of an inheritance from the erstwhile breadwinner. If the nett assets in the estate of a deceased parent, together with the income derived from those assets were therefore sufficient to support the dependants in full, no claim for loss of support as a result of the breadwinner’s death could be sustained.
A further legal principle relevant to this case derived from statute, viz the Assessment of Damages Act 9 of 1969. That Act provides that where damages are assessed for loss of support as a result of a person’s death, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account. Applying that principle, the Court held that the first step in the correct application of the Act was to ignore the proceeds of insurance policies. The second step is an enquiry into whether the (non-insurance) assets in the deceased estate together with the income derived from those assets would be sufficient to meet the maintenance needs of the dependants. In a case such as the present where the maintenance needs of the dependants had already been met, the inquiry is simply whether the amount of maintenance the dependants had actually received could be produced by the (noninsurance) assets in the estate together with the income generated by those assets. That is the actuarial exercise which the actuary should have been asked to perform, but which he was not requested to do.
Instead, he was asked to determine the notional market value of the non-insurance assets in the deceased father’s estate as at the date when he died. That was an irrelevant exercise which led to irrelevant answers. What had to be determined was whether the maintenance actually paid could be covered by the non-insurance part of the trust assets.
In the absence of any exact actuarial calculations, the court found it prudent to follow the approach of the court a quo and absolve the respondent from the instance rather than to dismiss the appellants’ claims.
The appeal was dismissed.
Visser v Visser
[2012] JOL 29381 (KZD)
Case Number: 15088 / 2009

Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
29 / 03 / 2012
South Africa
High Court
KwaZulu-Natal, Durban
Gorven J
Keywords:
Delict – Claim for damages – Actio de pauperie – Assessment of quantum
Mini Summary:
The plaintiff and his family were on vacation, staying at the home of the plaintiff’s father (the defendant), when the defendant’s dog bit the plaintiff’s two year-old son in the face. The incident gave rise to the present action, brought by the plaintiff in his capacity as his son’s guardian under the actio de pauperie.
Demand for payment of quantified damages was made by letter addressed to both the defendant and his insurance company, which defended the action.
Held that for liability to attach to a defendant, the only proof that is required under this actio is that the defendant was at the time the owner of a domesticated animal, that the animal injured the plaintiff without provocation and that in so inflicting injury the animal acted contra naturam sui generis. The defendant in this case admitted liability for any damages which the plaintiff could prove arose from the incident. The only issue in dispute was the quantum of the damages sustained by the plaintiff (in his capacity as guardian of his son) as a consequence of the incident.
The Court concluded from the evidence adduced that the damages for future medical, psychological and hospital expenses totalled R43 561, made up of psychotherapy in the sum of R9 536 and R34 025 for the scar revision surgery.
When assessing general damages, a different approach is required than that for assessing patrimonial loss because, apart from no reduction in patrimony as with special damages, there is no acceptable way of measuring pain and suffering, disfigurement and such categories of damages. Considering similar cases and the facts of the present matter, the court was of the view that an award of R70 000 for general damages, taken as a globular sum, was appropriate in the circumstances.
Mphalele v First National Bank of SA Ltd 1999 (2) SA 667 (CC)
the following was stated at 671E
– H:
“
There is no express constitutional provision which requires Judges to
furnish reasons for their decisions. Nonetheless, in terms of s1 of the
Constitution, the rule of law is one of the founding values of our
democratic state, and the Judiciary is bound by it. The rule of law
undoubtedly requires Judges not to act arbitrarily and to be
accountable. The manner in which they ordinarily account for their
decisions is by furnishing reasons. This serves a number of purposes.
It explains to the parties, and to the public at large which has an
interest in courts being open and transparent, why a case is decided as
it is. It is a discipline which curbs arbitrary judicial decisions. Then,
too, it is essential for the appeal process, enabling the losing party to
take an informed decision as to whether or not to appeal or, where
necessary, seek leave to appeal. It assists the appeal Court to decide
whether or not the order of the lower court is correct. And finally, it
provides guidance to the public in respect of similar matters. It may
well be, too, that where a decision is subject to appeal it would be a
6
violation of the constitutional right of access to courts if reasons for

such a decision were to be withheld by a judicial officer.
”
SA Taxi Securitisation (Pty) Ltd v Nako & others
[2010] JOL 25653 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
19, 21, 22, 77, 89, 104 & 842 / 2010
08 / 06 / 2010
South Africa
High Court
Eastern Cape, Bhisho
LD Kemp AJ
Keywords:
Civil procedure – Summary judgment – Credit agreements – Financing of vehicles – Non-repayment
Mini Summary:
Summary judgment was sought by the applicant against all the respondents.
The applicant had financed motor vehicles which were supplied to the respondents, to be used as taxis.
When the respondents variously fell into arrears, they each applied to be placed under debt review in terms of the National Credit Act 34 of 2005. However, the 60-day period relating thereto had lapsed and after waiting for the 10-day period referred to in section 130(1)(a) of the Act, the applicant cancelled the agreements and issued summons against the respondents, seeking confirmation of the cancellation of the agreements, return of the vehicles, damages and costs.
In defending the actions, the respondents alleged that they were protected from the relief sought on two main grounds, namely that the lease agreements constituted reckless credit agreements and secondly, that applications in terms of section 87 were pending before a magistrate's court.
Held that the issues were whether the credit provider's rights in respect of the subject matter of the agreement would be limited by a finding that the credit provider extended credit recklessly; notwithstanding the valid termination of the debt review process by a proposal by the debt counsellor to a magistrate in terms of section 87.
The court was not satisfied that the respondents had raised a defence on the papers. It was of the view that the applicant had validly cancelled the agreements in terms of the Act, and was entitled to the subject matter of the agreements, ie the motor vehicles.
Summary judgment was granted.
Maphalaphathwa and another v Ratshibayi
[2015] JOL 32935 (LT)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 05 / 2014
08 / 05 / 2014
South Africa
High Court
Limpopo Local Division, Thohoyandou
K Makhafola J, PD Nkuna AJ
Keywords:
Civil procedure – Default judgment – Application for rescission – Service of summons – Proof of proper service
Mini Summary:
The respondent’s vehicle and the first appellant’s vehicle (driven at the time by the second appellant) were involved in a collision. As a result of the damage to her vehicle, the respondent instituted action for damages. Summons was served on a person presumed to be the first appellant’s wife. No appearance to defend was filed and the respondent proceeded to obtain default judgment. The appellants applied for rescission three months later, but the application was dismissed. That resulted in the present appeal.

Held that a cornerstone of our legal system is that a person is entitled to notice of legal proceedings against him. Proceedings which commence without due notice to the defendant will be null and void. There are various ways in which processes, notices and documents can be legally served. One of those ways is service at the defendant’s place of residence upon a person apparently not under the age of 16 years old, and apparently residing or employed there.
The Court was not happy that it was satisfactorily proved that the person on whom the summons was served was indeed the wife of the first appellant. The sheriff’s return contained the person’s initial and surname, and it could not be inferred that such was a reference to the first appellant’s wife. In the circumstances, the appeal was upheld.
Sapphire Dawn Trading 154 CC and another v ABSA Bank Limited
[2015] JOL 32708 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
605 / 2013
28 / 01 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
B Hartle J
Keywords:
Civil procedure – Default judgment – Application for rescission – Good cause
Mini Summary:
The registrar having granted default judgment against the applicants (the first applicant in its capacity as principal debtor and the second by virtue of his obligation as a surety of the principal debtor), the applicants sought rescission of the judgment.
According to the respondent’s particulars of claim in the main action, the first applicant’s liability arose as principal debtor for monies loaned by the respondent to it on overdraft in terms of a cheque account banking facility.
Held that the applicants appeared to rely on the common law for the relief sought. In that regard, the second applicant contended that “good cause” existed to justify the rescission sought and purported to give reasons therefor. In order to show good or sufficient cause, an applicant must give a reasonable and acceptable explanation for his default, demonstrate that the application is made bona fide and show that on the merits he has a bona fide defence which prima facie carries some prospect of success. In attempting to explain away their default, the applicants alleged that the summons did not come to the attention of either of them.
The Court held that the application could be dispensed with on the basis that no case was sufficiently made in respect of the third requirement for rescission, namely that an applicant ought to have a bona
fide defence which prima facie carries some prospect of success. Concluding that good cause for rescission was not established, the court dismissed the application.
Pearl v ABSA Bank Limited and others
[2014] JOL 31729 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7264 / 2013
16 / 08 / 2013
South Africa
High Court
South Gauteng, Johannesburg
Modiba AJ
Keywords:
Civil procedure – Default judgment – Application for rescission – Late filing – Condonation
Mini Summary:
The first respondent obtained default judgment against the applicant who then applied for rescission thereof. The rescission application was filed late, and condonation was sought in that regard. The court now provided its reasons for dismissing the application for condonation. The application for rescission was filed approximately 34 months after the default judgement was granted.
Held that rule 31(5)(d) in terms of which the rescission application was brought requires that a rescission application for a default judgment granted under that rule be brought within 20 days after the applicant acquired knowledge of the judgment. The date on which the applicant filed the rescission application was approximately 34 months after the earliest date on which she possibly knew of the default judgment and approximately 3 months after the latest date on which she possibly knew of the default judgment. Where rescission was sought out of time, the applicant is required to file an application for condonation, the court

will only grant condonation on good cause shown for the delay. Reasons for the delay must be provided with sufficient detail to enable the court to understand the cause for the delay and to assess the applicant’s motive for bringing the application.
In this case, the applicant did not make a formal application seeking condonation. The court had to consider whether it was appropriate for it to consider the condonation application brought orally from the bar. It found that it was in the interest of the parties that the condonation application be heard as doing so would bring finality to the matter with the required urgency.
In assessing whether the applicant had shown good cause for the delay, the court had to consider the degree of non-compliance, the explanation for it, the importance of the case, the prospects of success, the respondent’s interest in the finality of its judgment, and the avoidance of unnecessary delay in the administration of justice. The applicant failed to properly explain the significant delay, and failed to satisfy the court that she had a bona fide defence. Condonation was thus refused.
Thompson v Investec Bank Limited
[2014] JOL 31990 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
864 / 2010
01 / 07 / 2014
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Civil procedure – Sequestration order – Rescission application – Postponement application – Applicable principles – Locus standi
Mini Summary:
The applicant was a former trustee of a trust. Relying on a loan agreement entered into with the trust, the respondent bank sued the trustees (including the applicant) in their representative capacities, alleging that the trust had breached its obligations under the loan agreement. The trustees did not enter an appearance to defend and judgment was granted by default. In February 2013, the bank obtained a final sequestration order against the trust. An application for rescission was launched on 4 October 2013, some seven and a half months after the sequestration.
The applicant later applied for a postponement. The Court dismissed the application, and now furnished its reasons for so doing, as well as its judgment in the main action.
Held that as a party seeking a postponement is seeking an indulgence, he must show good cause for the interference with his or her opponent's procedural right to proceed and with the general interest of justice in having the matter finalised. The court is entrusted with a discretion as to whether to grant or refuse the indulgence, and should be slow to refuse a postponement where the reasons for the applicant's inability to proceed have been fully explained. The prejudice that the parties may suffer must be considered and the usual rule is that the party who is responsible for the postponement must pay the wasted costs.
The Court was not satisfied that the applicant had fully explained the reasons for the delay and accordingly her inability to proceed. The postponement was therefore refused.
Another issue addressed was that of the applicant’s locus standi. The Court considered whether she had brought the application in her capacity as trustee or in her personal capacity. It found that she had brought the application on her own and only in her personal capacity. As she had no locus standi to bring the application for rescission of judgment whether in her personal capacity or on behalf of the erstwhile trustees, the application fell to be dismissed on that ground alone.
Even assuming that the application was brought on behalf of the trustees in the insolvent estate of the trust (which it was not) no case for rescission had been made whether in terms of rule 42, rule 31 or under the common law.
K Govender Civils & Building Contractors CC & others v Standard Bank of SA Ltd
[2011] JOL 27987 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
654 / 2011
02 / 11 / 2011
South Africa
High Court
KwaZulu-Natal, Durban
Lopes J

Keywords:
Civil procedure – Default judgment – Rescission application – Requirements
Mini Summary:
In terms of rule 31(2)(b) of the Uniform Rules of Court, the applicants sought the rescission of a default judgment obtained by the respondent against them.
Held that in order to succeed in the application for rescission, the applicants had to establish a reasonable explanation for their default; that the application for rescission was bona fide and not made with the intention to delay the respondent’s claim; and that they have a bona fide defence to the respondent’s claim. That had to be done by establishing a prima facie defence by setting out averments which, if established at the trial, would entitle them to the relief they seek.
In his founding affidavit, the second applicant referred to alleged ongoing negotiations with the bank’s employees, indicating a willingness on the part of the bank to comply with the second applicant’s demands for a loan to be advanced as consideration for the granting of the mortgage bond over the applicants’ property. The Court found the second applicant’s version to be misleading and not to be borne out by the evidence. As such, no bona fide defence to the bank’s claim was established.
The application for rescission was refused.
NV Properties (Pty) Limited v HRN Quantity Surveyors (Pty) Limited
[2012] JOL 29304 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2123 / 2012
16 / 05 / 2012
South Africa
High Court
Eastern Cape, Grahamstown
JM Roberson J
Keywords:
Civil procedure – Default judgment – Rescission application
Mini Summary:
The respondent had instituted action against the applicant, for payment of professional fees due to it. the applicant failed to enter an appearance to defend, and default judgment was granted.
Seeking rescission of the default judgment, the applicant explained that the summons was only brought to its attention after default judgment had been granted.
Held that the Court was satisfied with the explanation for the default.
Turning to the merits, the Court considered the applicant’s defences that the agreement had been concluded between the respondent and another entity (a member of the group of companies to which the applicant belonged) and that the respondent had failed to provide all the services which it was obliged to in terms of the agreement.
It was necessary for the Court to address only the first issue. It stated that for the purposes of rescission, the applicant did not have to persuade the Court that the probabilities favoured it. It was sufficient if an issue fit for trial was raised. The issue of the correct contracting party was found to be one that was fit for trial. The applicant had therefore shown good cause for the rescission of the judgment, and an order to that effect was issued.
Minister of Safety & Security v G4S International UK Ltd: In re G4S International UK Ltd v SA
Airways (Pty) Ltd & others (Protea Aviation (Pty) Ltd as third party)
[2012] JOL 28815 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
07 / 12735
30 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten
Keywords:
Civil procedure – Delictual claim – Defence – Striking out of – Rescission
Mini Summary:
On 25 March 2006 a consignment of US dollar, Euro and Rand banknotes, belonging to the respondent was stolen in an armed robbery. Within days of the robbery, a large but undisclosed quantity of those banknotes were seized and recovered by members of the South African Police Service. Some of that money was stolen from the police station. The respondent sued the applicant for damages. The applicant

filed a plea, but the defences to the respondent’s claims were struck out. The present application was for the rescission of that order.
Held that the application fell to be decided under the Court’s common law power of rescission of default judgments. In order to succeed the applicant, seeking rescission, must show “good cause” or “sufficient cause”, which encapsulates two distinct essential elements, firstly, a reasonable and acceptable explanation for his default and, secondly, that on the merits a bona fide defence exists. The Court exercises a wide discretionary power, influenced by considerations of justice and fairness, having regard to all the facts and circumstances of the particular case.
Turning to consider each of the requirements, the Court found that the applicant had made out a case for the relief sought. The Court considered it to be in the interests of justice and fairness that the minister be granted leave to continue in defending the claims.
Modibane v SARS
[2011] JOL 27985 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
09 / 9651
20 / 10 / 2011
South Africa
High Court
South Gauteng, Johannesburg
M Tsoka J
Civil procedure – Rescission application – Competence of application
Mini Summary:
In August 2007, the respondent issued an assessment for income tax, interest and additional tax against the applicant. In terms of the assessment, the applicant was liable to the respondent in an amount of R22 million. The applicant’s objection to the assessment was dismissed, and an appeal to the Tax Court was still pending.
In terms of section 91(1)(b) of the Income Tax Act 58 of 1962, the respondent then obtained judgment from the Registrar of the Court against the applicant. The present application was for the rescission of that judgment.
Held that the respondent’s right to recover tax and execute against a taxpayer’s assets is provided for in section 91 of the Act. Section 91(1) provides for the respondent’s filing of a certified statement with the
Registrar, which statement would then have the effect of a civil judgment. The court described it as misleading to refer to the certified statement by the respondent filed with the Registrar in terms of section
91(1) of the Act, as a judgment. The Registrar is not granting any judgment or making any pronouncement on the statement. The statement merely has the effect of a civil judgment as if it were indeed a civil judgment. the provisions of section 91(1) of the Act are enforcement and recovery mechanisms enabling the respondent to effect its obligation in terms of the Act, that is, to receive and recover any tax owed to it by a taxpayer and, if necessary, to execute on the certified statement which has all the consequences of a civil judgment.
No judgment in the ordinary sense of the word was granted by the Registrar in this case. There was consequently no judgment capable of rescission.
Despite that being the end of the matter, the court still considered whether the applicant had met the requirements for rescission. It was found that such requirements were not complied with.
The application was dismissed with costs.
Madikiza v First Rand Bank Ltd & another
[2010] JOL 25418 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
EL 323 / 10
09 / 04 / 2010
South Africa
High Court
East London Circuit Local
LD Kemp AJ
Keywords:
Civil procedure – Default judgment – Application for rescission
Mini Summary:

In 2005, the first respondent, a bank, granted the applicant a mortgage loan. About a year later, the applicant fell into arrears with his repayments. He alleged that he approached the bank during 2007 and entered into an arrangement with them in terms of which he would pay approximately half of the required instalment to them via his employer and the balance would be paid once he managed to evict tenants in another property of his and installed new tenants from whom he would get rentals. He claimed not to have been aware of the fact that the bank had issued summons against him, and that his property was to be sold in execution. In the present application, he sought to prevent the sale in execution.
The court having dismissed the application, now furnished its reasons therefor.
Held that the bank filed opposing papers in which they disputed the arrangement and also alleged that the applicant had not only been aware of the summons, but had also approached the bank as well as the bank's attorneys and sought to make arrangements with them to settle the debt. A dispute accordingly existed about the arrangement on which the applicant relied. The general rule when there are conflicts of fact on affidavit evidence is that the application falls to be decided only on the averments of the respondent, taken together with those of the applicant which are admitted, or not denied, by the respondent. The court found that the applicant's version was untenable.
As the applicant was seeking rescission of the bank's judgment against him, the court set out the requirements therefor. It found that the applicant had failed to make out a case for rescission and dismissed the application.
Marriott & another v ABSA Bank Ltd & another
[2010] JOL 25959 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
6910 / 09
24 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
TA Sishi J
Civil procedure – Judgment – Rescission application – Good cause
Mini Summary:
In an urgent application, the applicants sought the stay of a sale in execution, and the rescission of a judgment obtained against them by the first respondent. As the first respondent consented to the stay of the sale in execution, the court had only to decide on the rescission application.
Held that the application for rescission was brought in terms of common law and the applicants had to show good cause for the rescission application to be granted. They had to satisfy the court that three requirements had been met, namely by giving a reasonable explanation for the default; showing that the application was bona fide; and showing that they had a bona fide defence to the first respondent's claim which prima facie had some prospects of success.
Finding that the above requirements were not met, the court concluded that the applicants had not show good cause for rescission. The application was dismissed.
Bernert v ABSA Bank Ltd
[2010] JOL 26562 (CC)
Case Number: CCT 37 / 10
Judgment 09 / 12 / 2010
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Ngcobo CJ, Moseneke DCJ, Cameron, Froneman, Khampepe, Mogoeng, Nkabinde,
Skweyiya, Jacoob JJ, Brand AJ
Keywords:
Courts – Judicial officers – Recusal – Allegation of bias – Legal principles
Mini Summary:
The respondent, a bank, discovered the existence of a document allegedly issued by it, purporting to guarantee a fixed deposit facility to a third party at a certain rate of interest. The document was

addressed to Emirates Bank International, and was required by a potential financial investor in a business enterprise to be undertaken by the applicant. Concerned that Emirates Bank might rely on the authenticity of the document, the respondent, upon becoming aware of its existence, advised Emirates Bank, by letter, that the document had been issued without its authority and in irregular circumstances. That caused the potential investor to withdraw from the applicant’s project.
The central issue in the litigation was whether the respondent acted lawfully when it advised Emirates
Bank that the alleged guarantee had been issued without its authority and in irregular circumstances.
In the present application, the applicant sought to challenge the Supreme Court of Appeal’s finding in the respondent’s favour. The applicant also alleged bias against him by some of the judges who constituted the panel that heard the appeal in the Supreme Court of Appeal.
Two preliminary issues presented before the court. The first was whether the late filing of the application for leave to appeal and the record should be condoned. The other was whether leave to appeal should be granted.
Held that the test for determining whether to grant condonation is in the interests of justice. Factors relevant to this enquiry include, but are not limited to, the extent and the cause of delay, the prejudice to other litigants, the reasonableness of the explanation for the delay, the importance of the issues to be decided in the intended appeal and the prospects of success. The court found that it was in the interests of justice that the applications for condonation be granted.
The question whether an application for leave to appeal should be granted depends upon whether it raises a constitutional matter, and it is in the interests of justice to grant leave.
The question whether a judicial officer should recuse himself is a constitutional matter, as is the issue of whether there was actual or a reasonable apprehension of bias. Finding that it was in the interests of justice that leave to appeal be granted, the court turned to the merits of the appeal.
It began by setting out the legal principles that govern allegations of bias. A judicial officer who sits on a case in which he should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution. The present case concerned the apprehension of bias.
The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case, or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself. Fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.
The applicant relied on a prior association which two judges had with the respondent. The court held that previous activities which judges have been involved in will not form the basis of a reasonable apprehension of bias unless the subject-matter of the litigation arises from this association or activity.
There was no suggestion in this case that the subject-matter of the litigation arose from the prior association with the respondent and, as a result, there was no obligation on the two judges to disclose the association.
Finding no reasonable apprehension of bias, and no merit in the applicant’s complaints of erroneous factual findings, the court dismissed the application.
Winterbreeze Trading 158 (Pty) Ltd & another v Smith & another
[2010] JOL 25652 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
15266 / 2010
15 / 06 / 2010
South Africa
High Court
North Gauteng, Pretoria
PC van der Byl AJ
Keywords:
Civil procedure – Recusal – Test – Application for leave to appeal – Effect on order pending appeal
Mini Summary:
The court provided its reasons for having granted an order that, pending the hearing of respondents' application for leave to appeal, the operation and execution of an order granted in the matter on an earlier date not be suspended and that the operation and execution of the order immediately be put into effect.
The earlier order referred to was an interdict preventing the respondents from performing certain unlawful actions, and from entering the business of the second applicant and the property of the first applicant

(other than the house occupied by the respondents). The order also directed the respondents to return to the applicants all the books and records, keys to the premises and keys to the safe of the second applicant and all other documents and property which belonged to the applicants.
The respondents sought the recusal of the present judge, on the basis that he had discussed the merits of the case with the applicants.
Held that there was no factual basis for the contention that the applicants' attorney had a personal discussion with the judge about the merits of the matter. The test to be applied in cases of applications for recusal is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case. The test not being satisfied, the recusal application was dismissed.
In making the order referred to above, the court based its decision on the fact that the respondents stood to suffer no prejudice by complying with the orders granted pending their application for leave to appeal
Martin Johnson Properties CC v Mutual & Federal Insurance Co Ltd
[2009] JOL 24516 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2489 / 05
03 / 11 / 2009
South Africa
High Court
KwaZulu-Natal, Durban
SK Ndlovu J
Keywords:
Insurance – Contract – Rectification – Deletion of warranties
Mini Summary:
In terms of a policy of insurance, the plaintiff's business was insured with the defendant. The present action was for rectification of the contract of insurance; payment of the amount representing cost of reinstating its business premises which had been destroyed by fire and, payment in respect of loss of rental occasioned by the interruption of the plaintiff's business.
Repudiating the plaintiff's claim pursuant to the fire, the defendant alleged that the plaintiff had failed to comply with certain warranties, and was consequently in material breach of the contract. Alternatively, the plaintiff failed to disclose that it would store or use on the premises the products referred to in the warranties. A further allegation by the defendant was that the plaintiff had materially breached the contract by failing to take all reasonable steps and precautions to prevent accidents or losses.
Held that at the end of the plaintiff's case, an application was made by the defendant for absolution from the instance. The test in such applications is whether there was evidence upon which a reasonable man might find for the plaintiff. The court dismissed the application on the basis that the overall evidence tendered on behalf of the plaintiff did make out a prima facie case sufficient to call for a reply.
The issues for determination were whether the plaintiff was entitled to and should be granted an order of rectification of the said policy to exclude the warranties as pleaded in the plaintiff's particulars of claim; and if not, whether the said warranties were avoided by way of estoppel or waiver as averred in the plaintiff's replication.
A warranty in the context of an insurance contract may mean a term which, if breached, gave the insurer a right to elect to avoid the policy and repudiate liability. In certain instances a warranty has been described as a condition precedent to liability. It was clear from the defendant's own evidence that there was confusion over how the warranties came to be included in the contract.
The court found the inclusion of the warranties to be the result of mistake, and granted rectification of the contract.
South Central Investments 140 CC v JR Bester & Associates Inc & other
[2010] JOL 26008 (E)
Case Number:
Judgment Date:
Country:
1451 / 08
26 / 02 / 2010
South Africa

Jurisdiction:
Division:
Bench:
High Court
Eastern Cape, Port Elizabeth
M Makaula AJ
Keywords:
Civil procedure – Dispute – Referral to trial
Mini Summary:
The applicant sought an order that the respondent pay it R1 million, and interest.
In a counter-application, the respondent sought the joinder of the second to seventh respondents, and rectification of the agreement between the parties.
Held that the respondent was a firm of attorneys which had rendered services on behalf of the second to seventh applicants. It had effected transfer of certain properties as the representative of the applicant. In that regard, it had deducted an amount of R1 million in respect of its fees. The applicant contested the deduction.
The court found that the dispute regarding the liability for the fees claimed by the respondent could not be resolved on the papers. The matter was referred to trial, and the counter-application held to stand as a summons.
Ngobeni v Unknown Occupier and others
[2014] JOL 32104 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20525 / 2013
19 / 06 / 2014
South Africa
High Court
Western Cape ,Cape Town
Dlodlo J
Keywords:
Property – Rei vindicatio – Ownership and possession of property – Onus of proof – An owner, in claiming restoration of possession to the property, need only allege and prove that he is the owner and that the defendant is holding the res, and the defendant then bears the onus of alleging and establishing any right to continue to hold against the owner
Mini Summary:
The applicant owned property which he considered his residence. When he had to move to another province for work, he entered into an oral agreement with a certain person, for the latter to live in and take care of the property. After the applicant’s retrenchment some years later, he returned to the property, and found the respondents residing there. The person who had the applicant’s consent to live there had died, and the respondents had come to live on the property while attending the deceased’s funeral. According to the applicant, the respondents had no right in law to occupy the property, but when asked to leave, they allegedly became aggressive. The present application was for the ejectment of the respondents.
The respondents admitted that the applicant was the owner of the property. They alleged that they were the daughter and son-in-law of the deceased who had been living on the property. According to the respondents, the deceased had contracted orally with the applicant, advancing the applicant R6 000 to purchase the property, on the understanding that the applicant would later transfer the property to the deceased. The applicant had in fact handed over the title deeds to the deceased, and such title deeds were currently in the daughter’s possession. The respondents alleged further, that they had renovated the property to the extent that it was currently valued at R180 000.
In response to the respondents’ allegations, the applicant denied that he had entered into an agreement to transfer the property to the deceased, and stated that he had left some of his personal documents on the property, which was how the respondents had obtained possession of the title deeds.
Held that at common law, possession of a property rightfully lies with the owner thereof, and no third party may withhold it from the owner unless he has vested in some right enforceable against the owner.
The owner, in claiming restoration of possession to the property, need only allege and prove that he is the owner and that the defendant is holding the res. The defendant then bears the onus of alleging and establishing any right to continue to hold against the owner.
The respondents contended that the applicant was required, but failed, to comply with the procedure set out in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Arguing that

the provisions of section 4 of the Act are peremptory, the respondents argued that the applicant was required to obtain leave from the court to serve a notice in terms of section 4(3) on the respondents. The
Court held that it was common cause that a notice in terms of section 4(2) had been issued by the Court.
However, the respondents submitted that the service of the notice was defective as it was not served by the Sheriff as required in rule 4. However, the Court found the respondents’ submissions to be misplaced, as the notice contemplated was not the same as the processes referred to in rule 4. What the Court emphasised as significant, was the fact that the respondents did receive the section 4(2) notice. Despite the fact that the relevant section has been held to be peremptory, not every deviation from the strict form renders the process of court void.
Reverting to the issue of onus referred to above, the Court confirmed that the respondent needed to merely assert his ownership, for the onus of proof to shift to the respondents in respect of the lawfulness of their occupation of the property. The version advanced by the respondents amounted to hearsay, with no corroboration. As far as their reliance on an enrichment lien was concerned, to succeed with the right of retention they had to show that they had an enrichment action as against the applicant. They had to prove the right of retention which they alleged. Their evidence was regarded as scant in that regard. They needed to have made the necessary allegations regarding the extent to which they had been impoverished and the applicant had been enriched. Ultimately, the respondents established no basis for any right to occupy the property. The eviction order was thus granted.
Gama-Mpantsha & others v Mpantsha
[2011] JOL 27970 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
CA 16 / 11
18 / 08 / 2011
South Africa
High Court
Eastern Cape, Mthatha
F Dawood, Y Ebrahim JJ, IT Stretch AJ
Keywords:
Property – Ownership – Vindicatory application
Mini Summary:
In 1999, the first appellant married the respondent. The couple and the third appellant (the first appellant’s daughter from a previous relationship) lived together on property which was then owned by the fifth respondent, a municipality. In 2006, the first appellant sued the respondent for divorce. In 2007, the fifth respondent’s council passed a resolution to sell the property to the first appellant. Transfer was effected to the first appellant. The first appellant then transferred the property to the second appellant
(her son-in-law) and the third appellant (who was married to the second appellant in community of property) and the property was registered in the names of the second and third appellants. The respondent was advised that the property had been sold and he was given until 31 December 2007 to vacate.
In February 2008, the respondent brought a vindicatory application claiming return of ownership of the property. His application succeeded, leading to the present appeal.
The first appellant disputed that the respondent acquired the property in question after her marriage to him or at all.
Held that the credibility of the appellants was questionable. Having regard to the evidence, the court found that the appellants had conspired to prejudice the respondent’s interest in the joint estate. The court a quo was correct in making the orders resulting in the setting aside of the respective sales and in restoring the property to the joint estate.
The appeal was dismissed.
Sanyati Building (Pty) Ltd v Ernergy X-Ray Trading Company Kzn (Pty) Ltd & another
[2010] JOL 26386 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Spoliaton order – Possession
11590 / 10
05 / 11 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Cele AJ

Mini Summary:
Seeking a spoliation order, the applicant sought to have the respondents directed to restore possession of the x-ray equipment listed and described in annexure “D” to the founding affidavit in this matter, to the applicant, failing which the sheriff be authorised to attach and seize the said equipment.
The application was opposed by the respondents on the basis that the applicant could not have been in possession of the equipment in question for the purposes of obtaining the relief sought, having possessed the equipment as a servant holding it for its master.
Held that it was common cause between the parties that the equipment was on a site in respect of which the applicant was in charge at the material time, having taken it and construction work was in progress.
The applicant was in peaceful and undisturbed possession of the equipment. The equipment was removed by the respondents without the consent of the applicant. The only issue for consideration was whether the applicant possessed the equipment, at the time, with an intention of securing some benefit for itself.
The intention with which one possesses a thing is decisive on whether one should succeed in an application for a mandamus van spolie. The facts showed that the applicant had held the equipment with the intention of securing some benefit for itself.
The application accordingly succeeded.
Born Free Investments 364 (Pty) Limited v Firstrand Bank Limited
[2014] JOL 31371 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
973 / 2012
27 / 11 / 2013
South Africa
Supreme Court of Appeal
VM Ponnan, LO Bosielo, R Pillay JJA, Van der Mewe, Zondi AJJA
Keywords:
Contract – Loan agreement – Alleged repudiation of agreements – Cession of claims – Validity of cession –
Loan agreement containing pactum de non cedendo preventing cession of any rights under the agreement without the respondent’s prior written consent – Where pactum created in contract created nontransferable right, it was enforceable against liquidator in insolvency and cession was of no force and effect –
Mini Summary:
Two companies, now in liquidation, had borrowed money from the respondent, and at the time of their liquidation owed the latter R49,2 million and R25,1 million, respectively. The respondent’s claims were admitted by the liquidators, and it was a major creditor in each insolvent estate. The liquidators ceded the claims to the appellant, which, as cessionary, sued the respondent in the High Court. It alleged that the respondent had repudiated the loan agreements which it had entered into with each of the two companies, causing the companies to suffer significant losses.
In its defence, the respondent denied the validity of the cession on the basis that its contract with each of two companies contained a pactum de non cedendo preventing the companies from ceding any of their rights under the agreement without the respondent’s prior written consent. Although two other challenges to the cession were also raised, the court restrict itself to a consideration of only the first as it would be dispositive of the appeal if upheld.
Held that the question raised by the appeal was whether the right, title and interest in and to the claims in question were capable of being ceded by the duly appointed liquidators of the two companies in view of the stipulation referred to above.
The appellant argued that the liquidators entered into each sale and cession in accordance with their duties in terms of the insolvency law and that the clause containing the pactum de non cedendo was in law inapplicable to and of no effect as against them – as a pactum de non cedendo does not bind a liquidator who cedes a contractual right pursuant to his duties as liquidator. Referring to the authorities, the Court confirmed that a distinction must be drawn between a pactum de non cedendo which prohibits the cession of an existing right, ie one which pre-existed the conclusion of the pactum, on the one hand, and a pactum de non cedendo of a right which, by means of the pactum itself, was created ab initio as a non-transferable right, on the other. It therefore had to be determined whether the rights which the liquidators had ceded to the appellant had been created ab initio as non-transferable rights. If they were, then it would follow that the cession in each instance was invalid and would thus be of no force or effect.

On the plain and ordinary meaning of the words used, it was clear that it was the intention of the parties to the agreements, when they concluded them, to render all rights acquired by the two liquidated companies under those agreements non-transferable. Accordingly, the cession of the claims of the companies against the respondent to the appellant by the liquidators of those companies, was invalid and of no force or effect.
The appeal was dismissed with costs.
Company Unique Finance (Pty) Ltd & another v Northern Metropolitan Local Council of
Johannesburg & another
[2010] JOL 26055 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
14581 / 99
13 / 08 / 2010
South Africa
High Court
South Gauteng, Johannesburg
P Blieden J
Keywords:
Contract – Contract – Repudiation – Authority – Ostensible authority – Estoppel
Mini Summary:
In terms of three contracts, the first defendant ("the council") rented certain equipment from the first plaintiff. The second defendant signed the agreements on the council's behalf.
The plaintiffs alleged that the council unlawfully repudiated its obligations as contained in the agreements, when it informed the first plaintiff that it was unaware of the existence of the agreements, and that it therefore sought repayment of amounts paid under the agreements. Accepting the repudiation, the plaintiffs cancelled the contracts and instituted the present action for delictual damages. The second defendant denied that he lacked authority as claimed by the council and consequently denied any liability to the plaintiffs on their claims.
Held that in order to act on behalf of another so as to affect that other's relationships, the necessary authority to do so must be present. Authority to act can either be actual or ostensible. It was only ostensible authority which was in issue in the plaintiffs' case based on contract. Ostensible or apparent authority is the authority of an agent as it appears to others.
A claimant who relies on an estoppel will have to show that he was misled by the principal into believing that the party who purportedly acted on the principal's behalf had authority to conclude the act, that the belief was reasonable, and that the claimant acted on that belief to his prejudice. Assurances by the agent of the existence or extent of his own authority are of no consequence. The onus to establish an estoppel rests on the party who pleads it.
The court also set out the requirements for proof of fraud, misrepresentation and vicarious liability.
On the claim based in contract, the court found that there was a representation by both words and conduct made by the council, that the second respondent had the authority to sign the agreements. The council should reasonably have expected that outsiders such as the plaintiffs would act on the strength of its representation. The council was therefore estopped from denying the authority of the second respondent to act on its behalf in concluding the agreements.
Judgment was granted in plaintiff's favour, as against the first defendant only.
Laeveld Trust 2001 (Pty) Ltd & others v Blue Fire Properties 115 (Pty) Ltd
[2011] JOL 28053 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
795 / 10
29 / 09 / 2011
South Africa
Supreme Court of Appeal
LV Theron, TD Cloete, FR Malan JJA

Civil procedure – Defence of res judicata – Requirements for res judicata are that the proceedings must be between the same parties, the grounds for relief must be the same in both cases and the same relief must be sought in both cases – Where relief related to different time periods, defence not available – Contract –
Terms of – Agreement entitling purchaser to request documents to conduct due diligence investigation within stipulated time period – Seller’s breach in failing to provide requested documents causing delay which had effect of extending due diligence period
Mini Summary:
In terms of an agreement for the sale of commercial properties by the appellant to the respondent, the latter was entitled to conduct a due diligence investigation in relation to all material matters pertaining to the property, within seven days of the signing of the agreement. During that period, the respondent could request access to documentation and information that it, in its discretion, regarded as material to the purchase of the properties. The appellants were obliged to make available “forthwith” documents properly requested by the respondent.
Four days before the due diligence period could expire, the respondent requested certain specified documents from the appellants. The appellants failed to make all the documents requested available. The annual audited financial statements in particular, were not disclosed. A dispute in that regard was referred to arbitration, where the arbitrator found that the respondent was entitled to the documents requested.
The appellants were ordered to allow the respondent to inspect and make copies of the audited annual financial statements which existed in respect of each of the appellants as at 30 June 2005. The arbitrator also declared that from the date when the said documents were made available, the respondent would have two working days to complete the due diligence investigation, whereafter it would have a further two days within which to inform the appellants which properties it intended purchasing. On 13 January 2010, the respondent was advised that the requested documents would be available that afternoon. Thus, in terms of the arbitrator’s award, the respondent was required to complete its due diligence investigation on or before 15 January 2010. However, on 13 January, the respondent requested further documents in order to update the information to the current date. As the documents specified in the arbitration proceedings related to the period prior to July 2005, the appellants refused to make available any documents not in existence as at July 2005. The respondent then approached the high court for an order compelling the appellants to make available the more recent documents requested, extending the period for the due diligence investigation and interdicting the appellants from disposing of the properties. The present appeal was against the granting of that order.
While acknowledging that they were obliged to provide information to the respondent in order to facilitate a due diligence investigation, the appellants argued that they were not obliged to provide documents that had not been in existence at the time of the conclusion of the agreement. It was submitted that having regard to the limited time frame within which the due diligence investigation had to be concluded, and the other terms of the agreement, the parties could not have envisaged that the respondent would be entitled to documents not in existence during the period of seven days within which the due diligence investigation had to be completed.
Held that what the appellants’ argument failed to take into consideration was the fact that the delay was due to their breach of contract. The consequence of the breach was that the due diligence period was extended. During that period the respondent was entitled to call for documents to enable it to exercise its right to exclude properties from the sale because it deemed them not to be viable. The documents could only be those relevant to the exercise of that right at the time the respondent was entitled to exercise it.
In refusing to provide the documents requested, the appellants had again breached their obligation and the due diligence period had in consequence, again been extended. As long as the documents were not provided, the respondent would have the right to request same, in respect of the decision it was still entitled to make.
At the hearing of the appeal, the further argument was raised that the respondent was precluded from claiming documents that were more recent than June 2005 as the award by the arbitrator rendered the respondent’s entitlement to documents res judicata. The requirements for res judicata are that the proceedings must be between the same parties, the grounds for relief must be the same in both cases and the same relief must be sought in both cases. As the relief sought by the respondent in the arbitration proceedings related to documents in existence at June 2005 while the relief sought in the high court, was for the production of documents that only came into existence after June 2005, the defence of res judicata could not successfully be raised.
The appeal was dismissed with costs.
Derbigum Manufacturing (Pty) Limited v Callegaro and others
[2014] JOL 31495 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
21041 / 2009, 17893 / 2011
17 / 05 / 2013
South Africa
High Court
South Gauteng, Johannesburg

Bench:
Keywords:
L Windell AJ
Civil procedure – Defence to claim – Res judicata
Mini Summary:
The plaintiff company is a manufacturer and distributor of waterproofing systems, with the first defendant
(“Callegaro”) as its managing director. Callegaro, whilst employed by the plaintiff, established the third defendant (“Polyteno”). Polyteno purchased raw materials and products required by the plaintiff from plaintiff’s existing and new suppliers and sold it to the plaintiff at an increased price and at a profit. That conduct constituted a breach of Callegaro’s fiduciary duties to the plaintiff. The plaintiff only obtained knowledge about Polyteno after Callegaro’s resignation in November 2008. Its investigations estimated the secret profit made by Callegaro to be between R10 million and R30 million. It therefore instituted action against Callegaro in May 2009, claiming a statement and debatement of the account and payment of all amounts found to be due by Callegaro. A court order was granted wherein Callegaro was ordered to render an account, supported by vouchers, of all the income and profits derived by him as a result of his interest in Polyteno. Callegaro complied with the court order, but the plaintiff was not satisfied with his account and subsequently brought a contempt of court application. That application was dismissed, but the plaintiff then instituted a second action in May 2011 against Callegaro, his wife and Polyteno as joint wrongdoers for damages. In response, Callegaro raised a plea of res judicata.
Held that a party relying on a defence of res judicata must prove that a final and definite judgment has been granted by a competent court, on the same cause of action, with respect to the same subject matter, or thing, as between the same parties.
It was common cause that both actions were against the same party, Callegaro. It was also common cause that both actions were founded on the same factual circumstances and that the witnesses in both actions were the same. However, the Court had to compare the particulars of claim in both actions and to establish what the cause of action was in both actions. It could not be found that the same thing was being claimed in both actions.
The plea of res judicata was thus dismissed.
Huisman and another v Lakie and others
[2014] JOL 31377 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Special plea – Prescription – Res judicata – Issue estoppel
Mini Summary:
3248 / 10
09 / 01 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
C Plasket J
The plaintiffs sued the defendants for damages arising from the publication of an article which was alleged to be defamatory of the first plaintiff. Summons was issued on 7 December 2010, two weeks short of three years from the publication of the letter. More than three years after the publication of the letter, on
5 July 2011, the plaintiffs applied to amend the summons and particulars of claim. Despite an objection by the defendants, leave to amend was granted. Subsequent to the amendment, the defendants filed their plea in which they raised a special plea of prescription.
In terms of the special plea, it was contended that the plaintiffs’ claims were based on publication of a letter on 21 December 2007, and any claims which the plaintiffs might have had against the second and third defendants pursuant to such publication would have become prescribed on 20 December 2010. The amended summons in which the second and third defendants were cited for the first time, was only served on the second and third defendants on 17 September 2012. In the premises, the plaintiffs’ claims against the second and third defendants became prescribed in terms of the provisions of the Prescription Act 68 of
1969. In a replication to the special plea, the plaintiffs stated that the issue of prescription raised by the defendants had already been decided against the second and third defendants and in favour of the plaintiffs in this action in a judgment handed down in September 2012. The plaintiffs accordingly contended that the second and third defendants were estopped from pleading prescription.
Held that the special plea and the replication thereto would be decided separately from other issues.
In strict terms, a plea of res judicata may be raised when, one dispute having been terminated (by an order that is final in effect), another is set in motion and both involve the same parties, concern the same thing and the same cause of action. In this case, the court was satisfied that the issue which had already

been decided was the same issue that is raised in the special plea, and therefore the requirements for res
judicata in the form of issue estoppel had been met.
It remained to consider whether it would be inequitable to apply res judicata in the circumstances of this case. The Court was not persuaded that the application of res judicata in the form of issue estoppel would lead to the unfairness contended for by counsel for the second and third defendants. On the other hand, the issue having been fully ventilated and decided upon finally, to allow the second and third defendants to raise it again would create precisely the type of prejudice the res judicata principle is intended to prevent.
The special plea was dismissed with costs.
Sanyati Building (Pty) Ltd v Ernergy X-Ray Trading Company Kzn (Pty) Ltd & another
[2010] JOL 26386 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Property – Spoliaton order – Possession
11590 / 10
05 / 11 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Cele AJ
Mini Summary:
Seeking a spoliation order, the applicant sought to have the respondents directed to restore possession of the x-ray equipment listed and described in annexure “D” to the founding affidavit in this matter, to the applicant, failing which the sheriff be authorised to attach and seize the said equipment.
The application was opposed by the respondents on the basis that the applicant could not have been in possession of the equipment in question for the purposes of obtaining the relief sought, having possessed the equipment as a servant holding it for its master.
Held that it was common cause between the parties that the equipment was on a site in respect of which the applicant was in charge at the material time, having taken it and construction work was in progress.
The applicant was in peaceful and undisturbed possession of the equipment. The equipment was removed by the respondents without the consent of the applicant. The only issue for consideration was whether the applicant possessed the equipment, at the time, with an intention of securing some benefit for itself.
The intention with which one possesses a thing is decisive on whether one should succeed in an application for a mandamus van spolie. The facts showed that the applicant had held the equipment with the intention of securing some benefit for itself.
The application accordingly succeeded.
The New Reclamation Group (Pty) Limited v Davies and another
[2015] JOL 33043 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17200 / 2013
20 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
M Tsoka J
Keywords:
Contract – Restraint of trade – Enforcement of – Protectable interest
Mini Summary:
The applicant sought final relief to enforce the provisions of a restraint of trade agreement between it and the first respondent.

Held that the two issues for determination were whether the applicant had a protectable interest worthy of protection, and if so, whether it was reasonable to enforce the agreement against the respondent.
Restraint of agreements are lawful and constitutional. The applicant only has to prove the existence of such an agreement and the breach thereof, whereafter the onus is on a respondent to prove that the agreement was against public policy, in that it denied his right to be engaged in a trade of his choice.
Proprietary interests worthy of protection are customer connections; and confidential / trade secrets, which if disclosed, would enable a competitor of an applicant to gain an advantage over the business of such an applicant. The first respondent denied that the applicant had an interest worthy of protection.
The applicant would succeed if the facts stated by the first respondent together with the admitted facts stated in its affidavit justified the granting of the application unless the facts stated by the first respondent were far-fetched or untenable.
The Court found that the first respondent had proved that the applicant had neither trade secrets nor business connections deserving protection. In any event, even if there was such protectable interest worthy of protection, such protectable interest did not weigh up qualitatively and quantitatively against the first respondent’s right to choose a profession of his own and not to be rendered economically inactive and unproductive.
The application was dismissed with costs.
Panzapix (Pty) Ltd v Van Niekerk & others
[2012] JOL 29080 (FSB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
483 / 2012
10 / 05 / 2012
South Africa
High Court
Free State, Bloemfontein
S Ebrahim J
Keywords:
Contract – Restraint of trade – Specific performance
Mini Summary:
The first five respondents were all former employees of the applicant, and were currently in the employ of the sixth respondent. In seeking to enforce a restraint of trade, the applicant sought specific performance of its contractual arrangement with the first to fifth respondents. Only the first respondent opposed the relief sought. In her Opposing Affidavit she advanced the defence that the restraint agreement was unreasonable, contrary to public policy and therefore unenforceable.
Held that the determination of this application rested on the reasonableness of the restraint. Public policy requires that agreements freely entered into should be honoured, but it also requires that persons should be free to seek fulfilment in their choice of profession, trade or occupation. In terms of section 22 of the
Bill of Rights in the Constitution, every citizen has the right to choose their trade, occupation or profession freely. The assessment of the reasonableness of the restraint requires a value judgment. The two principal policy considerations which have to be borne in mind when undertaking the exercise is that the public interest requires firstly that contractual obligations be complied with and secondly, that all persons should in the interest of society be economically productive by being permitted to engage in trade, commerce or the professions. The respective interests of the applicant and the respondents must be examined, bearing in mind that a restraint is unreasonable and unenforceable if it prevents a party from engaging in a trade, occupation or profession after termination of his or her employment with the other party without a corresponding interest of the latter being infringed and thus deserving of protection. The enquiry into the reasonableness of the restraint covers the value, extent and duration of the restraint as well as the respective bargaining powers and interests of the parties and factors peculiar to them.
The evidence showed that the first respondent had approached the applicant’s clients to let them know that she was no longer a director and employee of the applicant, and she and the other respondents had departed with the applicant’s computers containing confidential information of its client data base and its pricing structures and documents pertaining to the business and trading activities of the applicant with its existing and prospective clients. Not only was the first respondent in possession of confidential information belonging to the applicant as at the date of her resignation, but she was proactively using same in order to solicit a client of the applicant. In those circumstances, the restraint was neither unreasonable nor contrary to public policy nor constitutionally impermissible.
The application accordingly succeeded.

Global Network Systems (Pty) Ltd v Mack
[2010] JOL 25843 (LC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
JR 1514 / 09
28 / 06 / 2010
South Africa
Labour Court
Johannesburg
R Lagrange J
Keywords:
Labour law – Restraint of trade – Enforcement of restraint
Mini Summary:
In an attempt to enforce a restraint of trade agreement, the applicant sought interdictory relief against the respondent. A rule nisi was issued by the court, interdicting the respondent from directly or indirectly revealing or disclosing or in any way utilising any of the applicant's confidential information and competing unlawfully with the applicant. By the time the hearing resumed, the applicant's only object in pursuing the application was to obtain an order confirming the rule with a view to pursuing a potential damages claim against the respondent.
The essence of the applicant's complaint was that the respondent had commenced employment with a client of the applicant after leaving the applicant's employ.
Held that the restraint clause in the respondent's employment contract did not cover a situation in which the respondent took up employment with a former customer in terms of which he rendered some services in-house which he previously provided as an agent of the applicant. Accordingly, the respondent was not in breach of the restraint clause.
KBC Health & Safety & Security (Pty) Limited v Van Zyl
[2012] JOL 28777 (LC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
J 282 / 12
07 / 03 / 2012
South Africa
Labour Court
Johannesburg
E Molahlehi J
Keywords:
Contract – Employment – Restraint of trade – Enforcement of
Mini Summary:
The respondent was a former employee of the applicant, who had obtained employment with an entity which the applicant alleged was a competitor. As such, the applicant contended that the respondent was in breach of a restraint of trade undertaking made by the respondent in terms of her written contract of employment. In support of its application, the applicant alleged that the respondent was in breach of the restraint of trade undertaking as she had contacted a client of the applicant to arrange a meeting in order to solicit business.
Held that a restraint of trade agreement is enforceable unless it can be shown that it is against the public interest to do so. The courts have as a general principle refused to enforce restraints of trade which are regarded as being unreasonable because that would go against public interest. A critical issue is whether the employer has a protectable interest.
There was no dispute between the parties as to the existence of the provisions of the restraint clauses in their employment contract. There was also no dispute as to the reasonableness of the geographic extent or the duration of the restraint.
The question then was whether the applicant had a proprietary interest whose protection was required consequent to the respondent taking employment with her current employer. Having regard to the evidence before it, the Court found that the respondent’s new employer was in fact not a competitor of the applicant, and there was therefore no basis to enforce the restraint of trade clause.
The application was dismissed with costs.
Ngobeni v Unknown Occupier and others
[2014] JOL 32104 (WCC)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20525 / 2013
19 / 06 / 2014
South Africa
High Court
Western Cape ,Cape Town
Dlodlo J
Keywords:
Property – Rei vindicatio – Ownership and possession of property – Onus of proof – An owner, in claiming restoration of possession to the property, need only allege and prove that he is the owner and that the defendant is holding the res, and the defendant then bears the onus of alleging and establishing any right to continue to hold against the owner
Mini Summary:
The applicant owned property which he considered his residence. When he had to move to another province for work, he entered into an oral agreement with a certain person, for the latter to live in and take care of the property. After the applicant’s retrenchment some years later, he returned to the property, and found the respondents residing there. The person who had the applicant’s consent to live there had died, and the respondents had come to live on the property while attending the deceased’s funeral. According to the applicant, the respondents had no right in law to occupy the property, but when asked to leave, they allegedly became aggressive. The present application was for the ejectment of the respondents.
The respondents admitted that the applicant was the owner of the property. They alleged that they were the daughter and son-in-law of the deceased who had been living on the property. According to the respondents, the deceased had contracted orally with the applicant, advancing the applicant R6 000 to purchase the property, on the understanding that the applicant would later transfer the property to the deceased. The applicant had in fact handed over the title deeds to the deceased, and such title deeds were currently in the daughter’s possession. The respondents alleged further, that they had renovated the property to the extent that it was currently valued at R180 000.
In response to the respondents’ allegations, the applicant denied that he had entered into an agreement to transfer the property to the deceased, and stated that he had left some of his personal documents on the property, which was how the respondents had obtained possession of the title deeds.
Held that at common law, possession of a property rightfully lies with the owner thereof, and no third party may withhold it from the owner unless he has vested in some right enforceable against the owner.
The owner, in claiming restoration of possession to the property, need only allege and prove that he is the owner and that the defendant is holding the res. The defendant then bears the onus of alleging and establishing any right to continue to hold against the owner.
The respondents contended that the applicant was required, but failed, to comply with the procedure set out in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Arguing that the provisions of section 4 of the Act are peremptory, the respondents argued that the applicant was required to obtain leave from the court to serve a notice in terms of section 4(3) on the respondents. The
Court held that it was common cause that a notice in terms of section 4(2) had been issued by the Court.
However, the respondents submitted that the service of the notice was defective as it was not served by the Sheriff as required in rule 4. However, the Court found the respondents’ submissions to be misplaced, as the notice contemplated was not the same as the processes referred to in rule 4. What the Court emphasised as significant, was the fact that the respondents did receive the section 4(2) notice. Despite the fact that the relevant section has been held to be peremptory, not every deviation from the strict form renders the process of court void.
Reverting to the issue of onus referred to above, the Court confirmed that the respondent needed to merely assert his ownership, for the onus of proof to shift to the respondents in respect of the lawfulness of their occupation of the property. The version advanced by the respondents amounted to hearsay, with no corroboration. As far as their reliance on an enrichment lien was concerned, to succeed with the right of retention they had to show that they had an enrichment action as against the applicant. They had to prove the right of retention which they alleged. Their evidence was regarded as scant in that regard. They needed to have made the necessary allegations regarding the extent to which they had been impoverished and the applicant had been enriched. Ultimately, the respondents established no basis for any right to occupy the property. The eviction order was thus granted.
Sanyati Building (Pty) Ltd v Ernergy X-Ray Trading Company Kzn (Pty) Ltd & another
[2010] JOL 26386 (KZD)
Case Number:
Judgment Date:
Country:
11590 / 10
05 / 11 / 2010
South Africa

Jurisdiction:
Division:
Bench:
Keywords:
Property – Spoliaton order – Possession
High Court
KwaZulu-Natal, Durban
Cele AJ
Mini Summary:
Seeking a spoliation order, the applicant sought to have the respondents directed to restore possession of the x-ray equipment listed and described in annexure “D” to the founding affidavit in this matter, to the applicant, failing which the sheriff be authorised to attach and seize the said equipment.
The application was opposed by the respondents on the basis that the applicant could not have been in possession of the equipment in question for the purposes of obtaining the relief sought, having possessed the equipment as a servant holding it for its master.
Held that it was common cause between the parties that the equipment was on a site in respect of which the applicant was in charge at the material time, having taken it and construction work was in progress.
The applicant was in peaceful and undisturbed possession of the equipment. The equipment was removed by the respondents without the consent of the applicant. The only issue for consideration was whether the applicant possessed the equipment, at the time, with an intention of securing some benefit for itself.
The intention with which one possesses a thing is decisive on whether one should succeed in an application for a mandamus van spolie. The facts showed that the applicant had held the equipment with the intention of securing some benefit for itself.
The application accordingly succeeded.
Nedbank Ltd v Euro Blitz 21 (Pty) Ltd & others
[2010] JOL 26446 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Return of property – Dispute of fact – Court’s approach
Mini Summary:
10 / 10766
04 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
NP Willis J
In 2006, the applicant sold an aircraft to the fifth respondent. The agreement provided that ownership would remain vested in the applicant until all amounts were paid by the buyer. When the fifth respondent fell into arrears, the applicant cancelled the agreement. The fifth respondent failed to return the aircraft to the applicant, leading to the latter obtaining an order confirming cancellation of the instalment sale agreement, ordering the fifth respondent to return the aircraft to the applicant, and authorising the sheriff to attach and remove the aircraft from the fifth respondent’s premises. However, the aircraft turned out to be in the possession of the first respondent, and that is where the sheriff attached it.
In the interim, the second respondent obtained judgment against the fifth respondent, and caused the aircraft to be judicially attached. The aircraft was then sold to the third respondent at a sale in execution.
The sale took place in the absence of the applicant notwithstanding that the aircraft had been previously attached as a result of the applicant’s judgment.
The applicant obtained an urgent interdict restraining the respondents from dealing with the aircraft in any way, pending the finalisation of the present application. This application was for an order directing the third and/or fourth respondents to return the aircraft to the applicant failing which the sheriff would be authorised to attach and remove the aircraft and deliver it to the applicant; declaring that the applicant was the lawful owner and possessor of the aircraft; declaring the sale in execution of the aircraft to be null and void and for the sheriff to repay any funds received from the third and/or fourth respondent in respect of the sale in execution to the execution creditor.
A dispute arose as to whether the third respondent had bought the aircraft in good faith and without any knowledge of any defects pertaining to the sale in execution when the sale in execution took place. The court referred the dispute for oral evidence.
Held that to come to a conclusion on dispute of issues, a court must make findings on the credibility of the various factual witnesses; their reliability; and the probabilities.
Applying the above, the court found for the applicant.

Rinaldo Investments (Pty) Ltd v Giant Concerts CC & others
[2012] JOL 28895 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
311 / 2011
29 / 03 / 2012
South Africa
Supreme Court of Appeal
KK Mthiyane DP, TD Cloete, A Cachalia, FR Malan JJA, C Plasket AJA
Keywords:
Civil procedure – Standing of person seeking review of administrative decision – Section 38 of Constitution
– Standing is extended to anyone acting in own interest – Person must have sufficient interest in subject matter of dispute
Mini Summary:
The appellant was the property holding entity of a film production company which wished to purchase certain land from the third respondent (“the municipality”). After protracted negotiations, the municipality’s executive committee took a decision to sell the land (valued at R71 million) to the appellant by private treaty at a price of R15 million. The appellant was required, in return for the reduced purchase price, to develop the land at its own expense in accordance with the municipality’s vision regarding the use of the land. As the usual way in which land owned by the municipality was sold had been departed from, the proposed sale had to be advertised prior to a final decision being taken. An objection to the proposed sale was received by the municipality from the first respondent which expressed interest in purchasing the land at a higher price. However, not convinced that its vision was reflected in the first respondent’s intended use of the land, the municipality approved the sale to the appellant. The first respondent launched an application to review that decision, and the court below upheld the first respondent’s argument that the decisions were invalid on a number of grounds that went to their lawfulness, procedural fairness and reasonableness. The Court set aside the municipality’s decision to sell the land to the appellant.
In the present appeal, the first respondent’s standing to review the decision of the municipality to sell the land to the appellant was decisive of the appeal.
Held that section 38 of the Constitution extends standing to five classes of litigants when the fundamental right to just administrative action is alleged to have been infringed. The persons who may approach a court are anyone acting in their own interest; anyone acting on behalf of another person who cannot act in their own name; anyone acting as a member of, or in the interest of, a group or class of persons; anyone acting in the public interest; and an association acting in the interest of its members.
The first respondent did not claim to act in any capacity other than in its own interest, in terms of section
38(a).
Although section 38 has widened the scope of standing beyond the common law rules that applied in the pre-constitutional era, that does not mean that everyone who alleges an infringement of a fundamental right has an unfettered right of access to court. A successful challenge to administrative action is only possible if the right person seeks a remedy. That must be someone who has a sufficient interest in the subject matter of the dispute. The factual basis upon which a litigant claims standing is only part of the picture. In order to place those facts in their proper context, it is also necessary to consider the statutory scheme in issue, particularly its purpose. Sections 233, 234 and 235 of the Local Authorities Ordinance 25 of 1974 (KZN) empowered municipalities in the province of KwaZulu-Natal to alienate their immovable property and regulate how such alienations were to take place. Those sections had to be examined in order to determine whether the first respondent had an interest that was sufficient to clothe it with standing to challenge the municipality’s decision to sell the land to the appellant. The court highlighted the fact that the sections in question aimed at protecting the interests of members of the municipality’s jurisdictional area or borough. The first respondent was not a ratepayer of the municipality or a member of the local community. As the Ordinance concerned itself with local interests, only those with an interest in the interests of the borough would have standing. The first respondent therefore lacked standing.
The appeal was accordingly upheld.
Beweging vir Christelik-Volkseie Onderwys & others v Minister of Education & others
[2012] JOL 28782 (SCA)
Case Number:
Judgment Date:
Country:
308 / 2011
29 / 03 / 2012
South Africa

Jurisdiction:
Division:
Bench:
Keywords:
Supreme Court of Appeal
L Mpati P, Farlam, S Snyders, SA Majiedt JJA, C Plasket AJA
Administrative law – Review application – Late filing – Application for extension of 180day time period prescribed by section 7 of Promotion of Administrative Justice Act 3 of 2000 – Extension of 180-day period prescribed in section 7(1) of the Act may be extended by a court in terms of section 9(2) where the interests of justice so require – Where non-observance of rules was flagrant and gross, application for extension of time period was rightly refused – Civil procedure – Replying affidavit – Late filing of –
Condonation application – Where explanation for late filing was inadequate, condonation was refused
Mini Summary:
The first appellant was an organisation committed to the promotion of a pure Afrikaans, Christian education system, and the second appellant school was affiliated thereto. The remaining appellants were parents of children of school-going age. Together, they objected to three government notices promulgated by the first respondent (“the minister”), in which curriculum policy and religious education policy for schools were set out. In the three notices, the minister stated that he had determined the national policy in terms of the powers conferred on him by section 3(4)(l) of the National Education Policy Act 27 of 1996.
The appellants contended that the government notices were not binding on independent schools because no regulations had been promulgated by the minister to give effect to the policy statements that they contained. They also argued that certain provisions of the notices – such as approval for the phasing in of the curriculum – were invalid insofar as they purported to impose legally binding obligations on the appellants. The high court was approached for declaratory relief regarding the binding nature of the notices.
The high court dismissed the application with costs, together with an application for an extension of time for the filing of the main application (“the extension application’) and one for condonation for the late filing of the replying affidavit in the extension application. The merits were not considered.
Held that the first question to be addressed on appeal was whether the late filing of the reply in the extension application should have been condoned. The main application was served on 10 September
2007. In the minister’s answering affidavit, the point was taken that the appellants sought, in effect, to review administrative action and that the application had been brought outside of the 180-day time limit provided for by section 7(1) of the Promotion of Administrative Justice Act 3 of 2000, (with the result that the main application fell to be dismissed on that basis alone. That led the appellants to bring the extension application on 12 December 2007. The answering papers were filed on 27 February 2008, and the replying papers were only filed some 18 months later, on 8 October 2009. Condonation was sought for that delay.
The affidavit in which the delay was explained was deposed to by a retired judge, who had acted as the first appellant’s legal advisor. He explained that his capacity for work had diminished with age, and as he had been busy with another case, was unable to adhere to the time limits relevant to the present case.
The court found that explanation to be unsatisfactory. The retired judge should have been aware of the importance of time limits, and should not have taken on more work if unable to do so. His explanation for the delay was also inadequate in that the entire period of delay was not explained.
Rule 27(3) of the Uniform Rules of Court provides that a court may, on good cause shown, condone any non-compliance with the rules. In that regard, the court has a discretion, to be exercised judicially upon a consideration of all of the facts.
The 18-month delay in this case was excessive, and condonation was not sought as soon as possible. The explanation for the delay was vague and inadequate. Considering the non-observance of the rules to be flagrant and gross, the court held that there was no need to consider the prospects of success in the extension application. The appeal against the dismissal of the extension application thus failed.
The court went on to consider whether the court below was correct in dismissing the extension application.
The extension application was brought on the basis that, if the relief that was claimed amounted to a review of administrative action in terms of the Promotion of Administrative Justice Act, an extension of the
180-day period within which the application should have been launched would be sought. The Minister argued that even if the Promotion of Administrative Justice Act did not apply, the common law delay rule did and the applicants had delayed unreasonably in bringing their application.
The extension of the 180-day period prescribed in section 7(1) of the Act may be extended by a court in terms of section 9(2) where the interests of justice so require. As sections 7(1) and 9 apply only in respect of proceedings in which administrative action is reviewed in terms of section 6(1), the operation of these sections is limited to administrative action. Examining the nature of the relief sought by the appellants, it was clear in respect of three of the prayers that no decision was taken on review, no exercise of public power was sought to be set aside and the Promotion of Administrative Justice Act had no bearing on the relief claimed because no administrative action was implicated. Accordingly, sections 7(1) and 9 did not apply. However, the common law delay rule did apply and required the appellants to have launched their application within a reasonable time.

The remaining three prayers sought by the appellants were for the setting aside of aspects of the policy contained in the three government notices insofar as they purported to impose legally binding obligations on the appellants. According to the court, that relief amounted to a review of the implementation of the policy in terms of the Promotion of Administrative Justice Act. The appellants clearly intended to review aspects of the policy insofar as it was being applied to them. The next issue was whether the imposition of the policy constituted administrative action for purposes of the Act. In terms of the definitions on section 1 of the Act, administrative action is any decision taken by an organ of state when exercising a public power or performing a public function in terms of legislation which adversely affects rights and has a direct, external legal effect. The conduct in question did fall within the ambit of administrative action. The result was that the time limit set out in section 7(1), read with the condonation provision in section 9, applied to the three prayers under consideration.
In the application of both the delay rule and sections 7 and 9 of the Promotion of Administrative Justice
Act, a two-stage approach is required. The first question is whether the delay in launching the application was unreasonable, or whether it was launched more than 180 days after internal remedies had been exhausted or the applicant had been informed of, had knowledge of or ought to have had knowledge of the administrative action under challenge. The second question was whether, if the first question was answered in the affirmative, the delay ought to be condoned or whether it was in the interests of justice that the 180-day period be extended (or the failure to bring the application timeously should be condoned).
As stated by the court, in order to determine whether the appellants delayed unduly the first question that requires an answer is precisely when the clock started ticking. It identified the relevant date in that regard as 26 April 2005, when the second appellant received a letter from the Department of Education to inform it of a workshop on the new curriculum and that it was going to be implemented. Once they were adversely affected by the Department’s action of imposing the new curriculum on them, they were obliged to take steps to investigate the lawfulness of that action but failed to do so timeously. Their explanation for the delay was rejected by the court. In consequence, the application for an extension of time could not succeed and the condonation for the delay in bringing the could not be granted. The high court was therefore correct in dismissing the main application without the merits being considered.
The appeal was dismissed and the appellants were directed, jointly and severally, to pay the costs of the first respondent.
Roestorf & another v Johannesburg Municipal Pension Fund & others
[2012] JOL 28884 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
235 / 11
23 / 03 / 2012
South Africa
Supreme Court of Appeal
JA Heher, RW Nugent, MS Navsa, A Cachalia, ZLL Tshiqi JJA
Civil procedure – Jurisdiction – Whether, on review, High Court was precluded from adjudicating upon matters not subject of complaint to Pension Funds Adjudicator – Ouster of jurisdiction occurs only when that conclusion flows by necessary implication from the statutory provisions and then only to the extent indicated by such implication – Pension Funds Act 24 of 1956 not expressly or by necessary implication excluding jurisdiction of the court to adjudicate upon matters not the subject of a complaint to the
Adjudicator – Civil procedure – Prescription – In terms of section 14 of the Prescription Act, the running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor – The payment by a pension fund of a benefit found to be due in terms of its rules served to interrupt the running of prescription – Pensions – Pension fund rules – The rules constitute the contract between the fund and its members – If the rules are clear and admit of no ambiguity, then they must be given effect to
– Pensions – Practice and procedure – Time-barring of complaint – Section 30I of the Pension Funds Act
24 of 1956 – Pension Funds Adjudicator prevented from investigating a complaint if the act or omission to which it related occurred more than three years before the date on which the complaint was received – In terms of section 30I(2), if the complainant was unaware of the occurrence of the act or omission in question, the period of three years would commence on the date on which the complainant became aware or ought reasonably to have become aware of such occurrence, whichever occurred first
Mini Summary:
As employees of the third respondent, the appellants were required to be member of the first respondent, a pension fund. They both applied to retire on grounds of ill-health and were medically boarded in 1995, at a time when they were in their thirties. They qualified for retirement benefits, and as they were regarded as totally incapacitated, their pension entitlements were calculated with regard to that incapacity. They received the pensions as calculated until 2003, when they were advised by a consultant that that they were entitled to full benefits as if they had remained in the employment of the third

respondent to the age of 63 years. They then approached the fund’s actuary, who advised them that they were wrong in their interpretation of the fund’s rules. However, their doubts about the correctness of the computation of their benefits were again aroused in 2005, when they received a communication from the fund about proposed changes. On 8 February 2006, they filed a complaint with the Pension Funds
Adjudicator (the fourth respondent) in terms of section 30A(3) of the Pension Funds Act 24 of 1956 (“the
Act”). The complaint that the complainants’ retirement benefits had been incorrectly calculated in contravention of the rules of the fund was upheld by the adjudicator, who ordered the fund to compute the benefits correctly in terms of the rules and to pay the revised pension and arrears together with interest to the appellants.
Dissatisfied with the adjudicator’s determination, the fund successfully applied to the High Court as contemplated in section 30P of the Act for an order reviewing and setting aside the determination and confirming the fund’s computation of the appellants’ pensions. The appellants applied in reconvention for declaratory relief regarding, inter alia, the number of years of service to which they were entitled in terms of the fund’s rules, and their entitlement to have their benefits calculated up to their normal retirement age of 63. The high court upheld the appeal against the determination of the adjudicator on the ground that the complaint was time-barred in terms of section 30I of the Act and had prescribed in terms of section 12 of the Prescription Act 71 of 1969. The Court also held that the claims in reconvention had not formed part of the appellants’ complaint to the Adjudicator and because the ambit of the court’s jurisdiction is limited by the terms of the complaint, the Court possessed no jurisdiction to entertain those claims. Apart from that, it was held further that the claims in reconvention were time-barred in terms of section 30I of the Act and had also prescribed.
The present appeal was confined to the issues of the correctness of the findings of the court a quo in relation to the time-barring and prescription of the complaint and claims in reconvention; whether the claims in reconvention constituted impermissible new matter before the court a quo; the appropriate factor in the calculation of the pension entitlements; and whether “bonus service” should also have been included in the calculation of pensionable service.
Held that the issues relating to time-barring and prescription would be dealt with together. The fund began paying the appellants their benefits in 1995. The obligation to pay such benefits arose from the fund’s rules, and constituted the “debt” owed to the appellants. In terms of section 14 of the Prescription
Act, the running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor. The payment made by the fund to the appellants each month constituted such interruption.
Thus, in the circumstances of the present case, the fund had by its repeated payments to the appellants, ensured that their claims to a correction of their entitlements were protected against prescription.
Section 30I of the Pension Funds Act deals with time-barring and is in substance the equivalent of section
12(3) of the Prescription Act. At the time of submission of the complaint, section 30I prevented the
Adjudicator from investigating a complaint if the act or omission to which it related occurred more than three years before the date on which the complaint was received. In terms of section 30I(2), if the complainant was unaware of the occurrence of the act or omission in question, the period of three years would commence on the date on which the complainant became aware or ought reasonably to have become aware of such occurrence, whichever occurred first. At the time of the termination of their employment in 1995 neither appellant possessed actual knowledge or an understanding of the correctness or defectiveness of the calculation of his pension entitlement. The conversation with their consultant in
2003 gave rise to the first doubts in that regard. The fact that the details of their benefits were provided to the appellants in 1995 did not mean that the deeming provision in section 30I(2) kicked in, as the computation of the benefits was a complicated matter which the appellants would have been unlikely to understand. The appellants possessed no knowledge or expertise in relation to the fund’s rules. They relied entirely, as they were entitled to do, upon the good faith, care and expertise of the officials of the fund. The date from which prescription would have started to run was therefore in 2003. As the complaint was lodged in 2006, it was not time-barred.
The court then turned to consider the respondents’ objection that the appellants’ claims in reconvention had not formed part of the complaint to the Adjudicator and that that the High Court was therefore correct in finding that it had no jurisdiction to consider the counter-application. Ouster of jurisdiction occurs only when that conclusion flows by necessary implication from the statutory provisions and then only to the extent indicated by such implication. The Act does not expressly or by necessary implication exclude the jurisdiction of the court to adjudicate upon matters not the subject of a complaint to the adjudicator. Nor does the Adjudicator possess exclusive jurisdiction to grant relief in all disputes between pension funds and their members. The jurisdictional objection was accordingly dismissed.
On the merits, the appellants were less successful. The first issue was whether upon a proper interpretation of the relevant fund rules, the appellants were entitled to their pensions calculated on the basis of the percentage applicable to an exact age of retirement of 63 years, or whether the fund was correct in applying the percentage applicable to an exact age of retirement of 60 years or under. The pensionable age of each of the appellants was 63 years. The starting point in deciding the issue was the provision of the relevant rules of the fund. The rules constitute the contract between the fund and its members. In the event of ambiguity or uncertainty it might be necessary to have regard to general

principles as an aid in interpretation. If however the rules are clear and admit of no ambiguity, then they must be given effect to. On that basis, the percentage applied by the fund was found to be in line with the rules and was therefore correct.
The remaining issues concerned whether “bonus service” should also have been included in the calculation of pensionable service, and the inclusion of increases and allowances in the computation of the benefits.
Approaching the said issues on the basis of the provisions of the applicable fund rules, the Court found no basis for the relief sought.
The appeal therefore failed in all substantial respects.
Firstrand Bank Ltd t/a Wesbank v ARI Carriers CC & others
[2010] JOL 25957 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
11274 / 09
24 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Sishi J
Keywords:
Civil procedure – Summary judgment – Deponent to founding affidavit – Return of vehicle – Right of retention
Mini Summary:
The applicant was the owner of a motor vehicle, in terms of an instalment sale agreement. As plaintiff in the main action, it sought an order authorising the sheriff of the court to take possession of and to deliver the vehicle to the applicant. when the defendant filed a defence, summary judgment was applied for.
In resisting the application for summary judgment, the defendant alleged that the application for summary judgment was defective as it did not comply with the rules of court. It was alleged that the affidavit in support of summary judgment was not properly before court in that the deponent did not have personal knowledge of the facts of the matter. On the merits, it was alleged that the plaintiff sold to the first defendant, a defective motor-vehicle.
Held that the deponent to the affidavit in support of the application for summary judgment was a legal supervisor of the applicant, and as such would prima facie have knowledge of the contract and its conclusion, its terms and effect and would be entitled on reference to her records to claim knowledge of the amount paid or owing by the first defendant. The preliminary point was dismissed.
On the merits, the defendants appeared to be claiming that they were entitled to the retention of the motor-vehicles as security for an alleged counter-claim. The law does not recognise such a right and afforded the defendants no defence to the plaintiff's claim for the return of the motor-vehicle. In the light of the plaintiff's election to cancel the agreement, the defendant’s right to possess the vehicle terminated.
Judgment was granted for the plaintiff.
Fedorik v De Klerk, Vermaak & Partners Incorporated
[2014] JOL 32406 (GJ)
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
08 / 08 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Wepener J
Keywords:
Delict – Motor vehicle accidents – Claim by uninjured third party – Absence of duty of support
Mini Summary:

The plaintiff sued the defendant, a firm of attorneys, for damages arising from the defendant’s negligence in that it failed to recover damages which the plaintiff suffered as a result of medical costs incurred by him after his ex-wife was involved in a motor vehicle collision. It was common cause that the claim against the defendant was only sustainable in the event of the plaintiff proving that he would have been successful with this claim against the Road Accident Fund (“RAF”), which claim was handled by the defendants. The defendant submitted that the Road Accident Fund Act 56 of 1996 only envisages a claim by a non-injured party such as a parent or a spouse where there is a legal duty by such a claimant to maintain the injured person.
Held that section 19 limits a claim against the RAF to a claim that would have been competent under the common law. In that sense, the RAF steps into the shoes of the wrongdoer. A claim against it should be proved as if it was the wrongdoer and all the necessary allegations and proof in order to assert a claim against a wrongdoer would be required. If the wrongdoer is not liable at common law, the RAF will also not be liable.
In this case, the plaintiff had no duty to maintain his ex-wife and that the expenses incurred by him was described by the Court as having been incurred on a charitable basis. Such a charitable payment, in the absence of any obligation to maintain his ex-wife could not be classified as damage. The defendant therefore had no claim against the RAF.
A claim by a non-injured party has been recognised in our law. Such claim is based on the claimant’s common law duty to maintain the injured person. By disavowing reliance on the very basis upon which a claim could be instituted by an uninjured third party at common law, the plaintiff had non-suited himself.
He was therefore unable to recover his gratuitous payments from the RAF both as a result of the absence of a loss and as a result of an absence of a right due to an absence of a duty to support his ex-wife. His claim was dismissed with costs.
Road Accident Fund v Coughlan NO
[2014] JOL 32245 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
702 / 2013
03 /09 / 2014
South Africa
Supreme Court of Appeal
CH Lewis, Theron, Pillay, Mbha JJA, Mathopo AJA
Keywords:
Delict – Motor vehicle accidents – Compensation by Road Accident Fund – Whether dependants are entitled to compensation for loss of support where foster child grants had been paid as a result of the death of mother – Foster child grants made to the dependants of a deceased killed in a collision covered by the Road Accident Fund Act 56 of 1996 should, as a rule, be deducted from any award of damages for loss of support made by the Road Accident Fund
Mini Summary:
The respondent was the curator ad litem for two children whose mother was killed when she was knocked over by the driver of a motor car. The appellant (“the RAF”) admitted that the driver was 100% to blame for the collision such that it was liable for damages suffered by the children for loss of support. After the death of the children’s mother, the grandmother applied to the Children’s Court to be appointed as a foster parent to her grandchildren and was so appointed in terms of the Child Care Act 74 of 1983. As a result she was entitled to receive foster child grants in terms of the Social Assistance Act 59 of 1992, replaced by the Social Assistance Act 13 of 2004. The RAF contended that the children were not entitled to compensation for loss of support as the foster child grants had been paid as a result of the death of their mother and that they had therefore already been compensated for loss of support. The curator contended, on the other hand, that the payments of the grants were acts of gratuity by the State - paid to people who elected to become foster parents, and were not compensation for losses sustained by accident victims.
Held that generally, dependants are not permitted to get double compensation. The Court was of the view that there is no difference in substance between child support grants and foster child grants. It accepted the argument of the RAF that, but for the death of the mother in a collision for which the RAF accepted liability, the foster parent would not have claimed foster child grants. There was no evidence to support the proposition that the foster parent would have applied for grants had the mother of the children not died.
The conclusion was that the High Court erred in finding that the children were entitled to damages for loss of support from the RAF. The foster child grants served the very purpose which an award of damages would do, namely providing the children with the financial support lost as a result of the death of their mother. The court explained that its finding did not mean that there is any general principle precluding an

award of damages for loss of support where dependants have had the benefit of social support grants. The enquiry must involve considerations of public policy, reasonableness and justice.
The grants made to the foster parent exceeded the amounts that the children would have been entitled to had their foster parent not received the grants. The question put to the High Court in the stated case should have been answered on the basis that the dependants were not entitled to both the benefit of the foster child grants and to damages for loss of support. The appeal was accordingly upheld.
Da Silva v Road Accident Fund and another
[2014] JOL 31901 (CC)
Case Number: CCT 29 / 14
Judgment 19 / 06 / 2014
Date:
Country: South Africa
Jurisdiction: Constitutional Court
Division:
Bench: Mogoeng CJ, Moseneke DCJ, Froneman, Cameron, Jafta, Khampepe, Madlanga, Van der
Westhuizen, Zondo JJ, Majiedt AJ
Keywords:
Delict – Motor vehicle accidents – Personal injury – Social passenger – Personal injury – Claim for compensation – Exclusion of claim – Section 19(b)(ii) of the Road Accident Fund Act 56 of 1996 –
Constitutionality
Mini Summary:
The applicant sought confirmation of an order of constitutional invalidity granted by the High Court, against section 19(b)(ii) of the Road Accident Fund Act 56 of 1996 as it stood before 1 August 2008 (old
Act). She was severely injured in a motor vehicle accident, in which she was a passenger in a car driven by her husband. The sole cause of the collision was the negligence of her husband. The impugned provision precluded her from claiming damages from the respondent under the old Act. The applicant challenged the constitutionality of section 19(b)(ii) in the High Court, primarily on the grounds that it violated her right to equality, and the High Court upheld her challenge.
Held that notwithstanding that a driver is to blame for an accident, the effect of section 19(b)(ii) of the old Act is that claims for compensation against the respondent are excluded where the claimant, a passenger, was a member of the driver’s household or owed that driver a duty of support. Conversely, if the passenger was not a member of the driver’s household or a person owing a duty of support to the driver, compensation would be payable. The provision differentiates between categories of people, namely those who stand in a close familial relationship with the driver and those who do not. Even if a rational connection is assumed, the differentiation amounts to indirect discrimination. As the discrimination was on grounds listed in section 9(3) of the Constitution, it was thus presumptively unfair. The High Court order was confirmed.
Van Der Merwe v Padongelukkefonds
[2014] JOL 32042 (FSB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
76 / 2012
06 / 02 / 2014
South Africa
High Court
Free State, Bloemfontein
MH Rampai AJP
Keywords:
Delict – Motor vehicle accidents – Claim for compensation – Negligence – Apportionment of blame
Mini Summary:
The plaintiff was involved in a motor vehicle collision in January 2007, when he collided with another motorcycle whilst riding his own. He claimed compensation from the defendant, for injuries sustained in the accident.
Held that the issue to be determined centred on the issue of negligence, and particularly on who was the blame for the collision.
The onus of proof rested on the plaintiff to show, on a balance of probabilities, that the insured rider was negligent on one or more or all of the grounds as averred in the particulars of claim. Whether the plaintiff has discharged the onus of proof, and the assessment of the credibility of the witness will be inextricably bound up with the consideration of the probabilities of the case and if the balance of probabilities favours the plaintiff, then the Court would be inclined to accept his version as being probably true. Where, as in

this case, there are two mutually destructive versions in a civil trial, the correct approach to be adopted in deciding the issue, is to determine which of the two versions is more probable than the other.
The essence of the plaintiff’s case was that the insured driver encroached on the plaintiff’s path of travel and was the cause of the collision. Evaluating the testimony of the various witnesses, the Court preferred that of the defendant’s witnesses. The court then considered whether the insured driver was negligent as alleged or at all, and if so whether his negligence caused the collision between his bike and that of the plaintiff.
The “reasonable person test” is used to assess the conduct of a road user. The Court set out that conduct expected of the prudent road user, and the obligations which apply to motorists. Against that backdrop, it was found that a reasonable and prudent rider would not have conducted himself in the way the plaintiff did prior to the collision. He did not keep a proper lookout, did not maintain a safe following distance, and did not take any evasive step to avoid the collision.
On the facts, both riders were to blame for the accident. However, the plaintiff’s negligence was the primary cause of the accident. The Court apportioned the blame at 60/40 in favour of the defendant.
Faria v Road Accident Fund
[2013] JOL 30682 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2210 / 12
12 / 03 / 2013
South Africa
High Court
South Gauteng, Johannesburg
Weiner J
Keywords:
Delict – Motor vehicle accidents – Personal injury – Claim for damages – Serious injury – Assessment of
Mini Summary:
As a result of a collision between a motor vehicle driven by a third party and a bicycle which the plaintiff was riding at the time, the plaintiff sustained injury. He sued the defendant under the Road Accident Fund
Act 56 of 1996 (“the Act”) for damages.
Held that although the defendant did no concede the merits, it produced no witnesses to counteract the version of the plaintiff and that was accordingly unable to dispute his evidence. The defendant was therefore held to be 100% liable for any damages proven by the plaintiff.
Some of the issues having been settled by the parties, the Court was required to determine the questions of general damages and future loss of earnings in the sense that the plaintiff’s working capacity and productivity had been diminished.
The question was whether or not this Court could decide the issue of general damages or whether the matter had to be referred to the Tribunal set up in terms of the Act and the regulations, in order for the
Tribunal to determine whether or not the injury was of a serious nature. The Court was empowered to decide the quantum, but not whether or not the injury was serious, if disputed by the defendant. It was found that the defendant did not dispute the seriousness of the injury. Accordingly, the Court could accept the assessment of both the plaintiff and defendant’s medical practitioners that this was a long term injury where general damages were applicable. It was ordered that the plaintiff could proceed to prove his general damages.
Macdonald and others v Road Accident Fund
[2012] JOL 29313 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
453 / 2011
24 / 05 / 2012
South Africa
Supreme Court of Appeal
FDJ Brand, MS Navsa, NZ Mhlantla JJA
Keywords:
Delict – Claim for damages – Loss of support – Application of Assessment of Damages Act 9 of 1969 –
Where damages are assessed for loss of support as a result of a person’s death, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account – Calculations based on assumptions and contingencies not appropriate where actual figures available

Mini Summary:
The appellants lost their parents in a motor vehicle accident in 1994. The respondent is the Road Accident
Fund, a statutory insurer, established in terms of the Road Accident Fund Act 56 of 1996 (“the Act”).
Action was instituted on the appellants’ behalf, by a curator ad litem, claiming damages for the loss of support that they had suffered due to the death of their parents. The appellant were now cited in their own names as they had since reached majority.
The respondent conceded that the collision was caused by the negligence of the insured driver, who collided with the vehicle of the deceased parents and that, in consequence, it was liable for the appellants for whatever loss of support they could establish at the trial. The issues presented to the court a quo for determination, thus turned on the quantum of the appellants’ respective claims. An actuary was instructed on behalf of the appellants, to calculate the quantum of the loss of the support they each suffered. These calculations by Ennis, in turn, formed the basis of their claims in the court a quo. The Court granted the respondent absolution from the instance on the basis that the appellants had failed to establish that their reasonable maintenance needs could not be met by the proceeds of the deceased father’s estate. The present appeal was directed at that conclusion.
Held that loss of support is confined to actual pecuniary loss. In the first place that means that the dependants cannot claim compensation in the form of a solatium for the grief, the stress and the hurt brought about by the death of a loved one, because these are not capable of being calculated in money. It also means that the dependants are not allowed to profit from the wrongdoing of the defendant.
Accordingly, the actual pecuniary loss to which the dependants are entitled, can only be ascertained by a balance of losses and gains, that is by having regard not only to the losses suffered, but also to the pecuniary advantage which may come to the dependants by reason of the breadwinner’s death. That requires account to be taken of any income available to the dependants by way of an inheritance from the erstwhile breadwinner. If the nett assets in the estate of a deceased parent, together with the income derived from those assets were therefore sufficient to support the dependants in full, no claim for loss of support as a result of the breadwinner’s death could be sustained.
A further legal principle relevant to this case derived from statute, viz the Assessment of Damages Act 9 of 1969. That Act provides that where damages are assessed for loss of support as a result of a person’s death, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account. Applying that principle, the Court held that the first step in the correct application of the Act was to ignore the proceeds of insurance policies. The second step is an enquiry into whether the (non-insurance) assets in the deceased estate together with the income derived from those assets would be sufficient to meet the maintenance needs of the dependants. In a case such as the present where the maintenance needs of the dependants had already been met, the inquiry is simply whether the amount of maintenance the dependants had actually received could be produced by the (noninsurance) assets in the estate together with the income generated by those assets. That is the actuarial exercise which the actuary should have been asked to perform, but which he was not requested to do.
Instead, he was asked to determine the notional market value of the non-insurance assets in the deceased father’s estate as at the date when he died. That was an irrelevant exercise which led to irrelevant answers. What had to be determined was whether the maintenance actually paid could be covered by the non-insurance part of the trust assets.
In the absence of any exact actuarial calculations, the court found it prudent to follow the approach of the court a quo and absolve the respondent from the instance rather than to dismiss the appellants’ claims.
The appeal was dismissed.
Swartbooi v Road Accident Fund
[2012] JOL 28896 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
20352 / 2008
17 / 04 / 2012
South Africa
High Court
Western Cape, Cape Town
Mantame AJ
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Emotional shock – Section 18 of Road Accident
Fund Act 56 of 1996 – Effect of section 18 –
Mini Summary:
The plaintiff’s son died as a result of injuries sustained in a motor vehicle accident that occurred on 24
September 2006. as a result of the death of her son, the plaintiff suffered emotional shock and psychological trauma.

The defendant was the Road Accident Fund (“RAF”) established in terms of Road Accident Fund Act 56 of
1996, and was responsible for payment of compensation in terms of the said Act for loss or damage wrongfully caused by the driving of motor vehicles.
Held that the case raised the important legal question of whether the plaintiff’s claim for emotional shock was limited in terms of section 18 of the Act.
Section 18(1) was set to operate in a situation where the claim is for compensation of third parties, or losses resulting from bodily injuries or death of a person who was conveyed in an insured motor vehicle, ie a passenger. Such a claim is limited to an amount of R25 000. In casu, the plaintiff did not fall under the category of persons mentioned in section 18. She suffered from emotional shock as a result of the negligent driving of the insured driver that caused death of her son. The Court’s conclusion was that the claim or liability should not be capped or limited in terms of section 18 of the Act.
The plaintiff was therefore entitled to whatever damages she could prove.
Bamfo v RAF
[2011] JOL 27932 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
666 / 08
20 / 10 / 2011
South Africa
High Court
Eastern Cape
Griffiths J
Keywords:
Delict – Motor vehicle accidents – Personal injury – Claim for damages – Loss of income
Mini Summary:
Having sustained serious injury in a motor vehicle accident, the plaintiff claimed damages from the defendant fund.
The defendant accepted that it was liable for 100% of any damages which the plaintiff might establish, and general damages were agreed upon. The question of the quantum of plaintiff's loss of earnings was adjourned, and was the issue now before the court.
Held that the only two issues in dispute were the question of the employment history of the plaintiff and, the question of the contingencies to be applied. During the course of the hearing it became clear that the first issue was to be narrowed down even further and that the only real issue was whether the plaintiff had in fact been earning any income whatsoever as at the time when the accident occurred and, if so, how much. Having regard to the evidence, the court was satisfied that the plaintiff had given a truthful account of his employment history and there was nothing to gainsay his evidence that he was in fact earning a salary of R7 600 per month as at the time when the accident occurred.
On a consideration of all the evidence, together with the various expert reports, and in particular the fact that the plaintiff appeared to have held down jobs or made a living on a freelance basis within the construction industry since he left school up until the time of the accident, and the fact that he was no longer young, the court was of the view that contingency deductions of 5% and 15% in respect of past and future loss of income respectively were reasonable. The amount thus awarded was R1 214 640.
Phineas v Road Accident Fund
[2012] JOL 29015 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
63500 / 2009
17 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
Kubushi AJ
Keywords:
Delict – Motor vehicle accidents – Personal injury – Claim for damages – Past loss of earnings – General damages
Mini Summary:
While driving a bus, the plaintiff was involved in a motor vehicle collision with a motor vehicle insured by the defendant. Flowing from the injuries which he sustained, the plaintiff claimed damages in respect of past hospital and medical costs; estimated future medical costs to be provided for in terms of section

17(4)(a) of the Road Accident Fund Act 56 of 1996; loss of earnings and earning capacity; and general damages. By the time the matter came before the present Court, only the damages for loss of earnings and loss of earning capacity, as well as general damages remained in contention.
Rather than leading evidence, the parties agreed that the various expert witness reports obtained by the plaintiff would be admitted into the record as evidence.
Held that the two versions before the Court regarding loss of earnings were as follows. The plaintiff alleged that he had been a driver, and with the loss of vision in one eye as a result of the accident, his livelihood was affected. The defendant, on the other hand, disputed that the eye was injured in the accident. Based on the medical reports, the Court was satisfied that the plaintiff’s eye was injured in the accident.
A patrimonial claim in respect of future loss of earnings requires a loss of earning capacity as a result of a damage causing event, and an actual patrimonial loss of income as a result of the abovementioned loss of earning capacity. Flowing from the experts’ reports, it was found that the plaintiff had established that his earning capacity had been compromised as a result of the injuries he sustained in the accident. He was found to have succeeded in proving his claim for loss of earnings. The amount awarded was R81 588,55.
On the issue of general damages, the Court was satisfied that the plaintiff was able to prove that he had experienced pain and suffering and had also suffered the loss of amenities of life. Consequently an amount of R200 000 was considered fair, just and reasonable compensation.
Masilela v Road Accident Fund
[2012] JOL 29013 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
64322 / 2010
03 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
N Ranchod J
Keywords:
Delict – Motor vehicle accidents – Claim for damages – Assessment of evidence
Mini Summary:
The plaintiff was a passenger in a vehicle when it was involved in a motor vehicle accident. In suing for damages, he was required to prove 1% negligence on the part of the defendant's insured driver if his claim was in excess of R25 000, which was the limit he could claim if the driver of the vehicle in which he was a passenger was negligent.
Due to a separation of issues, the matter proceeded on the issue of merits of the claim only.
Held that the Court was confronted with two mutually destructive versions of how the accident occurred.
It therefore had to decide on a balance of probabilities, whether the plaintiff's version, that the insured driver veered into his lane of travel was more probable than the defendant's three witnesses' evidence that the plaintiff's motor vehicle came from behind the insured vehicle at high speed and scraped the rear right side of the insured vehicle, and then lost control and collided with a lamppost on the island separating the two lanes of travel in each direction. When faced with two conflicting versions, the Court must make its findings on the credibility of the various factual witnesses; their reliability; and the probabilities.
Applying that approach, the Court found in favour of the defendant. It was highly improbable that the three witnesses for the defendant would lie when they had no reason to do so, whereas the plaintiff had everything to gain from the version that would suit his case. Both the plaintiff's witnesses were found not to be credible witnesses. The Court found on a balance of probabilities, that the collision took place in the insured driver's lane and that no negligence could be attributed to her.
The plaintiff’s claim was dismissed with costs.
Vermeulen v RAF
[2011] JOL 27930 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A 5002 / 11
18 / 10 / 2011
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten, NF Kgomo JJ, V Notshe AJ

Delict – Motor vehicle accident – Absolution from the instance – Appeal
Mini Summary:
The appellant sued the respondent for damages in respect of personal injuries arising out of a motor vehicle collision. The appellant was riding his motorcycle which allegedly collided with the insured vehicle.
At the close of the appellant’s case in the trial court, the respondent sought and was granted absolution of the instance.
The issue to be decided on appeal was whether or not the court a quo erred in finding that it was not persuaded that any reasonable inferences could be drawn from the evidence, relating to the liability of the driver of the insured motor vehicle which had allegedly collided with the plaintiff’s motorcycle, either as alleged in the plaintiff’s particulars of claim, or at all.
Held that the evidence placed before the court a quo was circumstantial and crucial aspects which seem to have been readily ascertainable were simply overlooked. The court was satisfied that the trial court had correctly concluded that there was no evidence to support an inference of negligence concerning the insured driver resulting in, at the close of the plaintiff’s case, there not being evidence upon which a court applying its mind reasonably to such evidence, could or might find for the plaintiff.
The appeal was dismissed.
Mbonambe v RAF
[2010] JOL 26389 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1993 / 06
04 / 11 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Ntshangase J
Keywords:
Civil Procedure– Motor vehicle accidents – Claim for damages – Loss of support
Mini Summary:
Having lost her son in a motor vehicle accident, the plaintiff sued the defendant fund for damages for past and future loss of support and funeral expenses. As a result of a separation of issues, the matter came before the present court solely on the issue of liability.
During the course of the trial the negligence of the insured driver as the sole cause of the collision was conceded.
Held that the evidence established that the plaintiff was indigent and that she had relied on her son for support. The court was satisfied that it was beyond the plaintiff’s means to support herself. The defendant was held liable to compensate the plaintiff for all proven or agreed damages.
Lambert v RAF
[2010] JOL 26414 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 12892
05 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Negligence – Mutually destructive versions
Mini Summary:
As a result of injuries sustained in a motor vehicle accident, the plaintiff sued the defendant fund for damages. His claim was based on the negligence of the insured driver.
The defendant denied that the insured driver was negligent at all or that he contributed to the cause of the collision, and averred that it was the plaintiff who was the sole cause of the collision.
By agreement between the parties the matter proceeded only on the question of liability.
Held that the court was faced with two mutually destructive versions as to who caused the accident.

The plaintiff always bears the onus of proving negligence on a balance of probabilities. In arriving at a decision, the court has to view the evidence which was led during the trial in toto.
Assessing the evidence, the court found that the insured driver had negligently caused the collision.
However, although the insured driver was substantially to be blamed for the collision, on the evidence, the plaintiff could not be absolved of any blame. He was held liable for contributory negligence.
The defendant was held liable for 70% of the plaintiff’s proven or agreed damages.
Kebethana v RAF
[2010] JOL 25815 (ECB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
78 / 09
02 / 07 / 2010
South Africa
High Court
Eastern Cape, Bhisho
LD Kemp AJ
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Liability for damages
Mini Summary:
The plaintiff sustained injury when a motor vehicle collided into him while he was a pedestrian. The defendant denied that the collision had taken place, but pleaded in the alternative that if a collision was found to have taken place, that the collision occurred solely as a result of the negligence of the plaintiff.
At the present stage, the matter was confined to the merits.
Held that the evidence before the court suggested that the plaintiff was drunk at the time, and that the insured driver had not noticed him in the road until he was right in front of the car.
The court concluded from its assessment of the evidence that each party might have been able to avoid the collision if they had kept each other under observation. The insured driver carried the greater portion of responsibility for the collision and the defendant was therefore held liable for 80% of the damages proven by the plaintiff.
Law Society of SA & others v Minister of Transport & another
[2010] JOL 25248 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
10654 / 09
31 / 03 / 2010
South Africa
High Court
Pretoria
Fabricius AJ
Keywords:
Civil Procedure – Motor vehicle accidents– Road Accident Fund Act of 1996– Road Accident Fund Act of
1996, section 21– Validity– Abolition of common law claim
Mini Summary:
The applicants sought a declaratory order that certain sections of the Road Accident Fund Act of 1996 (the
Act) as amended by the Amendment Act 19 of 2005 were inconsistent with the Constitution, and therefore invalid, as well as a declaratory order that certain regulations were invalid for a number of reasons.
The court began by addressing the issue of the applicants' standing. The first applicant (the law society) averred that it had an interest in the matter for a number of reasons, in that many of its members practised in the area of road accident litigation, and represented the vast majority of persons who claimed compensation from the RAF. The rights of their clients were profoundly affected by the 2008 amendments and the relevant regulations. The law society therefore brought the application because of the impact of the amendments on the rights of such accident victims.
Held that a generous approach to standing is essential to the maintenance of the rule of law as envisaged by the Constitution, and for constitutional legitimacy. The court therefore declined to dismiss the application on the ground of lack of locus standi.
Addressing the contentions advanced by the parties in the context of the abolition of the common law claim, the court first set out the law prior to the 2008 amendments. Section 21 of the Act changed the position, abolishing the common law claim. The applicants averred that section 21 infringed certain human

rights namely the rights to equality, to freedom of security of the person, to property, to access to health care services and to access to court. The court could not uphold any of those submissions.
As an alternative to the argument that section 21 was unconstitutional, the first applicant argued that the section, inasmuch as it abolished the relevant common law claim, was irrational and unreasonable. Again, the court could not uphold the argument.
Turning to consider the validity of the regulations, the court found no merit in the challenge of the applicants, and ultimately dismissed the application.
Posthumus v RAF
[2010] JOL 26012 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
268 / 09
18/ 02 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
BR Tokota AJ
Keywords:
Civil Procedure – Motor vehicle accidents – Claim for damages – Liability
Mini Summary:
The plaintiff was involved in a motor vehicle collision while riding his motorcycle. He sustained injury and sued the defendant fund for damages.
The court granted a separation of issues, resulting in the only issue to be determined at the present stage being that of liability.
At the hearing, the fund conceded that the insured driver was negligent, but argued that there was contributory negligence on the plaintiff's part.
Held that the fund bore the onus of proof on a balance of probabilities in respect of its contention. The only point in dispute was whether the plaintiff had indicated an intention to turn left. The testimony of the insured driver in this regard was unsatisfactory. The court accepted evidence to the contrary, that the plaintiff had not indicated that he was turning left.
The defendant was held liable for plaintiff's proven damages.
Janion v RAF
[2010] JOL 25925 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1597 / 08
01 / 04 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JD Pickering J
Keywords:
Civil Procedure – Motor vehicle accidents – Personal injury – Claim for damages – Liability
Mini Summary:
The plaintiff was involved in a motor vehicle accident in which, he alleged, he sustained severe injury. He sued the defendant fund for damages.
Held that the plaintiff was unable to testify due to his injuries, but his two witnesses satisfied the court as being credible witnesses. The insured driver and his witness on the other hand were found to be unconvincing. Their testimony was described by the court as improbable and contradictory.
In argument, the defence conceded that the evidence of its two witnesses could not be relied upon, and that the matter had to be decided on the basis of the plaintiff's evidence. The defence’s attempt to contend for contributory negligence on the part of the plaintiff was rejected by the court, as lacking in any factual basis.
The defendant was held liable for the plaintiff's proven damages.
Mnisi v RAF
[2010] JOL 25857 (GNP)
Case Number: 37233 / 09

Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
18 / 05 / 2010
South Africa
High Court
North Gauteng, Pretoria
BR Southwood J
Keywords:
Legal practice – Attorneys – Contingency fees agreement – Lawfulness
Mini Summary:
In a dependants' action, the plaintiff claimed damages from the Road Accident Fund in her personal capacity and on behalf of her minor children for the loss of support which they suffered as a result of the death of the plaintiff’s husband in a motor vehicle accident.
The present judgment was not concerned with any issues raised in the trial but with the manner in which the plaintiff's attorney conducted the trial and purported to charge fees for his services. During the course of considering a draft settlement agreement, the court discovered that the plaintiff and her attorney had entered into a contingency fees agreement.
Held that the Contingency Fees Act 66 of 1997 provides for two forms of contingency fee agreements which attorneys and advocates may enter into with their clients. The first, is a "no win, no fees" agreement and the second is an agreement in terms of which the legal practitioner is entitled to fees higher than the normal fee if the client is successful. The latter type of agreement is subject to limitations.
Higher fees may not exceed the normal fees of the legal practitioner by more than 100% and in the case of claim sounding in money this fee may not exceed 25% of the total amount awarded or any amount obtained by the client in consequence of the proceedings, excluding costs.
The fees claimed by the attorney in terns of the agreement in this case was not covered by the Act and the agreement was illegal. The court referred the matter to the law society for investigation.
Faria v Road Accident Fund
[2013] JOL 30682 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2210 / 12
12 / 03 / 2013
South Africa
High Court
South Gauteng, Johannesburg
Weiner J
Keywords:
Delict – Motor vehicle accidents – Personal injury – Claim for damages – Serious injury – Assessment of
Mini Summary:
As a result of a collision between a motor vehicle driven by a third party and a bicycle which the plaintiff was riding at the time, the plaintiff sustained injury. He sued the defendant under the Road Accident Fund
Act 56 of 1996 (“the Act”) for damages.
Held that although the defendant did no concede the merits, it produced no witnesses to counteract the version of the plaintiff and that was accordingly unable to dispute his evidence. The defendant was therefore held to be 100% liable for any damages proven by the plaintiff.
Some of the issues having been settled by the parties, the Court was required to determine the questions of general damages and future loss of earnings in the sense that the plaintiff’s working capacity and productivity had been diminished.
The question was whether or not this Court could decide the issue of general damages or whether the matter had to be referred to the Tribunal set up in terms of the Act and the regulations, in order for the
Tribunal to determine whether or not the injury was of a serious nature. The Court was empowered to decide the quantum, but not whether or not the injury was serious, if disputed by the defendant. It was found that the defendant did not dispute the seriousness of the injury. Accordingly, the Court could accept the assessment of both the plaintiff and defendant’s medical practitioners that this was a long term injury where general damages were applicable. It was ordered that the plaintiff could proceed to prove his general damages.

FLSmidth (Pty) Limited v Racec Rail (Pty) Limited and others
[2014] JOL 32039 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
22914 / 2013
04 / 03 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Mayat J
Keywords:
Contract – Arbitration agreement – Repudiation of – Test for repudiation – Cancellation of agreement
Mini Summary:
The applicant (“FLS”) was a provider of engineered solutions, equipment and systems for processing minerals, mainly in the mining industry. The first respondent (“Racec”) was subcontracted by FLS to install railway infrastructure in relation to a project in the North West Province. The second respondent represented Racec in arbitration proceedings relating to a dispute between Racec and FLS. The third respondent was appointed as the arbitrator of the dispute.
In the present application, FLS sought a declaration that the arbitration agreement had been repudiated by Racec and cancelled by FLS.
The factual background to the dispute was as follows. In November 2009, FLS was contracted by a company to install a rail infrastructure. FLS sub-contracted the work to Racec. The contractual relationship between FLS and Racec was governed by the terms stipulated in the purchase order provided by FLS.
After completion of the installation in terms of the purchase order, Racec claimed an additional payment of
R2 526 972,56 from FLS, apparently on the basis of a variation to the purchase order allegedly due to the failure of FLS to provide access to works.
Held that the main issue was whether FLS had validly cancelled the agreement between the parties, pursuant to the averred repudiation of the said agreement by Racec.
It was found that the parties had varied the arbitration agreement to include a term regarding the requirement that Racec be represented by attorneys in the arbitration proceedings. Racec disputed that such requirement was a precondition to the arbitration. The test to determine whether Racec’s volte face relating to the appointment of an attorney constituted a repudiation of the arbitration agreement, was an objective one. The court had to determine whether, fairly interpreted, Racec’s conduct exhibited a deliberate and unequivocal intention no longer to be bound by the arbitration agreement, incorporating the additional term. It was found that Racec did indeed repudiate the arbitration agreement, which was thereafter validly cancelled by FLS. A declaratory order to that effect was issued.
Pangbourne Properties Ltd v Pulse Moving CC & another
[2010] JOL 26475 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 30282; 09 / 37649
19 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener J
Keywords:
Civil procedure – Affidavits – Filing of – Time limits
Mini Summary:
In two applications before the court, the applicant sought the ejectment of the first respondent from the premises and payment of a portion of a deposit pursuant to a written agreement entered into, between it and the first respondent.
The first argument raised on behalf of the respondents was that the replying affidavit was filed some eight months out of time and fell to be disregarded.
Held that there are a large number of matters that come before the court in which parties, for a variety of reasons, agree to file affidavits at times suitable to them. Each case must be decided on its own facts and

it cannot be said that when affidavits are filed out of time that it is not, without more, before the court.
Were the court to uphold the argument that the replying affidavit and consequently also the answering affidavit, fell to be disregarded because they were filed out of time, it would be too formalistic an exercise in futility, and it would leave the parties to commence the same proceedings on the same facts de novo.
On the merits, the court found no substance to the defences raised. The application accordingly succeeded.
Cochrane v The City of Johannesburg
[2010] JOL 25952 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 5044 / 09
18 / 08 / 2010
South Africa
High Court
South Gauteng, Johannesburg
JP Horn, H Mayat JJ, Bava AJ
Keywords:
Civil procedure – Court's rules – Uniform Rules of Court – Uniform Rules of Court, rule 30 – Applicability
Mini Summary:
In terms of section 20(4)(b) of the Supreme Court Act 59 of 1959, the appellant appealed to the full bench against the setting aside of his summons and particulars of claim in terms of rule 30(3) of the
Uniform Rules of Court. The essence of the appeal was that the court a quo was incorrect in setting aside the appellant’s summons in terms of rule 30 where the appellant failed to serve a notice, within a six month period after the debt became due, on the respondent in terms of section 3 of the Institution of
Legal Proceedings Against Certain Organs of State Act 40 of 2002.
The appellant had given notice to the respondent of its intention to institute legal proceedings in terms of section 3(2) of the Act more than the prescribed 6 months after the incident giving rise to the debt occurring. No objection was made by the respondent, until after summons was served.
Held that the applicability of rule 30 had to be determined. If rule 30 was intended to serve as a notice of objection in respect of proceedings other than the Uniform Rules of Court, it would be casting the net far too wide and would lead to abuse. Rule 30 was never intended to serve as a basis for an objection to procedural irregularities in respect of other legislation. The rule was meant to deal with irregular steps taken by parties involved in litigation where the irregularity emanated from the use of the Rules of Court.
The respondent should not have proceeded in terms of rule 30 of the Uniform Rules of Court with a view to objecting to the validity of the appellant's notice given in terms of section 3 of the Act. The appropriate course that the respondent should have adopted in the matter was to have either objected to the notice in terms of the Act or to have delivered a special plea after summons was served.
The appeal was upheld.
Edkins v Registrar of Deeds, Johannesburg & others
[2012] JOL 28833 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
16117 / 11
09 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
DSS Moshidi J
Keywords:
Insolvency – Sale in execution – Rights of purchaser – Entitlement to take transfer – Surrender of seller’s estate
Mini Summary:

The question for determination in this case was whether the purchaser of immovable property at a public sale in execution conducted by the Sheriff of the Court, is entitled to take transfer thereof where the registered owner of the property subsequent to the sale in execution, but before transfer of the immovable property, published a notice of intention to surrender his estate in terms of section 4(1) of the
Insolvency Act 24 of 1936.
The third and fourth respondents were the joint liquidators of the insolvent estate of the owner (referred to by the Court as “the debtor”) of immovable property which the applicant bought at a sale in execution.
The applicant complied fully with all his obligations in terms of the sale agreement. Subsequently, the debtor published a notice of his intention to surrender his estate in terms of the provisions of section 4(1) of the Insolvency Act. The voluntary surrender of the debtor’s estate was accepted by the High Court and placed under sequestration. When trying to lodge transfer documents, the applicant was advised that the conveyancers were unable to lodge the registration of transfer due to the Registrar of Deeds’ Conference
Resolution with regard to transfer of a property pursuant to a sale in execution where the debtor was sequestrated after the date of sale in execution.
Held that the said Resolution provided that if property is sold in execution and debtor is sequestrated after such sale, the sequestration prevents the sheriff from transferring the property to the purchaser of the sale in execution.
Rule 46(13) of the Uniform Rules provides that “the sheriff shall give transfer to the purchaser against payment of the purchase money and upon performance of the conditions of sale and may for that purpose do anything necessary to effect registration of transfer, and anything so done by him shall be as valid and effectual as if he were the owner of the property”.
The Court then set out the effect of sequestration on an insolvent’s property.
The conclusion was that the agreement of the sale in execution in the present matter was concluded before the publication of the notices of surrender of the insolvent’s estate as envisaged in section 4(1) of the Insolvency Act. The insolvent knew full well that the bank had foreclosed, obtained default judgment, a writ of attachment, and the imminent sale in execution of the immovable property, but he deliberately waited until after the sale to publish his intention to surrender his estate. At the stage of publication of the notices of surrender, the insolvent had no authority over the immovable property, and at the time of the appointment of the third respondent and the fourth respondent as trustees, they had no right to prevent transfer of the property.
The applicant succeeded in proving on a balance of probabilities, that he was entitled to the transfer of the immovable property into his name.
Amplisol (Pty) Ltd v Gerhard van der Merwe Attorneys
[2012] JOL 29112 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
36409 / 2011
13 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
BR du Plessis J
Keywords:
Contract – Sale of debts – Suspensive conditions – Fulfilment of
Mini Summary:
The "Unifer Loan Book" was the collective name for a large number of debts that respective debtors owed to a bank. The bank appointed a company to collect the said debts, and that company in turn appointed the respondent to collect the debts. In August 2010, the bank and the two other entities sold the Unifer
Loan Book to the applicant. After the sale, the applicant notified the respondent thereof and of the cession. However, upon being requested to hand over to the applicant the files pertaining to those debts that had been sold to the applicant, the respondent refused. That led to the present application for declaratory, interdictory and related relief.
Held that the first order sought by the applicant was a declaration that, pursuant to the sale, it became to owner of the debts known as the Unifer Loan Book. The Court pointed out that the question was not whether the applicant became the owner of the relevant debts, but whether, pursuant to a valid cession, it became the creditor of each of the debtors comprising the Unifer Loan Book. It had to be determined whether the bank and the other entities ceded their rights as creditors to the applicant.

In terms of the sale agreement, once the suspensive conditions had been fulfilled, the applicant became the creditor of each of the debtors with effect from 30 June 2010. The applicant averred that all suspensive conditions had been fulfilled. The respondent’s denial in that regard was unsubstantiated and the Court accepted the applicant’s version.
The Court found that the applicant was the creditor in respect of the debts in question, and that the respondent had no rights in respect of the Unifer Loan Book. The application accordingly succeeded.
Nedbank Ltd v Mendelow NO and another
[2013] JOL 30797 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
686 / 12
05 / 09 / 2012
South Africa
Supreme Court of Appeal
Lewis, Maya, Malan, Shongwe JJA, Zondi AJA
Keywords:
Property – Transfer of – Master of High Court, misled by forgery, signing certificate permitting transfer of property and Registrar of Deeds registering transfer of property – Review of Master’s issue of certificate –
Where Master of High Court and Registrar of Deeds perform clerical acts that result in the registration of transfer of immovable property pursuant to a fraud, and there is no intention on the part of a beneficiary of a deceased estate to transfer ownership, registration does not effect a transfer of ownership
Mini Summary:
The respondents were joint executors of a deceased estate. The deceased had owned immovable property, and in terms of a will executed in 1994, she left her estate in equal shares to her two sons. At that stage the property formed part of the estate. In January 2001, the property was sold to a company, which was in liquidation at the time of the proceedings before the High Court. The deceased’s signature on the deed of sale was forged by one of her sons. He also forged the other son’s signature on the consent to the sale. After her death, the respondents applied to the High Court for an order setting aside both the purported transfer of the property to the company, and the registration of a bond over the property in favour of a bank which was later acquired by the appellant. The respondents alleged that the sale and transfer of the property to the company and the registration of the bond in favour of the appellant had been vitiated by fraud.
In the High Court, the respondents’ cause of action morphed into to a review in terms of the Promotion of
Administrative Justice Act 3 of 2000. In terms of the court’s characterisation of the relief sought, the respondents sought to review and set aside the certificate issued by the Master in terms of section 42(2) of the Administration of Estates Act 66 of 1965 since his action had been induced by the fraud of the deceased’s son. The court ordered that the property should be returned to the deceased estate in terms of the principles of administrative law in that the decision of the Master in signing a certificate authorising the transfer constituted administrative action reviewable under the Promotion of Administrative Justice
Act.
On appeal, the appellant argued that the High Court had misconceived the relief granted as the Promotion of Administrative Justice Act does not make provision for vindicatory relief.
Held that our system of deeds registration is negative. Registration is intended to protect the real rights of those persons in whose names such rights are registered in the Deeds Office and is a source of information about those rights. However, registration does not guarantee title, and if it is effected as a result of fraud, then the right apparently created is no right at all. Where there is no real intention to transfer ownership on the part of the owner or one of the owners, then a purported registration of transfer
(and likewise the registration of any other real right, such as a mortgage bond) has no effect. If the underlying agreement is tainted by fraud or obtained by some other means that vitiates consent (such as duress or undue influence) then ownership does not pass. Thus, when the deceased’s son forged her signature on the deed of sale of the property and his brother’s signature on the consent to the sale, the brother did not intend to transfer ownership of the property and the power of attorney signed by the
Master to permit the registration of transfer was vitiated by the fraud and the forgery. Ownership therefore did not pass to the company, and accordingly the bonds registered first in favour of the bank were not valid. The appellant accordingly could not resist the claim of the executors for cancellation of the registration of the bond, and the executors were entitled to re-registration of the property in the name of the deceased estate.

The appellant argued that as the executors had not based their claim on ownership of the property and had not instituted the rei vindicatio, they were not entitled to rely on principles raised by the court mero
motu. That submission ignored that where the facts to which those principles apply are squarely raised in the papers before the court, a court should not allow the continuation of a wrong because the legal representatives of the parties did not appreciate the correct legal principles. The elements of the rei
vindicatio appeared clearly in the papers and were not disputed.
The Court concluded that the executors had to succeed in their claim for the registration of the property in the name of the deceased estate and for the cancellation of the bond in favour of the appellant.
The appeal was dismissed with costs.
Nelson Mandela Bay Metropolitan Municipality v African Catholic Church & others
[2010] JOL 26049 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Contract – Sale of land – Validity of agreements
Mini Summary:
2957 / 09
04 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
N Dambuza J
Through a number of sale agreements, the applicant sold immovable properties to the various respondents. According to the applicant, the present application was the result of its discovery that a person in its employ was conducting irregular property sales. The applicant ought to have the agreements set aside on the ground that they did not comply with the formalities set out in the Alienation of Land Act
61 of 1981. More particularly, in each agreement, the number and amount of instalments by which the balance of the purchase price was to be paid was not set out. There was also no stipulation as to when such instalments were due and payable, when the purchaser would take occupation or possession of the property and when the purchaser would be liable for rates and taxes on the property.
Held that the essentials of a written contract of sale of land are the subject-matter of the sale; the parties thereto; and the price of the land sold. As the price is an essential term of any contract of sale, the method of payment of the price is also an essential or, at least, a material term. So a written contract that leaves the method of payment vague or leaves it over for further negotiation is void and cannot be rectified.
The court found that the agreements in this case fell foul of the provisions of not only the provisions of the
Alienation of Land Act but also the general principles of law relating to purchase and sale agreements. The agreements were declared to be of no force and effect.
Nelson Mandela Bay Metropolitan Municipality v Fourie & others
[2010] JOL 26066 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Contract – Sale of property – Validity
2958 / 09
10 / 08 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
Y Ebrahim J
Mini Summary:
The applicant sought an order declaring certain sale agreements invalid for want of compliance with the provisions of section 2(1) of the Alienation of Land Act 68 of 1981.
A clause in the agreements of sale stipulated that the purchase price and various preliminary expenses were due and payable by the purchaser and sets out two options for payment of the amounts with the direction that one of the options be deleted. The purchaser had therefore to elect which option would be applicable and the other had to be deleted. Due to the failure to delete one of the options it was unclear whether the purchase price and other amounts were to be paid in terms of option 1 or option 2. The applicant contended that the absence of consensus regarding the method of payment of the purchase price rendered the agreements invalid.

Held that all the material terms of the sale must be set out in a written contract. The material terms of a contract of sale are not confined to those prescribing the essentialia of a contract of sale, namely the parties to the contract, the merx and the pretium but include, in addition all other material terms.
Consensus must be evident from the contract itself. In certain circumstances a court may have recourse to extraneous evidence regarding the intention of the parties. This, however, was manifestly not the position here. The court concluded that each of the agreements was invalid for want of compliance with section 2(1) of the Alienation of Land Act.
The application succeeded.
Minister of Police and another v SA Metal and Machinery Company (Pty) Limited
[2014] JOL 32067 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
462 / 13
01 / 07 / 2014
South Africa
Supreme Court of Appeal
L Mpati P et BC Mocumie AJA, CH Lewis, LO Bosielo, LV Theron JJA
Criminal procedure – Search and seizure – Application for return of goods seized by police – Whether police were entitled to dispose of goods – Where claimant proving that it was in possession of the goods at the time the police seized them and that no criminal proceedings had been instituted against it, disposal of goods by police was unlawful – Criminal procedure – Search and seizure – Application for return of goods seized by police – Whether respondent could recover damages under the actio ad exhibendum on motion proceedings – Court setting out requirements for actio ad exhibendum, and finding no bar to claim in this case
Mini Summary:
In motion proceedings against the appellants, the respondent sought the return of certain items of scrap metal seized from its premises by members of the South African Police Service (“the SAPS”). When the appellants advised that the SAPS had already disposed of the goods in terms of section 31 of the Criminal
Procedure Act 51 of 1977, the respondent amended its notice of motion and sought an order, in the alternative, for payment of damages, under the actio ad exhibendum, in the sum of R8 611,50, being the value of the goods, together with interest. The alternative relief was granted, leading to the present appeal.
Held that the issue on appeal was whether the SAPS were entitled to dispose of the goods and, whether the respondent could recover damages under the actio ad exhibendum on motion proceedings.
The goods were seized in terms of section 20 of the Criminal Procedure Act 51 of 1977, which provides that the state may seize an article which, inter alia, is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, or which may afford evidence of the commission or suspected commission of an offence. The defence raised by the SAPS was that the respondent was neither the owner nor the lawful possessor of the goods because it failed to produce any proof to that effect, and that the SAPS was entitled to dispose of the goods in terms of section 31(1) of the Criminal
Procedure Act 51 of 1977. In order to succeed and to have the goods returned to it, all the respondent had to prove was that it was in possession of the goods at the time the police seized them and that no criminal proceedings had been instituted against it. The appellants, on the other hand, bore the onus of proving that the respondent’s possession of the goods was unlawful. It was not in dispute that the respondent was in possession of the goods when they were seized. The charges levelled against the respondent in respect of its possession of the goods were withdrawn, with the result that the respondent would be entitled to the return of the goods, provided it could lawfully possess them.
The onus of proving that the respondent could not lawfully possess the goods was on the SAPS. That onus was not discharged.
The Court then turned to the appropriateness of motion proceedings in a claim under the actio ad
exhibendum. To succeed in its damages claim, the respondent had to prove that the SAPS wrongfully alienated the goods before litis contestatio; the SAPS were aware, at the time of alienating the goods, of its (SA Metal’s) claim thereto; and the respondent suffered patrimonial loss as a result of the wrongful alienation of the goods. It was found that all of the said elements were established by the respondent.
There was therefore no reason why the respondent was not entitled to an order for payment of the value of the goods in terms of the actio ad exhibendum. The appeal was accordingly dismissed with costs.

Ivanov v North West Gambling Board & others
[2012] JOL 29125 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
312 / 2011
31 / 05 / 2012
South Africa
Supreme Court of Appeal
NZ Mhlantla, Cloete, Heher, Snyders JJA & McLaren AJA
Keywords:
Criminal Procedure – Search warrant – Whether search and seizure can remain lawful is warrant is declared invalid after search and seizure operation has been conducted – A declaration of invalidity of a search warrant operates retrospectively, with result that search and seizure effected in terms thereof cannot be lawful – Property – Spoliation – mandament van spolie – An applicant is entitled to a mandament van spolie restoring the status quo ante upon proving firstly that the applicant was in possession of the spoliated thing, and secondly the wrongful deprivation of possession – Fact that possession is wrongful or illegal is irrelevant
Mini Summary:
The first respondent was a provincial gambling board (“the board”). In terms of section 4 of the North
West Gambling Act 2 of 2001 (“the Act”), the board enjoyed certain powers, including the powers to oversee gambling activities and investigate illegal gambling throughout the province and to exercise such powers and perform such functions and duties as may be assigned to it in terms of the Act and any other law. The board and the South African Police Service (“SAPS”) agreed to co-operate with regard to the investigation of illegal gambling in the province.
In January 2010, the third respondent, who was an inspector employed by the board, inspected the appellant’s business premises. Suspecting that gambling activities were taking place in contravention of the Act, the third respondent requested members of the SAPS to conduct further investigations and to apply for a search warrant. The sixth respondent was a magistrate in the court having jurisdiction over the appellant's business premises. On application by the SAPS, the sixth respondent issued the search warrant in terms of sections 20, 21 and 25 of the Criminal Procedure Act 51 of 1977 read with section 65(6) to (8) of the Act.
The search warrant was executed by the second and third respondents and some employees of the board.
They confirmed that the appellant was contravening section 9(1) of the National Gambling Act 7 of 2004 by being in possession of gambling machines and other gambling devices without the requisite licence and or authority by the board to possess the machines.
In an urgent ex parte application the appellant sought an order, cancelling the search warrant and directing the members of SAPS to restore possession of his business premises to him, averring that the warrant was invalid. The magistrate granted an order for the restoration of his business premises but made no order that affected the validity of the warrant.
The appellant was charged with illegal gambling, and the police and members of the board returned to his premises where they seized the machines and equipment which appeared to be gambling machines. That caused the appellant to institute an ex parte application in the High Court against the first to fifth respondents. He attacked the validity of the search warrant, and sought an order directing the respondents to restore the machines to him with immediate effect. The court granted a rule nisi with immediate effect pending the return day, declaring the search warrant null and void and ordering the first to fifth respondents to restore possession of the machines to the appellant. The respondents complied with the order and returned the machines to the appellant.
Opposing the confirmation of the rule nisi, the third respondent deposed to an affidavit on behalf of the respondents (except for the sixth respondent). He objected to the manner in which the appellant had launched the application, stating that the appellant had failed to comply with the provisions of section 35 of the General Law Amendment Act 62 of 1955, as no notice had been given to them. He conceded that the warrant might have been defective but stated that the respondents were justified in their actions and had met the requirements of sections 20, 21 and 25 of the Criminal Procedure Act; that the appellant had contravened the provisions of section 9(1) of the National Gambling Act and that he was conducting an illegal casino contrary to the provisions of section 50(1) of the Act. He averred that by virtue of section 79 of the Act, the gambling machines and other articles that were used in the commission of the offence were liable to forfeiture upon the appellant's conviction. He therefore sought that the rule nisi be discharged and the appellant be ordered to return the machines to the board. The court considering the matter discharged the rule nisi in part. It declared the warrant invalid for being too general and vague and accordingly set it aside. The search and seizure were held not to be unlawful because although the search warrant was invalid, it had not yet been set aside when the police executed it and it had empowered the police to conduct the search and seizure. It was further held that the appellant was not entitled to a

spoliation order and that he had adopted the wrong procedure and relied on a wrong cause of action. The
Court ordered the appellant to return the machines to the respondents with the qualification that he was only entitled to the return of the items which he might lawfully possess. Leave to appeal was granted to the present Court.
Held that the two issues raised on appeal were whether the declaration of invalidity of the search warrant could transform a bona fide search that was executed under a warrant into a spoliation; and whether as a result of the declaration of invalidity of the search warrant, the appellant was entitled to unqualified restoration of the machines the possession of which without a licence is prohibited by the Act.
In concluding that the search warrant was invalid, the court a quo was correct. However, the court erred in concluding that the order declaring the search warrant invalid did not affect the lawfulness of the search and seizure. As a warrant is written authority to perform an act that would otherwise be unlawful, the respondent’s contention that the search and seizure were lawful as the warrant had not been declared invalid when the police executed it and that it remained valid until set aside on review, could not be sustained. The warrant must comply with the statutory provisions. If it is subsequently declared invalid, the invasion of privacy and the search and seizure cannot retain the lawfulness thereof as the essence of what made the dispossession lawful, falls away. The declaration of invalidity operates retrospectively and not prospectively. In this case, the police had no authority to seize the appellant's goods, even though they acted in good faith and believed that they had the power to search in terms of the warrant. Once the order of invalidity was issued, the necessary consequence was that the police acted unlawfully. It was therefore competent for the appellant in this case to apply for a Spoliation Order. The court below accordingly erred when it concluded that the appellant had used a wrong procedure and relied on a wrong cause of action.
Turning to the issue of spoliation, the Court set out the general principles underlying the mandament van
spolie. Spoliation is the wrongful deprivation of another's right of possession. An applicant is entitled to a
mandament van spolie restoring the status quo ante upon proving firstly that the applicant was in possession of the spoliated thing, and secondly the wrongful deprivation of possession. The fact that possession is wrongful or illegal is irrelevant.
The last question addressed by the Court was whether, in bringing his applications on an ex parte basis, the appellant was guilty of abusing the Court’s process. Although there was no reason why notice should not have been given to the respondents and ex parte proceedings were not justified, the appellant could not be non-suited because of that.
The appeal was upheld with costs.
Zietsman v Electronic Media Network Ltd & another
[2011] JOL 28023 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
771 / 2010
29 / 09 / 2011
South Africa
Supreme Court of Appeal
KK Mthiyane, BJ van Heerden, LO Bosielo, LE Leach JJA, Meer AJA
Keywords:
Civil procedure – Application for security for costs – Defence of res judicata – Underlying ratio of the doctrine of res judicata is that where a cause of action has been litigated to finality between the same parties on a previous occasion, a subsequent attempt by one party to proceed against the other party on the same cause of action should not be permitted –– Where cause of action differed and the decision made in the first application was not one on the merits, defence of res judicata not applicable
Mini Summary:
In 2004, the appellant instituted action against the first and second respondents and three other entities for the alleged infringement of his patent. In terms of Uniform rule 47(1), the respondents requested security for costs, and the Commissioner of Patents ordered the appellant to furnish security. The appellant appealed against the order and the present court upheld the appeal. The respondents’ application was dismissed on the basis that they had not disclosed a defence and because evidence relating to their defence and their prospects of success in the main action had not been tendered.
In June 2008, the respondents again requested security for costs in terms of Uniform rule 47(1). This time the notice under Uniform rule 47(1) contained, inter alia, statements indicating that the respondents had good prospects of success in their defence of the main action. The appellant’s refusal to furnish security

led to second application to court being made. The appellant’s answer to the application was that, in light of the judgment in the appeal against the order made in the first application for security, the respondents were precluded from seeking further security from the appellant as the matter was res judicata. However, the Commissioner of Patents was ordered to furnish security for the costs of the first and second respondents jointly in the amount of R100 000. That led to the present appeal.
Held that the issue for decision on appeal was whether the second application for security for costs should have been refused by the court a quo because of the operation of res judicata or issue estoppel.
The underlying ratio of the doctrine of res judicata is that where a cause of action has been litigated to finality between the same parties on a previous occasion, a subsequent attempt by one party to proceed against the other party on the same cause of action should not be permitted. The constituent elements of the defence are an earlier judicial decision; which is final and definitive of the merits of the matter; involving the same parties; where the cause of action in both cases is the same; and the same relief is sought.
Where a defendant raises the defence that the same parties are bound by a previous judgment on the same issue, that has come to be referred to as the defence of “issue estoppel”. The essential requirements of issue estoppel are: an earlier judicial decision; which is final and definitive of the merits of the matter; involving the same parties; and which involves an issue of fact or law which was an essential element of the judgment on which reliance is placed.
Contending that the defence of res judicata was not established, the respondents disputed that the previous judgment was a final and definitive judgment on the merits of the first application for security for costs and averred further that the causes of action in both applications for security for costs were not the same.
In order for the defence of res judicata to be sustained it must be shown that the earlier judicial decision on which reliance is placed was a decision on the merits. The ratio for the decision in the previous appeal was that insufficient evidence had been placed before the Court and the respondents had not disclosed a defence. Neither the respondents’ defence, nor their prospects of success in the main action were dealt with in the first application. The Court agreed with the respondents that the effect of the judgment was that it only granted absolution from the instance, and did not deal with the merits. Accordingly, the doctrine of res judicata could not be relied on by the appellant to prevent adjudication of the respondents’ second application for security for costs. It was also found that the cause of action in the second application did differ from that in the first application as new evidence was tendered. The evidence now showed that the respondents had good prospects of success in the main action and that there was therefore a good possibility of an adverse costs order being made against the appellant at the termination of the main action.
The plea of res judicata could not be upheld and was correctly rejected by the Commissioner of Patents.
The appeal was accordingly dismissed.
Exploitatie-en Beleggingsmaatschappij Argonauten 11 BV & another v Honig
[2011] JOL 27924 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
649 / 2010
30 / 09 / 2011
South Africa
Supreme Court of Appeal
Leach, Mthiyane, Van Heerden and Bosielo JJA and Meer AJA
Civil procedure – Security for costs – General rule of practice is that a peregrinus should provide security for an incola’s costs – Civil procedure – Security for costs – Request for additional security – Entitlement to seek additional security at later stage of proceedings – While as a general rule a party is expected to apply expeditiously for security under rule 47 (which the respondent did in his first security notice), a party is entitled to seek additional security at any stage – Insolvency – Sequestration – Badenhorst rule –
Where there is a genuine and bona fide dispute as to whether a respondent in sequestration proceedings is indebted to the applicant, the court should, as a general rule, dismiss the application
Mini Summary:
The first appellant was a Dutch company, with the second appellant as a director of the company. In
2008, they brought an urgent application for the sequestration of the respondent, alleging that he was indebted to them under two acknowledgements of debt.
In opposing the granting of the sequestration order, the respondent filed a notice in terms of rule 47 of the Uniform Rules of Court, calling on the appellants to furnish security for costs. A security undertaking was provided by the appellants’ attorneys who confirmed that they held an amount in trust in that regard.
However, the respondent subsequently filed a further rule 47 notice, calling for additional security. When the appellants refused to pay, a formal application to court was made. The application succeeded, with the

court staying the sequestration application pending additional security being furnished. That led to the present appeal.
On appeal, the Court dealt first with the merits of the sequestration application insofar as the respondent’s indebtedness to the appellants was concerned.
Held that the Badenhorst rule, based on the decision in Badenhorst v Northern Construction Enterprises
Ltd, is as follows. Sequestration proceedings are designed to bring about a concursus creditorem to ensure an equal distribution between creditors, and are inappropriate to resolve a dispute as to the existence or otherwise of a debt. Consequently, where there is a genuine and bona fide dispute as to whether a respondent in sequestration proceedings is indebted to the applicant (as in this case), the Court should, as a general rule, dismiss the application. Neither the parties nor the Court a quo took the above into account in the sequestration application – which could have been resolved on this limited issue alone rather than embarking upon an interlocutory skirmish about security for costs. However, as pointed out by the Court, while the appellants might well face grave difficulty in obtaining a sequestration order against the respondent, the Badenhorst rule is not inflexible and there was no guarantee that the appellants would fail in the main application on that score alone.
A contention by the appellants that the high court ought to have dismissed the application for security due to the respondent’s unduly delay in bringing it was of little assistance to them as the contention was not foreshadowed in their affidavits. Had the appellants raised the alleged delays timeously, the respondent might well have offered an acceptable explanation. Without the respondent having being called upon to do so, it would not be proper for the court to decide the application against him by having regard to an issue that he was not called upon to meet. Moreover, in suggesting that the respondent was not entitled to seek security for costs at such a late stage of the proceedings, the appellants were wrong. While as a general rule a party is expected to apply expeditiously for security under rule 47 (which the respondent did in his first security notice), a party is entitled to seek additional security at any stage, although an unreasonable delay in doing so may be decisive in the exercise of the court’s discretion. In any event, on the facts that were disclosed there did not appear to have been any undue delay.
The general rule of practice is that a peregrinus should provide security for an incola’s costs. In attempting to circumvent the rule, the appellants adopted an ambiguous stance. While pleading poverty, they also averred that the respondent would have no difficulty in recovering a costs order by suing them in Europe.
The Court held that if their financial status was relevant to the question of security it was incumbent upon them to take the court into their confidence and make sufficient disclosure of their assets and liabilities to enable the court to make a proper assessment thereof in the exercise of its discretion. That was not done.
In any event, the fact that the respondent would have to proceed against the appellants abroad if he obtained a costs order in his favour, with the associated uncertainty and inconvenience that would entail, was one of the fundamental reasons why a peregrinus should provide security.
Although not necessary to deal with the merits of the dispute between the parties in the sequestration application, in light of the Badenhorst principle the appellants faced a considerable hurdle and their prospects of success in the main application appeared to be bleak. In such circumstances there was a distinct possibility of the appellants being ordered to pay the respondent’s costs in the sequestration application, a factor which made it all the more important for the respondent to be secured.
The appeal was dismissed with costs.
Hennie Lambrechts Architects v Bombenero Investments (Pty) Limited: In re Bombenero
Investments (Pty) Limited v Hennie Lambrechts Architects
[2013] JOL 30861 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3032 / 2012
15 / 11 / 2012
South Africa
High Court
Free State, Bloemfontein
SJ Thamage AJ
Keywords:
Civil procedure – Security for costs – Court’s discretion
Mini Summary:
In July 2012, the respondent instituted action against the applicant, claiming damages for alleged breach of contract. In August 2012, the applicant demanded from the respondent security for costs in the sum of
R150 000 which security was never furnished. In the present interlocutory application, the applicant sought an order that the respondent be ordered to furnish security in the sum of R150 000 or any amount determined by the registrar of this Court, and that the proceedings in the main action be stayed until such time that the respondent had furnished the security sought. The basis of the application was that the applicant had reason to believe that the respondent would not be able to pay the applicant’s costs in the event that the applicant succeeded in the main action.

Held that section 13 of the repealed Companies Act 61 of 1973 had a provision for furnishing of security for costs. That section was repealed by the Companies Act 71 of 2008 which does not have a similar provision. The present application is thus brought under rule 47 of the Uniform Rules of Court.
While courts have an inherent duty to guard against abuse of court processes, and to discourage vexatious litigation, courts should not close the door of the genuine plaintiff incola, who has a sustainable case but is impecunious. Access to courts should thus not be technically denied simply because litigant with meritorious claim cannot provide security. Each case must be dealt with on its own merits and circumstances, with the emphasis being on legitimate litigations as well as the interests of justice.
The present application was dismissed with costs.
Pholosa Asset Management (Pty) Ltd v Swanepoel & another
[2011] JOL 27846 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1386 / 2011
22 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JE Smith J
Keywords:
Civil procedure – Security for costs – Vexatious action
Mini Summary:
In seeking to have the first respondent pay security for costs, the applicant averred that security was required on the basis that the main application was vexatious, had no prospects of success and that the first respondent did not possess means to satisfy an adverse costs order.
Held that the Court has inherent jurisdiction to order a litigant to provide security for costs where it appears that the litigation is vexatious.
The Court found that the first respondent had approached the Court in the main matter, in an attempt to elicit legal advice from the Court. It is required of an applicant to clearly state the nature of the relief sought and to support that with the factual basis in his or her supporting affidavits. The first respondent had failed to do so.
The first respondent was directed to put up security for costs in such amount as may be determined by the registrar in respect of proceedings instituted by the first respondent against the applicant.
Joytech SA (Pty) Ltd & others v Tetraful 1060 CC
[2011] JOL 27927 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
8229 / 10
20 / 10 / 2011
South Africa
High Court
KwaZulu – Natal, Durban
Lopes J
Keywords:
Civil procedure – Security for costs – Court’s approach
Mini Summary:
Alleging that the applicants had stolen, misappropriated or fraudulently removed money from the business of the respondent, the latter instituted action against them for payment of the amount in question.
In terms of rule 47(1) of the Uniform Rules of Court, the applicants delivered a notice requiring the respondent to provide security for the costs of the action pursuant to the provisions of section 8 of the
Close Corporations Act, 1984. The matter came before the present court as an opposed application on the question of the provision of such security.
Held that section 8 of the Close Corporations Act provides that where a corporation in any legal proceedings is a plaintiff or applicant, if it appears that there is reason to believe that the corporation would be unable to pay the costs of the defendant or respondent, the court may at any time during the proceedings require security to be given for those costs, and may stay all proceedings until the security is given.

Lecuona v Property Emporium CC
[2010] JOL 25266 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7015 / 09
26 / 02 / 2010
South Africa
High Court
South Gauteng, Johannesburg
A Gautschi AJ
Keywords:
Civil procedure – Security for costs – Founding affidavit – Prima facie case
Mini Summary:
In terms of section 8 of the Close Corporations Act 69 of 1984, the applicant sought security for costs.
Held that a respondent, despite having filed an answering affidavit, may argue in limine that the founding affidavit does not make out a prima facie case for the relief sought. That is what the respondent did in this case. Affidavits in motion proceedings are a combination of pleadings and evidence and that they must therefore contain the factual averments, in the form of primary facts, necessary to support the cause of action or defence sought to be made out.
In the present case, the court was satisfied that the applicant had made out no case at all in its founding affidavit. Upholding the respondent's point in limine, the court dismissed the application.
Guga v Minister of Safety & Security & others
[2010] JOL 26107 (ECM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
2268 / 09
09 / 09 / 2010
South Africa
High Court
Eastern Cape, Mthatha
LP Pakade ADJP
Police – Seizure of vehicle – Lawfulness
Mini Summary:
The applicant's motor vehicle was seized by members of the South African Police service in a road block.
The applicant sought the setting aside of the seizure of his motor vehicle and the certificate purporting to authorise it issued in terms of section 13(8) of the Police Act 68 of 1995. He also sought a restraining order interdicting the respondents from further unlawfully seizing the motor vehicle from the possession of the applicant as well as a mandamus that they should release the vehicle to the applicant.
Held that in light of the constitutional protection of property, a seizure of property is prima facie unlawful and will need to be justified. The need for strict interpretation of a statutory provision which authorises the seizure of a person's property arises from the fact that it limits the individual right to property.
Section 13(8) of the Police Act regulates the setting up of police road blocks and the procedure to be followed in a road block. The element of reasonable suspicion in section 20 of the Act is a common jurisdictional factor which precedes the issuing of both a search warrant in terms of section 21(1)(a) and a certificate in terms of section 13(8) of the Police Act.
The court found that the respondents had not shown that the applicant's motor vehicle was an item to be seized under section 13(8) of the Police Act as they failed to satisfy the requirements of section 20 of the
Act.
Having found that the search and seizure were unlawful, the court turned to consider whether or not the applicant could lawfully possess the motor vehicle notwithstanding the finding of discrepancies on its engine and chassis numbers. The applicant's explanation was satisfactory to the court, and the application succeeded.

Lawson v Schmidhauser Electrical CC
[2010] JOL 26388 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7596 / 07
09 / 11 / 2010
South Africa
High Court
Western Cape, Cape Town
E Moosa J
Keywords:
Civil procedure – Separation of issues – Court’s discretion – Relevant factors
Mini Summary:
Being the defendant in the main action between the parties, the applicant sought a separation of certain issues in terms of rule 33(4) of the Uniform Rules of Court.
Held that rule 33(4) envisages the convenient and expeditious disposal of litigation in a fair and appropriate manner. When it comes to the question of convenience, not only must the interest of the court be taken into consideration, but also that of the litigants. In making that determination the court must take into consideration the advantages and disadvantages of ordering the separation. If the advantages of separation outweighs the disadvantages and moreover will materially shorten the proceedings, the court would normally grant the application. The court has a wide discretion to order separation where convenience dictates such a course. The court is obliged to grant the application for separation unless it appears to the court that the issues cannot conveniently be decided separately.
Having regard to the advantages and disadvantages of separation, the court was of the view that the advantages far outweighed the disadvantages and it would be convenient and in the interest of all parties concerned to separate the issues.
Gainsford NO and others v Rees and others
[2014] JOL 32457 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
24490 / 11
06 / 06 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
BH Mbha J
Keywords:
Insolvency – Dispositions without value – Setting aside
Mini Summary:
The plaintiffs herein were acting in their capacities as joint trustees of an insolvent estate. In terms of section 29(1) of the Insolvency Act 24 of 1936, they sought the setting aside of dispositions made by the insolvent (“Tannenbaum”) to the first defendant (“Rees”) and entitled under his control. The trustees alleged between 2004 and 2009, Tannenbaum conducted a business in terms of which he solicited and received monetary deposits from the public (the investors) on the basis of oral alternatively, written representations that such deposits would be used for legitimate investments. The trustees claimed that the representations were false and that in truth Tannenbaum was conducting a Ponzi scheme (the scheme) with no legitimate underlying business or income. The trustees further alleged that from 2006 to
2009, Rees knew of the illegal nature of the scheme and participated therein.
Held that section 26(1) of the Act provides that dispositions without value can be set aside by the curt if the disposition was made by the insolvent more than two years before the sequestration of his estate, and it is proved that, immediately after the disposition was made, the liabilities of the insolvent exceeded his assets – or within two years of the sequestration and the person who benefited from the disposition is unable to prove that immediately after the disposition was made, the assets of the insolvent exceeded his liabilities. Section 29(1) provides that every disposition of his property made by a debtor not more than six months before the sequestration of his estate which has the effect of preferring one of his creditors above another, may be set aside by the court if immediately after the making of such disposition the liabilities of the debtor exceeded the value of his assets, unless the person in whose favour the disposition was made proves that the disposition was made in the ordinary course of business and that it was not intended thereby to prefer one creditor above another.

In order to establish whether the payments from Tannenbaum to Rees were dispositions made without value (it had to be determined namely, whether the scheme was illegal ie that it constituted a Ponzi operation, whether Rees participated in the scheme knowing it to be illegal, and whether Tannenbaum made the payments to Rees. The Court was satisfied that the trustees had established, on a balance of probabilities, that Tannenbaum conducted a Ponzi scheme in fraud of investors and that Rees’s bald denial in his plea that the scheme was illegal, should be rejected as false. It was also satisfied that Rees participated in the scheme knowing it to be illegal.
Finding that the dispositions were not legitimate, the Court ordered the defendants to repay the amounts in question to the insolvent estate.
BP Southern Africa (Pty) Ltd v Gaskell
[2010] JOL 25515 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
3102 / 07
05 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
JB Mnguni J
Keywords:
Insolvency – Provisional sequestration – Confirmation
Mini Summary:
The applicant sought confirmation of the provisional sequestration of the estate of the respondent.
The respondent was indebted to the applicant in terms of a deed of suretyship. He opposed the application on three grounds: firstly that the amount of indebtedness to the applicant has not been established, secondly that he was discharged from performing his obligations under and in terms of the deed of suretyship, as the applicant acted to the prejudice of the respondent in the applicant's relationship with the principal debtor, and finally that there would be no advantage to creditors should his estate be wound up.
Held that before the court can grant a final sequestration order, it must be satisfied that the applicant has established a claim which entitles it, in terms of section 9(1), to apply for the sequestration of the respondent, that the respondent has either committed an act of insolvency or is insolvent and that there is reason to believe that it will be to the advantage of creditors of the respondent if his estate is sequestrated. The onus of satisfying the court, of these three requirements is on the applicant and there is no onus on the respondent to disprove any of these requirements.
The court found that the defences raised by the respondent to the application were unsustainable. It found on the other hand, that the applicant had made out a case for the relief sought.
Edkins v Registrar of Deeds, Johannesburg & others
[2012] JOL 28833 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
16117 / 11
09 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
DSS Moshidi J
Keywords:
Insolvency – Sale in execution – Rights of purchaser – Entitlement to take transfer – Surrender of seller’s estate
Mini Summary:
The question for determination in this case was whether the purchaser of immovable property at a public sale in execution conducted by the Sheriff of the Court, is entitled to take transfer thereof where the registered owner of the property subsequent to the sale in execution, but before transfer of the immovable property, published a notice of intention to surrender his estate in terms of section 4(1) of the
Insolvency Act 24 of 1936.
The third and fourth respondents were the joint liquidators of the insolvent estate of the owner (referred to by the Court as “the debtor”) of immovable property which the applicant bought at a sale in execution.
The applicant complied fully with all his obligations in terms of the sale agreement. Subsequently, the debtor published a notice of his intention to surrender his estate in terms of the provisions of section 4(1) of the Insolvency Act. The voluntary surrender of the debtor’s estate was accepted by the High Court and

placed under sequestration. When trying to lodge transfer documents, the applicant was advised that the conveyancers were unable to lodge the registration of transfer due to the Registrar of Deeds’ Conference
Resolution with regard to transfer of a property pursuant to a sale in execution where the debtor was sequestrated after the date of sale in execution.
Held that the said Resolution provided that if property is sold in execution and debtor is sequestrated after such sale, the sequestration prevents the sheriff from transferring the property to the purchaser of the sale in execution.
Rule 46(13) of the Uniform Rules provides that “the sheriff shall give transfer to the purchaser against payment of the purchase money and upon performance of the conditions of sale and may for that purpose do anything necessary to effect registration of transfer, and anything so done by him shall be as valid and effectual as if he were the owner of the property”.
The Court then set out the effect of sequestration on an insolvent’s property.
The conclusion was that the agreement of the sale in execution in the present matter was concluded before the publication of the notices of surrender of the insolvent’s estate as envisaged in section 4(1) of the Insolvency Act. The insolvent knew full well that the bank had foreclosed, obtained default judgment, a writ of attachment, and the imminent sale in execution of the immovable property, but he deliberately waited until after the sale to publish his intention to surrender his estate. At the stage of publication of the notices of surrender, the insolvent had no authority over the immovable property, and at the time of the appointment of the third respondent and the fourth respondent as trustees, they had no right to prevent transfer of the property.
The applicant succeeded in proving on a balance of probabilities, that he was entitled to the transfer of the immovable property into his name.
Zeeman v De Wet NO & others
[2012] JOL 29122 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
325 / 2011
23 / 03 / 2012
South Africa
Supreme Court of Appeal
FR Malan, FDJ Brand, JA Heher, S Snyders JJA, C Plasket AJA
Keywords:
Property – Servitude – Exercise of reasonable right of access over servient property by servitude holder –
Court explaining content and scope of right of access as agreed to by parties in servitude agreement
Mini Summary:
The appellant owned a farm adjacent to another farm owned by a trust in which the respondents were trustees. For many years, the appellant had enjoyed a servitudinal right to draw water from a canal on the trusts’ property, diverting it over the trust’s farm onto the appellant’s land. When the trust took ownership of its farm in 2002, it approached the appellant about its wish to amend the servitude. It wished to lay new underground pipes and to change the route of the servitude somewhat. The appellant was amenable to the changes, and a servitude agreement was entered into in 2003. The dispute arose over the fact that the trust had planted a vineyard from east to west over the servitude. The appellant’s application to the high court was for an order directing the trust to respect the appellant’s rights arising from the servitude agreement. In particular, the appellant sought an order compelling the trust to remove some of the vineyards and undergrounds pipes to allow the appellant and his workers to move freely along the servitude route in the exercise of the appellant’s rights. The vineyards prevented such free movement by the appellant.
When the matter went before the court of first instance, the question of whether the vineyards were planted before or after the servitude agreement was entered into was referred for oral evidence. The court found that the servitudinal right was not an independent right that existed in vacuo, but was a right which the appellant had to effectively enjoy the servitude. The court found further that the rights flowing from the original servitude had been replaced by those created by the 2003 servitude agreement.
In the court a quo, the crux of the dispute was the exact nature of the appellant’s reasonable right of access over the trust’s property for the exercise of his servitude. The court concluded that it was not the parties’ intention that the rights of access previously enjoyed by the appellant should continue as before.
That led to the present appeal.

Held that the deed of servitude, unlike the servitude agreement, made specific provision for a right of reasonable access by the appellant. The Court confirmed the principle that when a servitude is granted, all things are deemed to have at the same time been granted without which the servitude cannot be exercised. Therefore, the question for determination was what was included in the right of reasonable access for the exercise of the servitude.
The Court found that the aim of the servitude agreement was to change the existing route of the servitude and the manner in which it was exercised. That included an amendment of the appellant’s rights of access.
Such rights now had to be ascertained in light of the changed circumstances. The appellant still enjoyed the right to divert water to his property as was always intended by the servitude. All that had changed was the manner in which he could exercise that right. The evidence showed that the changes were not detrimental to the appellant’s rights, and that the trust was amenable to assisting the appellant in ensuring that he had access to the water needed by him.
Consequently, the appeal was dismissed with costs.
Roux NO & andere v Burger & andere
[2012] JOL 28870 (SCA)
Case Number: 249 / 2011
Judgment Date: 15 / 11 / 2011
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
LTC Harms AP, BJ van Heerden, S Snyders, FR Malan, SA Majiedt JJA
Keywords:
Property – Servitudes – Servitude over dam on farm – Interpretation of – In absence of ambiguity, ordinary meaning of language applied – Court interpreting servitude to provide for sharing of water in servitudinal dam only, and not all water in natural catchment area
Mini Summary:
Two brothers were co-owners of a farm which they decided to divide into two equal farms named “Erfdeel” and “Koedoesvlei”. The latter farm had four dams situated in a gorge on its land. The lowest-lying dam of the four caught run-off water after the other three were full. That dam became the subject of a servitude.
In terms of the servitude, water from the servitude dam would be shared equally between the two farms.
In 1976, the owner of Koedoesvlei built another dam above the servitude dam. Although that dam was not in the gorge which formed the natural catchment area of the servitude dam, the owner of Koedoesvlei drew water from the gorge. In 1984, a further dam was built on Koedoesvlei. Again, although that dam was not in the natural catchment area of the servitude dam, the owner of Koedoesvlei drew water from therefrom. During a drought in 2004, the servitude dam ran dry for the first time since the sub-division.
The owners of the two farms then met to discuss the two newer dams built on Koedoesvlei. The appellants
(as owners of Erfdeel) then referred a dispute to the court a quo, concerning the proper interpretation of the servitude. On the appellants’ interpretation of the servitude, Erfdeel was entitled not only to half of the eater in the servitude dam, but to half of all the water in the natural catchment area of the servitude dam.
Their argument was therefore that the owners of Koedoesvlei could not divert water to any other dams that were subsequently built on their farm, unless the servitude dam was full. It was argued further that in the event of the servitude dam being full, Koedoesvlei could only use half of the volume of water in the dam at any given time. The Court a quo dismissed the appellants’ arguments, leading to the present appeal.
Held that it was common cause that the servitude was ambiguous, and that on an interpretation of the ordinary language, the appellants had to fail. However, they argued that the servitude must be read in context, and in that regard background facts were relied upon. The context was that the two brothers had agreed that they would divide the land into two equal halves, and that included the water. The Court held in that regard that although it could be accepted that the brothers wished to divide the farm equally, the question in interpretation is not what they intended to do, but what they actually did.
The second problem concerned the submission that the brothers, in sharing of the servitude dam’s water, intended to share all the water on the original farm. If that was the intention, then the water on Erfdeel would also have been shared.
The court a quo’s conclusions were confirmed, and the appeal dismissed.

Jordaan v Minister of Safety & Security
[2010] JOL 25919 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2012 / 08
25 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
R Pillay J
Keywords:
Delict – Shooting by police – Claim for damages – Onus of proof
Mini Summary:
After being shot and injured by members of the South African Police Services, the plaintiff sued the defendant for damages. The cause of action was based on an alleged deliberate and intentional assault by shooting, alternatively reckless or negligent shooting by a member of police, acting within the course and scope of his employment of the defendant.
Only the issue of the defendant's liability was required to be determined.
Held that the defendant bore the onus of proving that the shooting was justified. The versions of the parties differed drastically, and the court found that the overall probabilities favoured the version of the plaintiff. His version was accepted as being probably true and that of the defendant rejected as improbable.
The defendant, having failed to discharge the onus as set out above, was held liable for plaintiff's damages arising out of the incident.
ABSA Bank Ltd v Studdard & another
[2012] JOL 28712 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2011 / 24206
13 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener J
Keywords:
Civil procedure – Simple summons – Requirements
Mini Summary:
The court dealt in this matter with a number of applications brought by the same applicant for default judgment against home-owners. The applicant sought orders for the payment of sums of money and declarations that the homes of the debtors were executable.
Held that in each matter the applicant had issued a simple summons, which contained the claim against the defendants. The only issue which the Court had to determine was what is required of a party when issuing a simple summons against a defaulting debtor when claiming a money judgment and asking for immoveable property to be declared executable having regard to the wording of rule 17(2)(b) read with
Form 9 or any other requirement, with particular emphasis on whether the written agreement of loan should be attached to the summons.
Rule 17(2)(b) reads that “where the claim is for a debt or liquidated demand the summons shall be as near as may be in accordance with Form 9 of the First Schedule”. It has been a rule of practice in the division of this Court that copies of both the written agreement of loan as well as the bond document be attached to a summons, including a simple summons, and to produce the original documents at the time when judgment is requested, whether the matter is brought by way of summons or application.
It was held that the summons should concisely state the cause of action, and that the agreement relied upon should form part of the initial document ie the simple summons. The applicant in these matters had failed to comply with that requirement, and could not succeed on the papers as they currently stood. The
Court postponed the cases to allow the applicant to remedy the defect.

Moosa NO and others v Moosa and others
[2014] JOL 32461 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A146 / 13
18 / 09 / 2014
South Africa
High Court
Gauteng Division, Pretoria
PM Mabuse, L Windell, MW Msimeki JJ
Keywords:
Civil procedure – Special plea – Jurisdiction
Mini Summary:
The present appeal had to be determined only in respect of the claims of the fourth to seventh appellants against the first respondent. The appellants sued in their capacities as trustees of a trust (“the trust”). At the heart of the appeal was the question of whether the court a quo was correct in finding that it had no jurisdiction to entertain the matter that was before it or whether it was correct in upholding the first respondent’s plea of lack of jurisdiction against the appellants’ action.
The background facts were as follows. The third respondent was a property holding company. The first respondent was the registered holder of 10 shares and 50% of the loan account in the third respondent as monies owed to the first respondent. The trust claimed to be the lawful and true owner of one of the shares registered in the name of the first respondent, and the true beneficiary of 10% of the loan account recorded as owing to the first respondent in the books of account of the third respondent. The appellants alleged that the first respondent was the nominee of the trust in respect of the one share registered in the first respondent’s name and the 10% of the value of the loan account. The appellants relied on an alleged oral agreement with the first respondent, in terms of which the latter had agreed to act as nominee as described above. They alleged further that the first respondent had expressly, alternatively impliedly or tacitly, agreed to retransfer the shares and the loan account to the trustees of the trust on demand and for no value.
Three special pleas were raised by the first respondent, namely a lack of jurisdiction, prescription, and non-joinder. The court a quo upheld the jurisdictional objection, on the ground that the first respondent resided in Pietermaritzburg and the alleged oral agreement was entered into there. Therefore, a party against whom substantial portion of the relief was sought did not reside within the area of jurisdiction of this Court.
Held on appeal that it was essential for the appellants to allege in the summons and to prove in court all the underlying facts which were necessary to establish that this Court had jurisdiction in the matter and over the respondents. The first respondent erred in looking only at his residence and the place of conclusion of the agreement without considering other crucial factors that normally or statutorily confer jurisdiction on a court such as set out in section 19(1)(b) of the of the Supreme Court Act 59 of 1959.
Significantly, the appellants were entitled to initiate their application for the rectification of the company’s share register in this Division because the company’s registered office was situated within its area of jurisdiction. The principle of our law is that where more than one court have jurisdiction in the matter or in a particular matter, the plaintiff, as dominus litis, has the right to choose the Court in which to institute his action. Therefore, the present Court did have jurisdiction in the matter. The appeal was accordingly upheld.
Mangangeni Emmaus Westmead Returners Community Trust & others v Minister of Rural
Development and Land Reform & others
[2012] JOL 29096 (SCA)
Case Number: 361 / 2011
Judgment Date: 31 / 05 / 2012
Country:
Jurisdiction:
Division:
Bench:
South Africa
Supreme Court of Appeal
IG Farlam, MS Navsa, SA Majiedt JJA, BR Southwood, XM Petse AJJA
Keywords:
Civil procedure – Special plea of jurisdiction – Court a quo erring in deciding that high court lacked jurisdiction in respect of appellants’ claims aimed at securing control of funds paid pursuant to settlement of land restitution claim – Issue of jurisdiction should not have been decided on basis of whether or not appellants had entered into agreement in terms of section 42D of Restitution of Land Rights Act 22 of
1994 – Property – Land – Restitution claim – Agreements to regulate holding and control of funds paid pursuant to settlement of claims not shown to be invalid or to have lapsed as alleged by appellants –
Appeal dismissed on basis that no entitlement to relief sought was established

Mini Summary:
In August 1995, a land restitution claim was lodged by a community in respect of four farms. Acting in terms of section 11(1) of the Restitution of Land Rights Act 22 of 1994 (“the Act”), the second respondent
(being the regional land claims commissioner) published a notice of the claim. Representatives of the claimants and the second respondent then met on a number of occasions with a view to reaching agreement on the restitution award. A settlement agreement was reached, in terms of which the first respondent would pay a restitution award of R6 770 500 to the claimants; a portion of the award would be used to pay the owner of the land for the land to be purchased by the claimants; the claimants would establish a trust to represent the claimants; and the first respondent would pay the balance of the restitution award to the trust after the purchase price of the property had been paid. The first appellant was the trust which was formed in compliance with the agreement. Its account was held with the third respondent, an investment bank.
Thereafter, the parties attempted to reach agreement on how the funds should be managed to ensure that all the claimants would benefit equally. In July 2003, the first appellant and the respondents entered into a section 42D agreement in terms of which it was agreed that the total value of the 250 claims was
R6 770 500; the state agreed to restore some of the land to the claimants; the remainder of the total value of the claims after purchase of the land from the owners would be held by the first appellant in an interest-bearing account; the first appellant and the department would enter into an agreement containing the terms and conditions pertaining to the transfer of funds to the first appellant; and prior to or simultaneously with the transfer of the land to the first appellant the state would pay to the first appellant the balance of the total claim together with the restitution discretionary grant of R3 000 per claimant and the first appellant would hold these amounts in an interest-bearing account for the benefit of the claimants and such amount would together with the interest thereon be utilised by the first appellant in accordance with the provisions of the agreement. The parties then signed transfer of fund agreements. The first respondent accordingly paid two amounts (R5 445 468 for the restitution capital award and R732 865,75 for the restitution discretionary award) to the third respondent pursuant to the agreement. Since receiving the funds, the third respondent continued to hold them and disbursed funds from time to time to or on behalf of the first appellant, but only with the approval of the respondents. The respondents raised concerns about the appellants’ management of the trust.
The appellants approached the court a quo for declarators that the two transfer of funds agreements were invalid or had lapsed, and that it was in the interests of the first appellant and its members that the first appellant took control and management of the funds held by the third respondent. The appellants also sought an order that the third respondent pay to the first appellant the balance of the restitution capital award, and the balance of the restitution discretionary award.
The court a quo upheld the respondent’s objection that it did not have jurisdiction to decide the claims.
The present appeal was against that decision.
Held that the first issue to be decided was whether the court a quo had jurisdiction in respect of the appellants’ claims, and if it did, the second issue was that it should have granted the appellants the relief which they sought.
The court a quo’s upholding of the respondents’ point in limine that the high court had no jurisdiction to decide the matters raised in the affidavits, as the respondents had not signed the section 42D agreement and by implication had not entered into such an agreement, was contrary to the respondents’ concession in their Heads of Argument and the other undisputed facts. The Special Plea on Jurisdiction should therefore not have been decided on the basis that no section 42D agreement had been entered into.
Agreement had been reached that a restitution capital award and a restitution discretionary award would be paid and the Court had to decide whether the two transfer of funds agreements were invalid or, if valid, had lapsed, and whether in the light of the section 42D agreement and the transfer of funds agreements the first appellant was entitled to payment of the balances owing in the two accounts managed and controlled by the third respondent. That was to be decided in terms of the law of contract and the interpretation of the agreements concerned, and did not involve the application or interpretation of the
Act. The point in limine regarding jurisdiction should therefore have been dismissed.
Next, the Court considered the appellants’ entitlement to the relief sought in their Notice of Motion. In seeking a declaratory that the transfer of funds agreements were invalid, the appellants relied on the averment that the agreements had been entered into without their consent. The Court held that the mere fact that the agreements were entered into without the appellants’ consent would not render them invalid.
Furthermore, in respect of the appellants’ contention that the transfer of funds agreements were in conflict with the settlement agreement, the Court held that the contrary was in fact true. It had also not been shown that the two transfer of funds agreements had lapsed with the effluxion of time. As the appellants had not established an entitlement to any of the relief sought, the appeal was upheld only in respect of the issue of jurisdiction.
Greve & others v Bergkriek Properties CC
[2011] JOL 27837 (GSJ)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 3063 / 10
16 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
H Saldulker et M Makume JJ
Keywords:
Civil procedure – Interlocutory matter – Special plea – Dismissal of – Appealability
Mini Summary:
The respondent instituted action against the applicants for their failure to pay the full amounts due in respect of an offer to purchase immovable property and a building contract. The applicants raised four special pleas to the plaintiff’s particulars of claim, only one of which was of relevance to the present appeal proceedings.
According to the special plea in question, the respondent’s claim did not disclose a cause of action in that it had failed to allege in the particulars of claim that a notice in terms of sections 129(1)(a) and 130(1)(a) of the National Credit Act 34 of 2005 had been delivered to the applicants. The present appeal was directed at the dismissal of the special plea.
On appeal, the court raised the question of whether the order was appealable or not.
Held that the issues were whether an appeal court may mero motu raise the question of appealability of the issue at hand; whether the subject-matter of this appeal was in fact appealable; the effect of the use of the words “may” and “may not” in section 129(1) of the National Credit 34 of 2005; and whether the court a quo had inherent jurisdiction or a discretion to decide whether or not a postponement ought to be granted as envisaged in section 130(4) of the Act.
A court sitting as a court of appeal can confirm, amend or set aside the judgment or order which is the subject of an appeal. It may give any judgment or make any order which the circumstances may require.
The Court was therefore empowered to raise the issue of appealability mero motu.
The special plea in this instance was interlocutory in nature as it delayed the ultimate hearing of the cause of action. The dismissal of the special plea had not in any way had the effect of disposing of the defence raised in the main action, nor had it in any way dealt with the relief claimed therein. Consequently, the order of the court a quo was not appealable.
The appeal was dismissed.
Nicor IT Consulting (Pty) Ltd v North West Housing Corporation In re Nicor IT Consulting (Pty)
Ltd v North West Housing Corporation
[2010] JOL 25830 (NWM)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Special plea – Exception
2538 / 07
21/ 05 /2009
South Africa
High Court
North West, Mafikeng
LG Lever AJ
Mini Summary:
The plaintiff sued the defendant for payment of the balance allegedly due in terms of certain written agreements entered into between the parties. The defendant responded with a special plea that the plaintiff had failed to comply with section 3(1) of the Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002. That led to the plaintiff’s raising an exception on the basis that the special plea lacked the averments necessary to sustain a defence. The basis of the exception was that the plaintiff was a corporation established in terms of the North West Housing Corporation Act 24 of 1982, and not an organ of State as defined in the Institution of Legal Proceedings Against Certain Organs of State Act. It also contended that the claim was for specific performance and was thus not a "debt" as contemplated in the latter Act.
Held that it was common cause that the plaintiff had not served the notice contemplated in section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act.
The court agreed that it had to look to the Constitution to determine whether the defendant derived any power or function directly from it in order to determine if the defendant was an organ of state as contemplated in the Act. It was necessary for the power or function exercised by the functionary or

institution to arise directly from the Constitution. As this was not the case with the defendant, it was not an organ of State.
In order to settle the question of what meaning the definition of "debt" should bear, the court had to look at the purpose and context of the Institution of Legal Proceedings Against Certain Organs of State Act. The court held that a wide definition of "debt" would limit access to courts, and that a restrictive approach was required. That led to the upholding of the exception.
Panzapix (Pty) Ltd v Van Niekerk & others
[2012] JOL 29080 (FSB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
483 / 2012
10 / 05 / 2012
South Africa
High Court
Free State, Bloemfontein
S Ebrahim J
Keywords:
Contract – Restraint of trade – Specific performance
Mini Summary:
The first five respondents were all former employees of the applicant, and were currently in the employ of the sixth respondent. In seeking to enforce a restraint of trade, the applicant sought specific performance of its contractual arrangement with the first to fifth respondents. Only the first respondent opposed the relief sought. In her Opposing Affidavit she advanced the defence that the restraint agreement was unreasonable, contrary to public policy and therefore unenforceable.
Held that the determination of this application rested on the reasonableness of the restraint. Public policy requires that agreements freely entered into should be honoured, but it also requires that persons should be free to seek fulfilment in their choice of profession, trade or occupation. In terms of section 22 of the
Bill of Rights in the Constitution, every citizen has the right to choose their trade, occupation or profession freely. The assessment of the reasonableness of the restraint requires a value judgment. The two principal policy considerations which have to be borne in mind when undertaking the exercise is that the public interest requires firstly that contractual obligations be complied with and secondly, that all persons should in the interest of society be economically productive by being permitted to engage in trade, commerce or the professions. The respective interests of the applicant and the respondents must be examined, bearing in mind that a restraint is unreasonable and unenforceable if it prevents a party from engaging in a trade, occupation or profession after termination of his or her employment with the other party without a corresponding interest of the latter being infringed and thus deserving of protection. The enquiry into the reasonableness of the restraint covers the value, extent and duration of the restraint as well as the respective bargaining powers and interests of the parties and factors peculiar to them.
The evidence showed that the first respondent had approached the applicant’s clients to let them know that she was no longer a director and employee of the applicant, and she and the other respondents had departed with the applicant’s computers containing confidential information of its client data base and its pricing structures and documents pertaining to the business and trading activities of the applicant with its existing and prospective clients. Not only was the first respondent in possession of confidential information belonging to the applicant as at the date of her resignation, but she was proactively using same in order to solicit a client of the applicant. In those circumstances, the restraint was neither unreasonable nor contrary to public policy nor constitutionally impermissible.
The application accordingly succeeded.
Cosira Developments (Pty) Ltd v Sam Lubbe Investments CC t/a Lubbe Construction & others
[2011] JOL 27763 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
09 / 20062
09 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J

Contract – Specific performance – Locus standi – Privity of contract
Mini Summary:
The third respondent, a local authority (the council), was the owner of three vacant stands. In 2002, the council invited tenders to purchase and develop the properties. The party (“Lubbe”) that was awarded the tender concluded two agreements of sale in June 2005. The agreements imposed an obligation on the purchaser to commence with the development of the properties within six months from the date of transfer of the properties and to complete such development within eighteen months thereafter.
Negotiations between the applicant and Lubbe resulted in them concluding a sale agreement, which was according to the applicant, superseded by two separate subsequent agreements concluded in August
2005. The August 2005 agreements were, except for the names of the purchaser, identical to the June
2005 agreements.
Relying on the August 2005 agreements, the applicant sought specific performance of the alleged contractual obligations embodied in the two agreements.
Held that the general rule is that a person who claims relief from a court must establish an interest in that matter in order to acquire the necessary locus standi to seek relief. Applied to the facts of this matter the question arising was whether the August 2005 agreements for the purchase of the subject matter of the
June 2005 agreements, gave the applicant, as the successive purchaser, a sufficient legal interest or locus
standi to enforce such agreement as against the original seller.
The June 2005 agreements and the August 2005 agreements were entirely distinct agreements providing, in effect, for two separate transactions. The relationship between parties in all respects was governed by the agreements and was therefore contractual. No contractual relationship existed between the applicant and council. In the absence of privity of contract between the applicant and the council, the applicant did not have the necessary locus standi to bring the present application against the council.
Furthermore, the grant or refusal of specific performance is entirely a matter for the discretion of the
Court. The Court explained why it would not have exercised its discretion in the applicant’s favour.
The application was dismissed.
Naidoo NO & others v Naidoo & another
[2010] JOL 25896 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 567 / 09
30 / 07 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
HQ Msimang JP, KGB Swain, DSV Ntshangase JJ
Keywords:
Civil procedure – Claim for specific performance – Prescription
Mini Summary:
The appellants were ordered by the court a quo to effect transfer of certain immovable properties into the names of the respondents. They appealed against that order.
Held that the grant of such an order was one of specific performance of the obligations of the first, second and third appellants, arising out of a settlement agreement. The respondents had raised the issue of prescription in the lower court. The point was based on the fact that the settlement agreement was entered into on 24 April 2001 and the application to compel specific performance by the respondents, of their obligations in terms of the agreement, was only launched on 18 July 2007.
The party who raises prescription, must allege and prove the date of the inception of the period of prescription. In this case, it was clear that prescription commenced running on 24 April 2001. What was required to interrupt the running of prescription was the service by the respondents on the appellants, of process whereby transfer of the property was claimed. It was common cause that that only occurred on
18 July 2007, when the claim had already prescribed.
The appeal was upheld.
Sanyati Building (Pty) Ltd v Ernergy X-Ray Trading Company Kzn (Pty) Ltd & another
[2010] JOL 26386 (KZD)
Case Number: 11590 / 10

Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
05 / 11 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Cele AJ
Keywords:
Property – Spoliaton order – Possession
Mini Summary:
Seeking a spoliation order, the applicant sought to have the respondents directed to restore possession of the x-ray equipment listed and described in annexure “D” to the founding affidavit in this matter, to the applicant, failing which the sheriff be authorised to attach and seize the said equipment.
The application was opposed by the respondents on the basis that the applicant could not have been in possession of the equipment in question for the purposes of obtaining the relief sought, having possessed the equipment as a servant holding it for its master.
Held that it was common cause between the parties that the equipment was on a site in respect of which the applicant was in charge at the material time, having taken it and construction work was in progress.
The applicant was in peaceful and undisturbed possession of the equipment. The equipment was removed by the respondents without the consent of the applicant. The only issue for consideration was whether the applicant possessed the equipment, at the time, with an intention of securing some benefit for itself.
The intention with which one possesses a thing is decisive on whether one should succeed in an application for a mandamus van spolie. The facts showed that the applicant had held the equipment with the intention of securing some benefit for itself.
The application accordingly succeeded.
Forrester Estate (Private) Ltd v MCR Vengesayi & another
[2010] JOL 26044 (ZH)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
4362 / 09
02 / 02 / 2010
Zimbabwe
High Court
Harare
Patel J
Property and real rights – spoliation order – locus standi – unlawful occupier of land – person occupying land which had been acquired by State – another person receiving offer letter from State in respect of such land – such person not entitled to deprive occupier of possession – need for occupier to be lawfully evicted before holder of offer letter entitled to occupy property
Mini Summary:
The applicant had obtained a spoliation order against the respondent, who had moved on its farm after receiving a letter of offer for the farm. The farm had been expropriated by the State. The respondent noted an appeal and moved back onto the farm. The applicant sought leave to execute pending appeal.
The respondent argued that he had good prospects of success on appeal.
Held that the preponderance of case authority was against the respondent's argument. An offer letter does not entitle the holder to occupy the land allotted to him before the current occupier has been duly evicted by due process of the law. Consequently, the offeree cannot resort to self-help in order to dispossess or eject the occupier, no matter how intransigent the latter may be in his refusal to vacate the property. The offeree must wait until the State has taken steps to evict the occupier though a court order granted by a court of competent jurisdiction under the Gazetted Land (Consequential Provisions) Act
[Chapter 20:28] or otherwise. In the absence of such court order or the consent of the current occupier, the offeree has no self-executing right to occupy the land. The full bench of the Supreme Court in Botha &
Another v Barrett 1996 (2) ZLR 73 (S) at 79 enunciated the traditional requirements for the grant of a spoliation order. This traditional approach has been adopted in the overwhelming majority of the decisions of the High Court and should continue to be followed, for the fundamental reason that recognising any resort to self-help without a court order is the surest recipe for disorder, degenerating into possible violence and the abnegation of the rule of law.
S v Prandini
[2010] JOL 26031 (ZH)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
HH 94 / 10
02 /06 / 2010
Zimbabwe
High Court
Harare
Kudya, Chitakunye JJ
Keywords:
Contract – illegality – contract agreement understating purchase price so as to avoid tax and stamp duty – contract otherwise genuine and mostly carried out – court entitled to declare true purchase price so as to reflect true agreement
Mini Summary:
The first and second respondents sold a house to the applicant. The price stated in the agreement of sale was Z$70 million, but it was also agreed that the total price to be paid was Z$130 million, including the transfer fees. The applicant paid this larger sum, over an agreed period, and moved into the house. The respondents subsequently tried to have the sale set aside on the grounds that the agreement of sale that applicant sought to rely on was contra legem and was ipso facto unenforceable. They contended that it was entered into and signed solely for the purpose of reducing capital gains tax and stamp duty and that what the parties had concluded was an illegal contract which was void or at least voidable at law.
Held that an agreement concluded for the sole purpose of avoiding payment of the capital gains tax and stamp duty is illegal and ipso facto null and void ab initio: section 44 of the Stamp Duties Act [Chapter
23:09]. An illegal agreement which has not yet been performed, either in whole or in part, will never be enforced by the courts. Here, however, the agreement of sale was almost complete. It had been performed in part, as the applicant had paid the purchase price and was given vacant possession of the house. The sale was a genuine one and could not have been made for the sole purpose of evading payment of tax. What was illegal in the agreement of sale was the portion where the parties stated the purchase price. The court was at liberty to properly declare to true purchase price so as to reflect the true agreement between the parties.
Birkholtz & others v Transport Pension Fund & others
[2012] JOL 29041 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
16554 / 2000
22 / 06 / 2012
South Africa
High Court
South Gauteng, Johannesburg
P Boruchowitz J
Civil procedure – Stare decisis principle – Court bound by previous decision unless satisfied that court erred in arriving at that decision – Trusts and Estates – Pension – Pension benefits – Computation of –
Fund rules providing for benefit to be calculated according to formula as determined by actuary –
Application of reduction factor to formula contrary to fund rules
Mini Summary:
The plaintiffs were former members of the first defendant pension fund. Pursuant to their retrenchment or premature retirement by the participating employer (“Transnet”), they exited the fund between 1997 and
1999. They then became entitled to the pension benefits stipulated in terms of the rules of the fund. The relevant rules were referred to as the “formula rules”. In terms thereof, the benefit payable was to be calculated “in accordance with a formula as determined by the actuary”. The designated actuary issued a letter (“the AF letter”) dated 22 May 1996 together with certain tables attached thereto, in which the formula necessary to calculate the pension benefits payable to the plaintiffs under the formula rules was set out.
The question was whether on a proper interpretation of the AF letter, the formula determined by the actuary included or excluded the reduction factor of 11%. The fund calculated the benefits paid to the plaintiffs by applying the reduction factor to the amounts reflected in the tables attached to the letter. The plaintiffs contended that as the reduction factor was not part of the formula, they were paid 11% less than they should have been. That was the basis of the declaratory sought by them in the first claim which fell to be decided at this stage. The other claim to be decided at the present stage was proffered in the alternative, and was based on the assumption that the determination included the reduction factor but

that the trustees breached the rules of the fund and their fiduciary duties in making the payment that they did.
Held that in an identical action (Kuit and others v Transnet Pension Fund and another [2006] 2 BPLR 120
(W)) brought by a different group of erstwhile members of Transnet who were retrenched during the same period, the court held that the formula contained in the AF letter did not include the reduction factor. In terms of the principle of stare decisis the fund could therefore only succeed in the instant case if it showed that the court in Kuit had clearly erred in the way it interpreted the AF letter. The Court referred to a number of textual indications which were consistent with the finding in Kuit to the effect that the determination or formula was to be found in the AF letter. As the Court was not persuaded that the interpretation of the AF letter adopted by the court in Kuit was clearly wrong, it remained bound by its earlier decision in Kuit. It was therefore declared that the application and adoption by the first defendant of a reduction factor of 11% to the pension benefits paid to the plaintiffs upon their departure from the fund over the period 1997 to 1999 was contrary to the rules of the fund and a breach thereof.
Randell v Cape Law Society
[2011] JOL 28008 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2646 / 11
27 / 10 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JE Smith J
Keywords:
Civil procedure – Attorney – Striking-off application – Stay of proceedings
Mini Summary:
The applicant had been arrested and charged in criminal proceedings after alleged breaches of his fiduciary duties as trustee and member of a school governing body. As the applicant was a practising attorney, the events referred to above led to the respondent bringing an application for the striking of the applicant’s name from the roll of attorneys.
In the present proceedings, the applicant sought an order directing that the application brought by the respondent be stayed pending the finalisation of the criminal case against him.
Held that our courts have a discretion to suspend civil proceedings where there are criminal proceedings pending in respect of the same issues. Each case must be decided in the light of the particular circumstances and the competing interests in the case. In exercising its discretion the court will have regard to, inter alia, the following factors: the extent to which the person’s right to a fair trial might be implicated if the civil proceedings are allowed to proceed prior to the criminal proceedings; the interests of the plaintiff in dealing expeditiously with the litigation or any particular aspect thereof; the potential prejudice to the plaintiff if the proceedings are delayed; the interests of persons not involved in the litigation; and the interests of the public in the pending civil and criminal litigation. The Court must be satisfied that there is a danger that the accused might be prejudiced in the conduct of his defence in the criminal matter if the civil case is allowed to proceed before the finalisation of the criminal case against him.
While the applicant had disclosed the essentials of his defence in his plea filed in the related civil matter, he would obviously be required to provide far greater detail of his defence in his answering affidavit in the striking-off application. There was therefore a real danger that this might serve to prejudice him in the conduct of his defence in the criminal case. In the circumstances, the Court was satisfied that it was proper that the civil proceedings be stayed pending the finalisation of the criminal trial against the applicant.
Eldacc (Pty) Ltd v Bidvest Properties (Pty) Ltd
[2011] JOL 27990 (SCA)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
682 / 10
26 / 09 / 2011
South Africa
Supreme Court of Appeal
TD Cloete, BJ van Heerden, A Cachalia, WL Seriti JJA, C Plasket AJA
Keywords:
Contract – Stipulatio alteri – Effect of non-variation clause – Nominee in stipulatio alteri not having to be substituted as party to contract in writing – Nominee’s acceptance of offer not amounting to a variation of agreement, with result that non-variation clause did not come into play
Mini Summary:
The appellant entered into a lease agreement, which incorporated an option to purchase the leased property. The option was granted by the appellant to the lessee (“Rennies”) or its nominee. The clause contained a stipulatio alteri in favour of such nominee. The nominee in question was the respondent, which exercised the option as provided for the in the lease agreement.
When the appellant purported to cancel the resulting agreement, the respondent brought motion proceedings in the high court for specific performance and ancillary relief. The court granted the relief sought and refused leave to appeal, which was subsequently granted by this Court.
On appeal, the appellant’s only argument was based on a non-variation clause in the agreement. In terms thereof, any variation to the agreement would be of no effect unless reduced to writing.
Held that the appellant was correct in describing its undertaking to Rennies as an offer to sell the property on defined terms to Rennies or its nominee; and an agreement to keep the offer open for acceptance until the date specified. However, it argued further that acceptance by the respondent of the offer could not take place until it had acquired Rennies' right to have the option kept open. According to the appellant, the acquisition of that right required it to be substituted for Rennies in the agreement between the appellant and Rennies, and as that substitution involved a variation, it had to be in writing and signed by at least the appellant and Rennies because of the non-variation clause. Those contentions were unsound in law. Rennies had the right to compel the appellant to abide by its undertaking to keep the offer open in favour of its nominee, both before and after the nomination. But the right that the respondent had to accept the offer was independent of such right. For that very reason, it was unnecessary for the respondent to acquire Rennies' right to protect the offer before the respondent exercised its right to accept the offer. Acquisition of the former was not a precondition for the exercise of the latter.
There was no variation of the agreement between the appellant and Rennies. What happened was exactly what was envisaged in the agreement. Rennies nominated the respondent, which accepted the offer made by the appellant. There was thus a resulting sale by the appellant to the respondent on the terms contained in the agreement.
The appeal was dismissed with costs.
Calcutt (Born Hyde) & others v Maclean & others
[2010] JOL 26117 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
871 / 09
23 / 03 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Property – Subdivision – Consolidation of erven – Application to reverse
Mini Summary:
The second and third applicants were trustees of a trust ("the KB trust") which owned immovable property, and the seventh and eighth respondents were the trustees of another trust ("the KM trust"), which owned an adjacent property. A dwelling built on the latter property enjoyed sea views which were sought to be protected. The seventh and eighth respondents accordingly entered into negotiation with the second and third applicants to acquire a portion of their property together with an undertaking that they

would not construct any building thereon which would impede the sea view from the balcony of the dwelling erected on the respondent's property. That culminated in a deed of donation entered into in July
2001. Six months later, the KB Trust entered into a deed of sale in terms of which it sold its entire property to the first applicant without any mention of the donation. At the same time the first applicant also purchased, from a third party, an adjoining property, with the intention of extending the dwelling which had previously been erected on that property onto portion of the KB trust's property.
When she learnt of the existence of the deed of donation, the first applicant attempted to challenge its validity, but an arbitration award was issued confirming its validity.
In 2002, the KM trust sold its property to the fourth and fifth respondents. Subsequent thereto, litigation around the donation was concluded, and a subdivision was effected. A new erf was created and a fresh deed of donation ("the second deed of donation") was entered into in terms of which the newly subdivided erf was donated directly from the KB trust to the fourth and fifth respondents. The new erf was consolidated with the KM trust's property, which was then sold to the first respondent.
In 2007, the first applicant discovered that a change had occurred in the boundary line of the property which had originally been donated, resulting in the remainder of the KB trust's property which had been transferred to her being smaller than anticipated. The applicants therefore sought to reverse the donation, the subdivision, the consolidation and the transfer of the property.
Held that the first deed of donation was not cancelled and was novated by the second deed of donation.
The second deed of donation substituted the first deed of donation as the instrument containing the obligation to pass transfer of the subdivided portion. By the signature of the second deed of donation fourth and fifth respondents accepted the KB Trust as its debtor in lieu of the KM Trust to pass transfer to it of the subdivided erf and the KB Trust accepted the obligation to fourth and fifth respondent. All that occurred with the agreement of the KM Trust. In the event of the second deed of donation being void ab
initio then the first deed of donation survived. It was accordingly necessary to consider the validity of the second deed of donation. The court found that it was valid.
The application was dismissed.
Nkosi v Mbatha
[2010] JOL 25884 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 20 / 10
06 / 07 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MI Madondo, JB Mnguni JJ
Keywords:
Delict – Claim for damages – Doctrine of subrogation
Mini Summary:
The present appeal was noted against the Magistrate's Court's dismissal of the appellant's claim against the respondent for the payment of damages. The claim arose out of a motor vehicle collision between the appellant's vehicle and respondent's vehicle. The damages the appellant sought related to fair, reasonable and necessary costs to restore her motor vehicle to its pre-collision condition.
At the hearing, the appellant had informed the court that she had already been fully indemnified for the loss she had suffered by her insurer. She was proceeding against the respondent on behalf of her insurer for the recovery of the amount her insurer had paid to her as costs of repair to her vehicle.
Held that the wronged party is entitled to be compensated for the consequences of the unlawful conduct.
The wronged party is to be placed in the position that he or she would have been in had the wrongful and negligent conduct had not occurred. The litigant who sues in delict sues to recover the loss which he had sustained because of the wrongful conduct of another. The plaintiff's damages must be assessed at the time of the injury done to him.
The general principle in cases of this nature is that a person who has more than one claim to indemnity is not entitled to be paid more than once for the same loss. One of the exceptions to the general principle is where the defendant had a contract with an insurer to repair the motor vehicles that had been involved in collision and as a result of such contract the defendant had repaired the plaintiff's vehicle.
In the present case the insurer having fully compensated the plaintiff, it had a subrogated claim against the defendant, whose negligence caused the loss in respect of which compensation was paid, for the recovery of the amount it paid to the plaintiff as the costs of repairs.

The prerequisites for the doctrine of subrogation are that payment or reinstatement has been made, secondly, a valid and subsisting policy, and thirdly, that the insured must have had right to claim compensation from a third party.
The appellant had not satisfied the requirements set out above, and the appeal was thus dismissed.
Grove v Nedbank Limited
[2015] JOL 33076 (GJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 3050 / 14
29 / 10 / 2014
South Africa
High Court
Gauteng Local Division, Johannesburg
Sutherland J, Dewrance AJ
Keywords:
Civil procedure – Summary judgment – Factual disputes
Mini Summary:
The appellant instituted action in the court a quo based on contract.
Before addressing the merits, the Court dealt with a preliminary issue. The respondent submitted, in
limine, that the appellant's notice of appeal was fatally defective because the appellant "merely contradicted aspects of the magistrate's judgment without indicating any substantial basis for doing so".
Therefore, it was argued, the notice of appeal did not meet the requirements of the relevant rule.
Held that rule 51(7) of the Rules regulating the Conduct of the Proceedings of the Magistrates' Court of
South Africa ("the Magistrate Court Rules") dictates the form of a notice of appeal. The objects of the notice of appeal are to enable the magistrate to frame his reasons for judgment; to give the respondent an opportunity of abandoning the judgment; to inform the respondent of the test he has to meet; and to notify the Appeal Court of the points to be raised. The court of appeal will exact strict compliance with the requirements of rule 51(7)(b) and will relax the prescribed practice only in cases where it is absolutely plain what issue of law is going to be raised under a notice of appeal. Whilst the notice of appeal did not strictly comply with rule 51(2), it disclosed, on the face of it, several points of law which could be argued.
The Court exercised its discretion to relax the rule in this case.
Regarding the respondent’s contentions that the particulars of claim were excipiable, the Court held that the exceptions should be dismissed. The particulars of claim were confirmed as proper.
The Court then turned to the question of whether summary judgment should have been granted by the court a quo or not.
Summary judgment proceedings are not intended as a forum for the resolution of factual disputes. A trial is the proper forum for that process, either because the nature of the relief presupposes a trial or because affidavits are not suitable for that purpose. Summary judgment must be refused if the defendant discloses facts which, accepting the truth thereof, or only if proved at a trial in due course, will constitute a defence.
While the defendant must fully present the facts upon which his defence is based, he need not deal in detail with either that defence or the evidence in support thereof.
In this case, the appellant clearly denies entering into a written contract with the plaintiff. In those circumstances, summary judgment should not have been granted.
The appeal was upheld and the appellant was granted leave to defend.
ABSA Bank Limited v Rene Haynes NO and others
[2014] JOL 31640 (FB)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
3619 / 2013
12 / 12 / 2013
South Africa
High Court
Free State, Bloemfontein
JP Daffue J

Civil procedure – Summary judgment – Claim arising from loan agreement – Failure to attach agreement
– Defective affidavit
Mini Summary:
The applicant bank sought summary judgment against the first three respondents in their representative capacities as trustees of a trust. In its particulars of claim, the applicant referred to the respondent’s liability for payment in respect of a “mortgage loan”. No indication was given as to whether such loan was in writing or concluded orally, and no loan agreement was attached to the particulars of claim.
In the respondents’ answering affidavit, two preliminary points were raised. The first was that the underlying loan agreement secured by the mortgage bond was not attached to the particulars of claim.
The second objection was that the requirements of rule 32(2) and 18(6) of the Uniform Rules of Court were not complied with as the applicant’s deponent could not under the circumstances verify the cause of action. It was therefore contended that the application for summary judgment was defective and should be dismissed.
Held that the applicant elected to make use of a combined summons and in such cases the legal position is clear that if the written underlying agreement is not attached to the particulars of claim, such pleading shall in terms of rule 18(12) be deemed to be an irregular step and the opposite party shall be entitled to act in accordance with rule 30. Consequently the objection that there was no compliance with rule 32(2) due to the underlying loan agreement not being attached to the particulars of claim and the consequent defectiveness of the affidavit intended to verify the cause of action which was improperly pleaded, was upheld.
The application for summary judgment was dismissed.
Firstrand Bank Limited v Jackson
[2014] JOL 32146 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
13022 / 2012
07 / 08 / 2014
South Africa
High Court
KwaZulu- Natal, Durban
Van Zyl J
Keywords:
Civil procedure – Suretyship agreement – Claim for payment – Summary judgment – Deponent to founding affidavit – Authority of – Defence
Mini Summary:
The plaintiff was a bank which had lent money to a company in terms of a loan agreement. In connection therewith, the bank obtained a personal suretyship commitment from the defendant, who, in his personal capacity agreed to bind himself jointly and severally as surety and co-principal debtor together with the company to and in favour of the plaintiff for all amounts then owing or which would in the future become owing. The parties recorded that their agreement would in all respects be construed and interpreted in accordance with the laws of South Africa. The company later defaulted on its repayment obligations to the plaintiff and was placed under business rescue supervision.
Relying on the suretyship undertaking, the plaintiff sued the defendant for the amount owing to it.
Summary judgment was sought.
In a preliminary defence, the defendant challenged the capacity or authority of the deponent to the plaintiff’s affidavit in support of the application for summary judgment. It averred that he was not the author of the documents upon which the action was based, nor was he involved in the negotiations and conclusion of such documents and that he was therefore unable, from his personal knowledge, to attest to their accuracy. Accordingly, so the argument went, his averments in support of the application for summary judgment constituted inadmissible hearsay, so that the requirements of rule 32(2) remain unsatisfied.
Held that first-hand knowledge of every fact cannot and should not be required of the official who deposes to the affidavit on behalf of such financial institutions and large corporations. The Court was satisfied that the deponent to the founding affidavit was authorised to attest to the facts laid out therein.
The next defence considered was that relating to matrimonial domicile. Referring to the fact that he and his wife were married according to the laws of California, the defendant argued that the failure to obtain the written consent of his spouse meant that the conclusion of the suretyship agreement was invalid and unenforceable as a matter of California law and, in any event, whether the suretyship commitment amounted to a disposition of community property for less than fair and reasonable value, was a question of fact, which could not be determined for purposes of summary judgment.

Where there are disputed or new facts alleged, a court considering summary judgment does not attempt to determine the balance of probabilities or decide the issues arising. The enquiry is limited to determining firstly whether the defendant has sufficiently disclosed the nature and grounds of his defence. The second consideration is whether the defendant, on the facts so disclosed, appears to have a defence which, thirdly, is both bona fide and good in law.
The Court held that a triable issue appeared to exist as to whether the suretyship would contravene the prescriptive requirements of Californian law and, if it did, then whether the suretyship undertaking given by the defendant without the requisite consent of his spouse, might found any obligation by the defendant to the plaintiff.
Considering it in the interests of justice to afford the defendant the opportunity to establish his defences on trial, the Court refused the application for summary judgment.
Thembani Wholesalers (Proprietary) Limited v September and another
[2014] JOL 32099 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
47 / 2014
26 / 06 / 2014
South Africa
High Court
Eastern Cape, Grahamstown
D Chetty, M Makaula JJ, RWN Brooks AJ
Keywords:
Civil procedure – High Court divisions – Jurisdiction – Superior Courts Act 10 of 2013 – Local seats of a division enjoying concurrent jurisdiction with main seat of the division – Civil procedure – Summary judgment – A defendant, in resisting an application for summary judgment, must disclose the defences relied upon on affidavit – Defences raised from bar not capable of being upheld
Mini Summary:
In an opposed application for summary judgment, the defence raised was one of jurisdiction. The principal place of business of both parties to the lis was specified in the particulars of claim as an area over which the Eastern Cape High Court, Mthatha, exercised jurisdiction. However, the present Court was specially constituted pursuant to the provisions of section 14(1)(a) of the Superior Courts Act 10 of 2013 (“the
Act”), to primarily determine whether the Eastern Cape High Court, Grahamstown, had the requisite jurisdiction to adjudicate upon the application.
Held that section 6 of the Act established the nine divisions of the High Court and identified the main seat of each division. Section 21 provides that a division has jurisdiction over all persons residing or being in, and in relation to all causes arising and all offences triable within, its area of jurisdiction and all other matters of which it may according to law take cognisance. The provision has given rise to conflicting statutory interpretations. It was submitted for the defendants that the words “a division” in section 21 refers to a local seat within the division and not the division itself, and there could not be concurrent jurisdiction between the main and local seats of the division in non-appeal matters. The plaintiff, on the other hand, argued that the section was unambiguous. The Court referred to the transitional arrangements embodied in section 50 of the Act, the meaning of which was clear and unambiguous. It provided that the local seats of the division, identified as the Eastern Cape High Courts, Bhisho, Mthatha and Port Elizabeth, were endowed with concurrent jurisdiction over smaller areas than that enjoyed by the main seat. The division’s area of jurisdiction, conferred by section 21, comprised the entire Province of the
Eastern Cape. A local seat therefore could not be endowed with original territorial jurisdiction when the Act itself merely vested it with concurrent jurisdiction. Section 27 provides the machinery for the removal of a matter to another court on application. However, there was nothing to preclude a judge, sitting as a court of first instance in the Eastern Cape High Court, Grahamstown, from mero motu concluding that, notwithstanding the Court having original territorial jurisdiction, the balance of convenience dictated that the matter properly be heard at a particular local seat and order that it be so removed.
Several other defences were raised from the bar, but as a defendant, in resisting an application for summary judgment, must disclose the defences relied upon on affidavit, those defences could not be relied upon in this case.
The only defences raised which required consideration was that pertinently raised in opposition and the issue relating to authority. However, the Court found no merit in the said defences.
As the defendants failed to disclose a bona fide defence to the plaintiff’s claim, an order for summary judgment had to follow.
Although costs would normally follow the result, the Court decided that the defendants should not be mulcted with costs in a matter which served before this Court as a test case on the issue of jurisdiction.
Each party was therefore ordered to bear its own costs.

Changing Tides 17 (Pty) Ltd v Grobler & another
[2012] JOL 29053 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
9226 / 2010
08 / 06 / 2011
South Africa
High Court
North Gauteng, Pretoria
JR Murphy J
Keywords:
Consumer credit – Debt review – Termination of – Resumption – Summary judgment application
Mini Summary:
The respondents fell into arrears with payments in respect of an indemnity bond agreement. They applied for debt review in terms of the National Credit Act of 34 of 2005 on two different occasions to two different debt counsellors.
Held that section 86 of the act provides that a consumer may apply to a debt counsellor to be declared over-indebted. The debt counsellor conducts a debt review and an assessment, at the end of which he will decide whether the consumer is or over-indebted. If over-indebtedness is found, the counsellor may recommend that the consumer’s obligations be re-arranged. That recommendation is made to the magistrate’s court which may make an order in terms of section 87, re-arranging the obligations or may reject the recommendation. Where the debt counsellor decides that the consumer is not over-indebted, the consumer is entitled to make application himself to the magistrate’s court for a re-arrangement order.
In terms of section 130(4)(c), if a court determines that a credit agreement is subject to a pending debt review, it must adjourn proceedings to enforce the agreement until final determination of the debt review; and in terms of section 130(4)(e), if the agreement is subject to a debt re-arrangement order and the consumer is in compliance with that order, the court must dismiss any action or application to enforce the agreement.
The facts set out in the Respondents’ Opposing Affidavit were incomplete. Details of the debt review process were not provided.
In the recent case of Collett v Firstrand Bank (766/2010) [2011] ZASCA 78 (27 May 2011),[also reported at Collett v Firstrand Bank Ltd (National Credit Regulator as amicus curiae) [2011] JOL 26642 (SCA) – Ed] the Supreme Court of Appeal drew an important distinction between cases where the consumer is in default under the credit agreement and when not. Where the consumer is not in default he may apply for review and the credit provider may not terminate the review under section 86(10), because section
86(10) gives the right to terminate the debt review only where the consumer “is in default”. Where the consumer is in default then the credit provider may enforce the agreement, once the debt review has been terminated in terms of section 86(10). The enforcement of a credit agreement should not be postponed indefinitely once steps have been taken to seek a re-arrangement order. The purpose of the act will best be served by allowing the consumer a 60-day period of grace during which alternative means of resolving the dispute may be attempted and thereafter for the enforcing court to exercise the discretion to resume the debt review on the basis of more complete evidence regarding the earlier debt review process. The enforcing court is required to decide whether there would be any benefit or meaningful prospect of a better outcome in the event of the debt review resuming. The court will take into consideration the history of the dispute, the good faith participation of both parties in any prior negotiations designed to result in responsible debt re-arrangement, and the prospect of any satisfactory re-arrangement and compliance with it.
In the present matter, a debt re-arrangement order which had been made was incompetent as the court which made the order was not the enforcing court. It therefore had no jurisdiction to resume a debt review which had previously been terminated. In those circumstances, the application for summary judgment was postponed sine die, and the respondents were directed to bring an application for resumption of the debt review within 10 days of this order, failing which the applicants could set the application down without further notice to the respondents.
Motor Finance Corporation (Pty) Ltd v Prinsloo
[2011] JOL 27844 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1830 / 2011
22 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JE Smith J

Keywords:
Civil procedure – Summary judgment – Defence
Mini Summary:
In a summary judgment application, the plaintiff sought confirmation of the cancellation of the written agreement entered into between the parties in respect of the sale of a motor vehicle, and an order authorising the sheriff to take possession of, and deliver the aforesaid motor vehicle to the plaintiff.
The plaintiff was the financier and owner of the vehicle which the defendant had purchased from the dealer. The defendant had defaulted in respect of the payment of his monthly instalments.
In his plea, the defendant alleged that the vehicle was, contrary to representations made by the salesman, not in good working order.
Held that the purpose of summary judgment is not to deprive a litigant who has a triable and bona fide defence the opportunity to pursue that defence in court, but is rather aimed at preventing litigants whose sole aim is to delay proceedings on the basis of a contrived and bogus defence, from frustrating a plaintiff’s claim.
A defendant who wants to resists summary judgment has to set out facts, which if proven at the trial in due course, will constitute a valid defence. The material facts relied upon must be fully disclosed so as to satisfy the Court that he indeed has a bona fide defence. The Court will at this stage of the proceedings not consider the merits of the defence. The enquiry is limited to a consideration of whether or not the facts, if proven at the trial in due course, will constitute a comprehensive and valid defence to the plaintiff’s claim.
The Court found that the facts averred by the defendant, if proven at the trial in due course, would constitute a valid and comprehensive defence to the plaintiff's claim. Summary judgment was therefore refused.
Standard Bank of South Africa Ltd v Coetzee
[2010] JOL 26485 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
A 76 / 10
24 / 11 / 2010
South Africa
High Court
Western Cape, Cape Town
E Moosa J, I Jamie AJ
Civil procedure – Summary judgment – Appeal
Mini Summary:
Having been the defendant in the court below, the appellant appealed against the summary judgment granted in favour of the respondent.
The defendant raised two grounds of appeal, namely, that the court a quo erred in finding firstly, that the plaintiff had complied with the provisions of rule 14 of the Magistrates’ Court Rules and secondly, that the plaintiff had complied with the provisions of section 129 of the National Credit Act, 34 of 2005 (“the Act”).
Held that section 129(1)(a) provides that a credit provider may not commence any legal proceedings against a defaulting consumer prior to drawing to his or her attention in writing such default and informing him that he is entitled to refer the credit agreement to a debt counsellor or alternative debt-resolution authority to resolve any dispute or make arrangement for the payment of the debt. the court found that proper service of the section 129 notice was effected on the appellant in terms of the Act and there was accordingly proper compliance with the provisions of section 129.
The court went on to find that there was partial compliance with rule 14 of the Magistrates’ Court Rules.
The appeal therefore succeeded partially.
Imperial Bank Ltd v European Metal Trading (Africa) (Pty) Ltd
[2010] JOL 26352 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2820 10; 2821 / 10; 2822 / 10; 2823 / 10; 2824 / 1
10 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Ngwenya AJ

Keywords:
Civil procedure – Summary judgment – Supporting affidavit – Averments
Mini Summary:
The plaintiff was a bank and a registered credit provider, while the defendant was a company. In each of the of the matters before the court, the parties had entered into a separate instalment sale agreement whereby the plaintiff sold to the defendant motor vehicles for a specific sum of money payable in instalments specified in the agreement. The agreements were not governed by the provisions of the
National Credit Act. The defendant took possession of the motor vehicles but failed to make payment of all the instalments that become due, owing and payable.
That led the plaintiff to seek summary judgment in each of the matters.
In opposing the summary judgment, the defendant did not disclose any defence on the merits to the plaintiff’s claim. The thrust of the defendant’s case was an attack on the affidavit supporting the summary judgment application and verifying the cause of action in each case. The affidavits purported to describe
“the relevant express alternatively, implied alternatively tacit terms of the agreement”. The defendant argued that if a term in an agreement is express, it cannot be tacit. The two are mutually destructive.
Therefore the affidavit confirming such mutually destructive allegations was argued to be contradictory.
Held that on any reading of the impugned averments, they were complementary to each another.
Whether they were express, tacit or implied, they were not mutually destructive. Thus, the attack of the summary judgment application on this point was misplaced and had to fail.
Summary judgment was granted in all eight matters.
Shackleton Credit Management (Pty) Ltd v Microzone Trading 88 CC & another
[2010] JOL 25410 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
7089 / 09
04 / 05 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
MJD Wallis J
Keywords:
Civil procedure – Summary judgment – Affidavit – Deponent to – Personal knowledge
Mini Summary:
In 2008, the applicant took cession of a number of claims from a bank. Included therein were 12 agreements concluded between the bank and the first respondent. In addition the applicant took cession of the rights of the bank under a deed of suretyship provided by the second respondent. The applicant thereafter instituted action against the respondents. An appearance to defend having been filed, the present action for summary judgment was made.
In an affidavit by the attorney for the applicant, the attorney stated that the facts deposed to in his affidavit were facts within his personal knowledge and belief as a result of which he claimed to be able to swear positively to the facts giving rise to the applicant’s cause of action. The second respondent denied that the attorney had the requisite knowledge to positively swear to the cause of action.
Held that rule 32(2) requires an applicant for summary judgment to deliver a notice of application together with an affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed, stating that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. The rule has been construed as meaning that the affidavit should be made by the applicant himself or by any other person who can swear positively to the facts; it must be an affidavit verifying the cause of action and the amount, if any, claimed; and it must contain a statement by the deponent that in his opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay.
The court was satisfied that the applicant's attorney had no direct and personal knowledge in relation to the claims. All that he had done was to inspect the documents obtained from the bank in relation to the claims. His affidavit was based entirely on hearsay because he was not a person who could swear positively to the facts and verify the cause of action or the amount owing. Accordingly the application for summary judgment was defective and had to be dismissed.
SA Taxi Securitisation (Pty) Ltd v Nako & others
[2010] JOL 25653 (E)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
19, 21, 22, 77, 89, 104 & 842 / 2010
08 / 06 / 2010
South Africa
High Court
Eastern Cape, Bhisho
LD Kemp AJ
Keywords:
Civil procedure – Summary judgment – Credit agreements – Financing of vehicles – Non-repayment
Mini Summary:
Summary judgment was sought by the applicant against all the respondents.
The applicant had financed motor vehicles which were supplied to the respondents, to be used as taxis.
When the respondents variously fell into arrears, they each applied to be placed under debt review in terms of the National Credit Act 34 of 2005. However, the 60-day period relating thereto had lapsed and after waiting for the 10-day period referred to in section 130(1)(a) of the Act, the applicant cancelled the agreements and issued summons against the respondents, seeking confirmation of the cancellation of the agreements, return of the vehicles, damages and costs.
In defending the actions, the respondents alleged that they were protected from the relief sought on two main grounds, namely that the lease agreements constituted reckless credit agreements and secondly, that applications in terms of section 87 were pending before a magistrate's court.
Held that the issues were whether the credit provider's rights in respect of the subject matter of the agreement would be limited by a finding that the credit provider extended credit recklessly; notwithstanding the valid termination of the debt review process by a proposal by the debt counsellor to a magistrate in terms of section 87.
The court was not satisfied that the respondents had raised a defence on the papers. It was of the view that the applicant had validly cancelled the agreements in terms of the Act, and was entitled to the subject matter of the agreements, ie the motor vehicles.
Summary judgment was granted.
Nedbank Ltd v Usebenzo Trading CC
[2010] JOL 26053 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Summary judgment – Bona fide defence
Mini Summary:
550 / 10
11 / 05 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
N Dambuza J
The applicant bank sought summary judgment against the respondent close corporation.
The respondent opposed the application on the basis that the written loan agreement on which the applicant relied was not binding, as it was never signed on behalf of the applicant.
Held that in opposing an application for summary judgment, a respondent must set out in his affidavit facts which, if proved at the trial, will constitute an answer to the plaintiff's claim ie a bona fide defence.
It was common cause that the parties intended that the terms of the agreement between them be reduced to writing and signed by them. The responsible person simply omitted to sign the agreement on behalf of the applicant. Nevertheless, the parties went on to perform in terms of the agreement. The parties were therefore ad idem as to the terms on which the loan amount was advanced and accepted. It was therefore opportunistic of the respondent, having only noticed the error regarding the signature when it received the summons, to plead that the loan might have been advanced on terms other than those that had been agreed upon between the parties.
As the court was not persuaded that there was a reasonable possibility that the defence might succeed at trial, summary judgment was granted.
Firstrand Bank Ltd t/a Wesbank v ARI Carriers CC & others
[2010] JOL 25957 (KZD)
Case Number: 11274 / 09

Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
24 / 08 / 2010
South Africa
High Court
KwaZulu-Natal, Durban
Sishi J
Keywords:
Civil procedure – Summary judgment – Deponent to founding affidavit – Return of vehicle – Right of retention
Mini Summary:
The applicant was the owner of a motor vehicle, in terms of an instalment sale agreement. As plaintiff in the main action, it sought an order authorising the sheriff of the court to take possession of and to deliver the vehicle to the applicant. when the defendant filed a defence, summary judgment was applied for.
In resisting the application for summary judgment, the defendant alleged that the application for summary judgment was defective as it did not comply with the rules of court. It was alleged that the affidavit in support of summary judgment was not properly before court in that the deponent did not have personal knowledge of the facts of the matter. On the merits, it was alleged that the plaintiff sold to the first defendant, a defective motor-vehicle.
Held that the deponent to the affidavit in support of the application for summary judgment was a legal supervisor of the applicant, and as such would prima facie have knowledge of the contract and its conclusion, its terms and effect and would be entitled on reference to her records to claim knowledge of the amount paid or owing by the first defendant. The preliminary point was dismissed.
On the merits, the defendants appeared to be claiming that they were entitled to the retention of the motor-vehicles as security for an alleged counter-claim. The law does not recognise such a right and afforded the defendants no defence to the plaintiff's claim for the return of the motor-vehicle. In the light of the plaintiff's election to cancel the agreement, the defendant’s right to possess the vehicle terminated.
Judgment was granted for the plaintiff.
SA Securitisation (Pty) Ltd v Matlala
[2010] JOL 26095 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
6359 / 10
29 / 07 / 2010
South Africa
High Court
South Gauteng, Johannesburg
Kathree-Setiloane AJ
Keywords:
Civil procedure – Summary judgment – Debt review – Termination of
Mini Summary:
In an application for summary judgment, the plaintiff sought the return of a motor vehicle which it leased to the defendant in terms of an agreement of lease.
The defendant had applied for debt relief in terms of section 86(1) of the National Credit Act 34 of 2005, and the debt counsellor had communicated with the plaintiff in respect of the rearrangement of the defendant's obligations. The plaintiff rejected the proposal, and gave notice to the defendant, the debt counsellor and the National Credit Regulator of its election to terminate the debt review in terms of section
86(10) of the Act.
Resisting summary judgment, the defendant argued that at the time of issue of the summons against him, he was "under debt review" in terms of section 86(1) of the Act; and that the debt review process was irregularly terminated by the plaintiff in terms of section 86(10) of the Act as the plaintiff had knowledge at the time, of the date for the hearing of the application before the magistrate's court in terms of section
87 of the Act.
Held that first issue for determination was whether or not the plaintiff was entitled to give notice to terminate the debt review process in terms of section 86(10) of the Act at the time that it did. Section
86(10) of the Act makes provision for a credit provider to give notice to terminate a debt review where a consumer is in default under a credit agreement that is being reviewed. By the time the referral to the magistrate's court was served on the plaintiff it had already given notice, in terms of section 86(10) of the
Act, to terminate the debt review process before the debt counsellor. Accordingly, in view of the absence of service of the referral on the plaintiff, the debt review was not yet before the magistrates court for a hearing in terms of section 87, and the plaintiff was thus entitled to give notice to terminate the review.
Summary judgment was granted.

Firstrand Bank Ltd v Fillis & another
[2010] JOL 26112 (ECP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
1796 / 10
17 / 08 / 2010
South Africa
High Court
Eastern Cape, Port Elizabeth
JW Eksteen J
Keywords:
Credit agreements – Loan – Debt review – Rearrangement order – Default – Summary judgment
Mini Summary:
A credit agreement entered into between the defendants and the plaintiff was secured by a mortgage bond registered over certain immovable property. Alleging that the plaintiffs were in default of the credit agreement, the plaintiff sought summary judgment and an order declaring the immovable property to be executable. Prior to that, the defendants had approached a debt counsellor and applied for debt review in terms of the provisions of section 86 of the National Credit Act 34 of 2005. A magistrate then made an order restructuring their debts. However, at the time action was instituted, they had defaulted on the rearrangement order as well.
The defendants raised three defences to the application for summary judgment. The first was a point in
limine to the effect that the person who attested to the affidavit filed in support of the application for summary judgment in terms of the provisions of rule 32(2), had not established that he was authorised to depose to the affidavit. The second defence was that once an order is made to re-arrange the defendants' debt no legal action may be taken by the credit provider to enforce a credit agreement which is subject to the order unless and until the re-arrangement order has been rescinded in terms of the provisions of section 36 of the Magistrates' Court Act, 32 of 1944, irrespective of the fact that the defendants are in breach of the provisions of the re-arrangement order. Finally, it was argued that, notwithstanding that the defendants had failed to meet the required payments stipulated in the re-arrangement order, they should nevertheless not have been held to be in default.
Held that the deponent to an affidavit in motion proceedings need not be authorised by the party concerned to depose to the affidavit. It is the institution of the proceedings and the prosecution thereof which must be authorised. The first point was thus dismissed.
The second point was also dismissed. The court pointed out that the rearrangement order was a means to assist the defendants, but if they defaulted on that order, then the common law could run its course.
The third point was dismissed for reasons similar to those set out above.
Concluding that the defendants had set out no defence to the claims, the court granted judgment in the plaintiff's favour.
Concrete 2000 (Pty) Limited v Lorenzo Builders CC t/a Creative Designs and others
[2014] JOL 31368 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
12337 / 2009
14 / 02 / 2014
South Africa
High Court
KwaZulu-Natal, Durban
Jeffrey AJ
Keywords:
Civil procedure – Summons – Service – Irregularity
Mini Summary:
In terms of rule 30 of the Uniform Rules of Court, the third defendant in this matter sought to set aside the service of a combined summons on him as an irregular step.

The plaintiff instituted action against the defendants, claiming the sum of R283 340,47 for goods sold and delivered to the first defendant. The second and third defendants were cited in their capacities as sureties and co-principal debtors.
Held that there was no service of the combined summons on the third defendant when the plaintiff’s attorneys applied to the registrar for default judgment. According to an endorsement on the cover of the court file, the registrar requested the plaintiff’s attorneys to file a return of service. No return of service was filed by them. The inescapable inference was that there was no service on the third defendant and, therefore, no return to file. It is a cornerstone of our legal system that a person is entitled to notice of legal proceedings instituted against him. The third defendant alleged that this was the first time that he became aware of the plaintiff’s action against him and that it was set down for trial.
Satisfied that the purported service of the combined summons would never have reached the attention of the third defendant, the Court found such service to be a nullity. The service of the summons was declared irregular and set aside.
ABSA Bank Ltd v Studdard & another
[2012] JOL 28712 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2011 / 24206
13 / 03 / 2012
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener J
Keywords:
Civil procedure – Simple summons – Requirements
Mini Summary:
The court dealt in this matter with a number of applications brought by the same applicant for default judgment against home-owners. The applicant sought orders for the payment of sums of money and declarations that the homes of the debtors were executable.
Held that in each matter the applicant had issued a simple summons, which contained the claim against the defendants. The only issue which the Court had to determine was what is required of a party when issuing a simple summons against a defaulting debtor when claiming a money judgment and asking for immoveable property to be declared executable having regard to the wording of rule 17(2)(b) read with
Form 9 or any other requirement, with particular emphasis on whether the written agreement of loan should be attached to the summons.
Rule 17(2)(b) reads that “where the claim is for a debt or liquidated demand the summons shall be as near as may be in accordance with Form 9 of the First Schedule”. It has been a rule of practice in the division of this Court that copies of both the written agreement of loan as well as the bond document be attached to a summons, including a simple summons, and to produce the original documents at the time when judgment is requested, whether the matter is brought by way of summons or application.
It was held that the summons should concisely state the cause of action, and that the agreement relied upon should form part of the initial document ie the simple summons. The applicant in these matters had failed to comply with that requirement, and could not succeed on the papers as they currently stood. The
Court postponed the cases to allow the applicant to remedy the defect.
Cochrane v The City of Johannesburg
[2010] JOL 25952 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 5044 / 09
18 / 08 / 2010
South Africa
High Court
South Gauteng, Johannesburg
JP Horn, H Mayat JJ, Bava AJ
Keywords:
Civil procedure – Court's rules – Uniform Rules of Court – Uniform Rules of Court, rule 30 – Applicability
Mini Summary:
In terms of section 20(4)(b) of the Supreme Court Act 59 of 1959, the appellant appealed to the full bench against the setting aside of his summons and particulars of claim in terms of rule 30(3) of the
Uniform Rules of Court. The essence of the appeal was that the court a quo was incorrect in setting aside

the appellant’s summons in terms of rule 30 where the appellant failed to serve a notice, within a six month period after the debt became due, on the respondent in terms of section 3 of the Institution of
Legal Proceedings Against Certain Organs of State Act 40 of 2002.
The appellant had given notice to the respondent of its intention to institute legal proceedings in terms of section 3(2) of the Act more than the prescribed 6 months after the incident giving rise to the debt occurring. No objection was made by the respondent, until after summons was served.
Held that the applicability of rule 30 had to be determined. If rule 30 was intended to serve as a notice of objection in respect of proceedings other than the Uniform Rules of Court, it would be casting the net far too wide and would lead to abuse. Rule 30 was never intended to serve as a basis for an objection to procedural irregularities in respect of other legislation. The rule was meant to deal with irregular steps taken by parties involved in litigation where the irregularity emanated from the use of the Rules of Court.
The respondent should not have proceeded in terms of rule 30 of the Uniform Rules of Court with a view to objecting to the validity of the appellant's notice given in terms of section 3 of the Act. The appropriate course that the respondent should have adopted in the matter was to have either objected to the notice in terms of the Act or to have delivered a special plea after summons was served.
The appeal was upheld.
De Beer v Standard Bank of South Africa and others
[2014] JOL 32180 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 31 / 2014
08 / 08 / 2014
South Africa
High Court
Western Cape, Cape Town
Davis. Le Grange, Fortuin JJ
Keywords:
Contract – Deed of suretyship – Validity of
Mini Summary:
The first respondent sued the second and third respondents and the appellant. The claim against appellant was that it was liable as a surety for the debts of second respondent arising out of mortgage entered into between first and second respondent. Although the appellant had filed an affidavit opposing summary judgment. Judgment was granted against all three defendants.
The defence raised by the appellant was that the suretyship document did not contain any detail of the identity of the debtor for whom it was alleged to have stood surety, and further, that the place in the document where the details of the debtor were to be inserted, had been left blank. The court a quo had recourse to a document which was part of the record and which was described therein as a “surety consent” and found that that agreement supplemented the suretyship agreement and accordingly the two agreements, read together, represented a complete answer to the defence which had been raised by the appellant.
Held that section 6 of the General Law Amendment Act 50 of 1956 (“the Act”) makes the validity of a suretyship dependent on its being embodied in a written document signed by or on behalf of the surety.
The question was whether a party relying on a suretyship agreement is strictly bound by the provisions of section 6 of Act 50 of 1956 or whether recourse may be had to extrinsic evidence to prove compliance with the provisions of the Act.
The suretyship agreement in this case was very vague, and ex facie the document, little of key importance could be ascertained which would sustain first respondent’s cause of action. The suretyship consent did not assist the first respondent in that, although it was signed on the same day as the principal loan agreement, it was not itself a suretyship agreement. On the basis of that document it could not be concluded without more, that appellant was a surety as alleged in the particulars of claim.
The appeal was upheld.
Firstrand Bank Limited v Jackson
[2014] JOL 32146 (KZD)
Case Number:
Judgment Date:
Country:
13022 / 2012
07 / 08 / 2014
South Africa

Jurisdiction:
Division:
Bench:
High Court
KwaZulu- Natal, Durban
Van Zyl J
Keywords:
Civil procedure – Suretyship agreement – Claim for payment – Summary judgment – Deponent to founding affidavit – Authority of – Defence
Mini Summary:
The plaintiff was a bank which had lent money to a company in terms of a loan agreement. In connection therewith, the bank obtained a personal suretyship commitment from the defendant, who, in his personal capacity agreed to bind himself jointly and severally as surety and co-principal debtor together with the company to and in favour of the plaintiff for all amounts then owing or which would in the future become owing. The parties recorded that their agreement would in all respects be construed and interpreted in accordance with the laws of South Africa. The company later defaulted on its repayment obligations to the plaintiff and was placed under business rescue supervision.
Relying on the suretyship undertaking, the plaintiff sued the defendant for the amount owing to it.
Summary judgment was sought.
In a preliminary defence, the defendant challenged the capacity or authority of the deponent to the plaintiff’s affidavit in support of the application for summary judgment. It averred that he was not the author of the documents upon which the action was based, nor was he involved in the negotiations and conclusion of such documents and that he was therefore unable, from his personal knowledge, to attest to their accuracy. Accordingly, so the argument went, his averments in support of the application for summary judgment constituted inadmissible hearsay, so that the requirements of rule 32(2) remain unsatisfied.
Held that first-hand knowledge of every fact cannot and should not be required of the official who deposes to the affidavit on behalf of such financial institutions and large corporations. The Court was satisfied that the deponent to the founding affidavit was authorised to attest to the facts laid out therein.
The next defence considered was that relating to matrimonial domicile. Referring to the fact that he and his wife were married according to the laws of California, the defendant argued that the failure to obtain the written consent of his spouse meant that the conclusion of the suretyship agreement was invalid and unenforceable as a matter of California law and, in any event, whether the suretyship commitment amounted to a disposition of community property for less than fair and reasonable value, was a question of fact, which could not be determined for purposes of summary judgment.
Where there are disputed or new facts alleged, a court considering summary judgment does not attempt to determine the balance of probabilities or decide the issues arising. The enquiry is limited to determining firstly whether the defendant has sufficiently disclosed the nature and grounds of his defence. The second consideration is whether the defendant, on the facts so disclosed, appears to have a defence which, thirdly, is both bona fide and good in law.
The Court held that a triable issue appeared to exist as to whether the suretyship would contravene the prescriptive requirements of Californian law and, if it did, then whether the suretyship undertaking given by the defendant without the requisite consent of his spouse, might found any obligation by the defendant to the plaintiff.
Considering it in the interests of justice to afford the defendant the opportunity to establish his defences on trial, the Court refused the application for summary judgment.
Van Rheede van Oudtshoorn v Investec Bank Limited
[2012] JOL 29297 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
588 / 10
25 / 11 / 2011
South Africa
Supreme Court of Appeal
MJD Wallis, CH Lewis, MML Maya, NZ Mhlantla, LW Seriti JJA
Keywords:
Contract – Deed of suretyship – Validity – Whether non-compliant with the statutory requirements for a valid deed of suretyship – Correct approach is for the court to examine the deed of suretyship and if the document is reasonably capable of an interpretation consistent with validity it should be held to be formally valid – If there is ambiguity, and it is capable of being given a meaning consistent with validity, preference must be given to that meaning that renders it valid – Contract – Power of attorney –
Interpretation of – Authority to conclude agreement clear from terms of power of attorney read as a whole
Mini Summary:

At the heart of the present case was a tax minimising scheme which sought to take advantage of allowances then afforded by the Income Tax Act 58 of 1962 in respect of the depreciation of aircraft. The scheme, devised by a firm of tax advisers (RBA) was structured around a partnership, in which the investors would be the undisclosed partners. The partners would be Cormorant Aviation (Pty) Ltd
(“Cormorant”), a special purpose vehicle created and controlled by RBA, as the disclosed and managing partner and the individual participants, who would be the undisclosed partners, each contributing a defined share to which their liability was limited. The partnership would acquire an aircraft with finance provided by the respondent (Investec) and charter it to generate the income necessary to meet the financing costs due to Investec. Unfortunately the income generated from the chartering operations was less than anticipated, causing Investec to demand payment of what was due to it under the financing arrangements. The partnership was unable to meet the demand and the scheme collapsed. Investec then sued the participants in the scheme on various grounds. The action against the appellant was based on a deed of suretyship signed on his behalf and binding him as surety for the purchaser’s liability under the instalment sale agreement. He, however, disputed any liability to Investec on the ground that he had not authorised the conclusion of the agreements required to give effect to the scheme. Whilst he accepted that he agreed to participate in the scheme, he said that the agreements actually concluded were not those that he agreed to and were concluded without authority.
The agreements in question were concluded by RBA (in particular, a Ms Dillon), in terms of a power of attorney signed with investors such as the appellant.
The High Court upheld Investec’s contention that the appellant had ratified the agreements concluded on his behalf and on behalf of the partnership. Judgment was granted against the appellant in an agreed amount, and he was ordered to pay interest and the costs of the trial on the attorney and client scale.
On appeal, the appellant’s main contentions were that the method adopted to finance the acquisition of the aircraft was not what he had agreed to and that the execution of the deed of suretyship on his behalf was unauthorised. He said that the power of attorney expressly contemplated that the finance would come from a personal loan granted to him by Investec and that he never agreed to RBA concluding the instalment sale agreement or executing the deed of suretyship on his behalf. The first issue regarding the validity of the suretyship concerned Ms Dillon’s authority to execute the deed on behalf of the appellant.
The second was whether, assuming she had such authority, the deed she signed fell within the scope of that authority given the limited capital contribution of the appellant to the partnership. The third arose from a request the Court addressed to the parties before the hearing to deal with the implications of section 6 of the General Law Amendment Act 50 of 1956, which provides that a deed of suretyship is valid only if reduced to writing and signed by or on behalf of the parties. Flowing from that and the fact that Ms
Dillon did not qualify her signature when she signed the deed it was contended that there was noncompliance with the statutory requirements for validity. The appellant also raised certain technical objections directed at the validity of the instalment sale agreement.
Held that the technical objections were entirely without merit. The court confirmed that the instalment sale agreement was validly concluded and binding on Cormorant. The remaining question was whether the deed of suretyship executed by RBA on behalf of the appellant was binding upon him.
According to the appellant, Ms Dillon’s authority in terms of the power of attorney was limited to authorising her to borrow money on his behalf. The submission fell short when consideration was given to the terms of the power of attorney as a whole. Having regard to those terms, the court concluded that Ms
Dillon was authorised to execute the deed of suretyship on behalf of the appellant.
The next issue was whether in executing the deed of suretyship, Ms Dillon exceeded her authority by binding the appellant to pay an amount in excess of the maximum amount that he could be called upon to contribute to the partnership. The court found that the appellant’s submission on this score was flawed, in that on a proper reading of the power of attorney, it was evident that whilst the capital amount of any loan was limited to the capital contribution to the partnership, the actual financial commitment was considerably greater. Therefore, the authority given to RBA under the power of attorney to execute a suretyship on behalf of the appellant was not restricted to the capital contribution to the partnership.
Finally, the Court considered the appellant’s contention that the suretyship was non-compliant with the statutory requirements for a valid deed of suretyship. The only question was whether the deed of suretyship was formally valid. The correct approach in that regard is for the court to examine the deed of suretyship – as formal validity depends on its terms alone – and if the document is reasonably capable of an interpretation consistent with validity it should be held to be formally valid. If there is ambiguity, and it is capable of being given a meaning consistent with validity, preference must be given to that meaning that renders it valid. A fair reading of the document in this case showed that it reflected two possible situations, one which rendered the deed formally valid and the other of which rendered it invalid. In those circumstances, the former construction had to be adopted. Consequently, deed had to be construed as having been signed by Ms Dillon on behalf of the appellant, as it in fact was.
Other than reversing the awarding of costs on the punitive scale, the court dismissed the appeal.

Standard Bank of South Africa Ltd v Molyneux-Killik
[2012] JOL 29043 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
30700 / 2011
06 / 06 / 2012
South Africa
High Court
South Gauteng, Johannesburg
FHD van Oosten J
Keywords:
Contract – Loan agreement – Suretyship – Claim against surety
Mini Summary:
Arising from a home loan agreement concluded between the applicant and the principal debtor, the applicant claimed payment of the balance due from the respondent as surety and co-principal debtor. The respondent’s defences were twofold. Firstly, a number of objections were made challenging the correctness of the amount claimed by the applicant and secondly, it was contended that the property was sold well below its market value to the prejudice of the respondent resulting, so it was contended, in the release of the respondent as surety.
Held that the respondent’s attacks on the applicant’s accounting were largely without merit. In asserting that the amount claimed by the applicant was incorrect, the respondent also argued that the applicant was not entitled to levy any insurance levies as it had. The Court again rejected the submission. In terms of the loan agreement, the applicant was empowered to insure the property at any time during the period of the loan. The charges in respect of the insurance premiums were correctly incurred and the respondent was held liable for the payment thereof.
On the second issue, the Court found that even if the property was sold for less than its value, that was an issue which had nothing to do with the applicant’s claim.
In the absence of any defence, the applicant’s claim was upheld. Judgment was granted in applicant’s favour.
Scott v Moir NO
[2011] JOL 27869 (WCC)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A27 / 2011
19 / 09 / 2011
South Africa
High Court
Western Cape, Cape Town
DH Zondi J, AG Binns-Ward J
Keywords:
Contract – Suretyship agreement – Interpretation of
Mini Summary:
The appellant had stood surety in respect of the indebtedness to the respondent, of the principal debtor who had since been provisionally liquidated. The respondent sued the appellant based on the deed of suretyship.
The only question the court a quo was required to determine was whether the appellant was bound and/or
liable as surety and co-principal debtor for payment of the amount owing by the principal debtor to the respondent. The court a quo’s finding that the appellant was liable to the respondent for the debt of the principal debtor up to and including 30 November 2008 was challenged in the present appeal.
The appellant argued that the suretyship which the appellant concluded with the respondent, expired on
30 November 2008. It was contended that as the suretyship contained a time limit during which the appellant was bound, the appellant could not be sued on it after 30 November 2008 unless a demand for the recovery of the debt was made prior to 30 November 2008.
Held that the construction of the words "valid up to 30 November 2008" appearing on the deed of suretyship contended for by the appellant was unwarranted. The general principles relating to the interpretation of contracts were applicable to the contract of suretyship. In interpreting a contract, the intention of the parties must be ascertained from the language they have used in the contract itself, giving effect to the ordinary meaning of their words and to the grammatical sense in which they have expressed themselves unless it appears from the context that both parties intended their language to have a different meaning.

On a proper construction of the suretyship, the endorsement stating that the suretyship would be valid up to 30 November 2008 provided the latest date on which the surety would be released from the suretyship, thus relieving the respondent of the need to give notice releasing the surety from suretyship.
The Court then turned to the appellant’s argument regarding the respondent's failure to deliver a notice in terms of section 129 of the National Credit Act 34 of 2005 to the appellant prior to the institution of the proceedings and whether such failure affected the appellant's liability under the suretyship. Finding that the object of the Act requiring the despatch of the notice had been achieved, the court dismissed the appeal.
Ex parte application WH & others
[2011] JOL 27860 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
29936 / 11
27 / 09 / 2011
South Africa
High Court
North Gauteng, Pretoria
RG Tolmay et N Kollapen JJ
Keywords:
Family law – Parent and child – Children – Surrogacy motherhood agreement – Confirmation by court
Mini Summary:
The first and second applicants (referred to as the "commissioning parents") were two males who were married to each other. They approached the court to confirm a surrogacy motherhood agreement in terms of the Children's Act 38 of 2005 (“the Act”). The surrogate mother was engaged to the fourth applicant, and had two children of her own.
Held that the Act provides the legal framework for willing parties to facilitate surrogacy agreements with the proviso that the confirmation by the high court of all surrogacy agreements is required to render any such agreement valid. Section 292 of the Act provides for the formal requirements of a valid surrogate motherhood agreement and in terms of section 295, a court may not confirm the agreement unless certain requirements are met. The Act also deals with the question of payments in respect of surrogacy and generally prohibits commercial surrogacy while only permitting payments related to compensation for expenses, loss of earnings and bona fide professional, legal and medical services related to the confirmation of a surrogate motherhood agreement.
In terms of section 28(2) of the Constitution a child's best interests are of paramount importance in every matter concerning the child. This approach is echoed in section 7 of the Act.
The Court in this case found that, having regard to the requirements of the Act, the commissioning parents in this case have made out a proper case for the relief they seek. The formal requirements found in section 292 of the Act have been met and we are satisfied that both the commissioning parents as well as the surrogate mother are suitable persons as contemplated in the Act, both to accept parenthood as well as to act as surrogate mother respectively. The surrogate motherhood agreement was accordingly confirmed.
Africast (Pty) Limited v Pangbourne Properties Limited
[2014] JOL 32108 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
359 / 2013
28 / 03 / 2014
South Africa
Supreme Court of Appeal
Bosielo, Mhlantla, Theron JJA, Mathopo AJA
Keywords:
Contract – Suspensive condition – Effect of – A contract containing a suspensive condition is enforceable immediately upon its conclusion but some of the obligations are postponed pending fulfilment of the suspensive condition – If the condition is fulfilled the contract is deemed to have existed ex tunc. If the condition is not fulfilled, then no contract came into existence – Contract – Authority of signatories – Ex

post ratification – Consequences – Upon ratification of an act, the obligation incurred by the act is dated at the time of the conclusion of the act not at the time of the ratification
Mini Summary:
The respondent’s business involved the acquisition and letting of commercial property. The appellant was a company within a group, and was involved in property investment and development. After negotiating about the development of commercial property, the parties’ representatives agreed on the terms of a contract for the building of commercial premises by the appellant, and for the letting of those premises to tenants and for the cession of the rights under the leases to the respondent. The respondent needed to pay the purchase price for the improved properties to the appellant only on transfer of the properties and cession of the leases. The agreement, signed on 11 April 2007, was subject to a suspensive condition that the respondent give written notice of the approval by its board of directors, within seven working days of the conclusion of the contract. On 20 April 2007, the respondent’s board of directors signed a written resolution approving the agreement. Although that was verbally communicated to the appellant, written approval was only furnished on 25 April 2007, after the stipulated seven-day period. The question on appeal was whether the contract lapsed because of the non-fulfilment of the suspensive condition. Some
18 months after the signing of the agreement, the respondent decided that the condition had not been fulfilled within the stipulated period, and that it was accordingly not bound by the contract. By then, the buildings had been constructed by the appellant.
Regarding the respondent’s decision as a repudiation of the contract, the appellant cancelled and sued for damages for breach of contract. The High Court held that the condition had not been fulfilled timeously; that the respondent was not bound by the contract and that the appellant was accordingly not entitled to damages. The appellant appealed against that decision.
Held that a contract containing a suspensive condition is enforceable immediately upon its conclusion but some of the obligations are postponed pending fulfilment of the suspensive condition. If the condition is fulfilled, the contract is deemed to have existed ex tunc. If the condition is not fulfilled, then no contract came into existence.
Although the appellant’s case raised a dispute as to whether the signatories were authorised to sign the agreement, the Court found that the signatories did have the relevant authority. Upon signature of the agreement an inchoate agreement came into being, pending the fulfilment of the suspensive condition.
The agreement was thus concluded upon signature on 11 April 2007. The terms of the suspensive condition were not met, with the result that the contractual relationship between the parties lapsed due to non-fulfilment of the suspensive condition.
Regarding the appellant’s suggestion that the lack of authority on the part of the signatories was ratified on 20 April 2007, the Court stated the following. If the decision taken by the respondent’s board on 20
April 2007 constituted ex post ratification of what the signatories had done, then the contract would have been enforceable from the time of signature on 11 April 2007. Upon ratification of an act, the obligation incurred by the act is dated at the time of the conclusion of the act not at the time of the ratification. The appeal was dismissed by the majority of the Court.
In the minority judgment, it was held that the critical question was when the contract became binding, subject to the suspensive condition. The Judge held that since neither party was bound until there had been approval by the respondent’s board, it would be stretching the ordinary meaning of the words used to find that all that was intended was that negotiations were concluded, although the contract would not be binding. Therefore, in the minority view, the High Court erred in its interpretation of the provision in question. It was stated that the contract was concluded only when the respondent’s board approved it on
20 April 2007, and on 25 April, when written notification of the approval was given to the appellant, it ceased to be conditional. The minority Judge would have upheld the appeal.
Gateway Properties (Pty) Limited v Bright Idea Projects 249 CC and another
[2014] JOL 31989 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
AR 353 / 13
01 07 / 2014
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
Jappie DJP, Seegobin, Van Zyl JJ
Keywords:
Civil procedure – Motion proceedings – Disputes of fact – Principles – Contract – Lease agreement –
Suspensive condiction
Mini Summary:
In August 2011, the parties in this matter entered into a lease agreement in terms of which the appellant let to the first respondent a portion of the premises consisting of a service station, forecourt and

convenience store. The second respondent signed the agreement in his representative capacity and in his capacity as surety and co-principal debtor for the payment of all rentals and the performance of all obligations of the first respondent arising out of the said agreement.
The agreement was subject to the fulfilment of a suspensive condition requiring the respondent to obtain the necessary site and retail licences. The first respondent obtained the site licences, but was prevented from starting business due to the refusal of consent by the Fire Department due to inadequate safety installations on the property. During that time, the first respondent did not pay rental, leading to a demand by the appellant for arrear payments.
An application was made to the High Court for the eviction of the respondents from the premises, and for payment of arrear rental. The respondents raised two primary defences. The first was that the first respondent was never given delivery and vacant occupation of the premises from inception of the agreement in that the keys to the premises were never handed to it by the applicant. The second was that the agreement was subject to the suspensive condition referred to above, and that despite being issued with the site and retail licences, the first respondent was unable to commence its business operations on the premises due to the fact that the premises were found by the Fire Department to be unsuitable for the selling of petroleum fuel. The present appeal was against the dismissal of the application.
Held that having regard to the fact that the agreement under consideration was one for letting and hiring, according to the common law the use to which the leased premises is to be put was of real and substantial importance. Considering the main purpose for which the premises were being leased, the provisions of the suspensive clause had to be interpreted to mean that if for whatever reason the first respondent was unable to obtain the requisite licences and clearances from the relevant authorities from inception, the agreement would be null and void ab initio. As referred to above, the first respondent was frustrated in its efforts to obtain the requisite licences and clearances to conduct business from the premises and it did not do so. Essentially it did not receive any usage whatsoever. Thus, inasmuch as the agreement came into effect on its signing, the second respondent’s obligations were suspended until such time as the condition was fulfilled. That did not happen, which rendered the agreement null and void ab initio.
The first respondent strongly disputed that it was given possession and occupation of the premises from inception of the agreement. Anticipating the possibility of a dispute of fact existing, the court set out the principles that generally guide a court when faced with genuine disputes of fact in motion proceedings.
However, it found no genuine dispute of fact to exist, as on the applicant’s own version, the keys to the premises were never handed to the first respondent.
The appeal was dismissed with costs.
O'Ehley NO & others v Adzam Trading 197 (Pty) Ltd
[2011] JOL 27899 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
2011 / 13797
23 / 09 / 2011
South Africa
High Court
South Gauteng, Johannesburg
CG Lamont J
Keywords:
Contract – Sale agreement – Suspensive conditions – Non-fulfilment – Lapsing of contract
Mini Summary:
The applicants were jointly referred to by the Court as “the purchasers” in a sale agreement. The agreement was entered into with the respondent, and was for the sale of share equity. The sale was subject to a variety of conditions precedent.
Held that it appeared that the suspensive conditions were not fulfilled timeously. The effect of the nonfulfilment of the conditions was that the agreement lapsed. The contract itself provided that in the event of the failure of suspensive conditions the contract would lapse and the status quo ante was to be restored. The lapsing of the contract was in accordance with the law.
In considering whether the respondent had waived its rights concerning the fulfilment of the suspensive conditions, the Court held that there had to be communication of the waiver to the seller and that the communication be timeous. In the absence of such communication, there was no waiver.
The applicants were entitled to the relief sought by them.
Pangbourne Properties Ltd v Basinview Properties (Pty) Ltd
[2011] JOL 27156 (SCA)

Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
381 / 10
17 / 03 / 2011
South Africa
Supreme Court of Appeal
CH Lewis, MML Maya, WL Seriti JJA
Keywords:
Contract – Suspensive condition – Whether fulfilled – Where a sale agreement was made subject to the furnishing of a Board of Directors resolution confirming the sale, a letter from the company secretary to that effect did not constitute fulfilment of the condition – Contract – Non-fulfilment of condition – Estoppel
– Purchaser not estopped from relying on non-fulfilment since none of requirements of estoppel established
Mini Summary:
In 2007, the respondent sold its business to the appellant. The agreement was subject to three suspensive conditions. According to the appellant, because one of the conditions had not been fulfilled, the agreement was not binding on it. That stance led to the respondent’s applying to the high court for an order that it was of full force and effect. The present appeal was against the granting of the relief sought.
The suspensive condition which the appellant relied upon in support of its stance that the agreement was not binding was that the Board of Directors of both the purchaser and the seller approve the purchase and sale. Proof of the passing of such resolution was to be furnished by each party to the other in the form of a written resolution duly certified by the chairman/secretary. It was common cause that the appellant’s board of directors did not pass the resolution within the period stipulated.
The high court found that although the agreement had lapsed it had been revived. That was the implication of a written addendum to the agreement concluded after the date for fulfilment had occurred.
The high court also found for the respondent on the ground that the appellant was estopped from asserting that the agreement was a nullity and it found that the fulfilment of the condition had been waived despite the express prohibition on unwritten waivers in the agreement.
On appeal, the respondent argued that the agreement was binding on the basis of estoppel. Alternatively it contended that a new agreement had been entered into when the parties signed an addendum to the agreement on 19 June 2008. Before the expiration of the 14-day period for fulfilment of the condition, on
15 November 2007, the appellant’s company secretary wrote to the respondent advising that the chief executive officer of the appellant who had authority to approve the purchase price, had approved the agreement for the purchase of the property. Thus, the respondent argued that the letter from the company secretary on 15 November 2007 formed the basis for finding that the appellant was estopped from asserting that the condition was not fulfilled and that the agreement was not binding. Although it turned out that the appellant’s chief executive officer had in fact exceeded the limits of his authority, the respondent’s case was that that fact was irrelevant as the appellant had represented to it that there was board approval, and that the respondent had reasonably relied on the representation to its detriment.
Held that the court dealt first with the dispute around whether one of the conditions was fulfilled, because were it to be found that the condition was not fulfilled and that the agreement was thus of no effect, the dispute about the price, and an application to rectify the agreement, need not be decided.
The requirements for estoppel are a representation made by a principal (not an agent) by words or conduct in such a way that the principal would expect someone to rely on it; reasonable reliance on the representation by the person relying on the representation; and consequent prejudice to that party.
The court found that the letter relied on by the respondent made no misrepresentation that the condition had been fulfilled, and that the respondent could not reasonably have relied on it in believing that the board had passed the requisite resolution. The agreement expressly required a resolution of the board approving the sale, and proof of the specific resolution to be provided to the respondent. There was no resolution and thus no proof of it as required. The requirements for estoppel to operate such that the agreement was enforceable against the appellant were thus not met.
In the alternative, the respondent contended that an addendum signed in 2008 constituted a new agreement between the parties. Having regard to the wording of the addendum, the court concluded that it could not be interpreted to mean that a new agreement had been constituted.
The high court was thus wrong in finding that the addendum revived the agreement for the sale of the property. Secondly, the respondent’s argument that it actually constituted a new agreement on the same terms was also untenable. The high court also erred in finding that the parties had waived the fulfilment of the condition since the alleged waiver was not only precluded by the express terms of the agreement but also occurred after the date by which the condition should have been fulfilled.
As there was no basis on which to find that the agreement was enforceable, the court upheld the appeal, and dismissed the respondent’s application.

Pangbourne Properties Ltd v Pulse Moving CC & another
[2010] JOL 26475 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 30282; 09 / 37649
19 / 11 / 2010
South Africa
High Court
South Gauteng, Johannesburg
WL Wepener J
Keywords:
Civil procedure – Affidavits – Filing of – Time limits
Mini Summary:
In two applications before the court, the applicant sought the ejectment of the first respondent from the premises and payment of a portion of a deposit pursuant to a written agreement entered into, between it and the first respondent.
The first argument raised on behalf of the respondents was that the replying affidavit was filed some eight months out of time and fell to be disregarded.
Held that there are a large number of matters that come before the court in which parties, for a variety of reasons, agree to file affidavits at times suitable to them. Each case must be decided on its own facts and it cannot be said that when affidavits are filed out of time that it is not, without more, before the court.
Were the court to uphold the argument that the replying affidavit and consequently also the answering affidavit, fell to be disregarded because they were filed out of time, it would be too formalistic an exercise in futility, and it would leave the parties to commence the same proceedings on the same facts de novo.
On the merits, the court found no substance to the defences raised. The application accordingly succeeded.
Moosa NO & others v Akoo & others
[2010] JOL 25872 (KZP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
5378 / 06
22 / 06 / 2010
South Africa
High Court
KwaZulu-Natal, Pietermaritzburg
HQ Msimang JP
Keywords:
Trusts – Trustee – Letters of authority
Mini Summary:
The present application was part of prolonged litigation involving family trusts. The applicants had started by seeking a declarator that a partnership relationship subsisting between the parties had been lawfully dissolved with effect from 28 February 2006 and an order appointing a liquidator with powers to effect a final liquidation of the partnership and to make applicable distributions to the partners according to the extent of their determined interests in the partnership.
The respondents filed a counter-application seeking an order declaring their family trust to have been equal partners with the applicants as at the date of the dissolution of the partnership on 28 February 2006 and seeking, inter alia, an order directing the said trust to deliver a statement of account of the partnership as at 28 February 2006. The court appointed a liquidator and referred the issues in the counter-application for oral evidence.

Held that the applicants challenged the conduct of the first respondent in acting for the trust before his
Letters of Authority were issued. The court found that the first respondent’s act, when he purported to represent the trust when it took over the interests in the partnership, was void.
The court accordingly found for the applicants for the main relief.
Thabethe v First National Bank Group Pension Fund & another
[2010] JOL 25951 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
PFA/GA/32549/2009/RM
03 / 05 / 2010
South Africa
Pensions Fund Tribunal
Charles Pillai
Keywords:
Pensions – Practice and procedure – Time limits for lodging of complaint with Adjudicator – Section 30I of the Pension Funds Act 24 of 1956 imposes certain time limits with regard to lodgement of complaints before the Adjudicator – Adjudicator shall not investigate a complaint if the act or omission to which it relates occurred more than three years before the date on which the complaint is received by him
Mini Summary:
The complainant commenced contributions to the first respondent pension fund in 1983. He exited the fund upon resigning from his employment in 1991. Upon his exiting the fund, he was given three options regarding his withdrawal benefit. He opted to receive cash payment of his benefit and the fund paid him accordingly.
The present complaint concerned the non-payment of a deferred pension benefit by the first respondent.
Responding to the complaint, the second respondent averred that the complaint related to events that occurred in 1991 and 1992, but the complaint was only lodged in April 2009. It argued that in terms of section 30I (1) and (2) of the Pension Funds Act 24 of 1956, the complaint was lodged outside the required three-year period, and had therefore prescribed.
Held that section 30I of the Pension Funds Act 24 of 1956 imposes certain time limits with regard to lodgement of complaints before the adjudicator. The adjudicator shall not investigate a complaint if the act or omission to which it relates occurred more than three years before the date on which the complaint is received by him.
The act or omission to which this complaint related occurred, at the latest, in January 1992 following the complainant's election to receive a cash benefit and his waiver of any claim to a deferred pension. Any complaint regarding the complainant's entitlement to a deferred pension should have been lodged at that time or within three years of the date the cause of action arose, ie by January 1995. However, the complaint was only lodged on 9 March 2009. Therefore, it was received more than 14 years out of time.
The peremptory nature of the provisions of section 30I(1), meant that the tribunal had no authority to investigate and adjudicate upon any complaint which is time-barred. Applying the provisions of the
Prescription Act 68 of 1969 to the facts, the adjudicator again found that the claim had prescribed.
The complaint was dismissed.
Johannesburg Municipal Pension Fund v Pension Funds Adjudicator & others
[2010] JOL 25978 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
09 / 46280
11 / 08 / 2010
South Africa
High Court
Johannesburg, South Gauteng
GSS Maluleke J
Keywords:
Pensions – Pension benefit – Computation of – Complaint – Time-barring
Mini Summary:
The second and third respondents ("the employees") were employed by the fifth respondent, a local municipality, until they were dismissed on grounds of incapacity. During the course of their employment, they were members of the applicant pension fund. The employees were medically boarded in 1995. They thenceforth began to receive their pension from the applicant and would continue to receive their pension for life.

The applicant calculated the pension of the employees by applying the rate of 1,7516% in accordance with the provisions of the fund's rules. The rate in question was the prescribed rate for members whose exact age at retirement was under 60 years. In their complaint to the adjudicator, the employees maintained that the applicant had incorrectly calculated their pension as the pensionable age of 63 should be the basis for determining the percentage rate.
Pursuant to the adjudicator's determining that the applicant should recalculate the pension of the employees at the rate of 2,0108% as was contended for by them, the applicant noted the present appeal.
The first ground of appeal was in the form of an in limine objection that the employees' complaints to the adjudicator were time barred in terms of section 301 of the Pension Funds Act 24 of 1956 and were also prescribed in terms of section 12 of the Prescription Act 68 of 1969. Secondly, the applicant contended that on a proper interpretation of its rules, the pensions of members whose membership was terminated when their ages were below 60 years had to be calculated at the rate of 1,7516% and not at the rate of
2,0108% as determined by the adjudicator.
Held that it was common cause that the pensions were calculated in 1995, and the complaint was submitted to the adjudicator some 10 years later. The court confirmed that the complaint to the adjudicator was time barred in terms of section 301 of the Pension Funds Act and was also prescribed in terms of section 12 of the Prescription Act. The adjudicator did not and could not extend the period of prescription in terms of section 301(3), and had no power or authority to revive a prescribed complaint in circumstances where the complaint had already prescribed in terms of the Prescription Act.
Secondly, the adjudicator erred by equating the "exact age of retirement" to the pensionable age of 63 years in determining the percentage rate of calculation.
The appeal was upheld on both grounds.
Smith v SAA Flight-Deck Crew Provident Fund & another
[2010] JOL 25963 (PFA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
PFA/KZN/24462/2008/TD
20 / 05 / 2010
South Africa
Pensions Fund Tribunal
Durban North
Charles Pillai
Pensions – Death benefits – Distribution of – Payment of death benefits by a pension fund is regulated by section 37C of the Pension Funds Act 24 of 1956 – Main aim of the section is to ensure that those persons who were dependant on the deceased during his lifetime, irrespective of whether the deceased was legally required to maintain them or not, are not left without support after his deathPensions – Death benefit –
Distribution of – Trustees duties – Trustees must identify and trace the circle of beneficiaries; effect an equitable distribution of the death benefit; and determine an appropriate mode of payment of the benefitPensions – Death benefit – Distribution of – Trustees powers – Section 37C of the Pension Funds
Act 24 of 1956 gives the trustees of a fund a discretion insofar as the distribution of death benefits is concerned
Mini Summary:
The complainant's father was a member of the first respondent pension fund until his suicide in 2007. At the time of his death, the deceased was cohabiting with the second respondent.
The deceased left a suicide note in which he purported to give his house to the second respondent, and authorised his bank to give her immediate access to cash in a savings account. He also advised her of money he kept in his safe.
In distributing the death benefit payable by the fund upon the death of the deceased, the fund's trustees awarded 50% of the benefit to the second respondent and 50% to the complainant. The complainant was dissatisfied with the trustees' decision to allocate 50% of the death benefit to the second respondent, alleging that the second respondent was not a dependant of the deceased.
Held that the question for determination was whether or not the tribunal should set aside the trustees' decision to distribute the death benefit payable following the passing away of the deceased in equal shares between the complainant and the second respondent.
The payment of death benefits by a pension fund organisation as defined in section 1 of the Pension Funds
Act 24 of 1956 is regulated by section 37C of the Act. In terms of section 37C, any such benefit shall not normally form part of the assets in the estate of the deceased, but shall be dealt with in terms of the section. Section 37C gives the trustees discretion insofar as the distribution of death benefits is concerned.
The main aim of the section is to ensure that those persons who were dependant on the deceased during his lifetime, irrespective of whether the deceased was legally required to maintain them or not, are not left

without support after his death. Section 37C imposes three primary duties on the trustees when they consider the distribution of a death benefit. They have to first identify and trace the circle of beneficiaries, ie all the dependants and nominated beneficiaries of the deceased. Once the circle of beneficiaries is identified, the trustees have to effect an equitable distribution of the death benefit; and finally the trustees must determine an appropriate mode of payment of the benefit. In doing the above, the trustees must consider all the relevant factors to the exclusion of all the irrelevant factors and must not fetter their discretion in any way. Where it is found that the trustees failed to take into account relevant factors, or took into account irrelevant factors, the trustees' decision shall be reviewable on the grounds that they have exceeded their power or that the decision constituted an improper exercise of their powers.
In the present case, the trustees found the complainant to fall squarely within the definition of a
"dependant", while the second respondent was found to be a factual dependant. Examining the factors taken into account by the trustees, the adjudicator found no improper exercise of their discretion. The distribution of the death benefit was not unreasonable, and the complaint was accordingly dismissed.
Umzumbe Municipality v The Great Supply CC
[2014] JOL 31568 (KZD)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Contract – Claim for payment – Unjust enrichment – Requirements
Mini Summary:
118 / 2009
15/ 04 / 2013
South Africa
High Court
KwaZulu-Natal, Durban
Balton J
The plaintiff municipality and a third party (“NES”) had entered into an agreement for the latter to supply the plaintiff with lamp oil and fire gel. Subsequently, the defendant and NES entered into a cession agreement in terms of which the plaintiff was to pay R336 528 to the defendant for lamp oil and fire gel in terms of the contract between the plaintiff and NES. The cession agreement was signed by the plaintiff.
The plaintiff then proceeded to make payment of the said amount twice. It alleged that the second payment to the defendant was made in a bona fide and reasonable but mistaken belief that a further cession agreement existed between the defendant and NES and that the payment was sine causa. It sought repayment of the amount.
Held that the plaintiff relied on the conditio sine causa for the payment made to the defendant. In terms of the condictio sine causa, a plaintiff is entitled to sue a defendant where money has come into the hands or possession of another for no justifiable cause. The money may be recovered to the extent that the recipient has been enriched at the expense of the person whose money it was. Under the condictio
indebiti, a plaintiff must prove that the payment made by him was made indebiti, that is, that there was no legal or natural obligation or any reasonable cause for the payment. In addition, the mistake of the plaintiff must be excusable and not caused through grossly negligent conduct or inexcusable slackness.
In the present case, the failure to prove that the defendant had been enriched was fatal for the plaintiff.
The second payment was made in respect of goods which had been delivered to the plaintiff in error, but which the plaintiff’s employees had negligently accepted. Due to the negligence of the plaintiff’s employees in taking receipt of the goods, the defendant had not been enriched. If they had acted with due diligence they would not have accepted the goods.
The plaintiff’s claim was dismissed with costs.
Minister of Safety & Security v Sekhoto & another
[2010] JOL 26465 (SCA)
Case Number:
Judgment Date:
131 / 10
19 / 11 / 2010

Country:
Jurisdiction:
Division:
Bench:
Keywords:
South Africa
Supreme Court of Appeal
LTC Harms DP, RW Nugent, CH Lewis, LO Bosielo JJA, K Pillay AJA
Criminal procedure – Alleged unlawful arrest – Defence based on section 40(1)(b) and (g) of the Criminal
Procedure Act 51 of 1977, which provides that a peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1; or who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce – Jurisdictional facts for a defence based on section 40(1)(b) discussed
Mini Summary:
Duncan v Minister of Law and Order 1986 (2) SA 805 (A) – Followed; Discussed
Minister of Law and Order v Hurley 1986 (3) SA 568 (A) – Referred to
Louw v Minister of Safety and Security 2006 (2) SACR 178 (T) – Overruled
Minister of Safety and Security v Sekhoto 2010 (1) SACR 388 (FB) – Referred to
Gellman v Minister of Safety and Security 2008 (1) SACR 446 (W) – Referred to
Le Roux v Minister of Safety and Security 2009 (2) SACR 252, 2009 (4) SA 491 (KZP) – Referred to
Ramphal v Minister of Safety and Security 2009 (1) SACR 211 (E) – Referred to MVU v Minister of Safety
and Security 2009 (2) SACR 291 (GSJ) – Referred to
Charles v Minister of Safety and Security 2007 (2) SACR 137 (W) – Referred to
Minister of Safety and Security v Van Niekerk 2008 (1) SACR 56, 2007 (10) BCLR 1102 (CC) – Referred
to
S v Van Heerden 2002 (1) SACR 409 (T) – Referred to
Mistry v Interim Medical and Dental Council of SA 1998 (4) SA 1127 (CC) – Referred to
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd 2001 (1) SA
545, 2000 (10) BCLR 1079 (CC) – Referred to
The Argus Printing and Publishing Co Ltd v The State (1897) 4 Off Rep 124 – Referred to
Zealand v Minister of Justice and Constitutional Development 2008 (4) SA 458 (CC) – Referred to
Minister of Safety and Security v Seymour [2007] 1 All SA 558 (SCA) – Referred to
Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) – Referred to
Ex parte Minister of Safety and Security: In re S v Walters 2002 (4) SA 613 (CC) – Referred to
Macu v Du Toit 1983 (4) SA 629 (A) – Referred to
Lawless v Ireland (No. 3) [1961] ECHR 2 – Referred to
Affordable Medicines Trust v Minister of Health 2006 (3) SA 247, 2005 (6) BCLR 529 (CC) – Referred to
Groenewald v Minister van Justisie 1973 (3) SA 877 (A) – Referred to
Sex Worker Education and Task Force v Minister of Safety and Security 2009 (2) SACR 417 (WCC) –
Referred to
Minister van die SA Polisie v Kraatz 1973 (3) SA 490 (A) – Referred to
Tsose v Minister of Justice 1951 (3) SA 10 (A) – Referred to
National Director of Public Prosecutions v Zuma 2009 (2) SA 277, 2009 (1) SACR 361, 2009 (4) BCLR 393
(SCA) – Referred to
Shidiack v Union Government (Minister of the Interior) 1912 AD 642 – Referred to
Ulde v Minister of Home Affairs 2009 (4) SA 522 (SCA) – Referred to
Pharmaceutical Manufacturers Association of SA: In Re Ex Parte Application of President of the RSA 2000
(2) SA 674, 2000 (3) BCLR 241 (CC) – Referred to
Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works [2005] ZASCA 43; [2005] 3 All SA 33 (SCA) –
Referred to
Masetlha v President of the RSA 2008 (1) SA 566 (CC) – Referred to
Hill v Hamilton-Wentworth Regional Police Services Board [2007] 3 SCR 129, 2007 SCC 41 – Referred to
Minister of Law and Order v Dempsey 1988 (3) SA 19 (A) – Referred to
Prinsloo v Van der Linde 1997 (3) SA 1012 (CC) – Referred to
Minister of Safety and Security v Slabbert [2009] ZASCA 163 – Referred to
Ralekwa v Minister of Safety and Security 2004 (1) SACR 131, 2004 (2) SA 342 (T) – Referred to

Pillay v Krishna and Another 1946 A D 946 – Referred to
Williams v R [1986] HCA 88, (1986) 161 CLR 278 – Referred to
Trobridge v Hardy [1955] HCA 68, (1955) 94 CLR 147 – Referred to
R v Storrey (1990) 1 SCR (Supreme Court of Canada) – Referred to
Collins v Brantford Police Services 2001 CanLII 4190 (ON CA) – Referred to
Holgate-Mohammed v Duke [1984] 1 All E R 1054 (HL) – Referred to
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680, [1948] 1 KB 223
– Referred to
Castorina v Chief Constable of Surrey [1996] LG Rev Rep 241 249 – Referred to
Cumming & Ors v Chief Constable of Northumbria Police [2003] EWCA Civ 1844 – Referred to
Commissioner of Police of the Metropolis v Raissi [2008] EWCA Civ 1237 – Referred to
Lyons v Chief Constable of West Yorkshire [1997] EWCA Civ 1520 – Referred to
R v Ministry of Defence; Ex parte Smith [1995] EWCA Civ 22, [1996] 1 All ER 257, [1996] QB 517 –
Referred to
Al Fayed v Commissioner of Police of the Metropolis [2004] EWCA Civ 1579 – Referred to
Paul v Humberside Police [2004] EWCA Civ 308 – Referred to
The respondents were arrested by police officers without warrants of arrest. The first respondent, was arrested on suspicion of a contravention of section 2 of the Stock Theft Act 57 of 1959, which provides that a person who is found in possession of stock or produce, in regard to which there is reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession, is guilty of an offence. The second respondent was arrested the following day on a count of stock theft. They were detained for ten days before being released on bail.
They subsequently sent notices of demand to the National Commissioner of Police in which they claimed payment of damages, on the ground that their arrests without a warrant were unreasonable, unlawful and intentional. The demand was not met, and the respondents instituted action, claiming damages in respect of unlawful arrest, unlawful detention, and malicious prosecution. Only the claim relating to unlawful arrest was relevant on appeal.
The appellant’s plea was based on a defence contained in section 40(1)(b) and (g) of the Criminal
Procedure Act 51 of 1977, which provides that a peace officer may without warrant arrest any person whom he reasonably suspects of having committed an offence referred to in Schedule 1; or who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce.
The magistrate found that although the appellant had established the jurisdictional facts for a defence based on section 40(1)(b) and (g), case law has introduced a fifth jurisdictional fact which was not established by the appellant. The magistrate therefore found in the respondents’ favour.
The minister appealed to the high court, which dismissed the appeal.
Held that onus rests on a defendant to justify an arrest.
The jurisdictional facts for a section 40(1)(b) defence are that the arrestor must be a peace officer; the arrestor must entertain a suspicion; the suspicion must be that the suspect (the arrestee) committed an offence referred to in Schedule 1; and the suspicion must rest on reasonable grounds.
The fifth jurisdictional fact required by the lower courts in this case was laid down in the case of Louw v
Minister of Safety and Security, where it was stated that even if a crime which is listed in Schedule 1 of
Act 51 of 1977 has allegedly been committed, and even if the arresting peace officers believe on reasonable grounds that such a crime has indeed been committed, that in itself does not justify an arrest forthwith. It was held that as an arrest is a drastic invasion of personal liberty, it must still be justifiable according to the demands of the Bill of Rights. The court held that the power to arrest must only be exercised if no less invasive options exist.
It was apparent from the case as presented by both parties that the only issue in dispute was whether the peace officer had reasonable grounds for the arrest.
Of the view that the different high courts dealing with this issue have failed to have regard to the manner in which statutes must be interpreted in the light of the Bill of Rights, the court found it necessary to confirm the relevant principles. In essence, where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. Only if this is not possible should one resort to the remedy of reading in or notional severance.
The Bill of Rights guarantees the right of security and freedom of the person which includes the right not to be deprived of freedom arbitrarily or without just cause. Thus, any deprivation of freedom has always been regarded as prima facie unlawful and required justification by the arresting officer. The court found nothing in section 40(1)(b) which leads to the conclusion that there is somewhere in the words a hidden

fifth jurisdictional fact. As legislation overrides the common law, one cannot change the meaning of a statute by developing the common law.
The next question, which none of the high courts have considered, was whether section 40(1)(b), properly interpreted, is unconstitutional and, if so, whether reading in the fifth jurisdictional fact could save it from unconstitutionality. Absent a finding of unconstitutionality, the courts were not entitled to read anything into a clear text.
Once the required jurisdictional facts are present the discretion whether or not to arrest arises. The decision to arrest must be based on the intention to bring the arrested person to justice. Distinguishing between the object of the arrest and the arrestor’s motive, the court held that the validity of an arrest is not affected by the fact that the arrestor, in addition to bringing the suspect before court, wishes to interrogate or subject him to an identification parade or blood tests in order to confirm, strengthen or dispel the suspicion. It is a general requirement that any discretion must be exercised in good faith, rationally and not arbitrarily. Thus, peace officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of rationality. The standard is not breached because an officer exercises the discretion in a manner other than that deemed optimal by the court.
The court concluded that the approach in Louw v Minister of Safety and Security conflated jurisdictional facts with discretion.
In the present case, the mere nature of the offences of which the respondents were suspected, clearly justified their arrest for the purpose of enabling a court to exercise its discretion as to whether they should be detained or released and if so on what conditions, pending their trial.
Having found that the approach in Louw conflated jurisdictional facts with discretion, it was necessary for the court to consider the question of onus afresh. The court confirmed the statement in case law that once the jurisdictional fact is proved by showing that the functionary in fact formed the required opinion, the arrest is brought within the ambit of the enabling legislation, and is thus justified. If it is alleged that the opinion was improperly formed, it is for the party who makes the allegation to prove it. There are in such a case two separate and distinct issues, each having its own onus. The first is whether the opinion was
actually formed; the second, which only arises if the onus on the first has been discharged or if it is admitted that the opinion was actually formed, is whether it was properly formed.
The court disposed of the case on the simple basis that the issue of whether or not the peace officer had properly exercised his discretion was never an issue between the parties. The respondents, who had to raise it either in their summons or in a replication, failed to do so. The issue was also not ventilated during the hearing. That meant that since the magistrate had found that the four jurisdictional facts required for a defence under section 40(1)(b) were established by the appellant (a finding upheld by the court below) their claims had to be dismissed.
The appeal was upheld.
Duarte v Minister of Police
[2013] JOL 30687 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
201 / 24042
07 / 03 / 2013
South Africa
High Court
South Gauteng, Johannesburg
Spilg J
Keywords:
Delict – Claim for damages – Wrongful detention
Mini Summary:
In July 2010, the plaintiff was driving home from work when his motor vehicle struck a person who was either walking or running across the road. The plaintiff ran from the scene of the accident but was later arrested by the police. He was taken to a police station, but was later released. He sued the defendant for damages, alleging that his arrest and detention were unlawful.
Held that on the evidence presented by the defendant, and in material parts admitted by the plaintiff, the arresting officers had a reasonable suspicion that the plaintiff had been driving recklessly or negligently while under the influence of alcohol. The court was satisfied that those suspicions would have been heightened by the plaintiff’s failure to remain on the scene or to go to the police station to make a report.
The arrest was therefore lawful.
However, the same could not be said for the detention of the plaintiff at the police station. The police were found to have abused their power and failed to carry out their duties in a professional manner in the time between the taking of a blood sample from the plaintiff, until his release. The plaintiff was entitled to damages for that period on the grounds of unlawful detention.

The Court also found corroboration for an allegation by the plaintiff that he was assaulted whilst in detention.
The plaintiff was awarded R75 000 for wrongful detention including psychological trauma and contumelia and R60 000 for assault, and pain and suffering including psychological trauma and contumelia.
Mokonyane v Minister of Safety & Security & another
[2010] JOL 26489 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Delict – Claim for damages – Unlawful arrest and detention – Quantum of damages
Mini Summary:
33976 / 08
05 / 11 / 2010
South Africa
High Court
North Gauteng, Pretoria
TM Makgoka J
In an action for damages, the defendant conceded that the plaintiff had been unlawfully arrested and detained. The court had to determine the appropriate quantum of damages to be awarded.
Held that the proper approach to assessment of damages in matters such as the present includes evaluation of the personal circumstances of the plaintiff, the circumstances around the arrest, as well as the nature and duration of the detention. The plaintiff had been detained for 47 hours.
The purpose of an award for general damages in the context of a matter such as the present, is to compensate a claimant for deprivation of personal liberty and freedom and the attendant mental anguish and distress.
Although the duration of the detention in the present case was relatively short, the court found the circumstances of the arrest and the conditions under which he was detained most unacceptable.
The defendants were ordered to pay the plaintiff R70 000 plus interest.
ERASMUS v MEC FOR TRANSPORT, EASTERN CAPE 2011 (2) SACR 367
(ECM)
Plaintiff was arrested at a roadblock by a traffic officer for driving a motor vehicle without a driver's licence, alternatively failing to carry her driver's licence in the vehicle which she was driving. After her arrest (without a warrant), plaintiff was taken into custody at a police station; this despite a colleague of hers indicating that he would fetch her driver's licence and bring it to the roadblock, which he did.
She was released, about five and half hours later, after paying an admission of guilt fine on the alternative offence. The arresting officer, during crossexamination, acknowledged that he had arrested plaintiff to 'educate' her, but insisted it was lawful to have done so.
Held, that, as was stated in Minister of Safety and Security v Sekhoto and
Another2011 (1) SACR 315 (SCA), 'an intention to bring the arrested to justice' was required for the purposes of s 40(1) (b) of the Criminal Procedure Act 51 of

1977; an arrest 'for an ulterior purpose' would not be 'bona fide, but in fraudem legis'. The professed purpose of plaintiff's arrest was to 'educate' her or, putting it more colloquially, to 'teach her a lesson'; bringing the plaintiff to justice was the last thing on the arrestor's mind.
Held, further, the effect of a written notice in terms of s 56(2) of the CPA was that, when it was handed to a person in custody, that person had to be released from custody forthwith and with a choice of appearing in court or paying an admission of guilt fine. The plaintiff was neither released nor allowed to exercise such choice — she had to remain in custody until the fine was paid. Such procedure was a complete abuse of s 56 of the CPA, the plaintiff's release effectively having had to be bought for a non-negotiable sum.
Held, further, that there was no exercise whatsoever of a discretion to arrest; the evidence showing that, even if a person's driving licence were eventually to be brought to the roadblock, as was the case with plaintiff, the traffic officers were nonetheless determined to arrest the alleged perpetrators and take them to the police station. Such an absence of exercising discretion further underscores the illegal purpose of the plaintiff's arrest. The treatment of the plaintiff, from arrest to release, was therefore completely illegal. The defendant failed to establish, as it bore the onus to do, that the arrest and detention of the plaintiff were justified.
The plaintiff therefore succeeded in her action.
Case Information
Civil trial in an action for damages for wrongful arrest and detention. The facts appear from the reasons for judgment.
Minister of Safety and Security & another v Johannes Francois Swart
[2012] JOL 28772 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
194 / 11
22 / 03 / 2012
South Africa
Supreme Court of Appeal
Mthiyane DP, LO Bosielo, FDJ Brand, TD Cloete JJA, Ndita AJA

Keywords:
Criminal law – Arrest without warrant – Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 –
Jurisdictional facts which have to be present to justify an arrest without a warrant – Arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1 of Criminal Procedure Act 51 of 1977 – In absence of reasonable grounds for suspicion, arrest was unlawful
Mini Summary:
In May 2007, the second appellant (a police constable) arrested the respondent without a warrant, on suspicion of driving a motor vehicle on a public road whilst under the influence of intoxicating liquor. He was detained at the police station, but the criminal charges against him were withdrawn the next day after the tests revealed that his blood alcohol level at the time of driving was below the permissible legal limit.
The respondent then sued for damages arising from his unlawful arrest and detention. Although the trial court dismissed the claim, the respondent succeeded on appeal, where the high court awarded him damages in the amount of R50 000 plus interest and costs. The appellants appealed against that order.
The second appellant, and the police officer with whom he was doing patrols when they encountered the respondent, were colleagues of the respondent at the same police station. The respondent was their senior, and it appeared to be common cause that the relationship between the respondent and the second appellant was stormy. On the day in question, the second appellant was flagged down by the respondent, whose vehicle had gone off the road. The arrest was effected after the second appellant detected alcohol on the respondent’s breath.
Held that the issues raised on appeal were whether, based on the facts known to the second appellant at the time when he observed the respondent at the scene, it could be found that the respondent was the driver of the vehicle that went off the road and whether the second appellant’s suspicion that the respondent was at the time under the influence of intoxicating liquor, was reasonable.
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 regulates arrest without a warrant by a police officer. The essential jurisdictional facts which have to be present to justify an arrest without a warrant are that the arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1. The essence of the dispute in this matter was whether the second appellant’s suspicion was based on reasonable grounds.
The key question was whether the mere smell of alcohol was sufficient to give rise to a reasonable suspicion on part of the second appellant that the respondent was under the influence of intoxicating liquor and that for that reason he could not drive a vehicle.
The onus rests on the arresting officer to prove the lawfulness of the arrest. The reasonableness of the suspicion of any arresting officer acting under section 40(1)(b) must be approached objectively. The question is whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a Schedule 1 offence.
The only evidence on which the second appellant decided to arrest the respondent, was the fact that he smelt of alcohol and that his vehicle had left the road and landed in a ditch. There was no evidence that the respondent was unsteady on his feet, that his speech was slurred, that he could not walk in a straight line or that his eyes were bloodshot. As the respondent had not behaved in a manner which suggested that he was drunk, the second appellant’s conclusion could not be regarded as reasonable. The arrest and detention were therefore unlawful.
In awarding the quantum of damages which it did, the high court committed no misdirection.
The appeal was accordingly dismissed with costs.
ERASMUS v MEC FOR TRANSPORT, EASTERN CAPE 2011 (2) SACR 367
(ECM)
Plaintiff was arrested at a roadblock by a traffic officer for driving a motor vehicle without a driver's licence, alternatively failing to carry her driver's licence in the vehicle which she was driving. After her arrest (without a warrant), plaintiff was

taken into custody at a police station; this despite a colleague of hers indicating that he would fetch her driver's licence and bring it to the roadblock, which he did.
She was released, about five and half hours later, after paying an admission of guilt fine on the alternative offence. The arresting officer, during crossexamination, acknowledged that he had arrested plaintiff to 'educate' her, but insisted it was lawful to have done so.
Held, that, as was stated in Minister of Safety and Security v Sekhoto and
Another2011 (1) SACR 315 (SCA), 'an intention to bring the arrested to justice' was required for the purposes of s 40(1) (b) of the Criminal Procedure Act 51 of
1977; an arrest 'for an ulterior purpose' would not be 'bona fide, but in fraudem legis'. The professed purpose of plaintiff's arrest was to 'educate' her or, putting it more colloquially, to 'teach her a lesson'; bringing the plaintiff to justice was the last thing on the arrestor's mind.
Held, further, the effect of a written notice in terms of s 56(2) of the CPA was that, when it was handed to a person in custody, that person had to be released from custody forthwith and with a choice of appearing in court or paying an admission of guilt fine. The plaintiff was neither released nor allowed to exercise such choice — she had to remain in custody until the fine was paid. Such procedure was a complete abuse of s 56 of the CPA, the plaintiff's release effectively having had to be bought for a non-negotiable sum.
Held, further, that there was no exercise whatsoever of a discretion to arrest; the evidence showing that, even if a person's driving licence were eventually to be brought to the roadblock, as was the case with plaintiff, the traffic officers were nonetheless determined to arrest the alleged perpetrators and take them to the police station. Such an absence of exercising discretion further underscores the illegal purpose of the plaintiff's arrest. The treatment of the plaintiff, from arrest to release, was therefore completely illegal. The defendant failed to establish, as it bore the onus to do, that the arrest and detention of the plaintiff were justified.
The plaintiff therefore succeeded in her action.
Case Information

Civil trial in an action for damages for wrongful arrest and detention. The facts appear from the reasons for judgment.
Eyer v Three Lions Parts CC
[2012] JOL 28661 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
A 672 / 2010
22 / 09 / 2011
South Africa
High Court
North Gauteng, Pretoria
JW Louw J, JJ Goodey AJ
Keywords:
Contract – Damage to vehicle – Claim for payment – Depositum – Proof of pre-damage value of vehicle
Mini Summary:
After dropping his vehicle off with the respondent for repairs to be effected, the appellant received a call to inform him that whilst being driven to an auto electrician by an employee of the respondent, the vehicle had burnt out.
The appellant sued the respondent – his cause of action being depositum.
At the end of the appellant’s case in the trial court, the respondent sought absolution from the instance.
He argued that the appellant had failed to prove that he had concluded a depositum contract with the respondent; that the appellant had failed to prove that the damage to the vehicle was caused by the conduct of the respondent; and that the appellant had failed to prove the quantum of his damage.
Dealing only with the third aspect, the trial court found that the appellant had not proved the value of the vehicle prior to the fire. It granted absolution from the instance. That led to the present appeal.
Held that in an action for damage caused to an item such as a motor vehicle, a plaintiff may claim the difference in value before and after the damage occurred, or the reasonable cost of repair to restore it to its original condition. Evidence as to the before and after damage value of a vehicle, or the reasonable cost of repairing the vehicle, must be that of a person who is suitably qualified to express an opinion in that regard. In the present case, the only evidence tendered in this regard was that of the appellant. No expert evidence was tendered. The appellant's evidence, even if he was an expert, did not prove either the difference in the value of the vehicle before and after the fire or the reasonable cost of repairing the vehicle. He just wanted to be paid back what the vehicle had cost him plus a profit of R10 000.
Confirming the correctness of the trial court’s conclusion, the Court dismissed the appeal.
Pholosa Asset Management (Pty) Ltd v Swanepoel & another
[2011] JOL 27846 (ECG)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
Civil procedure – Security for costs – Vexatious action
Mini Summary:
1386 / 2011
22 / 09 / 2011
South Africa
High Court
Eastern Cape, Grahamstown
JE Smith J

In seeking to have the first respondent pay security for costs, the applicant averred that security was required on the basis that the main application was vexatious, had no prospects of success and that the first respondent did not possess means to satisfy an adverse costs order.
Held that the Court has inherent jurisdiction to order a litigant to provide security for costs where it appears that the litigation is vexatious.
The Court found that the first respondent had approached the Court in the main matter, in an attempt to elicit legal advice from the Court. It is required of an applicant to clearly state the nature of the relief sought and to support that with the factual basis in his or her supporting affidavits. The first respondent had failed to do so.
The first respondent was directed to put up security for costs in such amount as may be determined by the registrar in respect of proceedings instituted by the first respondent against the applicant.
Wilson v Gillespie & another
[2011] JOL 27623 (W)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
17521 / 2006
17 / 03 / 2008
South Africa
High Court
Witwatersrand Local
A Gildenhuys J
Keywords:
Delict – Motor vehicle collision – Claim for damages – Negligence – Quantum of damages – Patrimonial loss
Mini Summary:
The plaintiff was involved in a motor vehicle collision, in which the driver of the other vehicle in the collision was the first defendant. The vehicle being driven by the first defendant was owned by the second defendant.
The plaintiff instituted action against the first and second defendants for damages arising from the accident.
Held that the issues for determination were whether the first defendant was negligent; whether her negligence was a cause of the collision; whether there was contributory negligence on the part of the plaintiff; whether, at the time of the collision, the first defendant was acting in the course and scope of her employment with the second defendant; whether the second defendant was vicariously liable for damages to the plaintiff’s vehicle resulting from negligence on the part of the first defendant; and what was the quantum of the plaintiff’s damages.
The evidence, which included that of an objective eye-witness, established that the first defendant had executed a right turn manoeuvre in the face of oncoming traffic which had the right of way. She was therefore negligent.
No negligence for the collision could be attributed to the plaintiff.
On the issue of vicarious liability of the second defendant, the Court held that on the facts of the case, a sufficiently close connection could not be said to exist between the first defendant’s conduct and her employment.
The onus was on the plaintiff to prove quantum by producing sufficient evidence, to enable the Court to make an award which did not amount to a speculative assessment. In determining patrimonial loss, the test, in essence, was to ascertain whether or not it would be cheaper to repair the plaintiff’s vehicle or to replace it. The repair costs should not exceed the difference between the pre-delict and the post-delict market value.
On the best evidence available, it was apparent that the motor vehicle was uneconomical to repair. The plaintiff had therefore made out a case of damages suffered in the amount of R616 000.
Jacobs v The Chairman of the Governing Body Rhodes High School & others
[2010] JOL 26376 (WCC)
Case Number:
Judgment Date:
Country:
7953 / 2004
04 / 11 / 2010
South Africa

Jurisdiction:
Division:
Bench:
High Court
Western Cape, Cape Town
Moosa J
Keywords:
Delict – Personal injury – Attack on educator – Claim for damages – Legal duty – Negligence – Quantum of damages
Mini Summary:
The first defendant school, due to its location, drew learners from previously disadvantaged communities.
The fourth defendant’s son was a learner at the school. On the day of the incident underlying the case, the learner bludgeoned the plaintiff, an educator, with a hammer in the class in the presence of other learners. As a result of the incident, he was charged with and convicted of attempted murder and in terms of section 290(1)(d) of the Criminal Procedure Act 51 of 1977, he was referred to a Youth Centre as defined in the Child Care Act of 1983.
Arising from the incident, the plaintiff instituted action for damages against the defendants. The claim was subsequently confined to the second and third defendants (the principal of the school and the Member of the Executive Committee for Education, Western Cape).
Held that the issues for determination were whether there was a legal duty to take reasonable steps to ensure that the plaintiff was not harmed by the learner and if so, whether the defendants and/or their servants breached that duty; whether the conduct of the defendants or their servants was culpable, that is, whether they were negligent and whether there was a causal connection between such negligent breach of duty and the loss or damage suffered by the plaintiff; and whether the plaintiff suffered any loss or damage in consequence of any wrongful and negligent breach of duty and if so, what the quantum of such damages was.
Negligent conduct giving rise to damages will only be actionable if it is "wrongful". Liability does not usually arise from an omission in the strict sense of the word. There are, however, exceptions to the general rule. The court found that in this case, there was a legal duty on the part of the defendants and their servants, to act positively in order to ensure the security and safety of the plaintiff at the hands of the learner and that the culpable breach of such duty amounted to negligence, which was actionable in law.
The fact that the defendants were aware of the learner’s propensity for violence, and that he had a history of troublesome behaviour at school, made their failure to act negligent.
Going on to find that the plaintiff had established causation, the court awarded damages in the amount of
R1 114 685,53.
Giesecke & Devrient SA (Pty) Ltd v Tsogo Sun Holdings (Pty) Ltd & another
[2010] JOL 25559 (GSJ)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
05 / 27893
25 / 05 / 2010
South Africa
High Court
South Gauteng, Johannesburg
BH Mbha J
Keywords:
Delict – Claim for damages – Enrichment action – Vicarious liability – Evidence – Hearsay evidence
Mini Summary:
In terms of an agreement between the plaintiff and the first defendant, the former undertook to provide cash processing and security services in order to process the gross daily value of the revenue generated by the first defendant's casino. When a robbery was perpetrated at the casino, the plaintiff, believing it was obliged to do so, made good the first defendant's loss.
In the present action, the plaintiff sued the defendants for damages an enrichment claim against the first defendant; alternatively, a delictual claim against the first defendant on the basis that the robbery was perpetrated with the active assistance or involvement of an employee of the first defendant.
The plaintiff subsequently withdrew its claims against the first defendant, and the case proceeded in respect of the second defendant only.
Held that the issues for determination were whether the robbery which occurred at the plaintiff's cash processing centre was perpetrated with the active assistance or involvement of an employee of the second defendant, acting in the course and scope of his employment with the second defendant; whether an employee or employees of the second defendant, with knowledge of the contemplated robbery, failed in his duty to prevent the robbery; and whether employees of the second defendant, acting in the course

and scope of their employment with the second defendant, stole money which had been part of the proceeds of the robbery that had been recovered from suspects in the robbery and others.
After the close of the second defendant's case, the plaintiff sought to introduce into evidence statements which constituted hearsay evidence. The court held that the second defendant was entitled to know what case he had to meet at the time the plaintiff closed its case. It is at that point that the plaintiff had to clearly signal its intention to invoke the provisions of section 3 of the Law of Evidence Amendment Act 45 of 1988 when it sought to have hearsay evidence admitted. If this were not to happen, the second defendant would be prejudiced in the conduct of its defence. The court ruled the statements inadmissible as it would not be in the interests of justice to admit same.
On the remaining proven facts, the court could not find that the second defendant's employee stole money from the casino.
The plaintiff's claim was dismissed.
Jonker v Yafele
[2011] JOL 27813 (E)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
03 / 10
17 / 02 / 2011
South Africa
High Court
Eastern Cape
R Pillay, FBA Dawood, B Hartle JJ
Keywords:
Delict – Motor vehicle accident – Liability for damages – Defence of volenti non fit iniuria
Mini Summary:
The appellant had sued the respondent for damages arising out of a motor vehicle accident. As a result of a separation of issues, the matter proceeded in respect of the merits only.
The appellant and the respondent were respectively an inspector and a constable in the police service.
They were on patrol duty together in November 2004 when they received a radio message requesting their assistance in apprehending a stolen vehicle which was being driven away. The respondent was driving the patrol vehicle, and took instructions from the appellant regarding speed and direction. At some point during the drive, the respondent failed to successfully negotiate a bend in the road, and the vehicle overturned. The appellant was injured as a result. The respondent conceded that she had been negligent but raised two defences to the appellant’s claim. Firstly, she invoked the provisions of section 135 of the
Compensation for Occupational Injuries and Diseases Act 130 of 1993, and secondly she raised the defence of volenti non fit iniuria. Only the latter defence was relevant to the appeal.
Held that the issue was whether or not the defence of volenti non fit iniuria was a good defence.
In order to succeed, the defendant had to prove that the appellant had knowledge of the potential danger, appreciated such danger, and consented to taking the risk of damages which would result from the danger. The respondent’s case was that by telling the respondent to drive faster, the appellant had assumed the risk flowing from the danger of the increased speed. Examining the facts, the Court found that the respondent had not established the defence.
The appeal was upheld, and the respondent was held liable for appellant’s proven damages.
SA Rail Commuter Corporation Ltd v Thwala
[2011] JOL 27888 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
661 / 2010
29 / 09 / 2011
South Africa
Supreme Court of Appeal
MML Maya, KK Mthiyane, JA Heher, SA Majiedt, MJD Wallis JJA
Keywords:
Delict – Claim for damages – Respondent sustaining personal injury when falling during alighting from appellant’s train – No negligence established on part of appellant – Delict – Delictual liability – Test –
Delictual liability involves, depending upon the particular circumstances of each case, the questions whether a reasonable person in the defendant’s position would foresee the reasonable possibility of his

conduct causing harm resulting in patrimonial loss to another; would take reasonable steps to avert the risk of such harm; and the defendant failed to take such steps –
Mini Summary:
Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F; Mkhatshwa v Minister of Defence 2000 (1) SA 1104
(SCA) – Approved
Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty) Ltd 2000 (1) SA 827 (SCA) –
Approved
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority 2006 (1) SA 461 (SCA)
– Approved
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) – Approved
Charter Hi (Pty) Ltd v Minister of Transport [2011] ZASCA 89 – Approved
Trustees,Two Oceans above para 11; Shabalala v Metrorail 2008 (3) SA 142 (SCA) – Approved
Rail Commuters Action Group v Transnet Ltd t/a Metrorail 2005 (2) SA 359 (CC) – Referred to
The respondent was a regular commuter on the appellant’s train service, when in June 2007, she boarded her usual train to work. Due to a strike, the train was more crowded than usual. The respondent found standing space only in the crowded coach. As the train approached her station, disembarking passengers pushed their way to the doors sweeping her along with the tide. She was pushed in that throng and fell on the station platform, where she was trampled whilst lying there in a daze. Arising from the injuries thus sustained, the respondent sued the appellant for damages. The trial proceeded only on the issue of liability (which the appellant denied). At the conclusion of the trial, the Court found that the appellant’s negligence caused the respondent’s injury and that it was consequently liable for her damages. The present appeal was against that decision.
The only dispute which arose related to whether the train was in motion or stationary when the respondent was pushed and fell. The respondent’s testimony was that she noticed that the train doors were open only when it pulled in at her station, and that jostling passengers, who pushed her causing her fall, started disembarking before the train came to a complete standstill. However two officials who testified for the appellant, were adamant that the respondent had reported that the train had already stopped when she was pushed to the platform and fell. The driver of the train also testified that the train guards would only open the doors when it was safe for passengers to board or disembark. From his account, there appeared to have no deviation from such procedure on the relevant morning.
The Court below rejected the respondent’s evidence that the train was moving when the accident occurred, but accepted the respondent’s version that the train was overcrowded. On that basis it found that the harm suffered by the respondent was foreseeable and that the appellant was under an obligation to take steps to prevent it. The Court consequently held that by allowing the train to be overcrowded, the appellant negligently failed to take reasonable steps to prevent harm which was foreseeable and that such negligent omission was the direct cause of the respondent’s injuries giving rise to liability for her damages.
Held that the test by which to determine delictual liability involves, depending upon the particular circumstances of each case, the questions whether a reasonable person in the defendant’s position would foresee the reasonable possibility of his conduct causing harm resulting in patrimonial loss to another; would take reasonable steps to avert the risk of such harm; and the defendant failed to take such steps.
Not every act or omission which causes harm is actionable. For liability for patrimonial loss to arise, the negligent act or omission must have been wrongful. It is the reasonableness or otherwise of imposing liability for such a negligent act or omission that determines whether it is to be regarded as wrongful. The onus to prove negligence rests on the plaintiff and it requires more than merely proving that harm to others was reasonably foreseeable and that a reasonable person would probably have taken measures to avert the risk of such harm. The plaintiff must adduce evidence as to the reasonable measures which could have been taken to prevent or minimise the risk of harm.
Based on the evidence, it had to be accepted that that the train must have stopped before the respondent was ejected from her coach.
The difficulty which the Court had was with the factual finding made by the court below that the train and, in particular, the respondent’s coach, was overcrowded, from which the inference of negligence was drawn. The respondent led no evidence as to exact numbers in the coach, and the passenger capacity of the coach. It could not be assumed, simply from the fact that there were standing passengers, that the coach carried an impermissible number as the appellant’s policy and applicable safety standards might well legitimately have allowed that practice. Apart from the fact that the evidence did not establish that the respondent was pushed and fell because the coach was overcrowded, and her failure to establish the reasonable precautionary measures that the appellant could have taken to prevent passengers knocking one another down when disembarking from stationary trains, the respondent’s single, insurmountable hurdle was her failure to establish that the train was in motion when she was ejected from it. The Court a
quo erred in finding the appellant to have been negligent, and the appeal was upheld. The order of the
Court below was set aside and substituted with an order granting absolution from the instance.

Coetzee v Steenkamp
[2010] JOL 25798 (NCK)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
579 / 09
18 / 06 / 2010
South Africa
High Court
Northern Cape, Kimberley
FD Kgomo JP
Keywords:
Delict – Claim for damages – nemo ex suo delicto meliorem suam conditionem facere potest
Mini Summary:
During a hunting trip, the vehicle in which plaintiff was a passenger capsized and he sustained various injuries. He claimed damages from the defendant, on the basis of his alleged negligent or reckless driving.
The defendant denied negligent culpability, and alleged contributory negligence by the plaintiff; relied on the principle of volenti no fit iniuria or voluntary assumption of risk or that which is done with consent, within legal limits, is not wrongful or injurious; and on the basis that the hunting trip was an illegal one, argued that the plaintiff was precluded in law from claiming from the defendant in terms of the principle
nemo ex suo delicto meliorem suam conditionem facere potest (Nemo ex suo delicto) or no one can improve his or her own condition by means of a crime or through a crime.
Held that that the plaintiff could not invoke his professed ignorance of the law to excuse his illegal hunting.
The court found that the plaintiff was not a passive partner to the illegal trip. It therefore decided the issue of nemo ex suo delicto meliorem suam conditionem facere potest in favour of the defendant.
The action was dismissed with costs.
Minister of Safety and Security & another v Johannes Francois Swart
[2012] JOL 28772 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
194 / 11
22 / 03 / 2012
South Africa
Supreme Court of Appeal
Mthiyane DP, LO Bosielo, FDJ Brand, TD Cloete JJA, Ndita AJA
Keywords:
Criminal law – Arrest without warrant – Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 –
Jurisdictional facts which have to be present to justify an arrest without a warrant – Arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1 of Criminal Procedure Act 51 of 1977 – In absence of reasonable grounds for suspicion, arrest was unlawful
Mini Summary:
In May 2007, the second appellant (a police constable) arrested the respondent without a warrant, on suspicion of driving a motor vehicle on a public road whilst under the influence of intoxicating liquor. He was detained at the police station, but the criminal charges against him were withdrawn the next day after the tests revealed that his blood alcohol level at the time of driving was below the permissible legal limit.
The respondent then sued for damages arising from his unlawful arrest and detention. Although the trial court dismissed the claim, the respondent succeeded on appeal, where the high court awarded him damages in the amount of R50 000 plus interest and costs. The appellants appealed against that order.
The second appellant, and the police officer with whom he was doing patrols when they encountered the respondent, were colleagues of the respondent at the same police station. The respondent was their senior, and it appeared to be common cause that the relationship between the respondent and the second appellant was stormy. On the day in question, the second appellant was flagged down by the respondent, whose vehicle had gone off the road. The arrest was effected after the second appellant detected alcohol on the respondent’s breath.

Held that the issues raised on appeal were whether, based on the facts known to the second appellant at the time when he observed the respondent at the scene, it could be found that the respondent was the driver of the vehicle that went off the road and whether the second appellant’s suspicion that the respondent was at the time under the influence of intoxicating liquor, was reasonable.
Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 regulates arrest without a warrant by a police officer. The essential jurisdictional facts which have to be present to justify an arrest without a warrant are that the arresting officer must be a peace officer who must entertain a suspicion based on reasonable grounds that the suspect (the arrestee) committed an offence referred to in Schedule 1. The essence of the dispute in this matter was whether the second appellant’s suspicion was based on reasonable grounds.
The key question was whether the mere smell of alcohol was sufficient to give rise to a reasonable suspicion on part of the second appellant that the respondent was under the influence of intoxicating liquor and that for that reason he could not drive a vehicle.
The onus rests on the arresting officer to prove the lawfulness of the arrest. The reasonableness of the suspicion of any arresting officer acting under section 40(1)(b) must be approached objectively. The question is whether any reasonable person, confronted with the same set of facts, would form a suspicion that a person has committed a Schedule 1 offence.
The only evidence on which the second appellant decided to arrest the respondent, was the fact that he smelt of alcohol and that his vehicle had left the road and landed in a ditch. There was no evidence that the respondent was unsteady on his feet, that his speech was slurred, that he could not walk in a straight line or that his eyes were bloodshot. As the respondent had not behaved in a manner which suggested that he was drunk, the second appellant’s conclusion could not be regarded as reasonable. The arrest and detention were therefore unlawful.
In awarding the quantum of damages which it did, the high court committed no misdirection.
The appeal was accordingly dismissed with costs.
Phillips v SA Reserve Bank & others
[2012] JOL 28805 (SCA)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
Keywords:
221 / 2011
29 / 03 / 2012
South Africa
Supreme Court of Appeal
KK Mthiyane DP, IG Farlam, SA Majiedt JJA, XM Petse, Ndita AJJA
Civil Procedure – Appeals – Appeal against order that appellant pay wasted costs of application –
Appealability of order in proceedings which have not yet terminated – Whether or not the order is definitive of the rights being contended in the main proceedings, and whether it disposes of any relief claimed are factors which are not decisive of the issue of appealability – Civil procedure – Constitutional litigation – Rule 16A of the Uniform Rules of Court – Requirements – Rule 16A requires any person raising a constitutional issue in a matter to give notice thereof to the registrar at the time of filing the relevant affidavit or pleading, and on receiving such notice, the registrar must place it on a notice board designated for that purpose – Sufficient for notice to simply set out statutory provisions being challenged, and that the challenge is based on inconsistency with the Constitution without specifying the grounds of the alleged inconsistency – Duty to place notice on notice board is that of registrar
Mini Summary:
In February 2008, foreign currency in the appellant’s possession was seized from him at Oliver Tambo
International Airport. The South African Reserve Bank (the first respondent) made a decision not to return the money to the appellant, who then approached the high court seeking the review of that decision. He also sought orders declaring that the Exchange Control Regulations promulgated in Government Notice R
1111 of 1 December 1961, as amended, alternatively certain provisions in the Regulations were inconsistent with the Constitution and invalid.
On the date of set down, the matter was postponed sine die and the appellant was ordered to pay the first and second respondents’ wasted costs, because in the judge’s view, the appellant had not complied with rule 16A of the Uniform Rules of Court. Rule 16A requires any person raising a constitutional issue in a matter to give notice thereof to the registrar at the time of filing the relevant affidavit or pleading. On receiving such notice, the registrar must place it on a notice board designated for that purpose. The court

a quo found that there was no indication that the rule 16A notice was filed or, if it was filed with the registrar, that it was put on the notice board as required by the rule. It held that the appellant had a duty to ensure that the rule was complied with, and that non-compliance could not be condoned. The postponement of the matter was to allow for the rule to be complied with, and as stated above, the appellant had to pay wasted costs.
Held that the issues for determination on appeal were whether the court a quo’s findings were appealable; whether the notice compiled by the appellant’s attorney complied with rule 16A(1); whether the appellant or the registrar bore the duty to ensure that a rule 16A notice is placed on the notice board for a period of 20 days; whether it was appropriate for an organ of state to raise any alleged noncompliance with rule 16A at a time when it was too late to correct the defect and then to require an applicant to pay the costs of the resultant postponement; and whether the general rule in constitutional litigation that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs applies also to costs orders relating to what were called ancillary matters.
The appealability of an order made in proceedings which have not yet terminated has generally been assessed against the question of whether or not the order is definitive of the rights being contended in the main proceedings, and whether it disposes of any relief claimed. However, the present Court referred with approval to case authority for the proposition that those factors are not decisive.
On the question of compliance with rule 16A, the Court had to be interpreted in the light of the purpose for which it was enacted, namely to bring cases involving constitutional issues to the attention of persons who may be affected by or have a legitimate interest in such cases so that they may take steps to protect their interests by seeking to be admitted as amici curiae with a view to drawing the attention of the Court to relevant matters of fact and law to which attention would not otherwise be drawn. The question to be addressed in casu was whether a notice which correctly specifies the statutory provisions being attacked complies with the rule if it simply states that the attack is based on inconsistency with the Constitution without specifying the grounds of the alleged inconsistency. The point in issue in this case was the constitutional invalidity of the Exchange Control Regulations. It was not necessary for the point to be elaborated by specifying, as the judge held, the grounds of the challenge. That would go beyond the purpose for which the rule was created as referred to above. The Court was accordingly satisfied that the notice drawn up by the appellant’s attorney complied with the rule.
The next question was whether it was the appellant or the registrar who bore the duty to ensure that the rule 16A notice was placed on the notice board for a period of 20 days. The Court found that the rue was clear that the duty in question was that of the registrar. The appellant was therefore entitled to assume that the registrar’s staff would do what the rule enjoined them to do with the notice.
Although the above finding meant that the remaining two points fell away, the Court dealt with them so as to provide guidance in future litigation.
The first of the remaining two issues was whether the first and second respondents, by raising the rule
16A(1) point at a stage when it was not possible to remedy it and by seeking to put the appellant to the choice of either abandoning his constitutional challenge or paying the costs of the necessary postponement, had acted inappropriately. The second issue related to costs, as referred to above. The
Court found on the first issue that attorneys acting for departments or organs of state which are respondents in such cases should follow the practice of checking as soon as the papers are received that the rule has been complied with and, if it appears not to have been, of bringing the omission to the attention of the applicant’s attorney. On the issue of costs, the Court stated that the general principle applicable in constitutional litigation that an unsuccessful litigant in proceedings against the state ought not to be ordered to pay costs does not only apply to orders on the merits in constitutional cases but also to ancillary points. The appellant should therefore not have been ordered to pay wasted costs.
In the premises, the appeal was allowed.
Rens v Edelstein NO and another
[2014] JOL 32286 (GP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
50959 / 2013
16 / 09 / 2014
South Africa
High Court
Gauteng North Division, Pretoria
S Potterill J
Keywords:
Trusts and Estates – Succession – Wills – Interpretation of – Test – Rectification of wills

Mini Summary:
The applicant launched this application in his personal capacity and in his official capacity as co-executor of a deceased estate. The respondent acted in his capacity as executor in the deceased estate and in his capacity as sole trustee of the family trust of the deceased. He filed a counter-application that it be declared on a proper interpretation of the will that the property fell in the remainder of the estate ie to the family trust. The dispute between the parties concerned the interpretation of two clauses of the will, setting out special bequests.
Held that in interpreting the will, the true test was to ascertain the wishes from the testator as expressed in the will from the language used. Where the testator’s words, as in casu, are clear from the plain grammatical meaning and syntax a court can have regard to the material facts and circumstances known to the testator when making the will to ascertain if these clear and unambiguous words set out the object of the bequest as expressed in the will. The conclusion is thus that a court cannot interpret the language of a will to give effect to something the testator may have intended but which he has not expressed at all.
Applying that approach, the Court found that the interpretation contended for by the applicant had to be accepted.
That meant that the counter-application had to be dismissed. The Court also refused an alternative counter-application for rectification of the will. Rectification is only granted on a balance of probabilities if the will does not express the true intention of the testator and there is reliable evidence to show what the testator’s intention was.
The relief sought by the applicant was thus granted.
H & others v M NO & another
[2012] JOL 29002 (GNP)
Case Number:
Judgment Date:
Country:
Jurisdiction:
Division:
Bench:
22960 / 2011
25 / 04 / 2012
South Africa
High Court
North Gauteng, Pretoria
N Davis AJ
Keywords:
Trusts and Estates – Succession – Wills – Declaration of document to be will
Mini Summary:
The father of the first and second applicants divorced their mother in 1989. He then married the first respondent in 1993. That marriage lasted just over a year, and also ended in divorce. The applicants’ father died in 2010. At the time he (“the deceased”) was permanently resident within the area of jurisdiction of this court and the uncontested allegation was that all the assets owned by him, including immovable property was situated within the same jurisdiction.
In the present application, the applicants sought the declaration of a certain document to be the last will and testament of the deceased, and an order directing that the devolution of his estate should take place in terms thereof. In seeking the declaration in question, the applicants relied on section 2(3) of the Wills
Act 7 of 1953.
Held that although the first respondent disputed the authenticity of the will relied upon by the applicants, she could adduce no evidence to counter their allegations that the will was what it purported to be. The
Court held that even if it were to entertain the theoretical notion of a possible falsification of a document, none of the surrounding circumstances or circumstantial evidence or even the nature of the copy of the document indicated sufficient probabilities that that might have happened.
In the premises, the relief sought by the applicants was granted.