CIVIL LAW JAN-DECEMBER 2018 - National Bar Council of ...€¦ · CIVIL LAW UPDATES JANUARY TO DECEMBER 2018 DRAFTED BY ADV MATTHEW KLEIN (The notes are summaries of important cases

CIVIL LAW UPDATES JANUARY TO DECEMBER 2018 DRAFTED BY ADV MATTHEW KLEIN

(The notes are summaries of important cases in civil law)

INDEX: CASE NAMES SUBJECT INDEX CASES CASE NAMES 2 Rawson Street Body Corporate and another v Knysna Municipality and another [2017] JOL 37655 (WCC) ABM MOTORS v MINISTER OF MINERALS AND ENERGY AND OTHERS 2018 (5) SA 540 (KZP) ABSA Bank Limited v Coetzee and others [2018] JOL 39614 (ECP)

Absa Bank Limited v Maritz [2018] JOL 39749 (GP)

Absa Bank Limited v Marx NO and Others (9757/2017) [2018] ZAWCHC 42 (29 March 2018)

Absa Bank Limited v Marx NO and others [2018] JOL 39873 (WCC)

Absa Bank Limited v Mathibela [2018] JOL 39750 (GP) ABSA Bank Limited v Mokebe and 3 related matters [2018] 4 All SA 306 (GJ) Absa Bank Limited v Mokebe and related matters (Investec Bank Limited and others as amici curiae) [2018] JOL 40390 (GJ)

Absa Bank Limited v Mokebe; Absa Bank Limited v Kobe; Absa Bank Limited v Vokwani; Standard Bank of South Africa Limited v Colombick and Another (2018/00612; 2017/48091; 2018/1459; 2017/35579) [2018] ZAGPJHC 485 (12 September 2018)

Absa Bank Limited v Njolomba and another; and other related matters [2018] JOL 39713 (GJ)

ABSA Bank Ltd and related matters v Public Protector and others [2018] 2 All SA 1 (GP) ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) ABSA Bank Ltd v Njolomba and another and related matters [2018] 2 All SA 328 (GJ)

ABSA BANK LTD v NJOLOMBA AND ANOTHER, AND OTHER CASES 2018 (5) SA 548 (GJ) African Development Bank v Nseera; In re: Nseera v Nseera [2018] 3 All SA 450 (GP)

Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others (CCT257/17) [2018] ZACC 33 (27 September 2018)

Amardien and Others v Registrar of Deeds and Others (CCT212/17) [2018] ZACC 47 (28 November 2018)

Amya Mining (Pty) Limited v Madimetja Pheladi Projects and Mining CC and others

[2017] JOL 39414 (GJ)

ANNEX DISTRIBUTION (PTY) LTD AND OTHERS v BANK OF BARODA 2018 (1)

SA 562 (GP)

AON SOUTH AFRICA (PTY) LTD v VAN DEN HEEVER NO AND OTHERS 2018 (6) SA 38 (SCA)

Apleni v President of the Republic of South Africa and another [2018] 1 All SA 728 (GP)

Arangies and another v Business Partners Ltd [2018] JOL 39468 (WCC)

August v Minister of Home Affairs [2018] JOL 39566 (ECM) Bafokeng Land Buyers Association and others v Royal Bafokeng Nation and others [2018] JOL 39940 (NWM)

Bafokeng Land Buyers Association and others v Royal Bafokeng Nation [2018] 3 All SA 92 (NWM)

Bannister’s Print v D & A Calendars (1078/2016) [2018] ZASCA 17 (15 March 2018)

Basson v Hugo and others [2018] 1 All SA 621 (SCA)

Basson v Hugo and others [2018] JOL 39441 (SCA)

BASSON v HUGO AND OTHERS 2018 (3) SA 46 (SCA)

BEE v ROAD ACCIDENT FUND 2018 (4) SA 366 (SCA) Bester NO v Van Wyk [2017] JOL 39336 (ECG)

Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) (CCT48/17) [2018] ZACC 36 (27 September 2018)

Bo-Kaap Civic and Ratepayers Association and others v City of Cape Town and others [2018] 4 All SA 93 (WCC) Botha t/a Johnny's Construction and another v Kabelo Investments (Pty) Ltd t/a Central Timer & Truss [2018] JOL 39923 (FB)

Bowman Gilfillan Inc v Minister of Transport; In re: Minister of Transport v Mahlalela and others [2018] 3 All SA 484 (GP) Brain and another v Cheralee : In re Cheralee v Brain and another [2018] JOL 39793 (GJ)

BROMPTON COURT BODY CORPORATE SS119/2006 v KHUMALO 2018 (3) SA 347 (SCA)

Brompton Court Body Corporate v Khumalo (398/2017) [2018] ZASCA 27 (23 March 2018)

Bullion Farming Enterprises (Pty) Ltd v Van Tonder (10711/2018) [2018] ZAGPPHC 683 (14 September 2018)

Carsten and Another v Kullmann and Others (49174/2017) [2018] ZAGPJHC 2 (4 January 2018)

CDH Invest NV v Petrotank South Africa (Pty) Ltd and another [2018] 1 All SA 450

(GJ)

Centrafin (Pty) Limited v Street Talk Trading 131 CC trading as Royal Food and another [2018] JOL 39741 (GJ)

Changing Tides 17 (Pty) Limited NO v Wagg (Formerly Weitsz) and another [2018] JOL 39594 (ECP) Church of God and Saints of Christ and another v Church of God and Saints of Christ – Stone of Truth (Cradock / Bishop Seyibhokhwe Group) and another [2018] JOL 40291 (ECG)

Cilliers NO and others v Ellis and another [2017] JOL 37555 (SCA) CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA) Coetzer v Vermaak & Dennis and others (Opperman and others as Third Parties) [2018] JOL 40088 (FB) Colour Tech Panel and Paint (Pty) Limited v Crest Investments CC and others [2017] JOL 37554 (KZD) Comair Limited v Neluheni NO [2018] JOL 39492 (GP) Commercial Court practice Directive 3 October 2018

Competition Commission v Wilmar Continental Edible Oils and Fats (Pty) Ltd and others [2018] 3 All SA 517 (KZP) Courts of Law Amendment Act Da Cruz and another v City of Cape Town and another [2017] JOL 39352 (WCC)

DE KOCK v MIDDELHOVEN 2018 (3) SA 180 (GP)

De Villiers and others v Trustees for the Time Being of the GJN Trust and others [2018] JOL 39958 (SCA)

Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v Road Traffic Management Corporation and Others (CCT 182/17; CCT 240/17) [2018] ZACC 21 (17 July 2018)

Dias v Petropulos and another (Nik Moroff & Associates CC and others as Third Parties) [2018] 4 All SA 153 (WCC) Discovery Health Medical Scheme and others v Afrocentric Healthcare Limited and others [2018] JOL 39831 (CT)

Douglasdale Diary (Pty) Ltd and Others v Bragge and Another (731/2017) [2018] ZASCA 68 (25 May 2018)

Drake Flemmer & Orsmond Inc and another v Gajjar NO [2018] 1 All SA 344 (SCA)

DRAKE FLEMMER & ORSMOND INC AND ANOTHERV GAJJAR 2018 (3) SA 353 (SCA) DSD Trading trading as Eveready Brick & Block v eThekwini Municipality [2017] JOL 37723 (KZD)

Du Bruyn NO and Others v Karsten (929/2017) [2018] ZASCA 143 (28 September 2018)

Du Toit and others v Provincial Minister of Environmental Affairs and Development Planning: Western Cape and others [2018] 3 All SA 532 (WCC)

Dube and another v City of Johannesburg Metropolitan Municipality [2018] JOL

39433 (GJ)

DUMA v ABSA BANK LTD 2018 (4) SA 463 (GP)

Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ) EDCON HOLDINGS LTD v NATIONAL CONSUMER TRIBUNAL AND ANOTHER 2018 (5) SA 609 (GP) Ekurhuleni Metropolitan Municipality v Erasmus [2018] JOL 39429 (GJ)

ETHEKWINI MUNICIPALITY v MOUNTHAVEN (PTY) LTD 2018 (1) SA 384 (SCA)

Eureka Diy Solutions (Pty) Ltd v Soda Cleaning and Equipment North and another [2017] JOL 39038 (GP)

Ex Parte Elsworth [2018] JOL 39504 (ECG)

EX PARTE MDYESHA 2018 (4) SA 468 (GP)

Export Development Canada and another v Westdawn Investments (Pty) Ltd and others [2018] 2 All SA 783 (GJ) Ferreiras (Pty) Limited v Naidoo and another [2017] JOL 39419 (GJ)

Fichardt v Potgieter and others [2018] JOL 40056 (FB) Firstrand Bank Ltd t/a Wesbank t/a GMSA Financial Services v Caga [2018] JOL 40297 (ECG) FirstRand Bank Ltd t/a Wesbank v A and E Registrations (Pty) Ltd and another [2018] JOL 39675 (GJ)

FIRSTRAND BANK LTD v CLEAR CREEK TRADING 12 (PTY) LTD AND ANOTHER 2018 (5) SA 300 (SCA)

Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Limited (CCT236/16) [2018] ZACC 7 (20 March 2018)

Four Wheel Drive Accessory Distribution CC v Rattan NO [2018] JOL 40076 (KZD)

Four Wheel Drive Accessory Distributors CC v Rattan NO (1048/17) [2018] ZASCA 124 (26 September 2018)

Freedom Property Fund Limited and another v Stavridis and others [2018] 3 All SA 550 (ECG) Freedom Property Fund Limited and another v Stavridis and others [2018] JOL 30034 (ECG)

Frieslaar NO and Others v Ackerman and Another (1242/2016) [2018] ZASCA 3 (2 February 2018)

Funeka v T Qina & Sons [2018] JOL 39597 (ECM) Gelyke Kanse and others v Chairman of the Senate of Stellenbosch University and others [2018] 1 All SA 46 (WCC) Good Hope Plasterers CC t/a Good Hope Construction v Aecom SA (Pty) Ltd [2018] JOL 40628 (WCC) Gopee v Hurdeen and others [2018] JOL 39621 (KZD)

Groenewald v Irvin & Johnson Limited and others [2017] JOL 37984 (WCC) Groep v Golden Arrow Bus Services (Pty) Limited and another [2017] JOL 39374

(WCC)

Groep v Golden Arrow Bus Services (Pty) Ltd and a related matter [2018] 1 All SA 508

(WCC)

GROEP v WJ DA GRASS ATTORNEYS AND ANOTHER 2018 (5) SA 248 (WCC)

GROEPBURGER-PERWALD v VOSLOO AND OTHERS 2018 (5) SA 206 (WCC)

Hacker v Hartmann and others [2018] JOL 40147 (ECP) Harilall v Standard Bank of South Africa [2018] JOL 37946 (KZP) Hartzer v De Sousa and others [2017] JOL 38714 (GP)

Hassim v Bekker and others [2018] JOL 40118 (GJ)

Hayman NO v Minister of Home Affairs NO and others [2018] JOL 39974 (ECP)

Heath v President of the Republic of South Africa [2018] JOL 39378 (WCC)

Heath v President of the Republic of South Africa and another [2018] 1 All SA 740 (WCC)

Heavy Commercial Vehicle Underwriting Managers (Pty) Limited and another v Ossie Pretorius Landgoed CC [2018] JOL 39747 (GJ)

Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8 (24 April 2018)

HELEN SUZMAN FOUNDATION v JUDICIAL SERVICE COMMISSION 2018 (4) SA 1 (CC) Heppell v The Law Society for the Northern Provinces [2017] JOL 38682 (GP) HL v MEC for Health of the Free State Provincial Government [2018] 1 All SA 522 (FB)

HL v Member of the Executive Council for Health of the Free State Provincial Government [2017] JOL 39373 (FB)

Holden v Assmang Limited [2018] JOL 39618 (KZP)

HOSKEN CONSOLIDATED INVESTMENTS LTD AND ANOTHER v COMPETITION COMMISSION 2018 (4) SA 248 (CAC) HOTZ AND OTHERS v UNIVERSITY OF CAPE TOWN 2018 (1) SA 369 (CC)

Hunter v Financial Services Board and others [2017] JOL 39476 (GP)

Iemas Financial Services (Co-operative) Ltd v Ntokane (48941/15) [2018] ZAGPPHC 622 (10 August 2018)

In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP)

Isaacs and others v City of Cape Town and another [2018] 1 All SA 135 (WCC)

Jay Incorporated v T and Another (45403/14) [2018] ZAGPJHC 486 (10 September 2018)

Jiba and another v General Council of the Bar of SA; Mrwebi v General Council of the Bar of SA [2018] 3 All SA 426 (SCA)

Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103 (10 July 2018)

Jigger Properties CC v Maynard NO and others [2017] JOL 37547 (KZP)

Jiyana and another v ABSA Bank Limited and others [2018] JOL 40318 (WCC)

JM and Another v Free State Care In Action and Others (5829/2017) [2018] ZAFSHC 42 (5 April 2018)

Johannesburg Society of Advocates v Tiry [2018] JOL 40383 (GJ)

JOHN WALKER POOLS v CONSOLIDATED AONE TRADE & INVEST 6 (PTY) LTD (IN LIQUIDATION) AND ANOTHER 2018 (4) SA 433 (SCA)

Johrews Mancorp and Publishers CC and others v Du Toit Littleton Incorporated [2017] JOL 39364 (GJ) JSR 108 Investments CC v Akshardam (Pty) Limited [2017] JOL 39415 (GJ) Karani v Karani NO and others [2018] 1 All SA 156 (GJ)

Kekana v Road Accident Fund (206/2017) [2018] ZASCA 75 (31 May 2018)

Kelbrick and Others v Nelson Attorneys and Another (307/2017) [2018] ZASCA 55 (16 April 2018)

Keyter NO v Keevy and others [2018] JOL 39704 (ECG)

KM v M (born H) [2018] JOL 39562 (GJ) Komani School and Office Suppliers CC t/a Komani Stationers v Member of the Executive Council Department of Education Eastern Cape and others [2018] JOL 40263 (ECG) Krivokapic v Transnet Ltd t/a Portnet [2018] 4 All SA 251 (KZD) Law Society of South Africa and others v President of the Republic of South Africa and others (Southern African Litigation Centre and another as amici curiae) [2018] 2 All SA 806 (GP) Law Society of the Free State v Ndobela [2018] JOL 39730 (FB)

Legal Practice Act -Legal Practice Council-rules were published by the National Forum, regulations were published, currently with parliament Less v Vosloo and others [2018] JOL 39628 (KZP)

Liberty Group Ltd v Erasmus NO (54534/2011) [2018] ZAGPPHC 497 (11 July 2018)

Lion Match Company (Pty) Limited v Commissioner for the South African Revenue Service [2018] JOL 40199 (SCA)

Loggenberg N O & others v Maree (286/2017 [2018] ZASCA 24 (23 March 2018) LONI v MEC FOR HEALTH, EASTERN CAPE (BHISHO) 2018 (3) SA 335 (CC)

Loni v Member of the Executive Council, Department of Health, Eastern Cape

Bhisho (CCT54/17) [2018] ZACC 2 (22 February 2018)

Lowenthal v Street Guarantee (Proprietary) Limited and others [2018] JOL 39436

(GJ)

Lusithi and others v Cape Lifestyle Investment Ltd and another [2018] 1 All SA 166 (WCC)

M and Others v Wim Krynauw Incorporated and Others (41450/2017) [2018] ZAGPJHC 489 (19 September 2018)

Macia and others v Road Accident Fund [2018] 2 All SA 862 MADIBENG LOCAL MUNICIPALITY v PUBLIC INVESTMENT CORPORATION LTD 2018 (6) SA 55 (SCA)

MADIKIZELA-MANDELA v EXECUTORS, ESTATE LATE MANDELA AND OTHERS 2018 (4) SA 86 (SCA) Magnum Simplex International (Pty) Ltd v MEC Provincial Treasury, Provincial Government of Limpopo (556/17) [2018] ZASCA 78 (31 May 2018) Maharaj v Gold Circle (Pty) Ltd [2018] 1 All SA 760 (KZP) Maharaj v Gold Circle (Pty) Ltd [2018] JOL 39462 (KZP)

Maja v Absa Bank Limited and Another (968/12) [2018] ZALMPPHC 17 (18 April 2018)

Makhambi v Member of the Executive Council for Health, Eastern Cape and another [2018] JOL 40604 (ECM) Mandela v Executors, Estate Late Nelson Rolihlahla Mandela and others [2018] 1 All SA 669 (SCA) Manline (Pty) Ltd v Mtshali [2017] JOL 39386 (KZP) Manukha v Road Accident Fund [2017] JOL 37587 (SCA)

Master of the High Court, Eastern Cape Division, Mthatha v Linyana NO and another

[2018] JOL 39475 (ECM)

Mathimba and others v Nonxuba and other [2018] JOL 40420 (ECG)

Mathimba and others v Nonxuba and others [2018] 4 All SA 719 (ECG) MATJHABENG LOCAL MUNICIPALITY v ESKOM HOLDINGS LTD AND OTHERS 2018 (1) SA 1 (CC) Mavuso v Mdayiand others [2018] JOL 40099 (ECG)

Mbangeni v MEC Health, Gauteng Province and another [2018] JOL 39443 (GJ)

Mboso v Standard Bank of South Africa (19416/2016) [2018] ZAWCHC 20 (19

February 2018)

MEC FOR CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS v MAPHANGA 2018 (3) SA 246 (KZP) Medical Nutritional Institute (Pty) Limited v Advertising Standards Authority Private Club Registration number 1995/00781/08 [2018] JOL 40025 (GJ) Member of Executive Council for Department of Health, Eastern Cape v Jantjies [2018] JOL 40065 (ECB) METROPOLITAN EVANGELICAL SERVICES NPC AND ANOTHER v GOGE 2018 (6) SA 564 (GJ) Midvaal Local Municipality v The Meyerton Golf Club [2018] JOL 40259 (GJ) MINISTER OF HOME AFFAIRS AND ANOTHER v PUBLIC PROTECTOR 2018 (3) SA 380 (SCA) Minister of Home Affairs and another v Public Protector of the Republic of South Africa [2018] 2 All SA 311 (SCA) Minister of Home Affairs and another v Public Protector of the Republic of South Africa [2018] JOL 39715 (SCA)

Minister of Police and Another v Molatleghi (60217/2013) [2018] ZAGPPHC 633 (23 August 2018)

Minister of Rural Development and Land Reform and others v Normandien Farms

(Pty) Limited and others and a related matter [2017] JOL 39324 (SCA)

Minister of Rural Development and Land Reform v Normandien Farms (Pty) Ltd and

others; Mathimbane and others v Normandien Farms (Pty) Ltd and others [2018] 1 All

SA 390 (SCA)

Mjokovana v Road Accident Fund [2018] JOL 40150 (ECM)

Mkhize NO v Premier of the Province of KwaZulu-Natal and Others (CCT285/17) [2018] ZACC 50 (6 December 2018)

Mobile Telephone Networks (Pty) Ltd and Another v Spilhaus Property Holdings (Pty) Ltd and Others (208/2017) [2018] ZASCA 16 (15 March 2018) AND 2018 (3) SA 396 (SCA) Modibedi v Health Professions Council of South Africa and others [2018] JOL 39758 (GP)

Mofokeng v Member of the Executive Council of the Free State Government

(Department of Education) [2017] JOL 39575 (FB)

Moleko v Mahlafu and others [2018] JOL 39623 (FB)

Monde v Viljoen NO and others [2018] 4 All SA 665 (SCA)

Mondi Shanduka Newsprint (Pty) Ltd v Murphy (1419/2006) [2018] ZAKZDHC 24 (4 June 2018)

MONDI SHANDUKA NEWSPRINT (PTY) LTD v MURPHY 2018 (6) SA 230 (KZD)

Morudi and Others v NC Housing Services and Development Co Limited and Others (CCT270/17) [2018] ZACC 32 (25 September 2018)

Moshoeshoe and another v Firstrand Bank Ltd and others [2018] 2 All SA 236 (GJ) Moshoeshoe and another v FirstRand Bank Ltd and others [2018] JOL 39493 (GJ)

MOSTERT AND OTHERS v FIRSTRAND BANK LTD t/a RMB PRIVATE BANK AND ANOTHER 2018 (4) SA 443 (SCA)

Mostert and Others v Firstrand Bank t/a RMB Private Bank (198/2017) [2018] ZASCA 54 (11 April 2018) Mostert and others v Nash and another [2018] 3 All SA 1 (SCA) MOSTERT AND OTHERS v NASH AND ANOTHER 2018 (5) SA 409 (SCA)

Mostert and others v Nash and others [2018] 4 All SA 267 (GJ) MOSTERT NO v REGISTRAR OF PENSION FUNDS AND OTHERS 2018 (2) SA 53 (SCA)

Motloung and Another v The Sheriff Pretoria East and Others (13249/2014) [2018] ZAGPPHC 664 (5 September 2018)

Moyo and another v Minister of Justice and Constitutional Development and others; Sonti and another v Minister of Justice and Correctional Services and others [2018] 3 All SA 342 (SCA) Mtati v Whitesides Attorneys [2018] JOL 39875 (ECG) MTOKONYA v MINISTER OF POLICE 2018 (5) SA 22 (CC)

Musasike and another v Standard Bank of SA Limited [2018] JOL 40116 (GJ)

MYATHAZA v JOHANNESBURG METROPOLITAN BUS SERVICES (SOC) LTD t/a METROBUS AND OTHERS 2018 (1) SA 38 (CC)

N K v K M (2018/25403) [2018] ZAGPJHC 634 (7 December 2018)

Nandipha NO v Irfani Traders CC trading as Jabulani Hardware and another [2018] JOL 40293 (ECM)

Ndinga v Cape Law Society [2018] 2 All SA 250 (ECM) Ndinga v Cape Law Society [2018] JOL 39617 (ECM)

Nedbank Limited and others v Thobejane and others [2018] JOL 40451 (GP)

Nedbank Limited v CBR Engineering CC and others [2018] JOL 39624 (FB)

Nedbank Limited v Denny [2018] JOL 39976 (ECG) NEDBANK LTD v THOAJANE AND 12 RELATED MATTERS ZAGPPHC Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT)

Nkola v Argent Steel Group (Pty) Limited t/a Phoenix Steel (406/2017) [2018] ZASCA 29 (26 March 2018)

Northern Cape Society of Advocates v Mziako (1637/17) [2018] ZANCHC 28 (1 June 2018)

Northern Cape Society of Advocates v Mziako [2018] JOL 39954 (NCK) NTOMBELA v ROAD ACCIDENT FUND 2018 (4) SA 486 (GJ)

OCEAN ECHO PROPERTIES 327 CC AND ANOTHER v OLD MUTUAL LIFE ASSURANCE COMPANY (SOUTH AFRICA) LTD 2018 (3) SA 405 (SCA)

Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (South Africa) Limited (288/2017) [2018] ZASCA 9 (1 March 2018)

OCTAGON CHARTERED ACCOUNTANTS v ADDITIONAL MAGISTRATE, JOHANNESBURG, AND OTHERS 2018 (4) SA 498 (GJ) OLD MUTUAL FINANCE (PTY) LTD v MAKALAPETLO 2018 (3) SA 258 (LP) Omega Civils (Pty) Limited v C Max Civil Construction & General Trading (Pty) Limited [2018] JOL 39729 (FB)

One Time Dream Team Promotions and Events Management CC v Mangaung Metropolitan Municipality [2018] JOL 39622 (FB)

Oscar Nite (Pty) Limited v Standard Bank of South Africa Limited and others [2018] JOL 39732 (FB)

Padi v Jordan NO [2018] JOL 39620 (GJ)

PATMAR EXPLORATIONS (PTY) LTD AND OTHERS v LIMPOPO DEVELOPMENT TRIBUNAL AND OTHERS 2018 (4) SA 107 (SCA)

Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others (1250/2016) [2018] ZASCA 19 (16 March 2018)

PHALADI v LAMARA 2018 (3) SA 265 (WCC)

Phaladi v Lamara and another and a related matter [2018] JOL 39473 (WCC)

Phaladi v Lamara and Another; Moshesha v Lamara and Others (20480/2017; 20481/2017) [2018] ZAWCHC 1 (12 January 2018)

Phofung Project Consulting (Pty) Ltd v Standard Bank Of South Africa Ltd (A232/2017) [2018] ZAFSHC 21 (8 March 2018)

Plastomark (Pty) Limited v Small and others [2018] JOL 40580 (ECG) President of the Republic of South Africa v Office of the Public Protector and another (Economic Freedom Fighters and others as Intervening Parties) [2018] 1 All SA 576 (GP) AND [2017] JOL 39379 (GP) AND 2018 (2) SA 100 (GP)

Pretorius and Another v Transport Pension Fund and Another (CCT95/17) [2018] ZACC 10 (25 April 2018)

Proxi Smart Services (Pty) Ltd v Law Society of South Africa (74313/16) [2018] ZAGPPHC 333 (16 May 2018)

PROXI SMART SERVICES (PTY) LTD v LAW SOCIETY OF SOUTH AFRICA AND OTHERS 2018 (5) SA 644 (GP) Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] 3 All SA 567 (GP) Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] JOL 39902 GP PUBLIC SERVANTS ASSOCIATION OBO UBOGU v HEAD, DEPARTMENT OF HEALTH, GAUTENG AND OTHERS 2018 (2) SA 365 (CC)

Quispiam CC and others v Johannesburg Stock Exchange Ltd [2018] JOL 40052 (GJ) Rafoneke and another v Free State Law Society and another [2018] JOL 40217 (FB) Rampersadh and another v Commissioner for the South African Revenue Service and others [2018] JOL 40394 (KZP)

Reformed Presbyterian Church in Southern Africa v Minister of Police and another [2018] 2 All SA 260 (ECM) Rennies Travel (Pty) Limited v South African Municipal Workers Union [2018] JOL 39740 (GJ)

Reynolds v Reynolds [2018] JOL 39537 (WCC) Ritz Plaza (Proprietary) Limited v Ritz Hotel Management Company (Proprietary) Limited [2018] JOL 39951 (WCC) Ritz Plaza (Pty) Limited v Ritz Hotel Management Company (Pty) Ltd [2018] 3 All SA 583 (WCC) Road Accident Appeal Tribunal and others v Gouws and another [2018] JOL 39458

(SCA)

Road Accident Fund v Isaacs (1552/14) [2018] ZANCHC 27 (11 May 2018)

Road Accident Fund v Masindi (586/2017) [2018] ZASCA 94 (1 June 2018) Roelitta CC trading as RVR Consulting and another v National Youth Development Agency and others [2018] JOL 39763 (GJ)

RSC Avelo (Pty) Limited v Kenako Concrete (Pty) Limited and others [2018] JOL 40593 (ECP) S v SHIBURI 2018 (2) SACR 485 (SCA) Sader v Pick 'n Pay Retailers (Pty) Limited trading as Pick 'n Pay – Norwood Hyper and another [2018] JOL 39762 (GJ)

Saharawi Arab Democratic Republic and another v Owner and Charterers of the MV

“NM Cherry Blossom” and others [2018] 1 All SA 593 (ECP)

Senekal v Law Society of the Free State [2018] JOL 40058 (FB) Sibongile Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1

Skyscape Investments 110 CC v Livinafrica (Pty) Ltd and others [2018] JOL 39880 (WCC)

Smit NO v Firstrand Bank Limited and Others In re: Firstrand Bank Limited formerly

known as Firstrand Bank of South Africa Limited v Abrahams NO (23395/2016)

[2018] ZAWCHC 13 (8 February 2018)

Smith NO v Clerk of the Court, Pietermaritzburg [2017] JOL 37612 (KZP)

Special Investigating Unit and another v Smith and others [2018] JOL 39606 (ECG)

SS v VV [2018] ZACC 5 St Andrews School v Roses United Football Club (Pty) Ltd and another [2018] JOL 39931 (FB)

ST v CT [2018] 3 All SA 408 (SCA)

Standard Bank of South Africa and Another v Caine and Others, In Re: Caine and Others v Standard Bank of South Africa and Another (6309/2017) [2018] ZAKZDHC 8 (25 April 2018)

Standard Bank of South Africa Limited v Associated Credit Management (Pty)

Limited and others [2018] JOL 39439 (GJ)

Standard Bank of South Africa Limited v Botha (54753/16) [2018] ZAGPPHC 35 (7 March 2018)

Standard Bank of South Africa Limited v Hendricks and Another; Standard Bank of South Africa Limited v Sampson and Another; Standard Bank of South Africa Limited v Kamfer; Standard Bank of South Africa Limited v Adams and Another; Standard Bank of South Africa Limited v Botha NO; Absa Bank Limited v Louw (11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18) [2018] ZAWCHC 175 (14 December 2018)

Standard Bank of South Africa Limited v July and Others (525/2017) [2018] ZASCA 85 (31 May 2018)

STATE INFORMATION TECHNOLOGY AGENCY SOC LTD v GIJIMA HOLDINGS (PTY) LTD 2018 (2) SA 23 (CC)

Stoffberg on behalf of Xaba v Road Accident Fund (and other related matters) [2018] JOL 39946 (GP) Supreme Poultry (Pty) Ltd v Matthee and others [2018] JOL 39937 (FB) SWART AND ANOTHER v CASH CRUSADERS SOUTHERN AFRICA (PTY) LTD 2018 (6) SA 287 (GP) Taurus Group of Companies (Pty) Ltd v Vanto and another [2018] JOL 39506 (ECG) Tekalign v Minister of Home Affairs and others and two similar cases [2018] 3 All SA 291 (ECP).

The Attorneys' Fidelity Fund v Prevance Capital (Pty) Ltd (917/17) [2018] ZASCA 135 (28 September 2018)

The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association (106/2018) [2018] ZASCA 176 (3 December 2018)

Tlou v Ralebipi and others [2018] JOL 40284 (GP) Treasure Karoo Action Group and another v Department of Mineral Resources and others [2018] 3 All SA 700 (GP)

Treasure Karoo Action Group and another v Department of Mineral Resources and others [2018] JOL 39903 (GP)

TRINITY ASSET MANAGEMENT (PTY) LTD v GRINDSTONE INVESTMENTS 132 (PTY) LTD 2018 (1) SA 94 (CC) Trollip v Taxing Mistress of the High Court and another (Eastern Cape Society of Advocates and another as amici curiae) [2018] JOL 40139 (ECG) TROLLIP v TAXING MISTRESS, HIGH COURT AND OTHERS 2018 (6) SA 292 (ECG) TRUWORTHS LTD AND OTHERS v MINISTER OF TRADE AND INDUSTRY AND ANOTHER 2018 (3) SA 558 (WCC) TS v TS 2018 (3) SA 572 (GJ) Tutshana v Minister of Safety and Security [2018] JOL 39625 (ECM) Twine and another v Naidoo and another [2018] 1 All SA 297 (GJ) UMSO Construction (Pty) Ltd v City of Johannesburg and another [2018] 4 All SA 507 (GJ) UNIVERSITY OF THE FREE STATE v AFRIFORUM AND ANOTHER 2018 (3) SA 428 (SCA) Van Blommestein and another v East Cape Game Properties (Pty) Ltd and others [2018] JOL 39882 (ECG)

Van der Ross v University of Cape Town and Another (8473/2018) [2018] ZAWCHC 152 (15 November 2018)

Van der Westhuizen v Strombeck Pieterse Incorporated and Others (851/2017) [2018] ZAECGHC 25 (3 April 2018)

Van Wyk v Daberas Adventures CC [2018] JOL 40030 (NCK)

Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others (1189/17) [2018] ZASCA 189 (19 December 2018)

Vosloo Cloete [2018] JOL 39860 (GP)

Wierzycka and another v Manyi [2017] JOL 39279 (GJ)

SUBJECT INDEX “Abide the order”-effect- a litigant “abiding the order” cannot appeal-court perplexed by the fact that she was granted leave to appeal the order. Cilliers NO and others v Ellis and another [2017] JOL 37555 (SCA) Action against organ of State – Notice in terms of Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 – Failure to comply with Act – Condonation Da Cruz and another v City of Cape Town and another [2017] JOL 39352 (WCC)

Action against State – Service of prior notice – Non-compliance – Condonation – Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (“Act”) – Before a creditor can institute an action to recover a debt from an organ of State, section 3(2)(a) of the Act requires such creditor to serve on such organ of State a notice of its intention to do so within six months from the date on which the debt became due – A court’s discretion to grant condonation is not unfettered and section 3(4)(b) permits the court to do so only once it is satisfied that the applicant has established that the debt has not been extinguished by prescription; good cause exists for the failure by the creditor; and the organ of State was not unreasonably prejudiced by the failure. HL v MEC for Health of the Free State Provincial Government [2018] 1 All SA 522 (FB)

Action against State – Service of prior notice – Non-compliance – Condonation- the applicant and the minor child should be penalised for that by depriving them of the opportunity to state their case in court. it was considered fair and in the interest of justice for the court to exercise its discretion to grant condonation for the applicant’s non-compliance. HL v Member of the Executive Council for Health of the Free State Provincial Government [2017] JOL 39373 (FB)

Admission as attorney – Foreign nationals – Requirements for admission Rafoneke and another v Free State Law Society and another [2018] JOL 40217 (FB)

Advocate – misconduct – whether fit and proper person to practise as an advocate – appellants not advocates in private practice – employed by the National Prosecuting Authority – alleged to be not fit and proper persons to remain on the roll of advocates while acting as litigants – found not to have benefitted – appeal upheld. Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103 (10 July 2018)

Advocate – Striking off role – Application for readmission Ex Parte Elsworth [2018] JOL 39504 (ECG)

Advocate – Unprofessional conduct – Double briefing – Over-reaching – Suspension from practice Johannesburg Society of Advocates v Tiry [2018] JOL 40383 (GJ)

Advocate-Admission as advocate – Criminal record – Duty to disclose –admitted as advocate-did not disclose-struck from roll Northern Cape Society of Advocates v Mziako [2018] JOL 39954 (NCK)

Advocate-admission-failure to disclose previous convictions-admitted as advocate-application to remove him-succeeds Northern Cape Society of Advocates v Mziako (1637/17) [2018] ZANCHC 28 (1 June 2018)

Advocates – Admission of Advocates Act 74 of 1964 – Appeal against striking from roll of advocates – Whether fit and proper persons to remain on the roll of advocates – Court finding allegations of misconduct made by General Council of the Bar not to have been established in respect of one of the advocates and not to warrant striking from roll in respect of another – Only a court has the authority to strike a name from the roll of advocates or attorneys. Jiba and another v General Council of the Bar of SA; Mrwebi v General Council of the Bar of SA [2018] 3 All SA 426 (SCA) Advocates – Contingency fee agreements – Validity Mathimba and others v Nonxuba and other [2018] JOL 40420 (ECG)

Amendment of claim- Delictual action – Claim for damages – Vicarious liability – Application for leave to amend to include vicarious liability-refused-new cause of action Groenewald v Irvin & Johnson Limited and others [2017] JOL 37984 (WCC)

Anton Piller order – requirements –necessity for evidence of prima facie existence of vital documents and materials – electronic searches – need for specificity in regard to objects of search – purpose of order not to give the applicant access to documents or material or to search for evidence on which to base claim – not to be used to obtain early discovery Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others (1189/17) [2018] ZASCA 189 (19 December 2018)

Appeal— Appealability — Interim interdict — Interim interdict granted prohibiting infringement of patent — Claim that patent would have expired prior to determination of final interdict — Whether interdict final in effect, and therefore appealable — Discussion of test set out in BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) for whether application for interim interdict should be treated as final — Court concluding that interim interdict not final in effect and therefore not appealable. CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA) Appeal — Appealability — Generally — Restatement of test for appealability of judgment or order. CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA) Appeal-security- Irregular steps-appeal-security ordered not given-appeal dismissed Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ) Appeal - Absolution from the instance -set aside-evidence lacking Hartzer v De Sousa and others [2017] JOL 38714 (GP)

Appeal – Appealability of order – Required attributes of order- final in effect and not susceptible of alteration by the court of first instance Cilliers NO and others v Ellis and another [2017] JOL 37555 (SCA)

Appeal – Full court – Jurisdiction – jurisdiction of a full court to hear appeals from a full bench ousted Heppell v The Law Society for the Northern Provinces [2017] JOL 38682 (GP) Appeal – Lapsing of-section 50(1) of the Uniform Rules of Court provides that an appeal to the court against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of the appeal, and unless so prosecuted it shall be deemed to have lapsed Taurus Group of Companies (Pty) Ltd v Vanto and another [2018] JOL 39506 (ECG) Appeal – Leave to appeal – Refusal of leave to amend notice of motion-may only be given if the judge is of the opinion that certain jurisdictional facts exist. The discretion of a judge sitting as a court of first instance is, therefore, fettered. Hunter v Financial Services Board and others [2017] JOL 39476 (GP)

Appeal – Leave to appeal – Test Heavy Commercial Vehicle Underwriting Managers (Pty) Limited and another v Ossie Pretorius Landgoed CC [2018] JOL 39747 (GJ)

Appeal – Road Accident Appeal Tribunal – Powers of – Whether it is within the Tribunal’s statutory remit to finally determine the nexus between the injuries allegedly sustained, on which claim for compensation was premised, and the driving of a motor vehicle – Appeal Tribunal not having final say on question of link between the driving of a motor vehicle and the injuries allegedly sustained. Road Accident Appeal Tribunal and others v Gouws and another [2018] JOL 39458 (SCA)

Appeal from the Labour Appeal Court — costs — rule of practice that costs follow result does not apply in labour matters — law and fairness governs the awarding of costs — nothing in the present case meriting the award of costs — Labour Appeal Court and Labour Court did not exercise their discretion judicially — justice requires that cost orders be set aside and each party pay its own costs — appeal on costs upheld and set aside Sibongile Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1

Appeal of Income Tax – Ruling by Tax Court – Whether appealable Lion Match Company (Pty) Limited v Commissioner for the South African Revenue Service [2018] JOL 40199 (SCA) Appeal— Powers of court of appeal — To refuse appeal, yet vary order of court a quo in absence of cross-appeal — In light of common-law principle that appeal court may not alter an order to detriment of appellant in absence of cross-appeal — Court of appeal empowered to vary procedural order, if failure to do so would give rise to impractical and untenable situation — Wide powers granted to court of appeal in terms of s 19(d) of Superior Courts Act — Superior Courts Act 10 of 2013, s 19(d). OCTAGON CHARTERED ACCOUNTANTS v ADDITIONAL MAGISTRATE, JOHANNESBURG, AND OTHERS 2018 (4) SA 498 (GJ) Appeal — Execution — Application to execute pending appeal — Test — Requirements more onerous than those of common law — Higher threshold set,

namely, in addition to presence of exceptional circumstances, proof on balance of probabilities that applicant will suffer irreparable harm if order not granted, and conversely that respondent will not, if the order granted — Extraordinary deviation requiring 'truly exceptional' circumstances — Whether exceptional circumstances present depending on facts of case — Prospects of success also a relevant consideration — Superior Courts Act 10 of 2013, s 18. UNIVERSITY OF THE FREE STATE v AFRIFORUM AND ANOTHER 2018 (3) SA 428 (SCA) Appeal — Leave to appeal — Application — Costs — Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal — Liability for costs in application — Time when matter became moot relevant — Duty of litigants to make reasonable proposals inter se on costs — Prospects on merits and conduct of parties. JOHN WALKER POOLS v CONSOLIDATED AONE TRADE & INVEST 6 (PTY) LTD (IN LIQUIDATION) AND ANOTHER 2018 (4) SA 433 (SCA)

Appeal — Power of court on appeal — Power to dismiss appeal where judgment or order sought would have no practical effect or result — To be determined without reference to costs, save under exceptional circumstances — Costs meaning costs in court a quo, not appellate court — Superior Courts Act 10 of 2013, s 16(2)(a). JOHN WALKER POOLS v CONSOLIDATED AONE TRADE & INVEST 6 (PTY) LTD (IN LIQUIDATION) AND ANOTHER 2018 (4) SA 433 (SCA)

Appeal — Powers of court of appeal — Exercise of under s 19(d) of Superior Courts Act — Where exercising such powers against or potentially against wishes of party, it should give notice to party affected thereby — Superior Courts Act 10 of 2013, s 19(d). OCTAGON CHARTERED ACCOUNTANTS v ADDITIONAL MAGISTRATE, JOHANNESBURG, AND OTHERS 2018 (4) SA 498 (GJ) Appeal — Powers of court of appeal — Exercise of under s 19(d) of Superior Courts Act — Power to render 'any decision which the circumstances may require' — Did not have to relate to decision which was subject-matter of appeal — Superior Courts Act 10 of 2013, s 19(d). OCTAGON CHARTERED ACCOUNTANTS v ADDITIONAL MAGISTRATE, JOHANNESBURG, AND OTHERS 2018 (4) SA 498 (GJ) Appeal-Absolution of instance-appeal- Lease agreement – Alleged breach – Cancellation of agreement-appeal upheld St Andrews School v Roses United Football Club (Pty) Ltd and another [2018] JOL 39931 (FB)

Appeal-Application or leave to appeal – Test Sader v Pick 'n Pay Retailers (Pty) Limited trading as Pick 'n Pay – Norwood Hyper and another [2018] JOL 39762 (GJ)

Appeal-leave to appeal- Order declaring property specifically executable – Leave to appeal Botha t/a Johnny's Construction and another v Kabelo Investments (Pty) Ltd t/a Central Timer & Truss [2018] JOL 39923 (FB)

Appeal-leave to appeal-order of SCA-to Constitutional court Morudi and Others v NC Housing Services and Development Co Limited and Others (CCT270/17) [2018] ZACC 32 (25 September 2018)

Appeal-leave to appeal-Superior Courts Act 10 of 2013 — Section 18 — operation of order after final determination-Mootness — interests of justice — no discrete legal issue of public importance Department of Transport and Others v Tasima (Pty)

Limited; Tasima (Pty) Limited and Others v Road Traffic Management Corporation and Others (CCT 182/17; CCT 240/17) [2018] ZACC 21 (17 July 2018)

Appeal-orders of a lower court-directly set aside-single judge- appeal or review route to be followedJM and Another v Free State Care In Action and Others (5829/2017) [2018] ZAFSHC 42 (5 April 2018)

Appeal-Property – Land reform – Labour tenants – Removal of livestock – Over-grazing – Minister of Rural Development and Land Reform and others v Normandien Farms (Pty) Limited and others and a related matter [2017] JOL 39324 (SCA) Appeals – Leave to appeal – Requirements- That ground of appeal was thus upheld and the plaintiff was granted leave to appeal the duration and amount of the maintenance order-Leave to appeal the remainder of the judgment was refused. KM v M (born H) [2018] JOL 39562 (GJ)

Appeal-when of no practical effect-death of fiduciary-effect Douglasdale Diary (Pty) Ltd and Others v Bragge and Another (731/2017) [2018] ZASCA 68 (25 May 2018)

Applications- Drafting of application – Negligence of legal practitioners Makhambi v Member of the Executive Council for Health, Eastern Cape and another [2018] JOL 40604 (ECM) Applications – Urgency – When courts are enjoined by rule 6(12) to deal with urgent applications in accordance with procedures that follow the rules as far as possible, the exercise of judicial discretion is involved. Mostert and others v Nash and others [2018] 4 All SA 267 (GJ) Application — Delay in bringing application — Condonation — Factors to be considered — Court finding that, even assuming prospects of success on merits, not sufficient to overlook excessive delay when due regard was had to potential for severe prejudice to respondents should decision be set aside. MADIKIZELA-MANDELA v EXECUTORS, ESTATE LATE MANDELA AND OTHERS 2018 (4) SA 86 (SCA)

Application – Disputes – Request to refer to trial – Refusal by court Amya Mining (Pty) Limited v Madimetja Pheladi Projects and Mining CC and others [2017] JOL 39414 (GJ) Application for reconsideration of court order – Rule 6(12)(c) of the Uniform Rules of Court – Where order was granted on urgent basis and in absence of respondents, a basis for reconsideration was established. Competition Commission v Wilmar Continental Edible Oils and Fats (Pty) Ltd and others [2018] 3 All SA 517 (KZP) Application- oral evidence-proper way is not in Heads of Argument but on application-but robust, common-sense approach to a dispute on motion-application dismissed2 Rawson Street Body Corporate and another v Knysna Municipality and another [2017] JOL 37655 (WCC) Application proceedings – A party must make out its case in its founding papers Treasure Karoo Action Group and another v Department of Mineral Resources and others [2018] JOL 39903 (GP)

Application proceedings –A party must make out its case in its founding papers. Treasure Karoo Action Group and another v Department of Mineral Resources and others [2018] 3 All SA 700 (GP) Application – Declaratory relief – Requirements – An applicant for declaratory relief must have a legally recognised interest in an existing, future or contingent right or obligation Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] JOL 39902 GP Applications – Oral evidence – Rule 6(5)(g) of the Uniform Rules of Court – Referral for cross-examination – Court has wide discretion in regard to hearing of oral evidence where an application cannot be properly decided on affidavit. Du Toit and others v Provincial Minister of Environmental Affairs and Development Planning: Western Cape and others [2018] 3 All SA 532 (WCC) Applications – Supplementary answering affidavit – Application to strike out Hacker v Hartmann and others [2018] JOL 40147 (ECP) Applications and motions — Application proceedings — Service of documents initiating proceedings — On attorney of record of respondent — Attorney of record meaning attorney formally representing party in proceedings already instituted — Uniform Rules, rule 4(1)(aA). ABM MOTORS v MINISTER OF MINERALS AND ENERGY AND OTHERS 2018 (5) SA 540 (KZP) Applications– Ex parte applications – Requirement of full disclosure – In an ex parte application for interim relief, failure to reveal material facts and information in an application where such facts might have influenced the court in arriving at a decision to grant relief would in itself be sufficient to warrant a dismissal and setting aside of the order complained of. Mostert and others v Nash and others [2018] 4 All SA 267 (GJ)

Applications- probabilities in motion proceedings- not there to decide probabilities-the correct position is surely more nuanced- courts reject unmeritorious versions on affidavit Carsten and Another v Kullmann and Others (49174/2017) [2018] ZAGPJHC 2 (4 January 2018)

Applications-affidavits-– Where same facts could not be applicable to different cases of different litigants, court finding that irregularities served to render applications defective. Tekalign v Minister of Home Affairs and others and two similar cases [2018] 3 All SA 291 (ECP) Applications-Application for leave to admit a further affidavit and to lead oral evidence – While the courts may permit the filing of further affidavits in exceptional circumstances, the court will not exercise its discretion in the absence of an explanation of why it is necessary to file the affidavit concerned; and will always act subject to considerations of fairness and justice and the absence of prejudice to other parties. Gelyke Kanse and others v Chairman of the Senate of Stellenbosch University and others [2018] 1 All SA 46 (WCC) Applications-Declaratory order-Contract – Validity of – Dispute of fact – referred to oral evidence Gopee v Hurdeen and others [2018] JOL 39621 (KZD)

Applications-Disputes of fact – A final order may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. Reformed Presbyterian Church in Southern Africa v Minister of Police and another [2018] 2 All SA 260 (ECM) Applications-Referral for oral evidence – Reasons requested why court did this- As a general principle, the court has a discretion- final issue to consider is convenience of the court. Moleko v Mahlafu and others [2018] JOL 39623 (FB) Applications-replying affidavit-new issue-discretion to allow the new matter-the merits fully argued-no prejudice. MOSTERT AND OTHERS v FIRSTRAND BANK LTD t/a RMB PRIVATE BANK AND ANOTHER 2018 (4) SA 443 (SCA) Applications-Urgency – Where allegations are made relating to abuse of power by a Minister or other public officials, which may impact upon the rule of law and may have a detrimental impact upon the public purse, the relevant relief sought should normally be urgently considered. Apleni v President of the Republic of South Africa and another [2018] 1 All SA 728 (GP) Attorney – Conducting of litigation by attorneys – Use of identical affidavits in different cases – Where same facts could not be applicable to different cases of different litigants, court finding that irregularities served to render applications defective. Tekalign v Minister of Home Affairs and others and two similar cases [2018] 3 All SA 291 (ECP) Attorney – Curatorship of pension fund – Appointment of attorney as curator in terms of section 5(2) of Financial Institutions (Protection of Funds) Act 28 of 2001 – Remuneration of curator – Curatorship order providing that remuneration be agreed with Financial Services Board in accordance with norms of attorneys’ profession – Whether curatorship fee as a percentage of amounts recovered on behalf of fund in accordance with those norms – Agreement to recover fees on a contingency basis as a percentage of amounts recovered for fund at variance with norms of attorneys’ profession and therefore not in accordance with curatorship order. Mostert and others v Nash and another [2018] 3 All SA 1 (SCA) Attorney-Contingency fee agreements – Validity – Contingency Fees Agreements Act 66 of 1997 – In casu, there were two contingency fee agreements, one was for the attorney’s fees and the other for Counsel’s fees, which was impermissible – Contingency Act makes no provision for an advocate to sign a contingency fee agreement separately from the attorney; and it is not proper for an advocate to conclude a contingency agreement directly with a client – Court held that section 2 of the Contingencies Act contemplates a single contingency agreement for a single matter to which all the relevant legal practitioners (attorneys and advocates) are party, and not separate agreements for each practitioner. Mathimba and others v Nonxuba and others [2018] 4 All SA 719 (ECG)

Attorney – theft of money from trust account – whether monies ‘entrusted’ to an attorney as contemplated in terms of s 26(a) of the Attorneys Act 53 of 1979 - Whether instruction simply to invest monies – whether liability of Attorneys Fidelity Fund Control Board excluded by the provisions of s 47(1)(g) of the Attorneys Act. The Attorneys' Fidelity Fund v Prevance Capital (Pty) Ltd (917/17) [2018] ZASCA 135 (28 September 2018)

Attorney- Agreement to recover fees on a contingency basis as a percentage of amounts recovered for fund at variance with norms of attorneys’ profession and therefore not in accordance with curatorship order. Mostert and others v Nash and another [2018] 3 All SA 1 (SCA) Attorney— Articles of clerkship — Probation — Attorneys' firms' practice of making potential candidate attorneys sign pre-articles contracts containing probationary periods — Court remarking that practice still rife despite Supreme Court of Appeal's disapproval. EX PARTE MDYESHA 2018 (4) SA 468 (GP)

Attorney- Contract – Breach – Damages claim – Breach of mandate by first attorneys in under-settling RAF claim – Breach by second attorneys in allowing claim against first attorneys to prescribe – Damages to be assessed at notional trial date of RAF claim. Drake Flemmer & Orsmond Inc and another v Gajjar NO [2018] 1 All SA 344 (SCA) Attorney- Conveyancing – Performance by entity other than conveyancer, of administrative and related services pertaining to property transfers – Contravention of Deeds Registries Act 47 of 1937 – section 83(8)(a)(i) of the Attorneys Act 53 of 1979 intending that a conveyancer or his subordinates will obtain the information required to be contained in the reserved documents, check and verify the information contained therein and do everything involved in causing them to be drawn up or prepared as contemplated in the section – Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] JOL 39902 GP Attorney — Admission and enrolment — Admission — Requirements — Attendance at practical training course — May take place before registration of articles — Strict compliance with s 15(1)(b)(ivA) of Attorneys Act 53 of 1979, which insists on prior registration or service of articles, not required. EX PARTE MDYESHA 2018 (4) SA 468 (GP)

Attorney — Fees — Contingency fees — Contingency fee agreement — In respect of non-litigious matters — Common law — Court a quo making blanket statement that such agreements unlawful on basis that they were against public policy, thereby extending reach of common-law prohibition against contingency fee agreements, which previously only covering contingency fee agreements in respect of litigious work — SCA finding that court a quo was wrong to do so, and that if the common-law prohibition was to be extended to other situations, that should be done on case-by-case basis after careful analysis of all interests involved. MOSTERT AND OTHERS v NASH AND ANOTHER 2018 (5) SA 409 (SCA)

Attorney — Negligence — Liability to client — Damages — Negligent under-settlement of personal injury claim — Time at which damages assessed — Claim settled without proper investigation — Damages to be assessed at notional date of claim — Court may shield plaintiff against corroding effect of inflation by using s 2A(5) of Prescribed Rate of Interest Act 55 of 1975. DRAKE FLEMMER & ORSMOND INC AND ANOTHERV GAJJAR 2018 (3) SA 353 (SCA) Attorney-Conveyancer — Relationship between conveyancer and parties to transaction — Scope of work reserved for conveyancer — Commercial enterprise dividing transfer work between 'reserved work' and 'non-reserved work' and

purporting to perform only latter — Whether such scheme contravening statutory and regulatory framework — Attorneys Act 53 of 1979, s 83(8)(a)(i)- contravened the prohibition on touting in para 49.17 of the Consolidated Rules for the Attorneys Profession PROXI SMART SERVICES (PTY) LTD v LAW SOCIETY OF SOUTH AFRICA AND OTHERS 2018 (5) SA 644 (GP) Attorney-Legal Practice – Conveyancing – Performance by entity other than conveyancer, of administrative and related services pertaining to property transfers – Contravention of Deeds Registries Act 47 of 1937 – Section 83(8)(a)(i) of the Attorneys Act 53 of 1979 intending that a conveyancer or his subordinates will obtain the information required to be contained in the reserved documents, check and verify the information contained therein and do everything involved in causing them to be drawn up or prepared as contemplated in the section. Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] 3 All SA 567 (GP) Attorney-resolution by law society-rule of law applicable Senekal v Law Society of the Free State [2018] JOL 40058 (FB) Attorneys – Application for admission – Attorneys Act 53 of 1979 – Issue for determination was whether the contract of articles of clerkship relied upon by the applicant was valid or whether it was void by virtue of the circumstances in which her principal was practising when the contract was entered into – Distinction drawn between a person who purports to act as a practitioner and a practitioner who practises without being in possession of a fidelity fund certificate – Nowhere in the Act is there a provision for the automatic suspension or invalidation in any way of the practise of an attorney where such practise is conducted without a fidelity fund certificate. Ndinga v Cape Law Society [2018] 2 All SA 250 (ECM) Attorneys – Application for admission-attorney entered contact not in possession of a fidelity fund certificate on that date and was thus not entitled in law so to practise. Nowhere in the Act is there a provision for the automatic suspension or invalidation in any way of the practise of an attorney where such practise is conducted without a fidelity fund certificate. Ndinga v Cape Law Society [2018] JOL 39617 (ECM)

Attorneys – Misconduct – Striking from roll-fidelity fund certificate Law Society of the Free State v Ndobela [2018] JOL 39730 (FB)

Attorneys- dereliction of duty-joint minutes-prohibited from charging clients NTOMBELA v ROAD ACCIDENT FUND 2018 (4) SA 486 (GJ)

Attorneys-conveyancing- business model for performing the administrative and related services pertaining to property transfers that applicant contends is not by law reserved to conveyancers or legal practitioners. Proxi Smart Services (Pty) Ltd v Law Society of South Africa (74313/16) [2018] ZAGPPHC 333 (16 May 2018)

By-laws cannot deprive – must have due process Midvaal Local Municipality v The Meyerton Golf Club [2018] JOL 40259 (GJ)

Company law – Calling of shareholders’ meeting – Fiduciary duties of directors – Companies Act 71 of 2008 – Duty to act bona fide and in the best interests of the company is the fundamental duty which qualifies the exercise of any powers which the

directors have and directors have a duty to exercise powers for proper purposes. CDH Invest NV v Petrotank South Africa (Pty) Ltd and another [2018] 1 All SA 450 (GJ)

Condonation applications-seriousness stressed-not granted in this case Absa Bank Limited v Marx NO and Others (9757/2017) [2018] ZAWCHC 42 (29 March 2018)

Constitutional law – Government of South Africa – International law obligations – Southern African Development Community Tribunal – Lawfulness of South Africa’s participation in suspending the Southern African Development Community Tribunal – Court finding decision of South African President to be unlawful, irrational and unconstitutional. Law Society of South Africa and others v President of the Republic of South Africa and others (Southern African Litigation Centre and another as amici curiae) [2018] 2 All SA 806 (GP) Constitutional law – Right to fair trial – Section 34 of the Constitution providing that everyone has the right throughout the 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 – Granting of eviction order in chambers without affording parties an opportunity to be heard on issue in dispute constituting a violation of the right to a fair trial. Lusithi and others v Cape Lifestyle Investment Ltd and another [2018] 1 All SA 166 (WCC) Constitutional law — Chapter 9 institutions — Public Protector — Decisions of — Whether administrative action. MINISTER OF HOME AFFAIRS AND ANOTHER v PUBLIC PROTECTOR 2018 (3) SA 380 (SCA) Constitutional law — Legislation — Validity — National Credit Act 34 of 2005, reg 23A(4) of National Credit Regulations, 2006 — Affordability assessment — Self-employed and informally employed consumers — Required to provide three months' bank statements or latest financial statements — Self- employed and informally employed consumers without bank accounts likely poor, and not in position to provide financial statements — Effectively excluded from credit — Unfair discrimination against — Subregulation reviewed and set aside. TRUWORTHS LTD AND OTHERS v MINISTER OF TRADE AND INDUSTRY AND ANOTHER 2018 (3) SA 558 (WCC) Constitutional law — Legislation — Validity — Public Service Act 103 of 1994, s 38(2)(b)(ii) — Authorising unilateral deductions by state employer to recover moneys wrongly paid to its employees directly from their salaries or wages — Amounting to unlawful limitation of right of access to courts —Offending rule of law by promoting self-help — Labour Court's declaration of constitutional invalidity confirmed — Constitution, ss 1(c) and 34. PUBLIC SERVANTS ASSOCIATION OBO UBOGU v HEAD, DEPARTMENT OF HEALTH, GAUTENG AND OTHERS 2018 (2) SA 365 (CC)

Contempt of court – Occupants failed to establish beyond reasonable doubt that respondent was in contempt of appellate process – Contempt application, including related postponement application, dismissed. Minister of Rural Development and Land Reform v Normandien Farms (Pty) Ltd and others; Mathimbane and others v Normandien Farms (Pty) Ltd and others [2018] 1 All SA 390 (SCA)

Contempt of court — Criminal and civil contempt distinguished — Though both punishable as crime, standard of proof depending on whether remedy involving imprisonment — If so, proof beyond reasonable doubt required — For civil remedies short of imprisonment, proof on balance of probabilities sufficient. MATJHABENG LOCAL MUNICIPALITY v ESKOM HOLDINGS LTD AND OTHERS 2018 (1) SA 1 (CC) Contempt of court — Procedure — Joinder — Need to cite parties in their personal capacities, particularly where committal to prison in offing — Effect of non-joinder. MATJHABENG LOCAL MUNICIPALITY v ESKOM HOLDINGS LTD AND OTHERS 2018 (1) SA 1 (CC) Contempt of court — Procedure — Summary procedure — Should be invoked only in exceptional circumstances where there exists pressing need for swift measures to preserve integrity of judicial process — Contemnor to be accorded, as far as possible, fair trial rights. MATJHABENG LOCAL MUNICIPALITY v ESKOM HOLDINGS LTD AND OTHERS 2018 (1) SA 1 (CC)

Cost orders – Rule 42(1)(b) - rescission or variation of an order ‘erroneously sought or erroneously granted in the absence of any party effected thereby’ - setting aside of costs order de bonis propriis granted Jay Incorporated v T and Another (45403/14) [2018] ZAGPJHC 486 (10 September 2018)

Cost orders-de boniis propriis-Costs of suit-Personal liability-Minister liable for costs — Gross negligence Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) (CCT48/17) [2018] ZACC 36 (27 September 2018)

Costs – party withdrawing action must tender costs of other party – Special costs orders – When costs de bonis propriis awarded against attorney Brain and another v Cheralee : In re Cheralee v Brain and another [2018] JOL 39793 (GJ)

Costs – President of country – Personal liability for costs – Whether the President conducted the litigation in a manner unbecoming of a reasonable litigant and whether he was vindicating his personal interests in doing so – President’s persistence with the litigation; in the face of the finality of the investigation and report, as well as his own unequivocal statement regarding that finality, clearly amounted to objectionable conduct by a litigant and to clear abuse of the judicial process – Court held that a simple punitive costs order was not appropriate because that would make the tax payer liable for the costs and as a result ordered that the President personally pay the costs. President of the Republic of South Africa v Office of the Public Protector and another (Economic Freedom Fighters and others as Intervening Parties) [2018] 1 All SA 576 (GP) Costs – President of country – Personal liability for costs-President conducted the litigation in a manner unbecoming of a reasonable litigant and whether he was vindicating his personal interests in doing so. President of the Republic of South Africa v Office of the Public Protector and another (Economic Freedom Fighters and others as intervening parties) [2017] JOL 39379 (GP)

Costs — Application for leave to appeal — Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal — Liability for costs in application — Time when matter became moot relevant — Duty of litigants to make reasonable proposals inter se on costs — Prospects on merits and conduct of parties. JOHN WALKER POOLS v CONSOLIDATED AONE TRADE & INVEST 6 (PTY) LTD (IN LIQUIDATION) AND ANOTHER 2018 (4) SA 433 (SCA)

Costs — Constitutional litigation — Proper approach — Unsuccessful party in constitutional litigation against state — Litigants involved in student protests at university campus, which turned violent, in support of free and decolonised education — Unsuccessfully opposing interdict brought against them by university — Court ordering unsuccessful litigants to pay costs — Students protesting in vindication of rights to education, freedom of association, freedom to demonstrate and freedom of expression — Given constitutional context, inappropriate to award costs against students. HOTZ AND OTHERS v UNIVERSITY OF CAPE TOWN 2018 (1) SA 369 (CC) Costs — Costs de bonis propriis— When to be awarded — Against President — President's ill-advised and reckless litigation against Public Protector resulting in unjustifiable delay of appointment of commission of enquiry into state capture — President's conduct falling short of constitutional norms and what is expected of head of state — Court making costs order de bonis propriis against President. PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA v PUBLIC PROTECTOR AND OTHERS 2018 (2) SA 100 (GP)

Costs-de boniis against attorney M and Others v Wim Krynauw Incorporated and Others (41450/2017) [2018] ZAGPJHC 489 (19 September 2018)

Costs-order by the court a quo awarding costs on the High Court scale- should have argued this at pre-trial stage Road Accident Fund v Isaacs (1552/14) [2018] ZANCHC 27 (11 May 2018)

Costs-taxed- items taxed off-travel and accommodation costs of witnesses and counsel allowed-Pretoria to Polokwane Maja v Absa Bank Limited and Another (968/12) [2018] ZALMPPHC 17 (18 April 2018)

Counterclaim-failed to apply for leave from the court-rule 27(1), rule 24(1), for late delivery of the counterclaim-out of time constitutes an irregular step-condonation not granted Absa Bank Limited v Marx NO and Others (9757/2017) [2018] ZAWCHC 42 (29 March 2018)

Court— High Court — Jurisdiction — Review jurisdiction — High Court having no inherent power to review irregular judgments of magistrates' courts. OLD MUTUAL FINANCE (PTY) LTD v MAKALAPETLO 2018 (3) SA 258 (LP) Courts – Access to – High Courts and Magistrate’s Courts – Jurisdiction – Commercial institutions, to enrol in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates’ Courts – Litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involves parties

located within the jurisdiction of the Gauteng Local Division, Johannesburg. In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP) Execution– Execution against immovable property – Primary residence – Court’s discretion Plastomark (Pty) Limited v Small and others [2018] JOL 40580 (ECG) Court order – Non-compliance – Contempt of court – Personal service – Effect of failure – Rescission application Hayman NO v Minister of Home Affairs NO and others [2018] JOL 39974 (ECP) Court orders – Competence of relief sought – Court orders must be framed in unambiguous terms and must be practical and enforceable. Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] 3 All SA 567 (GP) Court orders – Emoluments attachment order – Role of employer – Interests of the employer relate to the practicability and enforceability of the emoluments attachment order, and an employer may not purport to enter the principal dispute between the parties. African Development Bank v Nseera; In re: Nseera v Nseera [2018] 3 All SA 450 (GP) Court orders – Emoluments attachment order – Section 26 of the Maintenance Act 99 of 1998 – Section does not render it peremptory to give an employer notice in advance. African Development Bank v Nseera; In re: Nseera v Nseera [2018] 3 All SA 450 (GP)

Court orders – Non-compliance – Contempt of court – Requirements- Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court other than a money judgment. The requirements for contempt are the order; service or notice; non-compliance; and wilfulness and mala fides. It is necessary for an applicant to demonstrate the existence of such requirements beyond reasonable doubt. Master of the High Court, Eastern Cape Division, Mthatha v Linyana NO and another [2018] JOL 39475 (ECM)

Court orders-Agreements between private parties — setting aside a court order — Section 217 of the Constitution Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others (CCT257/17) [2018] ZACC 33 (27 September 2018)

Court orders-Divorce order – Non-compliance- transfer of property- ordered the respondent to effect compliance within 60 days of the order. Reynolds v Reynolds [2018] JOL 39537 (WCC) Court orders-Judgment-abandonment of judgment – Tendering of costs – Rule 41(2) of the Uniform Rules of Court- Modibedi v Health Professions Council of South Africa and others [2018] JOL 39758 (GP)

Court orders-Settlement agreements- An agreement of settlement of litigation, forged by a lawyer for one of the parties, cannot be relied on by the other party. It is a nullity. Bannister’s Print v D & A Calendars (1078/2016) [2018] ZASCA 17 (15 March 2018)

Court — Process — Vexatious proceedings — Common law and Act — Respective scope of application — Meaning of 'persistently. . . instituted' — Vexatious Proceedings Act 3 of 1956, s 2(1)(b). MEC FOR CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS v MAPHANGA 2018 (3) SA 246 (KZP)

Court-Magistrates' court — Powers — Court may not mero motu refer civil judgment of magistrate or clerk of court to High Court for review — Court faced with irregular judgment should instead point out irregularity to affected parties and advise them that matter reviewable by High Court — Judgment may also be rescinded at instance of judgment debtor. OLD MUTUAL FINANCE (PTY) LTD v MAKALAPETLO 2018 (3) SA 258 (LP) Courts – Litigation – Norms and standards regulating litigation – Court critical of practice of allowing litigation to drag on to the benefit of practitioners and the detriment of their clients – Discouragement of trend of seeking to settle and asking for stand-downs or postponements on the date or week of trial – Court issuing punitive costs orders. Macia and others v Road Accident Fund [2018] 2 All SA 862 (MCC, Mbombela) Courts of Law Amendment Act, amends debt procedures of Magaistrates’courts.

Courts-Equality Courts established in terms of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 Constitutional and Administrative law – Section 9 of Constitution – Right to equality and prohibition against unfair discrimination –– Proceedings in such courts intended to be less formal than in traditional courts – Conduct of presiding officer in refusing to allow appellant to place his case before the court and in proceeding to dismiss the case on the basis of res judicata rendering proceedings unfair. Maharaj v Gold Circle (Pty) Ltd [2018] 1 All SA 760 (KZP) Courts-proceedings– Section 9 of Constitution – Right to equality and prohibition against unfair discrimination – Equality Courts established in terms of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 – Proceedings in such courts intended to be less formal that in traditional courts – Conduct of presiding officer in refusing to allow appellant to place his case before the court and in proceeding to dismiss the case on the basis of res judicata rendering proceedings unfair Maharaj v Gold Circle (Pty) Ltd [2018] JOL 39462 (KZP) Cross-examination – Purpose of questioned when nothing gained Tutshana v Minister of Safety and Security [2018] JOL 39625 (ECM) Declaratory relief – Requirements – An applicant for declaratory relief must have a legally recognised interest in an existing, future or contingent right or obligation. Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] 3 All SA 567 (GP) Default judgment – Application for rescission – Requirement under common law Musasike and another v Standard Bank of SA Limited [2018] JOL 40116 (GJ)

Default judgment – Application for rescission-liquidator appointed to divide estate-questioned whether the respondent had the authority to bring legal proceedings against the applicant in terms of the mandate; whether the respondent exceeded his powers in launching legal proceedings without seeking leave of the court first; whether the respondent had not exceeded the limited power set out in the settlement agreement-court held liquidator was correct Padi v Jordan NO [2018] JOL 39620 (GJ)

Default judgment – Credit agreements – Breach of – Cancellation of agreement- the Registrar raised an issue around the date of cancellation of the agreements, and whether reinstatement of the agreement had occurred in terms of section 129(3) of

the National Credit Act 34 of 2005- cancellation ends the contracts ABSA Bank Limited v Coetzee and others [2018] JOL 39614 (ECP)

Default judgment – Erroneous granting – Rescission – Appeal against rescission order – Appealability of order Roelitta CC trading as RVR Consulting and another v National Youth Development Agency and others [2018] JOL 39763 (GJ)

Default judgment – Rescission – respondent did not challenge the allegations that the summons did not come to the notice of the applicants Johrews Mancorp and Publishers CC and others v Du Toit Littleton Incorporated [2017] JOL 39364 (GJ) Default judgment – Rescission-common law-good cause by giving a reasonable explanation for his default Manline (Pty) Ltd v Mtshali [2017] JOL 39386 (KZP) Default judgment – What constitutes- judgment can be given by default in the normal course in motion proceedings as a result of default of opposition, in default of an appearance at the hearing, or in default of a party placing its version before the court (usually by affidavit). Ferreiras (Pty) Limited v Naidoo and another [2017] JOL 39419 (GJ)

Directives-Makes provision for cases of commercial nature; provision for two case management conferences; urgent applications; applicable to all GAUTENG high courts Commercial Court practice Directive 3 October 2018

Discovery of documents – Application to compel-could not be said that the respondent was in control of the requested documents at the time the application was launched-dismissed Coetzer v Vermaak & Dennis and others (Opperman and others as Third Parties) [2018] JOL 40088 (FB) Discovery of documents-rule 35 (3)- applicant was entitled to a better discovery affidavit from the respondent. Omega Civils (Pty) Limited v C Max Civil Construction & General Trading (Pty) Limited [2018] JOL 39729 (FB)

Discovery-Late filing of document – Condonation- granting of the application had the potential to bring certainty, and to, advance the jurisprudence of the new constitutional dispensation in the determination of the liability of State organs. Member of Executive Council for Department of Health, Eastern Cape v Jantjies [2018] JOL 40065 (ECB) Evidence — By affidavit — Correct approach to — Uniform Rules of Court, rule 38(2). MADIBENG LOCAL MUNICIPALITY v PUBLIC INVESTMENT CORPORATION LTD 2018 (6) SA 55 (SCA)

Evidence – Adducing of evidence by way of video link conference – Main consideration is whether if evidence is placed before the court in such manner; justice is likely to be done – Court’s power to regulate its own processes in the interests of justice allowing it to allow evidence by way of video link conference where jurisdictional facts shown to be established. Krivokapic v Transnet Ltd t/a Portnet [2018] 4 All SA 251 (KZD) Evidence – Admission of affidavit into evidence in terms of Rule 38(2) of the Uniform Rules of Court – General rule in trials is that evidence should be given viva voce – Rule 38(2) contains an exception to the general rule, and an applicant who seeks to invoke the exception must prove that "sufficient reason" exists to do so Bafokeng

Land Buyers Association and others v Royal Bafokeng Nation and others [2018] JOL 39940 (NWM)

Evidence – Admission of affidavit into evidence in terms of rule 38(2) of the Uniform Rules of Court – General rule in trials is that evidence should be given viva voce – Rule 38(2) contains an exception to the general rule, and an applicant who seeks to invoke the exception must prove that “sufficient reason” exists to do so. Bafokeng Land Buyers Association and others v Royal Bafokeng Nation [2018] 3 All SA 92 (NWM) Evidence – Expert evidence – Validity of a will according to section 2 of the Wills Act 7 of 1953 – Court explaining role, duties and functions of an expert witness – Expert’s evidence must be capable of being tested and it must be verifiable. Twine and another v Naidoo and another [2018] 1 All SA 297 (GJ) Evidence – Expert or opinion evidence – Expert evidence is admissible when it can appreciably assist the court, and the opinions of expert witnesses are admissible only where, by reason of their special knowledge and skill they are better qualified to draw inferences than the judicial officer. Dias v Petropulos and another (Nik Moroff & Associates CC and others as Third Parties) [2018] 4 All SA 153 (WCC) Evidence – Expert witnesses – Function of experts in litigation – An expert must be objective irrespective of the party for whom he is testifying, and must also be properly qualified and provide the factual basis for his opinion. Karani v Karani NO and others [2018] 1 All SA 156 (GJ) Evidence— Expert evidence — Joint minutes — Court generally bound by — Rules for repudiation by parties. BEE v ROAD ACCIDENT FUND 2018 (4) SA 366 (SCA) Evidence — Expert evidence — Joint minutes — Failure to comply with requirements in court's Practice Manual — Appropriate order and costs order. NTOMBELA v ROAD ACCIDENT FUND 2018 (4) SA 486 (GJ)

Evidence-motion-application- proper way is not in Heads of Argument but on application-but robust, common-sense approach to a dispute on motion-application dismissed2 Rawson Street Body Corporate and another v Knysna Municipality and another [2017] JOL 37655 (WCC) Exception — If upheld, then ordinarily leave to be granted to amend pleading. OCEAN ECHO PROPERTIES 327 CC AND ANOTHER v OLD MUTUAL LIFE ASSURANCE COMPANY (SOUTH AFRICA) LTD 2018 (3) SA 405 (SCA)

Exception to plea – non-compliance with s 2(1) of the Alienation of Land Act 68 of 1981 – alleged sale of land not reduced to writing – appellants orally agreed with respondent that he purchase a farm for the benefit of a trust to be formed and that trust would be entitled to transfer of the farm upon reimbursement of respondent’s costs – trustees seeking to enforce oral agreement – vagueness – agreement not a contract of sale – not invalid in terms of s 2(1) of Act 68 of 1981 – appellants’ pleadings disclosing a cause of action and not vague – case remitted for trial. Loggenberg N O & others v Maree (286/2017 [2018] ZASCA 24 (23 March 2018)

Exception to plea – upholding an exception disposes of the pleading, not the action or defence – ordinarily therefore the court should grant leave to amend and not dispose of the matter – an excipient has a duty to persuade the court that upon every interpretation which the plea can bear no defence is disclosed - tacit agreement

pleaded constitutes a termination of the written agreement, not a variation thereof. Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (South Africa) Limited (288/2017) [2018] ZASCA 9 (1 March 2018)

Exceptions– Particulars of claim – Exception to – Averment that allegation in particulars of claim was vague and embarrassing – Approach to an exception that a pleading is vague and embarrassing is that it ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged – Onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to serious prejudice. Freedom Property Fund Limited and another v Stavridis and others [2018] 3 All SA 550 (ECG) Exceptions-Claim for specific performance – Exception to particulars of claim-duty to persuade the court that upon every interpretation which the pleading in question, and in particular the document on which it is based, can reasonably bear, no cause of action or defence is disclosed; failing this, the exception ought not to be upheld. JSR 108 Investments CC v Akshardam (Pty) Limited [2017] JOL 39415 (GJ)

Exceptions-Unjust enrichment – vague and embarrassing or lacks the averments which are necessary to sustain a cause of action- exceptions dismissed Execution against immovable property – Mortgage bond foreclosure – Procedural requirements Absa Bank Limited v Mokebe and related matters (Investec Bank Limited and others as amici curiae) [2018] JOL 40390 (GJ)

Execution of judgment – Attachment of bank account – Nature of Oscar Nite (Pty) Limited v Standard Bank of South Africa Limited and others [2018] JOL 39732 (FB)

Execution-Foreclosure –Western Cape High Court- The application for the money judgment and an order of special execution against immovable property which is mortgaged to secure the loan and which is the primary residence of the judgment debtor are intrinsically connected and must be brought in one proceeding and not in a piecemeal manner as separate applications, where possible Standard Bank of South Africa Limited v Hendricks and Another; Standard Bank of South Africa Limited v Sampson and Another; Standard Bank of South Africa Limited v Kamfer; Standard Bank of South Africa Limited v Adams and Another; Standard Bank of South Africa Limited v Botha NO; Absa Bank Limited v Louw (11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18) [2018] ZAWCHC 175 (14 December 2018)

Execution-Housing — Right to housing — Prohibition against eviction from home without court order — Occupant barred from returning to room in emergency shelter — Regarded room as home — Left for three months after being injured in fight with other residents — Possessions left behind and key retained — Room not interfered with in his absence — Right not to be evicted without court order violated — No indication that occupant posed threat to anyone — Order restoring possession confirmed on appeal — Constitution, s 26(3). METROPOLITAN EVANGELICAL SERVICES NPC AND ANOTHER v GOGE 2018 (6) SA 564 (GJ) Execution-Litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involves parties located within the jurisdiction of the Gauteng

Local Division, Johannesburg. In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP) Execution-Mortgage— Foreclosure — Judicial execution — Sale in execution — Residential property — Reserve price — Court must, except in exceptional circumstances, set reserve price — Both sides to place all relevant facts before court — Uniform Rules of Court, rule 46A(8)(e). ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) Execution-Mortgage — Foreclosure — Judicial execution — Primary residence — Money judgment and execution claims inextricably linked — Must be sought and adjudicated together in one proceeding — If postponement required, then matter to be postponed in its entirety. ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ)

Execution-Property – Land – Eviction order – Requirements – Eviction of appellant was sought on basis that his right of residence flowed solely from his employment – Evidence establishing that appellant was in fact an occupier as defined in the Extension of Security of Tenure Act 62 of 1997 – Termination of appellant’s right of residence not shown to have been just and equitable as required by section 8(1) of Extension of Security of Tenure Act. Monde v Viljoen NO and others [2018] 4 All SA 665 (SCA) Execution against immovable property – Mortgage bond foreclosure – Procedural requirements.Issue was whether a court faced with an application by the mortgagee for an immediate money judgment has a discretion to postpone an application for executability to afford the mortgagor an opportunity to remedy its default – Court held that in exceptional circumstances, a reserve price should be set by a court in all matters where execution is granted against immovable property, which is the primary residence of a debtor, where the facts disclosed justify such an order. ABSA Bank Limited v Mokebe and 3 related matters [2018] 4 All SA 306 (GJ) Execution — Application to execute pending appeal — Requirements — Applicant must allege absence of irreparable harm to all opposing parties — Leaving one out fatal to application — Superior Courts Act 10 of 2013, s 18(1) and (3). SWART AND ANOTHER v CASH CRUSADERS SOUTHERN AFRICA (PTY) LTD 2018 (6) SA 287 (GP)

Execution — Attachment of immovable property — Declaration of executability — Judicial oversight — Duty of court, in its order declaring bonded property specially executable, to inform lay-litigant debtors that, should they pay arrears before sale in execution, original agreement would be reinstated — National Credit Act 34 of 2005, st129(3). DUMA v ABSA BANK LTD 2018 (4) SA 463 (GP)

Execution- non-compliance with maintenance obligations — rule 46(1)(a)(ii) — writ of execution against immovable property — non compliance with court orders-At the hearing, it became clear that Mr S was in substantial arrears with his basic maintenance obligations-The Court acknowledged that the matter raises a constitutional issue, but held that it would not be in the interests of justice to grant the applicant leave to appeal. The Court ordered Mr S to pay Ms V-S’s costs on the basis of his conduct towards the child, and the need to safeguard the Court’s

integrity. Further, the Court held that a punitive order of costs was justified in this matter as Mr S’s conduct was the kind of “extraordinary” conduct worthy of the Court’s rebuke. Mr S was ordered to pay Ms V-S’s costs relating to the proceedings of 8 November 2017 on an attorney and client scale. SS v VV-S [2018] ZACC 5

Execution-A judgment debtor who claims that he has sufficient movable assets to satisfy the debt cannot avert execution against his immovable property unless he makes the movables, including incorporeals, available for execution. Nkola v Argent Steel Group (Pty) Limited t/a Phoenix Steel (406/2017) [2018] ZASCA 29 (26 March 2018)

Execution-claim for property to be declared specially executable – Primary home of debtor – Court’s duties-court critical of bank’s approach-dismissed Absa Bank Limited v Mathibela [2018] JOL 39750 (GP)

Execution-Foreclosure - The monetary judgment is part of the cause of action when execution against immovable property is concerned – the issues are intrinsically connected and must be brought in one proceeding and not piecemeal. All the facts should be placed before the court to sustain the relief sought. A failure to do so, disentitles a party to relief. When a court is appraised of all the facts, a decision whether to place a reserve price on the sale of a house that may be sold in execution, can be properly taken. Each matter will depend on its own facts. Absa Bank Limited v Mokebe; Absa Bank Limited v Kobe; Absa Bank Limited v Vokwani; Standard Bank of South Africa Limited v Colombick and Another (2018/00612; 2017/48091; 2018/1459; 2017/35579) [2018] ZAGPJHC 485 (12 September 2018)

Execution-foreclosure-why not to magistrates courts-jurisdiction-Human Rights Commission for distressed debtors-how should access to justice be retained-abuse of process to bring matters before the High Court and not magistrates court or local division-concurrent jurisdiction-choice by litigant-High Court not obliged to entertain the matters!-orders given: High Court must give leave to hear the matter where monetary value gives magistrates courts jurisdiction, High Court may refer matters to magistrates courts or local divisions NEDBANK LTD v THOAJANE AND 12 RELATED MATTERS ZAGPPHC

Fees-contingency fee agreement-declared to be invalid M and Others v Wim Krynauw Incorporated and Others (41450/2017) [2018] ZAGPJHC 489 (19 September 2018)

Fees — Counsel's fees — Taxation — Wasted costs of first day of postponed trial — Correct approach — Counsel entitled to full day fee as compensation for loss of opportunity, unless briefed and appearing in another matter on same day — Absent any reason to suspect counsel charged improperly, counsel not to be required by taxing officer to show loss of opportunity. TROLLIP v TAXING MISTRESS, HIGH COURT AND OTHERS 2018 (6) SA 292 (ECG) Fees-Taxation –counsel’s fee – Review of taxation- trial is settled or postponed on or shortly before the trial date-settlement or postponement of a trial prejudices counsel if he is not properly compensated for having reserved that day for trial. Trollip v Taxing Mistress of the High Court and another (Eastern Cape Society of Advocates and another as amici curiae) [2018] JOL 40139 (ECG)

Heads of Argument-Delivery of heads of argument – Non-compliance – Application to compel – Striking of claim form roll – Whether automatic in terms of practice directive Hassim v Bekker and others [2018] JOL 40118 (GJ)

Interdict – Interim interdict – Requirements – Applicant establishing prima facie right, irreparable harm if interim relief not granted, that the balance of convenience favoured it and that there was no suitable alternative remedy UMSO Construction (Pty) Ltd v City of Johannesburg and another [2018] 4 All SA 507 (GJ)

Interdict– Interdictory relief – Final interdict – Requirements- clear right; an injury actually committed or reasonably apprehended; and the absence of similar protection by any other ordinary remedy Dube and another v City of Johannesburg Metropolitan Municipality [2018] JOL 39433 (GJ) Interdict– Interim interdict – Requirements – Requirements for an interim interdict are a prima facie right on the part of an applicant; a well-grounded apprehension of irreparable harm if interim relief is not granted; the balance of convenience favouring the granting of interim relief; and the absence of any other ordinary remedy to give adequate redress to the applicant. Export Development Canada and another v Westdawn Investments (Pty) Ltd and others [2018] 2 All SA 783 (GJ) Interdict — Interim interdict — Requirements — Balance of convenience — Weighing heavily in favour of party seeking to uphold integrity of established financial system and rule of law. ANNEX DISTRIBUTION (PTY) LTD AND OTHERS v BANK OF BARODA 2018 (1) SA 562 (GP)

Interdict — Interim interdict — Requirements — No such thing in our law as 'interim-interim' interdict based on requirements other than those for common-law interim interdict. ANNEX DISTRIBUTION (PTY) LTD AND OTHERS v BANK OF BARODA 2018 (1) SA 562 (GP)

Interdict-anti dissipation interim interdict- creditor cannot interdict the dissipation of an amount of money from a bank account Carsten and Another v Kullmann and Others (49174/2017) [2018] ZAGPJHC 2 (4 January 2018)

Interdict-Facebook slander-defamation – defence – onus of proof-interdict granted Fichardt v Potgieter and others [2018] JOL 40056 (FB) Interdict-Final interdict – Requirements Mavuso v Mdayiand others [2018] JOL 40099 (ECG)

Interdict-Interdictory relief – Entitlement to-a wall dividing two properties- both owners liable for upkeep Vosloo Cloete [2018] JOL 39860 (GP) Interdict-Interim interdict – Requirements- Advertising Standards Authority (“the ASA”)-interim interdict to prohibit advert granted Medical Nutritional Institute (Pty) Limited v Advertising Standards Authority Private Club Registration number 1995/00781/08 [2018] JOL 40025 (GJ) Interdict-Interim interdict – Requirements-applicant succeeds-rule of law not adhered to Senekal v Law Society of the Free State [2018] JOL 40058 (FB)

Interdict-International law – Ownership of cargo on board ship – Application for interdict – Whether proposed vindicatory action was non-justiciable by a domestic South African court – Reliance on act of State doctrine which is a common law ground of non-justiciability and, the principle of State immunity – No basis found on which it could be contended that the dispute was non-justiciable before the present Court. Saharawi Arab Democratic Republic and another v Owner and Charterers of the MV “NM Cherry Blossom” and others [2018] 1 All SA 593 (ECP) Interest — A tempore morae — Mora interest on unliquidated debt — Court's discretion under s 2A(5) of Prescribed Rate of Interest Act 55 of 1975 — May be used to neutralise effect of inflation. DRAKE FLEMMER & ORSMOND INC AND ANOTHERV GAJJAR 2018 (3) SA 353 (SCA) Interest-mora rate now 10%: In terms of section 1(2) (b) of the Prescribed Rate of Interest Act , 55 of 1975, the Minister of Justice and Correctional Services, has amended the interest rate for purposes of section 1 (1) of the Act to 10% per the Government Gazette of 20 April 2018. The change has come into effect on the 1st of May 2018.

Irregular step- rule 30(1) and (3)- failed to give the plaintiff any prior notice- Absa Bank Limited v Marx NO and Others (9757/2017) [2018] ZAWCHC 42 (29 March 2018)

Irregular steps-appeal-security ordered not given-appeal dismissed Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ) Joinder – Contract – Cession – Claim for payment-court refused joinder DSD Trading trading as Eveready Brick & Block v eThekwini Municipality [2017] JOL 37723 (KZD) Joinder – Misjoinder –Where a third party has an interest in the subject matter of the action which is less than direct or substantial, or the extent of the party’s interest is unclear, the party may be joined as a matter of convenience – A joinder of convenience does not give rise to a misjoinder. Freedom Property Fund Limited and another v Stavridis and others [2018] 3 All SA 550 (ECG) Joinder-dissolution of company – Liquidation-dissolution of company after liquidation-Companies Act-order avoiding the dissolution of a company in terms of s 420 of the Companies Act 61 of 1973 – order granted in the absence of the appellants – whether the appellants were affected parties within the meaning of rule 42(1)(a) – ambit of s 420 and effect of order thereunder – appellants not affected parties and had no locus standi to challenge section 420 order De Villiers and others v Trustees for the Time Being of the GJN Trust and others [2018] JOL 39958 (SCA) Joinder-Misjoinder – Where a third party has an interest in the subject matter of the action which is less than direct or substantial, or the extent of the party’s interest is unclear, the party may be joined as a matter of convenience – A joinder of convenience does not give rise to a misjoinder Freedom Property Fund Limited and another v Stavridis and others [2018] JOL 30034 (ECG)

Joinder-Non-joinder – defendant's right to demand that other parties be joined, which must be distinguished from the position where the court is asked to exercise its discretion to join some other party, is very limited. A plaintiff need not join as co-defendants lodgers, boarders or subtenants, when the plaintiff sues the defendant (tenant) for ejectment. Ekurhuleni Metropolitan Municipality v Erasmus [2018] JOL 39429 (GJ) Joinder – Non-joinder – Insofar as parties in new tender process would be affected by outcome of dispute, they had to be joined in the application. UMSO Construction (Pty) Ltd v City of Johannesburg and another [2018] 4 All SA 507 (GJ) Judge — Death — Before giving judgment in trial — Trial completed — Parties not wanting trial de novo — Proposal that matter be determined on available documents and after legal argument. MONDI SHANDUKA NEWSPRINT (PTY) LTD v MURPHY 2018 (6) SA 230 (KZD) Judge — Appointment — Judicial Service Commission — Selection process — Review — Record on review — Extent of record — Transcript of commission's post-interview deliberations forming part of record — Must be supplied to applicant — Uniform Rules of Court, rule 53(1)(b). HELEN SUZMAN FOUNDATION v JUDICIAL SERVICE COMMISSION 2018 (4) SA 1 (CC) Judges – Application by former judge to undo resignation – Legality challenge – Undue delay in bringing of application for common law review – Once the defence of undue delay is raised, it is incumbent upon an applicant for review to persuade the court that the application has been brought within a reasonable time of the impugned decision having been made – Court must decide if delay was unreasonable, and if so, whether condonation should be granted. Heath v President of the Republic of South Africa and another [2018] 1 All SA 740 (WCC)

Judges – Application by former judge to undo resignation – Legality challenge – Undue delay in bringing of application for common law review – Once the defence of undue delay is raised, it is incumbent upon an applicant for review to persuade the court that the application has been brought within a reasonable time of the impugned decision having been made – Court must decide if delay was unreasonable, and if so, whether condonation should be granted Heath v President of the Republic of South Africa [2018] JOL 39378 (WCC) Judges- departing from judgments by other judges- When a single judge may depart from a prior decision of a single judge of the same division on a point of law; and when the SCA may depart from its prior decision on a matter of law. PATMAR EXPLORATIONS (PTY) LTD AND OTHERS v LIMPOPO DEVELOPMENT TRIBUNAL AND OTHERS 2018 (4) SA 107 (SCA) Judgment – Credibility findings by trial court – Adverse credibility findings against appellant – An appellate court has very limited powers to interfere with factual findings made by a trial court, particularly if it depended on credibility findings – While there was no basis on which to interfere with the High Court’s credibility findings, that in itself did not, without more, warrant a summary rejection of all of the appellant’s evidence. ST v CT [2018] 3 All SA 408 (SCA)

Judgment — Foreclosure — Application for judgment on accelerated debt, where all legal and contractual requirements for such judgment met, and mortgaged property primary residence — Court not having discretion to postpone matter until judicial consideration of executability — Practice directive requiring such postponement not capable of displacing substantive law entitling credit provider to judgment. ABSA BANK LTD v NJOLOMBA AND ANOTHER, AND OTHER CASES 2018 (5) SA 548 (GJ)

Judicial Service Commission (JSC)- )-obliged to furnish a review applicant seeking the review and setting aside of a JSC decision with a recording of the private deliberations that inform the decision. Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8 (24 April 2018)

Jurisdiction — Competition Tribunal — To make declaratory orders — Competition Tribunal having jurisdiction to make declaratory orders — Declaratory order made that proposed transaction not constituting notifiable merger — Competition Act 89 of 1998, s 27(1). HOSKEN CONSOLIDATED INVESTMENTS LTD AND ANOTHER v COMPETITION COMMISSION 2018 (4) SA 248 (CAC)

Jurisdiction – Equality Court and High Court – Section 16(1)(a) of the Act provides, subject to section 31, that every High Court is an Equality Court for the area of its jurisdiction. Section 16 however, provides for specific requirements for the designation of presiding officers in the Equality Court -functions differ-High court can hear interdict Wierzycka and another v Manyi [2017] JOL 39279 (GJ)

Jurisdiction — Labour Court having jurisdiction to declare legislation unconstitutional. PUBLIC SERVANTS ASSOCIATION OBO UBOGU v HEAD, DEPARTMENT OF HEALTH, GAUTENG AND OTHERS 2018 (2) SA 365 (CC)

Jurisdiction — Removal of actions to High Court — Section 50(1) of Magistrates' Courts Act allowing for removal of both claim in convention and claim in reconvention to High Court — Magistrates' Courts Act 32 of 1944, s 50(1). OCTAGON CHARTERED ACCOUNTANTS v ADDITIONAL MAGISTRATE, JOHANNESBURG, AND OTHERS 2018 (4) SA 498 (GJ) Jurisdiction – Section 21(1) of the Superior Courts Act 10 of 2013 provides that the court has jurisdiction over all persons residing or being in its area of jurisdiction – Court’s jurisdiction not decided by doctrine of forum conveniens which does not reflect our law and may not be excluded by agreement. Export Development Canada and another v Westdawn Investments (Pty) Ltd and others [2018] 2 All SA 783 (GJ)

Jurisdiction- “Of all the jurisdictional options that the plaintiff was convinced it had, it chose to issue summons from the court that would be the most difficult for the defendant to have access to. I, therefore, decline to allow the plaintiff to supplement” Iemas Financial Services (Co-operative) Ltd v Ntokane (48941/15) [2018] ZAGPPHC 622 (10 August 2018)

Jurisdiction -Administration orders – Emoluments attachment order – Issue of - only the court of the district in which the employer or the judgment debtor resides, carries on business or is employed, or if the judgment debtor is employed by the State, in which the judgment debtor is employed, has jurisdiction to issue an emoluments

attachment order. Smith NO v Clerk of the Court, Pietermaritzburg [2017] JOL 37612 (KZP)

Jurisdiction- The dispute arose as a direct consequence from the engagement of the plaintiff by the defendant to render professional services to the defendant’s employees within the jurisdiction of the court. The court therefore did have jurisdiction in the matter. Holden v Assmang Limited [2018] JOL 39618 (KZP)

Jurisdiction-Competition – Self-referral to Competition Tribunal – Jurisdictional prerequisite – Lodging of complaint with Competition Commission Discovery Health Medical Scheme and others v Afrocentric Healthcare Limited and others [2018] JOL 39831 (CT)

Jurisdiction-Courts – Access to – High Courts and Magistrate’s Courts – preferring high court wrong Nedbank Limited and others v Thobejane and others [2018] JOL 40451 (GP)

Legal Practice Act AS GAZETTED ON 29 0CTOBER 2018:THE ACT COMES INTO OPERATION: 1 November 2018-THERE ARE TEN CHAPTERS IN THE ACT, ONLY CHAPTER 5 WILL NOT BE IN OPERATION (LEGAL OMBUD)-CERTAIN SECTIONS AND/OR SUBSECTIONS HAVE BEEN EXCLUDED, THEY ARE:Section 35 subsections 1-3 and 7-12,37 (5) (e) (ii), Section 40 (1) (b) (ii), and 7(b);Section 41, Section 42, Section 93(5) ;Section 95(2),Chapter 5 (legal ombud)

Legal Practice Council-rules were published by the National Forum, regulations were published, currently with parliament

Legal professional privilege — Scope — Without prejudice rule — Rule protecting admissions made during settlement negotiations from subsequent disclosure, except for limited purpose of interrupting prescription — Party, in communication made in settlement negotiations, waiving its right to rely on prescription — Interruption of prescription not arising — Communication inadmissible against party — May rely on prescription. GROEP v WJ DA GRASS ATTORNEYS AND ANOTHER 2018 (5) SA 248 (WCC)

Legal representation of — Withdrawal of legal representative — On day of trial on grounds of ill health — Accused electing to proceed with trial without representation when asked what wished to do — Short of compelling accused to engage legal representation, nothing more could be expected of court — No irregularity occurring. S v SHIBURI 2018 (2) SACR 485 (SCA)

Legal representation-university student-disciplinary hearing-should have in serious cases Van der Ross v University of Cape Town and Another (8473/2018) [2018] ZAWCHC 152 (15 November 2018)

Legal Representation-at state expense-State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings-not authorised Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

Lis pendens – Requirements – Court’s discretion – Court must decide whether it is dealing with a situation in which the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause, and if that is found to be the case, then the court exercises a discretion as to whether to stay the proceedings before it or not.Ritz Plaza (Pty) Limited v Ritz Hotel Management Company (Pty) Ltd [2018] 3 All SA 583 (WCC) Lis pendens – Requirements – Court’s discretion – Court must decide whether it is dealing with a situation in which the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause, and if that is found to be the case, then the court exercises a discretion as to whether to stay the proceedings before it or not Ritz Plaza (Proprietary) Limited v Ritz Hotel Management Company (Proprietary) Limited [2018] JOL 39951 (WCC)

Locus standi – Enforceability of lease agreement-plaintiff not prove its identity! Four Wheel Drive Accessory Distribution CC v Rattan NO [2018] JOL 40076 (KZD)

Locus standi – Whether individual party to joint venture has legal standing to seek relief in respect of bid where joint venture was the bidder – Court confirming standing on ground that party to the joint venture stood to benefit from the bid, if awarded, in its own right UMSO Construction (Pty) Ltd v City of Johannesburg and another [2018] 4 All SA 507 (GJ)

Locus standi in judicio – appellant claimed that it bore the risk of damage to a courtesy vehicle damaged when user fatally shot by assailants – locus standi to sue for cost of repairs not established – alleged lease between appellant and user not proved – appeal dismissed – judgment must be confined to issues raised by the parties – court should not decide issues irrelevant to outcome of the case. Four Wheel Drive Accessory Distributors CC v Rattan NO (1048/17) [2018] ZASCA 124 (26 September 2018)

Locus standi –Liquidators- purpose of the section 420 application was to enable the liquidators to claim from the appellants, the subject matter of that application was the restoration of the dissolved company to a company Freedom Property Fund Limited and another v Stavridis and others [2018] JOL 30034 (ECG) Locus standi of applicant-Erection of unlawful structure – Interim interdict – Confirmation proceedings – certificate holder passed on-executor replaces Nandipha NO v Irfani Traders CC trading as Jabulani Hardware and another [2018] JOL 40293 (ECM)

Locus standi – Authorisation- Application by trustee – must be challenged through rule 7(1) Van Wyk v Daberas Adventures CC [2018] JOL 40030 (NCK) Locus standi – Onus of proof- the person instituting motion proceedings on behalf of a church (either the church itself or a natural person) has to establish his authority to do so. Church of God and Saints of Christ and another v Church of God and Saints

of Christ – Stone of Truth (Cradock / Bishop Seyibhokhwe Group) and another [2018] JOL 40291 (ECG)

Locus standi- A beneficiary of a deceased estate may, under the Beningfield exception, claim assets from the person in possession where the executor of the estate has died and where the executor had previously sold the assets unlawfully before his death. Standard Bank of South Africa Limited v July and Others (525/2017) [2018] ZASCA 85 (31 May 2018)

Locus standi of unit owners to institute proceedings – matter falling within s 41(1) of the Sectional Titles Act 95 of 1986 – owners obliged to apply for the appointment of a curator ad litem. Mobile Telephone Networks (Pty) Ltd and Another v Spilhaus Property Holdings (Pty) Ltd and Others (208/2017) [2018] ZASCA 16 (15 March 2018)

Locus standi-a litigant “abiding the order”- perplexed by the fact that she was granted leave to appeal the order-does not have locus standi Cilliers NO and others v Ellis and another [2017] JOL 37555 (SCA) Locus standi-Sectional title schemes – Action against owner of unit in scheme - only the body corporate and not individual members who may institute proceedings against wrongdoers. Skyscape Investments 110 CC v Livinafrica (Pty) Ltd and others [2018] JOL 39880 (WCC)

Locus standi-Sectional title — Common property — Unit owner — Whether having standing to apply for removal of base station from common property — Sectional Titles Act 95 of 1986, s 41. MOBILE TELEPHONE NETWORKS (PTY) LTD AND ANOTHER v SPILHAUS PROPERTY HOLDINGS (PTY) LTD AND OTHERS 2018 (3) SA 396 (SCA)

Magistrates courts-amendments by Courts of Law amendment Act ,Magistrates’ Courts Act, 1944 so as to insert definitions; to regulate the rescission of judgments where the judgment debt

Mandament of Spolie-Property – Use of property – Threat to continued use – Mandament van spolie – Appropriate recourse Jigger Properties CC v Maynard NO and others [2017] JOL 37547 (KZP)

Mandament van Spolie-eviction order – application for interim interdictory relief - validly issued warrant of ejectment Colour Tech Panel and Paint (Pty) Limited v Crest Investments CC and others [2017] JOL 37554 (KZD)

National Credit - summary judgment – Opposition of application – Bona fide defence-reckless credit- discretion- unjust enrichment Absa Bank Limited v Maritz [2018] JOL 39749 (GP) National Credit Act-Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Permissible until credit provider realises proceeds of sale in execution — Mere attachment of goods or property no bar to reinstatement — Power to reinstate resting with consumer, not credit provider

— National Credit Act 34 of 2005, s 129(3) and s 129(4). ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) National Credit Act-Settlement agreements-Consumer – Complaint to National Consumer Tribunal – Settlement agreement – Power to confirm as consent order Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT)

National Credit Act – Home loan agreements – Default – Application for money judgment – National Credit Act 34 of 2005, section 129(4) – Interpretation of – Section 129(4) does not touch on the process of general execution against other assets of the debtor after judgement and it finds no application in the case of a mortgage agreement Absa Bank Limited v Njolomba and another; and other related matters [2018] JOL 39713 (GJ) National Credit Act 34- applicable- no, defendants had signed the instalment sale agreement acknowledging that the National Credit Act did not apply to it. FirstRand Bank Ltd t/a Wesbank v A and E Registrations (Pty) Ltd and another [2018] JOL 39675 (GJ)

National Credit Act 34 of 2005 – Rescission application – Common law grounds – Good cause – Applicants required to provide a reasonable explanation of their default, show that the application was bona fide, and show that they had a bona fide case which prima facie would succeed in setting aside the order of the Registrar. Moshoeshoe and another v Firstrand Bank Ltd and others [2018] 2 All SA 236 (GJ)

National Credit Act 34 of 2005 (‘the NCA’) section 86 - declaring applicant is no longer over-indebted Phaladi v Lamara and Another; Moshesha v Lamara and Others (20480/2017; 20481/2017) [2018] ZAWCHC 1 (12 January 2018)

National Credit Act 34 of 2005 Consumer – Over-indebtedness – Application for declaration that no longer over-indebted – Court’s powers Phaladi v Lamara and another and a related matter [2018] JOL 39473 (WCC)

National Credit Act 34 of 2005, reg 23A(4) of National Credit Regulations, 2006 — Affordability assessment — Self-employed and informally employed consumers — Required to provide three months' bank statements or latest financial statements TRUWORTHS LTD AND OTHERS v MINISTER OF TRADE AND INDUSTRY AND ANOTHER 2018 (3) SA 558 (WCC) National Credit Act 34 of 2005, s 129(3)-Consumer credit agreement — Remedying of default in agreement — Payment can only be made by or on behalf of consumer MOSTERT AND OTHERS v FIRSTRAND BANK LTD t/a RMB PRIVATE BANK AND ANOTHER 2018 (4) SA 443 (SCA) National Credit Act— 'Club fee' — Whether cost of credit — Whether agreement 'requires' payment thereof — National Credit Act 34 of 2005, s 101(1). Club fee was not a cost of credit: a cost of credit was a cost to lend money, while the Club fee was a fee to buy a product; and that the membership (and hence fee) could be cancelled at any time was inconsistent with the fee being such a cost EDCON HOLDINGS LTD v NATIONAL CONSUMER TRIBUNAL AND ANOTHER 2018 (5) SA 609 (GP)

National Credit Act— Consumer credit agreement — Debt rearrangement — Order — Powers of magistrates' court — To rearrange over-indebted consumer's repayment obligations by varying interest rate in credit agreement — Magistrates' court having such power, where parties having agreed to such amended interest rate — National Credit Act 34 of 2005, ss 87(1) and 86(7)(c)(ii). GROEPBURGER-PERWALD v VOSLOO AND OTHERS 2018 (5) SA 206 (WCC)

National Credit Act- Credit facility – What constitutes a credit facility. Eureka Diy Solutions (Pty) Ltd v Soda Cleaning and Equipment North and another [2017] JOL 39038 (GP) National Credit Act— Reinstatement of agreement in default — Mortgage agreement — Sale in execution — Of movable property 'after execution of any other court order enforcing that agreement' as contemplated in s 129(4)(b) of NCA — Not affecting debtor's right to reinstate mortgage agreement under s 129(3) of NCA — National Credit Act 34 of 2005, ss 129(3) and 129(4)(b). ABSA BANK LTD v NJOLOMBA AND ANOTHER, AND OTHER CASES 2018 (5) SA 548 (GJ) National Credit Act-Consumer – Credit agreements – Home loan agreements – Default – Application for money judgment – National Credit Act 34 of 2005 – Section 129(4) – Interpretation of – Properly construed with reference to its language and purpose, section 129(4)(b) relates exclusively to the instalment sale, secured loan, and lease variety of credit agreement which are singled out for debt enforcement by sale of the movable property which is their subject matter and further resort to judgment for the balance remaining after the sale of such property – Section 129(4) does not touch on the process of general execution against other assets of the debtor after judgment and it finds no application in the case of a mortgage agreement. ABSA Bank Ltd v Njolomba and another and related matters [2018] 2 All SA 328 (GJ) National Credit Act-Consumer – Debt review – Debt review order – Alleged breach- applicant’s attempt to challenge the debt review orders made was without merit Changing Tides 17 (Pty) Limited NO v Wagg (Formerly Weitsz) and another [2018] JOL 39594 (ECP) National Credit Act-Consumer – Loan agreement – Claim for payment – Defence – Failure to register as credit provider Van Blommestein and another v East Cape Game Properties (Pty) Ltd and others [2018] JOL 39882 (ECG)

National Credit Act-Consumer – Over-indebtedness – Debt review – Declaration that no longer over-indebted – Jurisdictional pre-requisites Less v Vosloo and others [2018] JOL 39628 (KZP) National Credit Act-Consumer – Over-indebtedness – Restructuring of debts – Breach – Summary judgment application-reckless credit not valid defence Nedbank Limited v Denny [2018] JOL 39976 (ECG) National Credit Act-Credit agreement – Cancellation – Summary judgment – Delivery of notice Firstrand Bank Ltd t/a Wesbank t/a GMSA Financial Services v Caga [2018] JOL 40297 (ECG)

National Credit Act-Credit agreement — Consumer credit agreement — Reckless credit — Affordability assessment — Self-employed and informally employed consumers — Regulation 23A(4) requiring them to provide three months' bank statements or latest financial statements — Self-employed and informally employed consumers without bank accounts likely poor, and not in position to provide financial statements — Effectively excluded from credit — Unfair discrimination against — Subregulation reviewed and set aside. TRUWORTHS LTD AND OTHERS v MINISTER OF TRADE AND INDUSTRY AND ANOTHER 2018 (3) SA 558 (WCC) National Credit Act-Credit agreement — Consumer credit agreement — Consumer credit records — Removal of record of debt rearrangement by credit bureau or national credit register — Not judicial process — May only be effected through prescribed administrative process — National Credit Act 34 of 2005, s 71. PHALADI v LAMARA 2018 (3) SA 265 (WCC) National Credit Act-Debt review – Debt restructuring order – Termination by creditor – Lawfulness- not lawful-bank cannot do it if creditor not in arrears Harilall v Standard Bank of South Africa [2018] JOL 37946 (KZP)

National Credit Act-Debtor and creditor – remedying of default in a credit agreement in terms of s 129(3) of the National Credit Act 34 of 2005 – s 129(3) requires payment by or on behalf of the consumer – consumer relied on payments during 2013 and 2015 – not established that 2013 payment settled the arrears – 2015 payments did settle the arrears but were not made by or on behalf of the consumer. Mostert and Others v Firstrand Bank t/a RMB Private Bank (198/2017) [2018] ZASCA 54 (11 April 2018)

National Credit Act-interpretation of section 129(3) and (4)-balancing rights-difficult as the rights of the credit providers are driven by profit, while that of consumers are driven by the ability to access the credit market Absa Bank Limited v Mokebe; Absa Bank Limited v Kobe; Absa Bank Limited v Vokwani; Standard Bank of South Africa Limited v Colombick and Another (2018/00612; 2017/48091; 2018/1459; 2017/35579) [2018] ZAGPJHC 485 (12 September 2018)

National Credit Act 34 of 2005 - under what circumstances is a credit provider obliged to register – where the credit agreement exceeds the threshold set out in s 42(1) - irrespective of whether it is a single transaction - irrespective of whether the credit provider is a regular participant in the credit industry Du Bruyn NO and Others v Karsten (929/2017) [2018] ZASCA 143 (28 September 2018)

National Credit Act 34 of 2005 — section 129 — notice of default — draw default to the attention of the consumer— MUST specify amount of arrears Amardien and Others v Registrar of Deeds and Others (CCT212/17) [2018] ZACC 47 (28 November 2018)

Particulars of claim – Exception to – Averment that allegation in particulars of claim was vague and embarrassing – Approach to an exception that a pleading is vague and embarrassing is that it ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged – Onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to serious prejudice –Freedom Property Fund Limited and another v Stavridis and others [2018] JOL 30034 (ECG)

Particulars of claim-amended-Claim for payment – Enrichment claim – Interest Nedbank Limited v CBR Engineering CC and others [2018] JOL 39624 (FB) Particulars of Claim-Cause of action – Nature of claim – Whether delictual or contractual Quispiam CC and others v Johannesburg Stock Exchange Ltd [2018] JOL 40052 (GJ) Plea – Special plea – Prescription – Prescription Act 68 of 1969 – Whether the defendant had undertaken to abandon the special plea of prescription – Court examined the defendant’s offer to settle and its reliance on “without prejudice” negotiations – Court was not persuaded that the letter relied on by the plaintiff was admissible in evidence against the defendant, and the conclusion was that the special plea of prescription was not abandoned by the defendant. Groep v Golden Arrow Bus Services (Pty) Ltd and a related matter [2018] 1 All SA 508 (WCC) Pleadings — Amendment — Application — Form — Rule 28(4) postulating two procedures by which party might approach court for leave to amend — One, by substantive application for leave to amend, and another by simply orally applying for leave to amend on day of hearing — Choice up to discretion of applicant — Uniform Rules of Court, rule 28(4). DE KOCK v MIDDELHOVEN 2018 (3) SA 180 (GP)

Pleadings – Exception – Late filing-In terms of Rule 30 of the Uniform Rules of Supreme Court, the applicant sought an order declaring the fifth defendant’s filing of a document captioned “defendant’s exception to the plaintiff’s amended particulars dated 18 November 2014” to be an irregular step and for it to be set aside- late filing condoned August v Minister of Home Affairs [2018] JOL 39566 (ECM)

Pleadings – Particulars of claim – Application to amend - The court must not look too critically at the pleadings nor should it adopt an overly technical approach. Lowenthal v Street Guarantee (Proprietary) Limited and others [2018] JOL 39436 (GJ) Pleadings – Particulars of claim – Exceptions to – Exceptions serve as a means of objecting to pleadings which are not sufficiently detailed, lack lucidity, or are incomplete, and are thus embarrassing affecting the ability of the other party to plead thereto. Bowman Gilfillan Inc v Minister of Transport; In re: Minister of Transport v Mahlalela and others [2018] 3 All SA 484 (GP)

Pleadings – Particulars of claim – Leave to amend-amendment applications are not intended or designed to determine factual issues Standard Bank of South Africa Limited v Associated Credit Management (Pty) Limited and others [2018] JOL 39439 (GJ) Pleadings– Exception to plea –Property – Alienation of immovable property – Requirements – plea was based on an invalid and unenforceable oral contract Bester NO v Van Wyk [2017] JOL 39336 (ECG) Pleadings-amendments-application to amend counterclaim in terms of Rule 28(1) of the Uniform Rules – claims for damages and not specific performance – amendment of counterclaim did not introduce a new cause of action – no prejudice. Magnum Simplex International (Pty) Ltd v MEC Provincial Treasury, Provincial Government of Limpopo (556/17) [2018] ZASCA 78 (31 May 2018)

Plea-special plea-Personal injury/ Delict – Motor vehicle accident – Claim for compensation – Special plea – Liability Mbangeni v MEC Health, Gauteng Province and another [2018] JOL 39443 (GJ)

Plea-Special pleas – Prescription – Jurisdiction- court ordered separation of the defendant’s special pleas of prescription and jurisdiction from the merits of the action Holden v Assmang Limited [2018] JOL 39618 (KZP)

Practice - Superior Courts – Uniform Rules of Court – Rule 42(1)(b) - rescission or variation of an order ‘erroneously sought or erroneously granted in the absence of any party effected thereby’ - setting aside of costs order de bonis propriis granted against firm of attorneys in its absence – attorneys no longer represented a party in the proceedings, were not a party to the proceedings and they were not participants at the hearing - they should, at the very least, have been invited to make submissions regarding an adverse costs order against them - consequently, they were not heard - therefore, an irregularity in the proceedings - r 42(1)(a) finds application. Jay Incorporated v T and Another (45403/14) [2018] ZAGPJHC 486 (10 September 2018)

Prescription – an arbitration award generally does not create a new debt for purposes of the Prescription Act 68 of 1969 (the Act) – a claim to make an arbitration award an order of court in terms of s 31 of the Arbitration Act 42 of 1965 is not a ‘debt’ in terms of the Act. Brompton Court Body Corporate v Khumalo (398/2017) [2018] ZASCA 27 (23 March 2018)

Prescription — interruption — referral to conciliation process-whether the Prescription Act applies to litigation under the LRA, and second, whether the unfair dismissal dispute referred by FAWU to the LC on behalf the employees of Pieman’s had prescribed-In light of this inconsistency between the two statutes, Zondi AJ concludes that the Prescription Act does not apply to litigation under section 191 of the LRA. Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Limited (CCT236/16) [2018] ZACC 7 (20 March 2018)

Prescription – Motor vehicle accidents – Claim for compensation – Special plea – Interruption by acknowledgment of liability Mjokovana v Road Accident Fund [2018] JOL 40150 (ECM) Prescription – Nature of agreement – Whether claim was rei vindication- a deceased estate-claim was a debt Keyter NO v Keevy and others [2018] JOL 39704 (ECG)

Prescription – The Court found however, that the plaintiff had clearly pleaded a case premised on malicious prosecution and in such circumstances the prescriptive period would commence to run once the plaintiff was notified by the HPCSA on 30 October 2009 that no further action would be taken against her. The summons commencing action was instituted within the three year period and the claim had not prescribed. Holden v Assmang Limited [2018] JOL 39618 (KZP)

Prescription – When debt becomes due by a school- Schools Act -Member of the Executive Council is the Prescription Act governed the defendant- period of prescription Komani School and Office Suppliers CC t/a Komani Stationers v Member of the Executive Council Department of Education Eastern Cape and others [2018] JOL 40263 (ECG)

Prescription Act 68 of 1969 — section 12(3) — medical negligence claim — knowledge of the facts upon which a claim is based — objective assessment — reasonable person — correctly applied by lower courts Loni v Member of the Executive Council, Department of Health, Eastern Cape Bhisho (CCT54/17) [2018] ZACC 2 (22 February 2018)

Prescription- does service of a summons by a creditor on a surety of the principal debtor interrupt prescription against another surety of the principal debtor- cannot apply-special plea granted Liberty Group Ltd v Erasmus NO (54534/2011) [2018] ZAGPPHC 497 (11 July 2018)

Prescription— Extinctive prescription — Debt — What constitutes — Whether arbitration award and/or claim for unfair dismissal under Labour Relations Act 66 of 1995 constituting 'debt' for purposes of Prescription Act — Meaning of 'debt' — Prescription Act 68 of 1969, s 10(1). MYATHAZA v JOHANNESBURG METROPOLITAN BUS SERVICES (SOC) LTD t/a METROBUS AND OTHERS 2018 (1) SA 38 (CC) Prescription- Special plea – knowledge of attorney imputed to the plaintiff Funeka v T Qina & Sons [2018] JOL 39597 (ECM) Prescription — Extinctive prescription — Commencement — Knowledge of debt — Whether, before prescription could start running, it was required that creditor have knowledge that conduct of debtor giving rise to debt was both wrongful and actionable — Prescription Act 68 of 1969, s 12(3). MTOKONYA v MINISTER OF POLICE 2018 (5) SA 22 (CC)

Prescription — Extinctive prescription — Commencement — Knowledge of debt — Claim based on delict — Medical negligence — Objective assessment — Whether reasonably apparent that treatment received substandard — Sufficiency of information at claimant's disposal — Prescription Act 68 of 1969, s 12(3). LONI v MEC FOR HEALTH, EASTERN CAPE (BHISHO) 2018 (3) SA 335 (CC) Prescription — Extinctive prescription — Debt — What constitutes — Claim for retransfer of property under contractual reversionary clause registered as title condition — Such claim constituting 'debt' as contemplated in Prescription Act 68 of 1969, ch III. ETHEKWINI MUNICIPALITY v MOUNTHAVEN (PTY) LTD 2018 (1) SA 384 (SCA)

Prescription — Extinctive prescription — Defence of — Waiver during settlement negotiations — Protected from disclosure at subsequent trial, except for limited purpose of interrupting prescription. GROEP v WJ DA GRASS ATTORNEYS AND ANOTHER 2018 (5) SA 248 (WCC)

Prescription — Extinctive prescription — Period of prescription — When it commences— Loan 'repayable on demand' — Whether debt becoming due when loan advanced, or when demand made — Debt becoming due when loan advanced, unless clear indication to contrary — Prescription Act 68 of 1969, s 12. TRINITY ASSET MANAGEMENT (PTY) LTD v GRINDSTONE INVESTMENTS 132 (PTY) LTD 2018 (1) SA 94 (CC)

Prescription — Extinctive prescription — Period of prescription — When it commences — General rule — Prescription beginning to run when debt arising, unless parties clearly stipulating otherwise — Prescription Act 68 of 1969, s 12. TRINITY ASSET MANAGEMENT (PTY) LTD v GRINDSTONE INVESTMENTS 132 (PTY) LTD 2018 (1) SA 94 (CC) Prescription- Road Accident Fund Act 56 of 1996 – statutory interpretation – s 4 of the Interpretation Act 33 of 1957 – regulation 1 under the RAF Act – whether a claim that was due to be served on the last day of the five year prescription period which last day fell on a public holiday had prescribed – application of s 34 and s 39 of the Constitution – consideration of foreign law. Road Accident Fund v Masindi (586/2017) [2018] ZASCA 94 (1 June 2018)

Prescription- s 12(3) of the Prescription Act 68 of 1969 – whether knowledge of a uty of care constitutes a factual or legal conclusion – whether acceptance of offer by a claimant with hindsight and new information constitute facts from which the debt arose – appeal dismissed. Kekana v Road Accident Fund (206/2017) [2018] ZASCA 75 (31 May 2018)

Prescription: extinctive prescription: Prescription Act 68 of 1969, ss 10, 11 and 12: obligation to pay transfer costs and to transfer property sold constituting a debt which is susceptible to prescription: date of commencement of the running of prescription: running of prescription commences once the creditor has acquired right to claim the debt. Frieslaar NO and Others v Ackerman and Another (1242/2016) [2018] ZASCA 3 (2 February 2018)

Prescription-arbitration — Award — Whether creates new debt — Right to make award order of court — Whether 'debt' in Prescription Act — Arbitration Act 42 of 1965, s 31; Prescription Act 68 of 1969. BROMPTON COURT BODY CORPORATE SS119/2006 v KHUMALO 2018 (3) SA 347 (SCA)

Prescription-attorney sued for negligence-prescription begins to run as soon as the creditor acquires knowledge of the facts necessary to institute action-whether knowledge of delay in constructing a sectional title scheme constituted knowledge of facts constituting a complete cause of action-the appeal is upheld with costs-the order of the court a quo is set aside and replaced with the following:‘The first defendant’s special plea of prescription is dismissed with costs’. Kelbrick and Others v Nelson Attorneys and Another (307/2017) [2018] ZASCA 55 (16 April 2018)

Prescription-Attorney-Delictual claim – Special plea Mtati v Whitesides Attorneys [2018] JOL 39875 (ECG)

Prescription-counter-claim lodged-minimum knowledge needed to claim Absa Bank Limited v Marx NO and Others (9757/2017) [2018] ZAWCHC 42 (29 March 2018)

Prescription-insolvency- claim in the principal debtor's insolvency on 27 September 2012- On 8 November 2012 the three bonds were cancelled- surety to pay even if debt older than 3 years as bond’s 30 years applicable Standard Bank of South Africa Limited v Botha (54753/16) [2018] ZAGPPHC 35 (7 March 2018)

Prescription-labour law — Arbitration proceedings — Award — Prescription — Whether Prescription Act applying to arbitration awards made under Labour Relations Act 66 of 1995 — Whether Prescription Act consistent with Labour Relations Act — Meaning of 'inconsistent' in Prescription Act 68 of 1969, s 16(1). MYATHAZA v JOHANNESBURG METROPOLITAN BUS SERVICES (SOC) LTD t/a METROBUS AND OTHERS 2018 (1) SA 38 (CC) Prescription-motor vehicle accident – Claim for compensation – Non-pecuniary loss – Defence of prescription Manukha v Road Accident Fund [2017] JOL 37587 (SCA)

Pre-trial challenge to constitutional validity of statutory provisions – Court confirming that it is permissible to challenge the constitutional validity of a statutory offence before trial. Moyo and another v Minister of Justice and Constitutional Development and others; Sonti and another v Minister of Justice and Correctional Services and others [2018] 3 All SA 342 (SCA)

Pre-trial conference- correct that a party is not entitled to resile from an agreement deliberately reached at a Rule 37 conference in the absence of any special circumstances Mofokeng v Member of the Executive Council of the Free State Government (Department of Education) [2017] JOL 39575 (FB)

Privilege — Legal professional privilege — Scope — Without prejudice rule — Courts should be reluctant to classify matter as disconnected from settlement negotiations and hence not covered by rule. GROEP v WJ DA GRASS ATTORNEYS AND ANOTHER 2018 (5) SA 248 (WCC)

Res judicata –test for-parties not the same-anti-dissipation order Tlou v Ralebipi and others [2018] JOL 40284 (GP)

Res judicata — requirements — finality — decision concerning legal standing is final- the High Court could not re-adjudicate the same issues between the same parties.Mkhize NO v Premier of the Province of KwaZulu-Natal and Others (CCT285/17) [2018] ZACC 50 (6 December 2018) Res judicata — Issue estoppel — Requirements — Same party — Identity of interest between plaintiffs in two different actions sufficient to satisfy same-party requirement. AON SOUTH AFRICA (PTY) LTD v VAN DEN HEEVER NO AND OTHERS 2018 (6) SA 38 (SCA)

Res judicata -Application for declaratory relief – Dismissal of application – Appeal Jiyana and another v ABSA Bank Limited and others [2018] JOL 40318 (WCC)

Rescission application – Common law grounds – Good cause – Applicants required to provide a reasonable explanation of their default, show that the application was bona fide, and show that they had a bona fide case which prima facie would succeed in setting aside the order Moshoeshoe and another v FirstRand Bank Ltd and others [2018] JOL 39493 (GJ)

Rescission application – Error – Before granting the urgent order of eviction, the court must give written and effective notice of the intention of the owner or person in charge

to obtain an order evicting an unlawful occupier and the municipality in whose area of jurisdiction the land is situated – Failure by applicant for eviction to provide the court with accurate information relating to the language of the occupiers, resulting in court failing to appreciate the necessity of issuing an order directing that the notice of eviction proceedings be issued in Afrikaans – Further error existing in incorrect legislation being applied – Rescission application accordingly granted. Isaacs and others v City of Cape Town and another [2018] 1 All SA 135 (WCC)

Rescission application-rule 42 judgment was erroneously sought and erroneously granted- Master may remove section 18(3) appointee Smit NO v Firstrand Bank Limited and Others In re: Firstrand Bank Limited formerly known as Firstrand Bank of South Africa Limited v Abrahams NO (23395/2016) [2018] ZAWCHC 13 (8 February 2018)

Rescission judgment-applicant elderly lady, was bona fide, judgment set aside. Mboso v Standard Bank of South Africa (19416/2016) [2018] ZAWCHC 20 (19 February 2018)

Rescission of judgments-mala fides in opposing-punitive cost orders Minister of Police and Another v Molatleghi (60217/2013) [2018] ZAGPPHC 633 (23 August 2018)

Review — Application — Delay in bringing application — Whether court may mero motu raise issue of failure of applicant to bring review within 180 days — Where apparent from papers that proceedings not instituted within period of 180 days, court entitled mero motu to raise point, as such delay unreasonable per se and court not having power to entertain review — Applicant to be given opportunity to deliver further affidavit to explain delay, or apply for condonation — Promotion of Administrative Justice Act 3 of 2000, s 7(1). MOSTERT NO v REGISTRAR OF PENSION FUNDS AND OTHERS 2018 (2) SA 53 (SCA)

Review – Application for judicial review – Whether appellant was obliged to exhaust an internal remedy as contemplated in section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 before launching his application to review – Appellant was required to exhaust internal remedy unless he could show exceptional circumstances to exempt him from that requirement – Where internal remedy was ineffective and inadequate, that constituted exceptional circumstances as contemplated in section 7(2)(c) of the Promotion of Administrative Justice Act, requiring the immediate intervention of the court rather than resort to the internal remedy Basson v Hugo and others [2018] JOL 39441 (SCA)

Review application– Office of Public Protector – Powers of – Challenge to report issued by Public Protector, and remedial action prescribed therein – Whether review should be based on Promotion of Administrative Justice Act 3 of 2000 or principle of legality – Exercise of powers by Public Protector not constituting administrative action and review had to be based on principle of legality – Appeal dismissed because no grounds of review were found to be sustainable Minister of Home Affairs and another v Public Protector of the Republic of South Africa [2018] JOL 39715 (SCA)

Review applications— Administrative action — Review — Duty to exhaust internal remedy before instituting proceedings for judicial review — Exceptional circumstances exempting from duty — Ineffective internal remedy — Doctor asking members of professional conduct committee to recuse themselves for bias but they refusing — Whether doctor obliged to appeal refusal to appellate committee before instituting review thereof — Health Professions Act 56 of 1974, s 10(3); Promotion of Administrative Justice Act 3 of 2000, s 7(2). BASSON v HUGO AND OTHERS 2018 (3) SA 46 (SCA)

Review applications-Administrative law – Public Protector – Report by Public Protector – Review – Argument that the review application was outside of the 180-day period prescribed by the Promotion of Administrative Justice Act 3 of 2000 – Court rejected that argument as the decision to investigate was not under attack, but the conclusions, findings and remedial action, consequent upon her investigation, was the subject-matter of the review applications. ABSA Bank Ltd and related matters v Public Protector and others [2018] 2 All SA 1 (GP) Review- Bill of costs – Taxation – Application for review Supreme Poultry (Pty) Ltd v Matthee and others [2018] JOL 39937 (FB) Review– Income Tax – Assessments for tax – Objection – Application for reduction of assessments – Section 93(1)(d) of the Tax Administration Act 28 of 2011 – Refusal of request for reduction – Application for review Rampersadh and another v Commissioner for the South African Revenue Service and others [2018] JOL 40394 (KZP)

Review — Application — Delay in bringing application — Whether delay unreasonable — Factors to be considered — Duty on applicant to be reasonably vigilant of rights — Applicant instituting review 17 years after decision taken — While applicant only recently learning of decision, reasonable person vigilant of his or her rights would have acquired knowledge of decision much earlier — Delay unreasonable. MADIKIZELA-MANDELA v EXECUTORS, ESTATE LATE MANDELA AND OTHERS 2018 (4) SA 86 (SCA) Review — Grounds — Legality — Organs of state may bring legality reviews of their own decisions. Organs of state may not use PAJA to review their own decisions — Promotion of Administrative Justice Act 3 of 2000. STATE INFORMATION TECHNOLOGY AGENCY SOC LTD v GIJIMA HOLDINGS (PTY) LTD 2018 (2) SA 23 (CC)

Review — Procedure — Record on review — Extent of record — Applicable rule to be interpreted to advance applicant's rights of access to courts and to equality of arms before it — Judicial Service Commission's post-interview deliberations on appointment to bench forming part of record on review — Must be supplied to applicant — Uniform Rules of Court, rule 53(1)(b). HELEN SUZMAN FOUNDATION v JUDICIAL SERVICE COMMISSION 2018 (4) SA 1 (CC) Review-Administrative law – Administrative decision – Common law review – Delay in bringing review application – Court required to determine whether there was an unreasonable delay, and if so, whether such delay should be condoned – Potential for prejudice if impugned decision were to be set aside leading to refusal to condone

delay. Mandela v Executors, Estate Late Nelson Rolihlahla Mandela and others [2018] 1 All SA 669 (SCA) Review-Administrative law – Application for judicial review – Whether appellant was obliged to exhaust an internal remedy as contemplated in section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 before launching his application to review – Appellant was required to exhaust internal remedy unless he could show exceptional circumstances to exempt him from that requirement – Where internal remedy was ineffective and inadequate, that constituted exceptional circumstances as contemplated in section 7(2)(c) of the Promotion of Administrative Justice Act, requiring the immediate intervention of the court rather than resort to the internal remedy. Basson v Hugo and others [2018] 1 All SA 621 (SCA) Review-Constitutional and Administrative Law – Administrative action – Alleged unlawfulness – Challenge to – Administrative action, even if unlawful, remains valid until set aside in review. Bowman Gilfillan Inc v Minister of Transport; In re: Minister of Transport v Mahlalela and others [2018] 3 All SA 484 (GP) Review-error of law – Air Services authority- acted in terms of discretionary power conferred upon it by section 20(1)(a) of the Air Services Licensing Act- the applicant was non-complaint with the Act was an objective jurisdictional fact on which the exercise of the respondent’s power was conditional- suspension set aside Comair Limited v Neluheni NO [2018] JOL 39492 (GP) Review-Judicial review – Distinction between appeal and review – Court’s role on review – When the law entrusts a functionary with a discretion it gives recognition to the evaluation made by the functionary to whom the discretion is entrusted – Role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted. Bo-Kaap Civic and Ratepayers Association and others v City of Cape Town and others [2018] 4 All SA 93 (WCC) Review-Office of Public Protector – Powers of – Challenge to report issued by Public Protector, and remedial action prescribed therein – Whether review should be based on Promotion of Administrative Justice Act 3 of 2000 or principle of legality – Exercise of powers by Public Protector not constituting administrative action and review had to be based on principle of legality – Appeal dismissed because no grounds of review were found to be sustainable. Minister of Home Affairs and another v Public Protector of the Republic of South Africa [2018] 2 All SA 311 (SCA) Review-Property development – Approval by municipality – Application for review-dismissed2 Rawson Street Body Corporate and another v Knysna Municipality and another [2017] JOL 37655 (WCC)

Review-Administrative law – Applications for judicial review under the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and under the principle of legality - Decisions by the Presidency and by the State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings – Statutory authority invoked for the impugned decisions are s 3(1) or s 3(3) of the State Attorney Act 56 of 1957 and reg 12.2 of the Treasury Regulations made in terms of the Public Finance Management

Act 1 of 1999. Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

Rule 28-notice of amendment-does not comply with Uniform Rule 28 of the rules of court and stands to be set aside as irregular-set aside. Standard Bank of South Africa and Another v Caine and Others, In Re: Caine and Others v Standard Bank of South Africa and Another (6309/2017) [2018] ZAKZDHC 8 (25 April 2018)

Rule 30 procedure-irregular step-wrong technical approach-dismissed Ferreiras (Pty) Limited v Naidoo and another [2017] JOL 39419 (GJ)

Rule 30(1)- No cause of action-There are no allegations to support any legal duty or obligation owed by the "plaintiffs" who were not the owners of the property and were not party to the impugned action and processes served thereunder-fourth plaintiff is a minor and there are insufficient allegations to confer locus standi on the fourth plaintiff-respondents rely on the "family unit" and non-service on "the family". The legal nature of the family unit and the family is unclear and not pleaded-particulars of claim the respondents refer to paragraph 33(ii) but there is no such paragraph. Standard Bank of South Africa and Another v Caine and Others, In Re: Caine and Others v Standard Bank of South Africa and Another (6309/2017) [2018] ZAKZDHC 8 (25 April 2018)

Rule 33 (4) application for separation of issues in terms of rule 33 (4) of the Rules. Applicant seeking determination of the issue of decree of divorce be separated from that of division of joint estate in the divorce proceedings. Legal principles governing separation restated. Consequences to the application in terms rule 43 of the Rules once separation is granted and decree of divorce is made. Rule 43 application cannot sustain once decree of divorce is granted. N K v K M (2018/25403) [2018] ZAGPJHC 634 (7 December 2018)

Rule 33(4) – separation of issues -thought should be given to a separation of issues, and that convenience and expedition should be the object, not heeded – when issues are inextricably linked a full ventilation of all the issues is more often than not the better course and might ultimately prove expeditious and provide The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association (106/2018) [2018] ZASCA 176 (3 December 2018)

Rule 33 (4)- court may mero motu separate -question of law or fact - before any evidence is led -question concerning fault-cannot be separated- Van der Westhuizen v Strombeck Pieterse Incorporated and Others (851/2017) [2018] ZAECGHC 25 (3 April 2018)

Rule 33-Separation of issues — Procedural failures in applying rule 33(4) — Whether rendering separation order incompetent — To be decided on case-by-case basis — In present case, formulation of issue and order leading to anomalies, rendering separation order incompetent — In addition, insufficient factual basis laid for separated issue to be properly determined — Court a quo's order on separated issue set aside on appeal — Uniform Rules of Court, rule 33(4). FIRSTRAND BANK LTD v CLEAR CREEK TRADING 12 (PTY) LTD AND ANOTHER 2018 (5) SA 300 (SCA)

Rule 43 proceedings-Divorce — Maintenance — Pendente lite — Inadequate financial disclosure in rule 43 proceedings — Court's power to case-manage and order production of information and documents — Uniform Rules of Court, rule 43(5). TS v TS 2018 (3) SA 572 (GJ)

Rule 53(1)(b)- Judicial Service Commission (JSC)-obliged to furnish a review applicant seeking the review and setting aside of a JSC decision with a recording of the private deliberations that inform the decision. Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8 (24 April 2018)

Rule 57 – Appointment of a curator ad litem in matters against the Road Accident Fund where plaintiff suffers mental impairment as a result of brain injury – Rule 57, Uniform Rules of Court – Requirements of rule are peremptory and failure to comply results in application being defective Stoffberg on behalf of Xaba v Road Accident Fund (and other related matters) [2018] JOL 39946 (GP) Rules of Court, rule 33(1)-Special cases and adjudication upon points of law — In terms of special case, there must be a question of law that parties require court to decide on agreed facts and in light of their contentions which to be set forth in agreed statement — Court to decide question of law presented to it and having no right to travel outside four corners of agreed statement and decide a different question — Uniform Rules of Court, rule 33(1). MTOKONYA v MINISTER OF POLICE 2018 (5) SA 22 (CC)

Security for costs- is dismissed with costs. Bullion Farming Enterprises (Pty) Ltd v Van Tonder (10711/2018) [2018] ZAGPPHC 683 (14 September 2018)

Security for costs – Increase of amount Good Hope Plasterers CC t/a Good Hope Construction v Aecom SA (Pty) Ltd [2018] JOL 40628 (WCC) Settlement agreements-Consumer – Complaint to National Consumer Tribunal – Settlement agreement – Power to confirm as consent order Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT) Summary judgment – Requirements – Rule 32, Uniform Rules of Court-facts in legal proceedings they must be within his personal knowledge-not so in this case RSC Avelo (Pty) Limited v Kenako Concrete (Pty) Limited and others [2018] JOL 40593 (ECP)

Settlement agreements-Interpretation of contracts — Judgments in rem — When can settlement agreements be made an order of court Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others (CCT257/17) [2018] ZACC 33 (27 September 2018)

Settlements-Settled litigation – Costs-not in settlement-court had to decide-each party pays own costs One Time Dream Team Promotions and Events Management CC v Mangaung Metropolitan Municipality [2018] JOL 39622 (FB)

Special Investigating Unit and another v Smith and others [2018] JOL 39606 (ECG)

Special plea – Prescription- facts showed that Golden Arrow not to rely on the special plea of prescription came at a relatively early stage of negotiations, all of

which were classified throughout by the parties as being “without prejudice”. Groep v Golden Arrow Bus Services (Pty) Limited and another [2017] JOL 39374 (WCC) Spoliation – Fixtures – Dispossession – person must be restored to possession- Midvaal Local Municipality v The Meyerton Golf Club [2018] JOL 40259 (GJ)

Stare decisis – SCA does not depart from its own previous judgments unless satisfied clearly wrong – High Court – judges in same division bound by judgments of that division unless satisfied clearly wrong – costs Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others (1250/2016) [2018] ZASCA 19 (16 March 2018)

Striking-out application – Uniform Rule 6(15) of the Uniform Rules of Court – For an application to strike out to succeed, the matter to be struck out must be of an offending kind as indicated above; and the court must be satisfied that if the matter is not struck out the party seeking to have the matter struck out would be prejudiced. Gelyke Kanse and others v Chairman of the Senate of Stellenbosch University and others [2018] 1 All SA 46 (WCC) Summary judgment – Opposition of – Requirements – Bona fide defence- Prescription Act, claim in this case was not a debt-reckless credit also not defence Nedbank Limited v Denny [2018] JOL 39976 (ECG)

Summary judgment – Opposition of application – Bona fide defence-reckless credit- discretion- unjust enrichment Absa Bank Limited v Maritz [2018] JOL 39749 (GP)

Summary judgment – Warrant of execution – Application to set aside – Alleged superannuation of a judgment after three years Arangies and another v Business Partners Ltd [2018] JOL 39468 (WCC)

Summary judgment – Bona fide defence- defence based on the plaintiffs’ failure to register as credit providers was a sound defence and raised a triable issue between the parties. Van Blommestein and another v East Cape Game Properties (Pty) Ltd and others [2018] JOL 39882 (ECG)

Summary judgment application – Supporting affidavit – Requirements Rennies Travel (Pty) Limited v South African Municipal Workers Union [2018] JOL 39740 (GJ)

Summary Judgment-claim for payment – Arrear rental – Application for summary judgment – Bona fide defence Centrafin (Pty) Limited v Street Talk Trading 131 CC trading as Royal Food and another [2018] JOL 39741 (GJ)

Summary judgment-full disclosure-technical defences-mistake to rely on it Phofung Project Consulting (Pty) Ltd v Standard Bank of South Africa Ltd (A232/2017) [2018] ZAFSHC 21 (8 March 2018)

Summary judgment-Generally ordered that costs of the application shall be costs in the principal matter, alternatively that costs shall stand over for adjudication-not when materially defective, as in casu. Phofung Project Consulting (Pty) Ltd v Standard Bank of South Africa Ltd (A232/2017) [2018] ZAFSHC 21 (8 March 2018)

Summary judgment-Instalment sale agreement – Suretyship agreement – no bona fide defence only technical points, judgment granted FirstRand Bank Ltd t/a Wesbank v A and E Registrations (Pty) Ltd and another [2018] JOL 39675 (GJ)

Summons – Registrar must sign-failure to serve by sheriff resulting in prescription of action against Road Accident Fund - whether sheriff liable for damages - Special plea-- nullity of summons raised - due to lack of signature by Registrar. Motloung and Another v The Sheriff Pretoria East and Others (13249/2014) [2018] ZAGPPHC 664 (5 September 2018)

Summons-Counter-claim – Late filing – Condonation-more than two years late-application dismissed Absa Bank Limited v Marx NO and others [2018] JOL 39873 (WCC)

Trial-judge passed away-parties agree on way forward-court says no! Must start de novo Mondi Shanduka Newsprint (Pty) Ltd v Murphy (1419/2006) [2018] ZAKZDHC 24 (4 June 2018)

Urgent application – Requirements for urgency – Question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. Export Development Canada and another v Westdawn Investments (Pty) Ltd and others [2018] 2 All SA 783 (GJ) CASES

Bester NO v Van Wyk [2017] JOL 39336 (ECG)

Pleadings– Exception to plea –Property – Alienation of immovable property – Requirements – plea was based on an invalid and unenforceable oral contract

In his capacity as executor of a deceased estate, the plaintiff sued the defendant for payment due in an agreement of sale of property. In terms of the agreement, the deceased sold immovable property to the defendant. The defendant was the daughter of the deceased.

The defendant pleaded that she and her mother had entered into an oral contract in terms whereof her mother sold the property to her for an amount of R300 000, to be paid in monthly cash instalments of R2 500 and that registration be effected once the purchase price was paid in full. She pleaded further that, although the purchase price was not fully paid, her mother firstly declared orally that she considered the purchase price to have been fully paid and secondly, declared in writing that she received the full purchase price from the defendant.

The plaintiff excepted to the defendant’s plea on the basis that it lacks averments which are necessary to sustain a defence in that the alienation of the property pursuant to the oral contract is invalid because, in terms of section 2(1) of the Alienation of Land Act 68 of 1981, an alienation of land is of no force or effect unless it is contained in a deed of alienation.

Held that the issue therefore was whether or not the alienation pursuant to the oral contract of sale upon which the defendant relied was, notwithstanding non-compliance

with the provisions of section 2(1), nevertheless valid ab initio in terms of section 28(2) of the Act. If it was valid then the exception had to be dismissed. If the alienation was invalid for want of compliance with the provisions of section 28(2) then the exception had to be upheld because the plea would then be based on an invalid agreement of sale.

Section 28 deals with the consequences of deeds of alienation which are invalid or are terminated. Section 28(1) provides that. “No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or by their agents acting on their written authority”. Section 28(2) states that, “Any alienation which does not comply with the provisions of section 2 (1) shall in all respects be valid ab initio if the alienee had performed in full in terms of the deed of alienation or contract and the land in question has been transferred to the alienee.” The Court held that section 28(2) had to mean that an alienation of land will, notwithstanding non-compliance with the provisions of section 2(1), be valid if the alienee had performed in full in terms of the deed of alienation; or the alienee had performed in full in terms of the contract; and the land in question has been transferred to the alienee. None of those requirements were met in this case. The oral contract upon which the defendant relied was invalid and unenforceable.

As the plea was based on an invalid and unenforceable oral contract, it did not in law constitute a defence to the plaintiff’s claim. The exception was upheld and defendant was given leave to deliver an amended plea.

Johrews Mancorp and Publishers CC and others v Du Toit Littleton Incorporated [2017] JOL 39364 (GJ)

Default judgment – Rescission – respondent did not challenge the allegations that the summons did not come to the notice of the applicants

Default judgment having been granted against the applicants, they sought rescission thereof.

The respondent was an auditing firm which rendered professional accounting and tax services to the first to fifth applicants. Its claims were based thereon. Although the summons was properly served at the domicilium address of each of the applicants, the sixth applicant denied that it ever came to the knowledge of any of the applicants. The domicilium address of the second, third and fourth applicants, where the summons was served, happened to be the respondent’s principal place of business.

Held that the respondent did not challenge the allegations that the summons did not come to the notice of the applicants and it followed that the applicants were not in wilful default of appearance. A reasonable and acceptable explanation for the applicants’ default had accordingly been tendered. It remained to deal with the second requirement necessary to an entitlement to rescission which was whether a bona fide defence, prima facie carrying some prospect of success had been shown.

The main defence raised by the applicants was that the amounts claimed by the respondent were illiquid and that expert evidence as to the reasonableness of the

amounts, should have been tendered for an entitlement to judgment by default. The court regarded that defence as unassailable.

Satisfied that the applicants had disclosed a bona fide, triable defence and that they should be afforded the opportunity, by way of trial, to verify and, if necessary, challenge the amounts claimed by the respondent, the court granted rescission.

Heppell v The Law Society for the Northern Provinces [2017] JOL 38682 (GP)

Appeal – Full court – Jurisdiction – jurisdiction of a full court to hear appeals from a full bench ousted

In terms of an order granted in this matter, the appellant was suspended from practicing as an attorney for a period of 6 months. He sought and was granted leave to appeal to the full bench of the court’s Division.

When the appeal came up for hearing before the full court, the question raised was whether the full court had jurisdiction to adjudicate the appeal.

Held that the starting point in the consideration of the issue was the question whether the relevant provisions of the Supreme Court Act 59 of 1959 (the old Act) or the Superior Courts Act 10 of 2013 (the new Act) applied for the purpose of determining jurisdiction. The litigation between the parties straddled both Acts. The new Act came into operation on 23 August 2013 after institution of the main application but before the judgment of the court a quo was delivered on 5 December 2013.

Section 20 of the old Act provided for appeals to the then Supreme Court in general. In terms of section 20(2) and (4), an appeal to a full court was only possible from a judgment or order of a single judge, of the court of first instance, leave to appeal having been granted to the full court or, if leave to appeal was refused, by order of the Supreme Court of Appeal, on application to it.

No provision was made in the old Act or the Uniform Rules of Court for the hearing of an appeal by a full court on appeal from a judgment of the full bench. In the new Act, the omission in the old Act of a provision for appeals from a full bench was cured.

Section 16 of the new Act provides in clear terms that an appeal against a decision of a court of first instance lies upon leave having been granted, if the court consisted of more than one judge, to the Supreme Court of Appeal. The jurisdiction of a full court to hear appeals from a full bench accordingly, is ousted by these provisions. The question was what the status of this matter was at the time the new Act came into operation in order to determine whether it was applicable. The plain and ordinary meaning of the wording in section 52(2) of the new Act clearly shows the intention of the legislature to exclude from the operation of the new Act, pending matters where judgment in that matter had not yet been delivered. The present court therefore lacked jurisdiction to adjudicate the appeal.

Manline (Pty) Ltd v Mtshali [2017] JOL 39386 (KZP)

Default judgment – Rescission

The plaintiff sued the defendant for damages arising from a motor vehicle collision. The issue of liability was to be determined separately.

The trial commenced and the matter was adjourned several times. In October 2014, when the matter came before the court again, neither the defendant nor his attorney, nor the defence witness who was to appear attended court. The court granted an order in which it recorded that the defendant was held liable for plaintiff’s damages. In reaching that conclusion, the court referred to the fact that the defendant’s vehicle had broken down, and was then parked in the middle of the road, on a bend and therefore not visible to oncoming traffic. It was dark, and no warning was put into place to signal the hazard to oncoming traffic.

The order was granted by default. In the present application, the defendant sought rescission of the order.

Held that the rescission application was based on the common law. The applicant had to show good cause by giving a reasonable explanation for his default, by showing that the application was bona fide, and by showing that he had a bona fide defence to the claim which defence prima facie had some prospect of success. Generally a bone fide defence is demonstrated by a litigant making out a prima facie defence in the sense of setting out averments, which if established at the trial, would entitle him to the relief asked for. It is not necessary that he deal fully with the merits of the case and produce evidence that the probabilities are actually in his favour.

The Court found in this case, that the defendant’s defence could be regarded as bona fide, and that the explanation or the default was such that rescission should be granted.

Hunter v Financial Services Board and others [2017] JOL 39476 (GP)

Appeal – Leave to appeal – Refusal of leave to amend notice of motion

The applicant had applied for leave to amend her notice of motion, and for interdictory relief. Both applications were dismissed, leading to the present application for leave to appeal.

The third and fourth respondents applied for leave to cross-appeal a cost order. The application for leave to cross-appeal was conditional upon leave being granted to the applicant.

Held that section 17 of the Superior Courts Act imposes substantive law provisions applicable to applications for leave to appeal. first, it stipulates that leave to appeal may only be given if the judge is of the opinion that certain jurisdictional facts exist. The discretion of a judge sitting as a court of first instance is, therefore, fettered. Second, the jurisdictional facts which are in the opinion of the judge required to be present are that the appeal would have reasonable prospects of success, or the existence of some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. An appeal will have prospects of success if it is arguable in the narrow sense of the word. It requires that the argument advanced by an applicant in support of an application for leave to appeal must have substance. The notion that a point of law is arguable on appeal, entails some degree of merit in the argument. The argument, however, need not be convincing at the stage when leave to appeal is sought but it must have a measure of

plausibility. Thirdly, the decision sought on appeal may not fall within the ambit of section 16(2)(a) of the Act and should, therefore, not be of such a nature that the decision sought will have no practical effect or result. finally, section 17(6)(a) provides that if leave is granted under section 17(2)(a) or (b) to appeal against the decision of a court of first instance consisting of a single judge, the judge must direct that the appeal be heard by a Full Court of that Division unless the judge considers that the decision to be appealed Involves a question of law of importance, or in respect of which a decision of the Supreme Court of Appeal is required to resolve differences of opinion or that the administration of justice requires consideration by the Supreme Court of Appeal of the decision, in which case the judge granting leave must direct that the appeal be heard by the Supreme Court of Appeal. Whether a court of first instance grants or refuses leave to appeal it is required to provide reasons for its order furnishing reasons.

The applicant did not have locus standi in iudicio to claim the relief sought. The Court was not of the opinion that the appeal would have reasonable prospects of success and no other compelling reason existed as to why the appeal should be heard.

The application for leave to appeal was refused with costs.

President of the Republic of South Africa v Office of the Public Protector and another (Economic Freedom Fighters and others as intervening parties) [2017] JOL 39379 (GP)

Costs – President of country – Personal liability for costs

The President of the Republic of South Africa, President JG Zuma (“the President”), represented by the State Attorney, had launched an .urgent application the day before the release of a report by the Public Protector on what has become known as State capture, seeking to interdict the Public Protector from finalising and releasing that report. The President sought to prevent the finalisation and release of the report through the interdict, until such time as he had been afforded a reasonable opportunity to provide input into the investigation carried out by the Public Protector. He initiated two further interlocutory applications. When the stage was set for the President's application to be heard, he withdrew it and tendered costs on the attorney and client scale as well as the costs occasioned by the employment of two counsel where applicable. Argument was then advanced by all the intervening parties, that the President be ordered to pay all the legal costs occasioned by his application personally. The basis for the order sought against the President is firstly that the application launched by him had nothing to do with his official responsibilities as President and Member of the National Executive, but was aimed at protecting his personal interests. The other basis advanced for the personal costs order sought against the President is that he conducted the litigation in an unreasonable and reprehensible manner that would justify the present Court mulcting him, personally, in a punitive costs order, as a mark of its displeasure.

Held that the two questions to be were whether the President conducted the litigation in a manner unbecoming of a reasonable litigant and whether he was vindicating his personal interests in doing so.

The evidence satisfied the Court that the President had proceeded with the application despite knowing that the report had been finalised and signed by the Public Protector.

The President's persistence with the litigation; in the face of the finality of the investigation and report, as well as his own unequivocal statement regarding that finality, clearly amounted to objectionable conduct by a litigant and to clear abuse of the judicial process. An abuse of the judicial process is evinced when a party conducts litigation in an unreasonable manner to the prejudice of those who are naturally forced to defend their interests. It is such conduct that has been viewed by courts as a justifiable basis to mulct the culpable litigant with a punitive costs order.

The Court held that a simple punitive costs order was not appropriate was not appropriate in this case because that would make the tax payer liable for the costs. As a result, the President was ordered to personally pay the costs referred to in the court’s order.

JSR 108 Investments CC v Akshardam (Pty) Limited [2017] JOL 39415 (GJ)

Exceptions-Claim for specific performance – Exception to particulars of claim

The respondent had issued summons against the excipient, seeking specific performance of an agreement of sale. It stated that, having paid the purchase price, it was entitled to transfer of the property into its name. It averred that the first defendant repudiated the contract in writing in a letter by its attorneys, contending that the contract was void for lack of consensus. The plaintiff did not accept the repudiation. The first defendant raised an exception on the basis that the claim was vague and embarrassing, alternatively did not disclose a cause of action.

Held that in order to succeed an excipient has the duty to persuade the court that upon every interpretation which the pleading in question, and in particular the document on which it is based, can reasonably bear, no cause of action or defence is disclosed; failing this, the exception ought not to be upheld.

The contract in this case could have been worded more clearly, and more context was possibly needed to establish the meaning of some of the relevant clauses. Until then, an exception that no cause of action had been disclosed, had to fail.

Mbangeni v MEC Health, Gauteng Province and another [2018] JOL 39443 (GJ)

Plea-special plea-Personal injury/ Delict – Motor vehicle accident – Claim for compensation – Special plea – Liability

Whilst a passenger in a motor vehicle, the plaintiff suffered head, neck and spine injuries when the vehicle was involved in a collision.

The Court was required at the present stage, to decide only a special plea raised by the first defendant (“the MEC”). The special plea related to with whether the MEC was liable for secondary injuries suffered by the plaintiff, or whether the Road Accidents Fund Act 56 of 1996 (“the Act”) makes the second defendant fund liable for all sequelae of the motor vehicle accident, including injuries which might have been caused by the MEC’s negligence, and therefore extinguished any remedy that might otherwise have been available to the plaintiff against the MEC.

Held that the MEC’s argument was that, because the alleged negligence related to the treatment of injuries sustained in a motor vehicle accident, and because section 17 of the Act obliged the fund to compensate the plaintiff for loss or damage resulting

from a motor vehicle accident, the plaintiff could not claim against the MEC. Based on section 17, the MEC contended that all the plaintiff’s injuries were sequels to the wrongful or negligent driving of a motor vehicle, and that therefore the fund was liable.

The Act provides that the fund is only liable to the extent that a negligent or otherwise wrongful driver would have been liable under the common law, that is the law of delict. In order for the damage arising from any secondary injuries suffered by the plaintiff to be borne by the fund, the driver of the vehicle would have had to have been liable for that damage under the common law. The Act does not purport to extinguish or abolish any common law claims against any other party, or for any other injuries save for those caused by or arising from the driving of a motor vehicle. Thus, if there had been a concurrent claim against a driver and another person (such as the MEC), only the claim against the driver was extinguished by the Act, and not the claim against the other person.

Applying a common sense approach, the Court held that the negligence of the MEC’s employees was not an ordinary consequence of the collision, was not sufficiently closely connected with it and did not arise from the driving of a motor vehicle. The negligence was a new event which, if proven that it caused further injury, was a separate cause of action. Thus, should the plaintiff successfully prove negligence on the part of the MEC’s employees, and that that negligence caused secondary injury as pleaded, then that negligence would constitute a novus actus interveniens, for which the fund would not be liable.

The special plea was dismissed with costs.

Sibongile Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1

Appeal from the Labour Appeal Court — costs — rule of practice that costs follow result does not apply in labour matters — law and fairness governs the awarding of costs — nothing in the present case meriting the award of costs — Labour Appeal Court and Labour Court did not exercise their discretion judicially — justice requires that cost orders be set aside and each party pay its own costs — appeal on costs upheld and set aside

On 22 January 2018, at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the Labour Appeal Court. The factual background to this matter is as follows: The applicant, Dr Sibongile Zungu, was employed by the first respondent, the Premier of KwaZulu-Natal Province (Premier) as the Head of Department of Health in KwaZulu-Natal (Head of Department) on a five year contract from 1 December 2009 to 31 July 2014. On 26 June 2014, the Premier advised the applicant that he would not renew her contract at the end of her term, but would advertise the post and that she could apply for the post if she so wished. The post was advertised and the applicant and other candidates applied.

The applicant was one of the candidates interviewed for the post. The selection committee recommended that the applicant be appointed as Head of Department for a further period of five years. Before making the appointment, the Premier conducted an investigation against Dr Zungu, following allegations that were levelled against her by the National Education, Health and Allied Workers’ Union (NEHAWU). During

this time, short-term extensions were made to the applicant’s contract until March 2015, the date when the investigating team submitted a provisional report to the Premier and the applicant. Some findings in the report related to the applicant’s managerial shortcomings as an accounting officer.

The applicant was concerned that the Premier would rely on the provisional report and not appoint her. On 30 March 2015, a day before her contract was due to expire, she launched an urgent application in the Labour Court. She sought the following: (1) an interdict prohibiting the Premier from replacing her with anyone else in the position of Head of Department; (2) a declarator that the Premier was not entitled to take into account the findings contained in the provisional report; and (3) an order directing the 2 Premier to appoint her as Head of Department in accordance with the recommendation of the selection committee.

The matter was set down for 31 March 2015 but was postponed by agreement between the parties to 17 April 2015. The Premier undertook not to appoint anyone to the position of Head of Department, in the interim. After the postponement, the applicant became aware that the Premier had appointed a Dr Simelane as acting Head of Department with effect from 1 April 2015 until the appointment of a new Head of Department. She launched another urgent application seeking an order declaring that the Premier had breached the undertaking not to appoint a Head of Department and a personal costs order against the Premier.

The Premier submitted that, had the position of Head of Department been left vacant, he would have been in breach of the provisions of the Public Finance Management Act, 1999, which preclude him from leaving the position of an accounting officer vacant. The Labour Court dismissed the application and held that the Premier had not undermined the agreement between the parties because he had only appointed an acting Head of Department, not a permanent Head of Department. There was no costs order. The Labour Court heard the main application on 21 April 2015. The application was dismissed with costs on the ground that the Labour Court had no jurisdiction because the matter concerned whether there was a legitimate expectation of the applicant’s contract to be renewed, a dismissal issue within the exclusive jurisdiction of the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant bargaining council.

The Labour Court held that, in any event, a case had not been made for urgency or for final interdictory relief. The applicant then appealed to the Labour Appeal Court. She contended that her cause of action was that the Premier’s decision not to adopt the recommendations of the selection panel was irrational and susceptible to review under Promotion of Administrative Justice Act, 2000 (PAJA). The Labour Appeal Court held that the dispute was within the realm of section 186(1)(b) of the Labour Relations Act, 1995 (LRA), which defines a dismissal as including a failure or refusal by the employer to renew a fixed term contract of employment on the same or similar terms. The Labour Appeal Court accordingly found that there was no basis to rely on PAJA.

The Labour Appeal Court upheld the finding of the Labour Court regarding jurisdiction and final interdictory relief. The matter was dismissed with costs. The applicant lodged an application in this Court for leave to appeal against the order of the Labour Appeal Court. She also sought leave to appeal directly to this Court against the judgment of the Labour Court (the first judgment). The matter was

determined without oral argument. The Chief Justice issued directions, calling on the parties to file written submissions on costs. The applicant submitted that the costs order against her constituted a misdirection 3 by the Labour Court and Labour Appeal Court. She contended that the Premier should have been ordered to pay her costs.

The Premier submitted that the Courts sufficiently and judicially considered the issue of costs and that the costs orders should not be set aside. This Court held that the correct approach in labour matters in terms of the LRA is that the losing party is not as a norm ordered to pay the successful party’s costs. The Court held that there was nothing on the record indicating why the Labour Court and Labour Appeal Court awarded costs against the applicant

The Constitutional Court held that it could not consider the applicant’s application for direct access to appeal the decision of the Labour Court because interlocutory orders are ordinarily not appealable, and the applicant failed to show that it was in the interests of justice for the appeal to be allowed in this case. On the merits, this Court agreed with the Labour Appeal Court that the applicant’s complaint in effect related to a dismissal as defined in section 186(1)(b) of the LRA.

The CC therefore refused leave to appeal on the basis that the application had no prospects of success. In the result, this Court refused leave to appeal on the merits. Leave to appeal against the costs orders of the Labour Court and Labour Appeal Court was granted and the appeal was upheld. The adverse costs orders issued by the Labour Court and the Labour Appeal Court were set aside and each party was ordered to pay his or her own costs. No order as to costs was made in relation to the proceedings in this Court.

Carsten and Another v Kullmann and Others (49174/2017) [2018] ZAGPJHC 2 (4 January 2018)

Interdict-anti dissipation interim interdict- creditor cannot interdict the dissipation of an amount of money from a bank account

Applications- probabilities in motion proceedings- not there to decide probabilities-the correct position is surely more nuanced- courts reject unmeritorious versions on affidavit

Introduction and background

[1] This is a substantial opposed urgent application that began in December last year. After an initial appearance and the filing of affidavits all round, the application – now approaching some 600 pages – is ripe for hearing. It is for an anti-dissipation interim interdict pending an action by the two applicants against the first two respondents for return of that portion of the purchase price that the applicants had paid for the sale of shares in two companies and members’ interests in four close corporations in respect of which the beneficial interest had been wholly owned by the two Kullmann brothers, to whom I shall refer as the respondents. The main interim relief is to freeze the bank account into which the portion of the purchase price had been paid by the applicants, and further to interdict the disposal by the respondents of their personal fixed properties. The third respondent did not take part in the proceedings.

Some relevant legal principles

[19] Against this background one may now turn to some relevant legal principles. The first observation is that money loses its identity through commixtio when it is paid into a bank account where it becomes co-mingled with other money. One consequence of that principle is that a creditor cannot interdict the dissipation of an amount of money from a bank account on the basis of some vindicatory or ownership right to it.

[20]What a creditor can do, by means of what has been called a quasi-vindicatory action, is to lay claim to money in a bank account, if the money has deliberately been kept apart from other money, and thus forms part of an identifiable fund intended for a specific purpose. The creditor must of course have an underlying legal right against a debtor to whose credit the money stands, to lay claim to the money.

[21] What a creditor can also do, if it can show that its debtor is threatening to dissipate or secrete its assets to avoid having to satisfy its creditor’s judgment granted some day down the line, is to interdict such dissipation pending the determination of liability and the obtaining of the judgment. The object of such an interdict is to prevent the creditor being stuck with what would otherwise be a hollow judgment.

[22] The object of the relief is not “…to improve the position of claimants in insolvency but simply to prevent injustice of a defendant placing assets which might otherwise have been available to satisfy a judgment out of the reach of the plaintiff. It does not operate as an attachment. It merely restrains the owner from dealing with assets in certain ways.”

[23]Finally, and I would suggest self-evidently, if the creditor’s claim is Rx, no purpose other than abuse would be served by interdicting assets the value of which is Rx plus.

[24]Since the relief sought is interim, the appropriate endeavour is to weigh the strength of the applicants’ case against the balance of convenience. The stronger the former, the weaker the latter may be; and the other way around.

[25]The case that needs to be weighed here is the applicants’ asserted entitlement to be repaid the part-purchase price, and the question is whether the applicants have shown that they have a clear right, although open to some doubt, that in the action they will succeed in recovering the R2,2m that they have paid to the respondents. Further, in order to succeed in obtaining the interdict they seek, the question is whether the applicants have made out a case that the respondents are dissipating their assets thereby intending to procure the result of a hollow judgment. Some authorities have set a lower bar in this latter regard; if the effect of the respondents’ conduct would be a hollow judgment, that would of itself be sufficient.

[26]It is necessary to say something about the issue of probabilities in motion proceedings. It is sometimes said that motion proceedings are not there to decide probabilities. But the correct position is surely more nuanced. The then Appellate Division has often held that probabilities may be decided in motion proceedings. Also, courts reject unmeritorious versions on affidavit, refusing to be held hostage to versions on oath that, comfortable in the knowledge that they will not have to be cross-examined, defies credulity.

[46]Accordingly the following order issues:

[A] Pending the determination of an action to be instituted within thirty days by the applicants against the first and second respondents for repayment of the part-purchase price of R2,2m plus interest, the following interim interdict issues:

(a) The first respondent is restrained from disposing or in any way encumbering the following immovable property: 25a Tenth Avenue, Parktown North, Johannesburg, Gauteng; and

(b) The second respondent is restrained from disposing or in any way encumbering the following immovable property: 119 Begonia Road, Kyalami Agricultural Holdings, Midrand, Gauteng.

[B] Save as appears from the next paragraph, the first and second respondents are directed to pay the costs of this application, including all reserved costs, jointly and severally.

[C] The applicants are directed to pay the costs of the application to amend the notice of motion, jointly and severally.

Phaladi v Lamara and Another; Moshesha v Lamara and Others (20480/2017; 20481/2017) [2018] ZAWCHC 1 (12 January 2018)

National Credit Act 34 of 2005 (‘the NCA’) section 86 - declaring applicant is no longer over-indebted

Application was made in two matters enlisted on Tuesday’s unopposed motion roll for orders:

(a) Declaring that the applicant is no longer over-indebted and that the records be expunged; and

(b) Directing that the debt counsellor (the first respondent) update the status of the applicant with its creditors, the credit bureaux and the National Credit Regulator within one month hereof by forwarding the relevant Form 17.W.

[5] In the Gauteng Division, however, there have been at least three judgments handed down in which relief of the nature sought in the current application has been granted. In Magadze v ADCAP, Ndlovu v Koekemoer [2016] ZAGPPHC 1115 (2 November 2016), Neukircher AJ granted the applicants precisely the same relief as that sought by the applicants in the matters before me, and Mbongwe AJ followed suit in Mokubung v Mamela Consulting and Others [2017] ZAGPPHC 462 (14 June 2017) and Manamela v Du Plessis t/a Debt Safe and Others [2017] ZAGPPHC 289 (21 June 2017).

[9] The concepts of ‘over-indebtedness’ (including that of financial difficulty falling short of ‘over-indebtedness’ contemplated by s 86(7)(b)) and the attendant remedy of ‘debt review’ within the meaning of the NCA have no foundation in the common law. They are statutory creations. How they work is governed entirely by the NCA and, in the absence of a challenge to their constitutionality, the courts’ powers in respect of them are delineated by the provisions of the enactment.

(7) Failure by a credit bureau to comply with a notice issued in terms of section 55, in relation to this section, is an offence.

[27] In short, the NCA just does not make provision for the sort of application conjured in paragraph 4.2 of the Explanatory Note.

[29] The applicants’ resort to this court was therefore misconceived. They are limited to the relief provided for in terms of s 71 of the NCA, and can seek it only in the manner therein set out. To the extent that they do not qualify for relief under that provision, they are remediless. The courts are not empowered to craft a remedy that the statute does not allow for. In my view therefore the orders made in the Gauteng Division judgments mentioned earlier should not have been granted.

[30] In the result the following orders are made:

1. In case no. 20480/2017:

The application is dismissed.

2. In case no. 20481/20:

The application is dismissed.

MATJHABENG LOCAL MUNICIPALITY v ESKOM HOLDINGS LTD AND OTHERS 2018 (1) SA 1 (CC) Contempt of court — Criminal and civil contempt distinguished — Though both punishable as crime, standard of proof depending on whether remedy involving imprisonment — If so, proof beyond reasonable doubt required — For civil remedies short of imprisonment, proof on balance of probabilities sufficient. Contempt of court — Procedure — Joinder — Need to cite parties in their personal capacities, particularly where committal to prison in offing — Effect of non-joinder. Contempt of court — Procedure — Summary procedure — Should be invoked only in exceptional circumstances where there exists pressing need for swift measures to preserve integrity of judicial process — Contemnor to be accorded, as far as possible, fair trial rights. In these matters the applicants sought leave to appeal decisions of the Free State High Court and the Supreme Court of Appeal in which Messrs L and M were declared to be in contempt of court and sentenced to suspended terms of imprisonment. The applications concerned the standard of proof in civil and criminal contempt proceedings, the appropriateness of the summary contempt procedure, and the effect of the non-joinder of Messrs L and M, in their personal capacities, in the contempt proceedings (see [1], [18], [49]). The case of Mr L, the municipal manager of the Matjhabeng Municipality, involved alleged non-compliance with a court order directing the municipality and Mr L, in his official capacity, to settle municipal electricity bills due to Eskom. A subsequent order contained a rule nisi requiring Mr L, in his official capacity, to file a report justifying non-compliance with the earlier order. On the appointed day Mr L was sworn in, cross-examined, convicted of contempt, and sentenced to six months' imprisonment, suspended (see [10]).

The case of Mr M, the compensation commissioner for workplace injuries, involved alleged non-compliance with a court order directing him, in his official capacity, to process medical accounts submitted to him by a company called CompSol. The High Court dismissed a contempt application by CompSol on the grounds of payment and lack of mala fides, but the decision was overturned by the SCA, which found mala fides, held Mr M in contempt and sentenced him to three months' imprisonment, suspended (see [38]). Held Although contempt of court may be criminal or civil depending on the conduct of the contemnor, all contempt was punishable as a crime (see [50], [52]). Criminal contempt brought the moral authority of the judicial process into disrepute and covered a multiplicity of conduct constituting interference with court proceedings to the detriment of a fair trial (see [52]). Civil contempt, by contrast, involved the disobedience of court orders, and could result in remedies other than criminal sanctions, including declaratory orders, mandamuses and structural interdicts (see [53] – [54]). But the availability of declaratory relief did not mean that the civil remedy of committal could not be imposed (see [57]). The standard of proof to be applied in contempt cases varied in accordance with the consequences of the remedy. If the sanction involved committal, the criminal standard of proof — ie beyond reasonable doubt — was always required. But if it involved civil remedies, the civil standard of proof — ie a balance of probabilities — sufficed (see [60] – [67]). In cases of contempt ex facie curiae the summary procedure should be invoked only in exceptional circumstances, where there was a pressing need for firm or swift measures to preserve the integrity of the judicial process, and even then the contemnor had as far as possible to be accorded his or her fair trial rights (see [79] – [81]). The court found that in Mr L's case wilfulness or mala fides had not been established. Where public officials were cited for contempt in their personal capacities, the officials themselves, rather than the institutional structures for which he or she was responsible, must have wilfully or maliciously failed to comply with an order (see [76]). In particular, the High Court did not consider various attempts made by Mr L and other senior personnel of the municipality to settle the dispute with Eskom (see [78]). Moreover, the summary procedure adopted by the High Court was unfair to Mr L, who was cross-examined without leading evidence and without being warned imprisonment might ensue — an infringement of his right to personal freedom and security under s 12(1)(a) of the Constitution (see [80] – [81]). The court made a similar finding of lack of mala fides in respect of Mr M's case (see [102]). The reason for the failure to pay was logistical problems at the compensation fund, and the averments in the explanatory affidavit were telling and should have been investigated by the SCA (see [85] – [86]). Messrs L and M should both have been cited in their personal, not nominal, capacities, and it was inconceivable how they could have been committed to prison when they were not informed in their personal capacities of the cases they were to face (see [103]). Convictions and sentences set aside. MYATHAZA v JOHANNESBURG METROPOLITAN BUS SERVICES (SOC) LTD t/a METROBUS AND OTHERS 2018 (1) SA 38 (CC)

Labour law — Arbitration proceedings — Award — Prescription — Whether Prescription Act applying to arbitration awards made under Labour Relations Act 66 of 1995 — Whether Prescription Act consistent with Labour Relations Act — Meaning of 'inconsistent' in Prescription Act 68 of 1969, s 16(1). Labour law — Arbitration proceedings — Award — Prescription — Interruption — Whether referral of dismissal dispute to Commission for Conciliation, Mediation and Arbitration interrupting prescription — Whether instituting review of CCMA award interrupting prescription — Prescription Act 68 of 1969, ss 15(1) and 15(6). Prescription— Extinctive prescription — Debt — What constitutes — Whether arbitration award and/or claim for unfair dismissal under Labour Relations Act 66 of 1995 constituting 'debt' for purposes of Prescription Act — Meaning of 'debt' — Prescription Act 68 of 1969, s 10(1). An arbitration award, issued on 16 September 2009 in an unfair dismissal dispute, ordered the respondent employer (Metrobus) to reinstate the appellant employee (Mr Myathaza), with back pay. Metrobus however would not allow Mr Myathaza to return to work, pending an intended review of the arbitration award. Review proceedings in the Labour Court were instituted on 21 October 2009 but despite closure of pleadings, Metrobus sought and fixed no date for a hearing and accordingly the matter remained pending. Eventually, in August 2013, Mr Myathaza approached the Labour Court to have the arbitration award made an order of court. One of Metrobus' grounds for opposing this relief was that the award had prescribed under the Prescription Act 68 of 1969, after the expiry of three years since it was made, ie on 16 September 2012. The Labour Court held that the award for reinstatement constituted a 'debt' for the purposes of prescription and agreed with Metrobus that it had prescribed. Mr Myathaza next approached the Labour Appeal Court (the LAC) where his appeal was heard together with two similar matters, one of which held that the Prescription Act did not apply to awards for reinstatement under the Labour Relations Act 66 of 1995. The LAC held that the applicability of the Prescription Act depended on whether it was a 'debt' as contemplated in s 10 of the Prescription Act. Relying on case law (Desai below n6) which construed the word 'debt' to include any obligation to do or refrain from doing something, the LAC concluded that arbitration awards constituted such obligations and were therefore debts; that the Prescription Act was applicable; and that Mr Myathaza's award had prescribed. In this case, Mr Myathaza's application for leave to appeal and his appeal against the LAC order, the Constitutional Court upheld Mr Myathaza's appeal but was evenly split (over three judgments) on the legal basis for doing so. The first judgment (Jafta J, with Nkabinde ADCJ, Khampepe J and Zondo J concurring) upheld the appeal on the basis that the Prescription Act did not apply to LRA awards. This followed, it was held, because the LRA and the Prescription Act were inconsistent (as a result of fundamental differences between them, set out at [43] – [56]), and s 16(1) of the Prescription Act excluded its own operation in the event of 'inconsistency with provisions of another Act'. In arriving at this conclusion the first judgment held that, interpreted in the proper constitutional context, 'inconsistent' did not mean that the two Acts had to be mutually exclusive but that it was sufficient that there were material differences between them (see [42]). It further held that, even if the Prescription Act did apply, Mr Myathaza's reinstatement award would not prescribe because it did not constitute a 'debt' for the purposes of the

Prescription Act. This was because the dictum in Desai as to what constituted a debt was overruled in Makate (see n12 below) which restricted its meaning to 'an obligation to pay money or deliver goods or render services', which the order of reinstatement was not (see [59]). The second judgment (Froneman J, with Madlanga J, Mbha AJ and Mhlantla J concurring) held that the Prescription Act did apply (ie was consistent with the LRA — see [66]); that a claim for unfair dismissal under the LRA, being a claim to enforce a legal obligation, qualified as a 'debt' under the Prescription Act (see [77] – [78]); and that service of process commencing proceedings before the Commission for Conciliation, Mediation and Arbitration (the CCMA) interrupted prescription in accordance with ss 15(1) and 15(6) of the Prescription Act (see [75] and [82]), as did institution of a review of the arbitration process (see [88]). It accordingly upheld the appeal on the basis that until the review was finalised, Mr Myathaza's claim would not prescribe (see [90]). The third judgment (Zondo J), in addition to concurring with and elaborating on the approach of the first judgment, questioned the second judgment's ratio: a referral to the CCMA of an unfair dismissal dispute, it was held, did not constitute service on the debtor of 'any process' contemplated in s 15(1) read with s 15(6) of the Prescription Act, which was what was required to interrupt prescription (see [140]).

TRINITY ASSET MANAGEMENT (PTY) LTD v GRINDSTONE INVESTMENTS 132 (PTY) LTD 2018 (1) SA 94 (CC) Prescription — Extinctive prescription — Period of prescription — When it commences— Loan 'repayable on demand' — Whether debt becoming due when loan advanced, or when demand made — Debt becoming due when loan advanced, unless clear indication to contrary — Prescription Act 68 of 1969, s 12. Prescription — Extinctive prescription — Period of prescription — When it commences — General rule — Prescription beginning to run when debt arising, unless parties clearly stipulating otherwise — Prescription Act 68 of 1969, s 12. Company — Winding-up — Application — By creditor — Abuse of process — Rule that court will refuse application as constituting abuse of process where company bona fide disputing debt on reasonable grounds (Badenhorst principle) — Ambit — Whether rule applicable to dispute on legal issues. On 1 September 2007 Trinity Asset Management (Pty) Ltd (Trinity) and Grindstone Investments 132 (Pty) Ltd (Grindstone) entered into a written loan agreement in terms of which Trinity lent a sum of money to Grindstone. A key term was that the loan capital would be 'due and repayable to the Lender within 30 days from the date of delivery of the Lender's written demand' (clause 2.3). While the capital loan was only paid over (in three tranches) during February 2008, the agreement deemed it to have been lent and advanced on 1 September 2007. Trinity made demand towards the end of 2013. When Grindstone failed to make payment in response, Trinity, in July 2014, applied to the High Court for the provisional liquidation of the former. In defence, Grindstone argued that the debt in respect of the loan paid over during February 2008 had prescribed in October 2010 (given the deemed advancement date), alternatively 13 March 2011, 15 March 2011 and 21 March 2011, being three years after the loan amount was lent and advanced. The High Court dismissed the application on the basis that Grindstone's raising of prescription amounted to a 'valid

defence'. The court purported to rely on the Badenhorst principle, which held that, generally speaking, an application for liquidation should be dismissed where there existed a genuine and bona fide dispute of fact. Leave to appeal was granted to the SCA, where, by agreement, the only issue to be determined was the question of prescription. The SCA majority upheld Grindstone's prescription defence, and hence dismissed the claim for provisional liquidation. The applicant applied to the Constitutional Court for leave to appeal. The principal issue in the Constitutional Court was whether the debt had prescribed. The answer depended on when the debt became 'due' (hence triggering the running of prescription) for the purposes of the Prescription Act 68 of 1969. Was it the date on which the loan was advanced (as Grindstone argued, and in which case the debt would have prescribed), or was it the date on which demand was made (as Trinity argued)? A preliminary issue was whether the defence of prescription was properly before the court. The point raised was that the Badenhorst principle barred both the SCA and the Constitutional Court from considering the prescription point, given that there existed a dispute on it. Cameron J (Khampepe J, Madlanga J, Mhlantla J and Pretorius AJ concurring)— majority judgment Held, that the Badenhorst principle did not preclude a liquidating or sequestrating court from deciding a straightforward legal issue on common-cause facts. That was what the High Court in fact did, in finding that prescription amounted to a 'valid defence' (this despite the court's apparent reliance on Badenhorst). (See [91] – [93].) It conclusively extinguished Trinity's claim. That was how the parties understood the ruling, in setting aside their other disputes and agreeing that the only issue on appeal would be the law point (see [90). The prescription point was therefore properly before the SCA. And it was properly before the Constitutional Court. Leave to be appeal had to be granted. (See [93].) Held, that a loan without stipulation as to a time for repayment was 'repayable on demand'. Unless the parties agree otherwise, such a loan was repayable from the moment the advance was made and no specific demand for repayment needed to be made for the loan to be immediately due and repayable. The same principle applied where a loan afforded a debtor 30 days after demand to make payment, the key point being that the creditor had the sole power to demand performance at any time. It was this point that gave rise to the general rule applying to loans 'payable on demand', namely that prescription began to run when the debt arose, unless there was a clear indication to the contrary. (See [102] – [105].) Held, further, that the plain and un-extraordinary nature of the loan agreement, coupled with the absence of a clear signification to the contrary, led to the conclusion that the parties did not delay prescription until demand (see [137]). Accordingly, in the circumstances, the debt had prescribed, and the appeal had to be dismissed (see [3] and [139]). Mojapelo AJ (Mogoeng CJ, Nkabinde ADCJ, Jafta J and Zondo J concurring) — dissenting judgment Held, that a contractual debt became due as per the terms of that contract. Whenno due date was specified, the debt was generally due immediately on conclusion of the contract. However, the parties might intend that the creditor be entitled to determine the time for performance, and that the debt would become due only when demand had been made as agreed. Where there was such a clear and unequivocal intention, the demand would be a condition precedent to claimability, a necessary part of the

creditor's cause of action, and prescription would begin to run only from demand. (See [47].) Held, that the contract here, properly interpreted, indicated a clear intention that the debt would become due — and prescription would start running — only once demand had been made, and not earlier. On a reading of clause 2.3, written demand was a material condition to be fulfilled by the lender, without which the due date could not be determined; it was a condition precedent to enforceability. Further, in using the term 'due and payable' in providing for repayability, thereby mirroring the language of the Prescription Act, the parties indicated their intention to shift the commencement of prescription — the due date of the debt. Accordingly, Trinity's claim had not prescribed. (See [56], [60], [64] and [72].) Froneman J— concurring that appeal should be dismissed, but principally because of Badenhorst principle Held, that the High Court judgment had applied the Badenhorst principle in dismissing the provisional liquidation application. An appeal against the High Court's judgment could only succeed if its application of the principle was incorrect, more particularly, that the principle did not properly apply to a dispute on legal issues. (See [146].) The SCA and the Constitutional Court did not make any finding to such effect; they merely assumed the matter was properly before court. In the absence of such a finding, the appeal had to fail and refusal of the provisional liquidation application in the High Court confirmed on this ground. (See [4], [142] and [151] – [152].) (If he was wrong on this, he agreed with the majority judgment that the claim for repayment of the loan had prescribed, and that the appeal should be dismissed for that reason as well (see [153] and the discussion of prescription in [154] – [165]).) Gelyke Kanse and others v Chairman of the Senate of Stellenbosch University and others [2018] 1 All SA 46 (WCC) Civil procedure – Application for leave to admit a further affidavit and to lead oral evidence – While the courts may permit the filing of further affidavits in exceptional circumstances, the court will not exercise its discretion in the absence of an explanation of why it is necessary to file the affidavit concerned; and will always act subject to considerations of fairness and justice and the absence of prejudice to other parties. Civil procedure – Striking-out application – Uniform Rule 6(15) of the Uniform Rules of Court – For an application to strike out to succeed, the matter to be struck out must be of an offending kind as indicated above; and the court must be satisfied that if the matter is not struck out the party seeking to have the matter struck out would be prejudiced. Constitutional law – Right to basic education and to receive education in official language of choice – Section 29 of the Constitution of the Republic of South Africa, 1996 – Right to receive education in an official language of choice is modified because in terms of section 29(2), the choice is available only when it is reasonably practicable. In June 2016, the Senate and Council of Stellenbosch University took a decision in terms of section 27(2) of the Higher Education Act 101 of 1997, to adopt a new language policy for the university. The applicants sought the review and setting aside of that decision. They also sought an order setting aside the policy itself; and an order directing the university to implement its previous language policy (“the 2014 policy”) until it was validly amended or replaced. The application was made on constitutional

as well as administrative law grounds, and sought essentially to secure the continuation of Afrikaans as a primary language of instruction at the university. Held – It was common cause that the Higher Education Language Policy (“the LPHE”) was implicated in the matter. As pointed out by the applicants, the language policy determined by the council of the university had to be informed by the LPHE and all such policies had to comply with sections 29(1)(b) and 29(2) of the Constitution.

Section 29 of the Constitution was key to the dispute in this case. The section entrenches the right to a basic education, and to further education, and to receive education in an official language of choice. However, that choice is modified because in terms of section 29(2), the choice is available only when it is reasonably practicable.

In the case of University of the Free State v Afriforum and another [2017] 2 All SA 808 (2017 (4) SA 283) (SCA), in which judgment was handed down after the present application was filed, the Supreme Court of Appeal (SCA) reaffirmed that a negative duty on the State exists not to take away or diminish the right to being taught in Afrikaans without justification. Key to the assessment of the justification, according to the SCA, is whether the context and the circumstances have changed, and if so, whether good reason has been proffered for the change of policy.

Since the decision to adopt the new policy was said to be subject to review in that it was made in the exercise of a public power, the question was whether, viewed objectively, the decision was rationally connected to the purpose for which the power was given. That is a factual enquiry and if a decision-maker acts within its powers, and considers the relevant material in arriving at a decision so that there is a rational link between the power given, the material before it and the end sought to be achieved, the rationality threshold would be met.

The Court examined the provisions of the 2014 and 2016 policies, as well as the reason for changing the 2014 policy. Sound reasons existed for the change in policy. The Court could not accept the applicants’ contention that the new policy intended to reduce Afrikaans. Instead, the new policy was designed to retain the extent of Afrikaans tuition under the 2014 policy and to offer as much Afrikaans tuition as the university was reasonably able to do so, considering what was reasonably practicable.

Significant in the case was the fact that the applicants sought to challenge the 2016 policy but did not seek to challenge the State’s language policy (the “LPHE”). The applicants’ real complaint appeared to be the cumulative effect of such decisions by multiple universities that negatively impact Afrikaans-speakers. As the SCA held in the Afriforum case, the target then is the State’s language policy, not the university’s policy.

The applicants failed to persuade the court that the 2016 policy was in any way unconstitutional.

The Court then raised the question of whether the impugned decisions constituted executive or administrative action. Following the court in the Afriforum case, the Court held that the policy itself did not amount to administrative action. It would only be decisions taken in the implementation of the policy that would be subject to administrative review. Therefore, the Promotion of Administrative Justice Act 3 of 2000 did not apply to this case. Consequently, the only grounds of review that the applicants could rely on were that the decision was substantively irrational – which

posed a lower standard than reasonableness required under the Promotion of Administrative Justice Act.

After examining the purpose of section 29(2), the Court turned to consider the notion of what is reasonably practicable. The assessment of what is reasonably practicable requires a consideration both of resource constraints and logistics (the factual criterion), and what is reasonable which clearly includes considerations of equity, redress, and non-racialism. A university need consider the reasonable education alternatives only if education in the language of choice is reasonably practicable as properly understood.

It was concluded that the university in this case appeared to have decided that its multiple purposes of preventing exclusion, promoting multilingualism, ensuring integration, and fostering Afrikaans were best served by the 2016 policy it adopted. It clearly considered multiple factors and weighed them all. The Court found no irrationality, and declined to interfere with the decision. An application was brought by the applicants, for leave to admit a further affidavit and to lead oral evidence thereon. The general rule is that only three sets of affidavits are permitted in motion proceedings. However, that rule is not always rigidly applied and the court enjoys a discretion to permit the filing of further affidavits. While the courts may permit the filing of further affidavits in exceptional circumstances, the court will not exercise its discretion in the absence of an explanation of why it is necessary to file the affidavit concerned; and will always act subject to considerations of fairness and justice and the absence of prejudice to other parties. Other considerations will include the degree of materiality of the evidence, the stage which the litigation has reached, and the general need for finality in judicial proceedings. The Court found that no adequate explanation was furnished for seeking to adduce the further affidavit or to compel the oral testimony of another witness at the current extremely late stage.

Two other applications brought were by the university, for striking out in terms of Uniform Rule 6(15) of the Uniform Rules of Court. The first application was aimed mainly at the substantial quantity of hearsay and what the respondents describe as irrelevant allegations contained in the applicants’ founding papers. The second application pertained to the applicants’ replying papers, as being replete with new and irrelevant matters. Although the Rule under discussion dealt expressly with the striking out of scandalous, vexatious or irrelevant matter, those grounds are not at all exhaustive or intended to be exhaustive as to the grounds on which a court will strike out allegations; the court enjoys an inherent jurisdiction to grant relief where appropriate. For an application to strike out to succeed, the matter to be struck out must be of an offending kind as indicated above; and the court must be satisfied that if the matter is not struck out the party seeking to have the matter struck out would be prejudiced. The Court agreed that the impugned affidavits contained irrelevant and hearsay evidence. Both striking-out applications were therefore granted.

The main application was dismissed with costs. Isaacs and others v City of Cape Town and another [2018] 1 All SA 135 (WCC) Civil procedure – Eviction order – Rescission application – Error – Before granting the urgent order of eviction, the court must give written and effective notice of the intention of the owner or person in charge to obtain an order evicting an unlawful occupier and the municipality in whose area of jurisdiction the land is situated – Failure by applicant

for eviction to provide the court with accurate information relating to the language of the occupiers, resulting in court failing to appreciate the necessity of issuing an order directing that the notice of eviction proceedings be issued in Afrikaans – Further error existing in incorrect legislation being applied – Rescission application accordingly granted. In terms of rule 42 of the Uniform Rules of Court, alternatively the common law, the applicants sought the rescission of eviction and demolition orders granted against them. The applicants contended that they were occupiers in terms of the Extension of Security of Tenure Act 62 of 1997 (“ESTA”) and that their removal was unlawful because it was sought and granted in terms of the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (“PIE”). In the alternative, and in the event that the latter Act was held to be applicable, the applicants contended that the eviction and demolition orders were granted in error on the basis that the court, granting the eviction and demolition order, was not appraised of the facts necessary for the court to determine whether an eviction order was a just and equitable order. Held – Prior to the first respondent (“the City”) pursuing the eviction and demolition application, a concerted effort should have been made, within the parameters of the principle of co-operative government between the City and the second respondent (“the Department”), to resolve the matter in favour of a removal process that affirmed the dignity of the applicants. The City and the Department had an opportunity to address the removal of the applicants in a manner consonant with the underlying values of the Constitution. That failed when the City launched its application for the removal of the applicants on an urgent basis. Section 5 of PIE regulates the launching of eviction proceedings on an urgent basis for a final order of eviction. It provides that such final order may be granted if the court is satisfied that there is a real and imminent danger of substantial injury or damage to any person or property if the unlawful occupier is not forthwith evicted from the land; the likely hardship to the owner or any other affected person if an order for eviction is not granted, exceeds the likely hardship to the unlawful occupier against whom the order is sought, if an order for eviction is granted; and there is no other effective remedy available. Even where all those facts are established, the court remains with a discretionary power to refuse an order of eviction. Before granting the urgent order of eviction, the court must give written and effective notice of the intention of the owner or person in charge to obtain an order evicting an unlawful occupier and the municipality in whose area of jurisdiction the land is situated. Contemplating the urgent eviction and demolition proceedings, the City successfully approached the court on an ex parte basis for the aforementioned notice in terms of section 5(3). The applicants did not respond and the eviction application went before the court on an unopposed basis. In seeking rescission of the eviction order, the applicants submitted that the order in the notice application was delivered to them only in English and not in Afrikaans. They therefore contended that the execution of the eviction order should be suspended and the service order rescinded. The requirements for a rescission of an order must be present before such an order is granted. With regard to the service order, the applicants had to show that it was granted in error. The error relied upon by the applicants was that the City failed to provide the court with accurate information relating to the language of the applicants, the result of which was that the court failed to appreciate the necessity of issuing an order directing that the notice of eviction proceedings in terms of section 5(3) be issued

in Afrikaans. The notice was therefore not effective as required in section 5(2). The Court agreed that if there was no compliance with section 5(2) in that the notice sought and authorised by the court was issued in a language that the applicants were not conversant with, then it lacked the material facts necessary for it to exercise its judicial powers in terms of section 5(2) to issue an effective notice. It followed that the notice was sought on the basis of incomplete or inaccurate information. The application for rescission had to succeed on that basis. A failure to point out the language of the occupiers to the court considering a section 5(2) notice is a fatal omission and strips the eviction process of the attributes of fairness and lawfulness. Such an omission not only undermines the right of the occupiers to access the court as guaranteed in section 22 of the Constitution, but has the real potential of violating the right of the occupiers to access housing in section 26 of the Constitution. A lawful and appropriate notice that complies with the requirements of section 5(2) is a jurisdictional requirement for a lawful eviction. The rescission of the service order meant that the eviction order also had to be rescinded. That was, however, not the only basis on which the eviction and demolition orders had to be rescinded. As stated above, according to the applicants, a rescission order also had to be granted because the eviction and demolition orders were obtained by the respondents relying upon incorrect legislation. Since the property occupied by applicants was agricultural land, and since the applicants alleged that their incomes did not exceed the prescribed amount of R5000 per month, the applicability of ESTA, and thus this Court’s jurisdiction, turned primarily on whether the applicants had the consent of the owners at the relevant time to reside on the land. An eviction – no matter how justified – must be obtained lawfully and not arbitrarily. An occupier in terms of ESTA cannot lawfully be evicted in terms of PIE. While both pieces of legislation aim to regulate the manner of evicting unlawful occupiers, each has special mandatory features that must be complied with. ESTA provides statutory protection against eviction of occupiers of agricultural land. The land from which the applicants were evicted in terms of PIE was agricultural land. The City’s argument in that regard was that the fact that the land concerned is agricultural land is not decisive for the application of ESTA. It contended that what is decisive is that the occupier must occupy the land with the consent of the owner. Absent that consent, so the argument went, an occupier on agricultural land may be evicted, as an unlawful occupier, by reliance on PIE. The Court accepted that the applicants had established a prima facie case that they had consent to occupy the land. The City was thus incorrect to approach the eviction of occupiers of this agricultural land on the basis of PIE. Referring to case law, the Court confirmed that an eviction order may be rescinded where it is granted in error. The present Court could therefore rescind the eviction order on the basis that the court applied incorrect legislation in error. The rescission was, accordingly, granted. Karani v Karani NO and others [2018] 1 All SA 156 (GJ) Civil procedure – Evidence – Expert witnesses – Function of experts in litigation – An expert must be objective irrespective of the party for whom he is testifying, and must also be properly qualified and provide the factual basis for his opinion.

Wills, Trusts & Estates – Validity of will – Contested will not complying with formal requirements set out in section 2(1)(a) of the Wills Act 7 of 1953 and shown to be a forgery – Court declaring will invalid. At the centre of the dispute in this case was the validity of a will (“the contested will”) executed by the plaintiff’s sister (“the deceased”) in February 2013. The plaintiff sought an order declaring the said will to be null and void, and an earlier will dated 15 September 2006 to be valid. The second and third defendants were the nephews of the plaintiff and the deceased.

In contending that the contested will was invalid, the plaintiff alleged non-compliance with the mandatory provisions of the Wills Act 7 of 1953, and further, that the will was a forgery. The plaintiff bears the onus that the Disputed Will dated 7 February 2013 is a fraudulent document with a forged signature. Held – The plaintiff bore the onus of proving that the contested will was a fraudulent document with a forged signature. The second and third defendants had to demonstrate that the contested will complied with the legal formalities. In both instances the standard was on a balance of probabilities.

Section 2(1)(a) of the Wills Act 7 of 1953 provides the formalities in respect of execution of wills. Section 2(1)(a)(ii) provides that two or more witnesses must sign a will and do so in the presence of the testator and in the presence of each other. That was not complied with in this case. While the formalities were peremptory, section 2(3) affords some deviation from the strict implementation of those provisions. Two requirements must be satisfied before relief can be granted in terms of section 2(3). The document must have been drafted by the deceased personally, and the deceased must have intended the document to be her will.

The issue in this case was that the contested will was not signed by two or more witnesses in the presence of the deceased and in the presence of each other. Furthermore, the witnesses did not sign and/or initial each page of the document. The non-compliance with the formal requirements for validity rendered the will invalid.

Finally, the Court turned its attention to the probative value of the testimony of the expert witnesses of each of the parties. Forming the view that the defendant’s expert witness, a forensic graphologist, was predisposed to the facts, the Court found it necessary to comment on the function of experts in litigation. An expert must be objective irrespective of the party for whom he is testifying. He must also be properly qualified and provide the factual basis for his opinion, and the evaluation of such evidence must be done according to accepted principles. The Court found the defendants’ expert’s findings to be unsubstantiated and improbable, and his reasons unconvincing. The plaintiff’s expert materially substantiated her findings, and her opinion was more probable and reliable.

It was concluded that the plaintiff had discharged the burden of proving that the signature on the contested will was a forgery. The contested will was declared invalid, and the 2006 will was declared to be the last will and testament of the deceased. Lusithi and others v Cape Lifestyle Investment Ltd and another [2018] 1 All SA 166 (WCC) Constitutional law – Right to fair trial – Section 34 of the Constitution providing that everyone has the right throughout the 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 – Granting of eviction order in chambers without affording parties an opportunity to be heard on issue in dispute constituting a violation of the right to a fair trial. An application for the eviction of the appellants from certain property was brought by the first respondent in May 2014. The appellants gave notice of their intention to oppose the eviction application. The notice filed on behalf of the third appellant (described as the class of persons unlawfully occupying the property) was signed by the first appellant. It was not determined who exactly the individual appellants were until they sought leave to appeal in the Supreme Court of Appeal.

The court below was satisfied that the appellants’ occupation of the property was unlawful, and advised Counsel of its view. Once Counsel had consulted with their clients, they reverted to the presiding judge who made an eviction order, but suspended the operation of that order to a later date with certain directions. The court a quo granted an order in terms of which the appellants were directed to vacate the property on which they lived and to remove any structures or possessions from the property on or before 31 January 2015, failing which the sheriff was authorised and directed to evict the occupiers. That led to the present appeal against the eviction order. Held – The case of Occupiers of Erven 87 and 88 Berea v De Wet NO and another (Poor Flat Dwellers Association as amicus curiae) 2017 (8) BCLR 1015 (CC) was similar to the present case. In that case, the Constitutional Court was confronted with the question as to whether in eviction proceedings, where an unlawful occupier had purportedly consented to his eviction, the court is absolved from the obligation to consider all relevant circumstances before ordering an eviction. The occupiers in that case argued that even if consent could be found, such consent was not legally valid as the court was still under a constitutional and statutory obligation to satisfy itself that the eviction would nevertheless be just and equitable after considering all the relevant circumstances. The Constitutional Court found that for consent to be legally effective, it must have been given by the applicants freely and voluntarily with a full awareness of the rights being waived. It must be an informed consent to be valid. The Court found that the applicants in that case were not aware of their rights, and that the factual consent that they gave was not informed and therefore, was not legally valid. Section 26(3) provides that no one may be evicted from their home or have their home demolished without a court order authorising such eviction after having due regard to all relevant circumstances. Courts dealing with eviction matters have a specific duty to ensure that the order made is fair and just. An eviction order can only be granted by a court if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances. An agreement by the parties as to the unlawfulness of the occupation does not absolve a court of its constitutional duties to approach eviction proceedings in a manner that ensures that the protection granted in section 26 of the Constitution is fully complied with.

On appeal, the majority judgment addressed only one of the issues raised, viz whether the appellants had a fair trial. The eviction order was made after the judge addressed Counsel in chambers. The parties did not have an opportunity to make submissions in open court about their respective cases, neither was there any indication that there was substantial debate or argument on the issues before the

judge in chambers, with a view to persuade the judge before the granting of the eviction order. The appellants raised a dispute relating to whether or not they occupied the property with the respondent's consent. The court a quo did not enquire nor did it deal with that issue fully. Section 34 of the Constitution provides that, “Everyone has the right throughout the 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”. The appellants before the court a quo were deprived of the constitutionally guaranteed right to a hearing in public before the court. The majority of the Court upheld the appeal and directed that the matter be heard afresh before a different judge.

Premier of the Eastern Cape and others v Hebe and others [2018] 1 All SA 194 (ECB) Civil procedure – Traditional leadership – Statutory interpretation – Starting point is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity – Statutory provisions should always be interpreted purposively; the relevant statutory provision must be properly contextualised; and all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity. Local Government – Traditional leadership – Duties imposed by legislative framework – Legality of process in terms of which the Commission on Traditional Leadership Disputes and Claims and the provincial Premier performed their functions regarding appointments of chiefs of traditional community. At the centre of the present appeal was a dispute about senior traditional leadership of a traditional community. Upon the establishment of the community, the first respondent’s father was appointed chief. He was succeeded by the first respondent.

A claim by the second respondent that he should rightfully have been appointed chief was investigated by the provincial committee of the fourth appellant (“the Commission”), which then upheld the claim. The committee’s recommendation to the first appellant (“the Premier”) was that the second respondent’s claim should be upheld. The Premier decided to accept the recommendation by issuing a written pronouncement to that effect (“the decision”).

The third appellant (the “Superintendent-General”) informed the first respondent thereof, and invited him to make written representations as to why the annulment of his appointment should not be given effect to, and his salary terminated.

After making the said representations, the first respondent decided to institute legal proceedings seeking to interdict the Premier, the MEC, and the Superintendent-General from implementing the decision of the Premier pending a determination of the relief claimed in the second part of his application. In the second part of the application, the court was asked to review and set aside the recommendation of the Commission and the decision of the Premier to uphold the second respondent’s claim to the disputed chieftaincy. The interim interdict was granted and when the review proceedings were heard, the court set aside the recommendation of the Commission and the decision of the Premier to accept and implement it. She remitted the matter to the Commission and ordered the Premier and the Commission to pay the costs of

application. The Premier, the MEC, the Superintendent-General and the Commission brought the present appeal.

On appeal, the court decided to deal with two of the three findings made by the court below. The first dealt with the lawfulness of the implementation of the decision of the Premier to accept the recommendation of the Committee. It was found that the correspondence addressed to the first respondent by both the Premier and the MEC showed that the Premier had appointed the second respondent to the disputed position without first removing the first respondent therefrom. As the recognition and appointment of the first respondent remained valid until it was set aside, it effectively meant that two persons were appointed to the same position. That was held to be in conflict with the principle that until administrative action is set aside by a court in proceedings for judicial review, it exists in fact and has legal consequences. The second finding dealt with one of the grounds on which the legality of the Committee’s recommendation and the Premier’s decision to accept it was disputed, and was concerned with the manner in which the Committee arrived at its recommendation. The court below found that the recommendation, and with that the decision of the Premier to accept the recommendation, had to be reviewed and set aside by reason of the Committee’s failure to consider relevant evidence. Held – As the issues raised in the appeal required an application of statutory provisions, it was necessary to establish the correct approach to their interpretation. The starting point is that the words in a statute must be given their ordinary grammatical meaning, unless to do so would result in an absurdity. Three important interrelated riders to that general principle are that statutory provisions should always be interpreted purposively; the relevant statutory provision must be properly contextualised; and all statutes must be construed consistently with the Constitution, that is, where reasonably possible, legislative provisions ought to be interpreted to preserve their constitutional validity.

Highlighting an apparent conflict between section 26 of the Traditional Leadership and Governance Framework Act 41 of 2003 and section 33 of the Eastern Cape Traditional Leadership and Governance Act 4 of 2005 (“the Provincial Act”), the Court referred to section 146 of the Constitution, which deals with conflicts between national legislation and provincial legislation. It held that national and provincial governments have concurrent legislative authority over traditional leaders.

Sections 211 and 212 of the Constitution deal with the recognition of traditional leaders and the enactment of national and provincial legislation to deal with the role of traditional leadership and matters related thereto. Section 28 of the Traditional Leadership and Governance Framework Act serves to ensure the continued existence of traditional leadership institutions that existed in terms of legislation that preceded the Constitution and the Act. Of importance for present purposes was that the continued recognition of a traditional leader and a traditional community is made subject to a decision of the commission as contemplated in terms of section 26. The duties of the Commission are set out in section 25 of the Act. The Act compels the Commission to carry out its functions in a fair, objective and impartial manner.

Turning to the first finding of the court below, as referred to above, the present Court pointed out that what was at issue in the minds of the appellants was the wrongful appointment of the first respondent. The question therefore related to how a Premier gives effect to his decision made in terms of section 26 of the Traditional Leadership

and Governance Framework Act to accept the recommendation of the Commission that the appointment or recognition of an iNkosi is wrongful. The finding of the court below was in essence that the decision of the Premier could not achieve the removal of an iNkosi without also first setting aside his preceding decision to recognise and appoint the person concerned as an iNkosi.

Section 26 must be read in the context of Chapter 6 of the Act. Chapter 6 contemplates the creation of a mechanism for the resolution of disputes and claims in relation to customary matters. Section 26 requires the President or the Premier concerned to “make a decision on the recommendation.” While the relevant functionary is obliged to make a decision on the recommendation, the decision itself may be different from the recommendation. The court below appeared to have premised its finding on an incorrect factual basis, that is, that the Premier removed the first respondent from his position, and appointed the second respondent in his stead. However, as the first respondent correctly pointed out, the letter on which the first respondent placed reliance for seeking an order setting aside the decision to remove him from his position and to appoint the second respondent, did not embody such a decision at all. On a careful reading of the letter, it went no further than inviting the first respondent in terms of section 20(3) of the Provincial Act to make representations as to why the decision of the Premier to accept the recommendation of the Committee should not be implemented. The factual position was that there was no intention to remove the first respondent without more from his position on the basis as contended by the appellants, and the second respondent was not appointed in his place.

Next, the Court considered the legality of the process in terms of which the Commission and the Premier performed their functions. The relief claimed in the application was in the form of proceedings for review in terms of the Promotion of Administrative Justice Act 3 of 2000. The recommendation and the decision constituted administrative action which was subject to judicial review. Whether or not a decision is of an administrative nature is a question that must not be determined in the abstract, but in the context of the facts of each case by a careful analysis of the nature of the power or function and its source or purpose.

The Premier cannot take a binding decision without the recommendation of the provincial committee of the Commission. If the committee’s role in the decision making process was flawed, the entire process will be tainted. The committee was shown to have failed to take critical evidence into account in this case – including an earlier judgment concerned with the chieftaincy of the abaThembu Council and a challenge to the chieftaincy of the first respondent’s father. That was undoubtedly relevant to the events that gave rise to the dispute which the committee was tasked to investigate in the present matter. The failure by the committee rendered its recommendation flawed and it had to be reviewed and set aside. The committee’s recommendation was also unlawful and invalid in that the committee strayed beyond the terms of its mandate by deciding an issue beyond the actual issue it was tasked to consider. The finding that the recommendation of the Committee, and with that the decision of the Premier, were flawed and fell to be set aside, rendered it unnecessary for the Court to consider the remaining questions before it.

The appeal was dismissed with costs.

Twine and another v Naidoo and another [2018] 1 All SA 297 (GJ)

Civil procedure – Evidence – Expert evidence – Validity of a will according to section 2 of the Wills Act 7 of 1953 – Court explaining role, duties and functions of an expert witness – Expert’s evidence must be capable of being tested and it must be verifiable. Wills, Trusts & Estates – Validity of will – Section 2(1)(a)(ii) of the Wills Act 7 of 1953 – No will is valid unless the signature made by the testator is made in the presence of two or more competent witnesses present at the same time. The plaintiffs’ father (the “deceased”) died in July 2014. He had been in a romantic relationship with the first defendant since 2006.

The deceased was alleged to have executed two wills during his lifetime. They were referred to as the 2011 will and the 2014 will. This matter concerned the validity of the wills. The plaintiffs maintained that the 2014 will was invalid and should be declared null and void. At the same time, they sought confirmation of the validity of the 2011. In the 2011 will, the testator made monetary bequests to the first defendant and two other individuals, and left the remainder of his estate in equal shares to the plaintiffs. In the 2014 will, he bequeathed R10 000 to each of the plaintiffs, R5 000 to each of his three grandchildren, and the remainder of his estate to the first defendant.

The plaintiffs alleged that the 2014 will was invalid because a stipulation by the deceased that no will should be recognised as valid unless co-signed by his niece, was not complied with. Secondly, it was contended that the will had not been signed by the deceased, and to the extent that it might have been signed by him, was invalid as the deceased lacked the mental capacity to execute a valid will by reason of dementia brought about by the onset of old age. Held – The two critical issues for determination were whether the deceased had signed the 2014 will, and whether the will had been legally executed.

The plaintiffs called two handwriting experts to testify – one employed by the plaintiffs and the other representing the first defendant. Their testimonies focussed on the signatures of the testator on the two wills. The expert employed by the plaintiffs was adamant that the 2014 will was not signed by the deceased. The Court found her evidence that the 2014 will was not signed by the deceased to be tailored to suit the plaintiffs’ case. The defendant’s expert witness was found to be more candid. The Court found it appropriate, in light of the divergent approaches adopted by the two experts, to comment on the role, duties and functions of an expert witness as well as the role and functions of the court before analysing their respective testimonies. A witness claiming to be an expert has to establish and prove her credentials in order for her opinion to be admitted. The expert testimony should only be introduced if it is relevant and reliable. Otherwise it is inadmissible. The expert witness should bring specialised knowledge to the court. All facts and assumptions upon which they base their opinions must be stated. Their overriding duty is to the court and not for the parties.

The evidence of the plaintiff’s expert did not meet many of the above principles referred to by the court. She failed to extricate herself from the case of the plaintiffs to the point where she became an advocate for their case. As a result, she lost the degree of independence required of an expert witness who provides the court with an unbiased opinion. The Court therefore disqualified her as an expert and her testimony was to be disregarded.

The defendant’s expert’s testimony though candidly expressed, was too uncertain to be of any probative value in determining the central question before the Court.

In terms of section 2(1)(a)(ii) of the Wills Act 7 of 1953, no will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time.” Accordingly, the witnesses who attest to the signature of the testator have to be present when the testator actually signs the will. That requirement is mandatory. If not met, the will is invalid for want of compliance with a statutorily required formality. Both witnesses who were supposed to attest to the signing of the 2014 will by the deceased were not present when he signed it. The 2014 will was thus invalid. That left the 2011 will as the last will and testament of the deceased. Accordingly, the plaintiffs were entitled to a declaration that the 2011 will was valid.

Da Cruz and another v City of Cape Town and another [2017] JOL 39352 (WCC)

Action against organ of State – Notice in terms of Institution of Legal Proceedings

against Certain Organs of State Act 40 of 2002 – Failure to comply with Act –

Condonation

In December 2011, the first respondent awarded a tender to two contractors. The

applicant was appointed as a sub-contractor for the contractors to erect structures to

be used as general wards and a temporary mortuary at a hospital. The second

respondent municipality was appointed by the first respondent to implement, facilitate

and monitor construction of the hospital and to effect payments in terms of the tender.

As the contractors still owed the applicant a substantial sum of money over a year after construction commenced, the applicant and contractors entered into a written

cession agreement on 26 June 2013 in terms whereof the indebtedness was

acknowledged and the contractors ceded, transferred and made over their right, title

and interest against the municipality, to the applicant. The cession agreement was

made an order of court on 4 July 2013. The applicant completed the project in January

2014 and payment was demanded from the municipality’s agent, but no payment was

forthcoming. The applicant then gave notice in terms of the provisions of the Institution

of Legal Proceedings against Certain Organs of State Act 40 of 2002 (“the Act”). The

first respondent replied by informing the applicant that the aid notice did not comply

with the Act. The present application was for condonation in terms of section 3(4)(a)

of the Act.

Held that section 3(4)(a) provides that If an organ of State relies on a creditor’s failure to serve a notice in terms subsection (2)(a), the creditor may apply to a court having

jurisdiction for condonation of such failure. The court may grant an application referred

to in paragraph (a) if it is satisfied that the debt had not been extinguished by

prescription; good cause exists for the failure by the creditor; and the organ of State

was not unreasonably prejudiced by the failure. A court’s power to grant condonation

is circumscribed by section 3(4)(b) in requiring that it be satisfied that all the

requirements as set out, are met. These requirements are conjunctive and must be

established by the applicant.

Taking all the relevant factors into account, the Court found that while the applicant’s

attempt to show good cause was not entirely satisfactory, the Court found reason to

exercise its discretion in favour of the applicant, granting it the opportunity to have its

claim tested according to the dictates of law and justice.

Hartzer v De Sousa and others [2017] JOL 38714 (GP)

Appeal - Absolution from the instance -set aside-evidence lacking

The appellant had bought a business from the first respondent. The agreement was

subsequently cancelled, and in one of the appellant’s claims arising therefrom, it

sought the return of a flat which it had transferred to the first respondent as part of the

purchase price in the sale of business agreement.

At the close of the appellant’s case, the court granted the respondents’ application for absolution from the instance. The present appeal was against that decision.

Held that the test for not absolution from the instance at the close of a plaintiff’s case is whether the evidence led by plaintiff establishes what would finally be required or to

be established, but whether there is evidence upon which a court, applying its mind

reasonably to such evidence, could (not should) find for the plaintiff.

The credibility of witnesses seldom arises at the end of the plaintiff’s case. The trial

court erred in making adverse credibility findings against appellant’s witnesses. The

present Court could not find the appellant’s evidence to be so wanting as to justify

granting absolution to the respondents.

The appeal was upheld and absolution refused.

Road Accident Appeal Tribunal and others v Gouws and another [2018] JOL 39458 (SCA)

Appeal – Road Accident Appeal Tribunal – Powers of – Whether it is within the

Tribunal’s statutory remit to finally determine the nexus between the injuries

allegedly sustained, on which claim for compensation was premised, and the driving

of a motor vehicle – Appeal Tribunal not having final say on question of link between

the driving of a motor vehicle and the injuries allegedly sustained.

The first respondent allegedly sustained injuries as a result of being struck by a motor

vehicle whilst walking in a parking area. He lodged a claim for compensation with The

Road Accident Fund (the Fund), a statutory insurer, under section 17 of the Road

Accident Fund Act 56 of 1996 (“the Act”). section 17(1) provides that the obligation of

the Fund to compensate a third party for non-pecuniary loss shall be limited to

compensation for a serious injury as contemplated in subsection (1A) and shall be

paid by way of a lump sum. Prior to the submission of his claim, his injuries were

assessed by an orthopaedic surgeon. Despite the surgeon’s report stating that the

injury was serious, the Fund rejected the claim for compensation in relation to general

damages on the ground that the surgeon had concluded that the injury was not

serious. That led to the first respondent lodging an appeal. He was informed that the

third, fourth, fifth and sixth appellants had been appointed to the first appellant (the

Tribunal) to determine the appeal. The Tribunal took the view that the first

respondent’s injuries were not causally connected to the collision. Its upholding of the

Fund’s decision led to the first respondent seeking review in the High Court.

The court had regard to the methods to determine the seriousness of an injury

identified in Regulation 3 of the Regulations promulgated under the Act. The court took

into account the history of the orthopaedic surgeon’s assessment of the first

respondent’s injuries and his appeal to the Tribunal. Noting the Tribunal’s conclusion

that it could not find a link between the first respondent’s injury and the driving of a

motor vehicle, the court below concluded that there was nothing in the language of the

legislation concerned which empowered the Tribunal to determine whether the injuries

assessed by it were caused by or arose from the driving of a motor vehicle. It therefore

reviewed and set aside the decision of the Tribunal and remitted the matter to the

Tribunal for reconsideration by a different panel. That resulted in the present appeal.

On appeal, the Tribunal accepted that there was no express provision in the Act or the

Regulations that conferred on it the power to determine finally whether the injuries

submitted to it for assessment were caused by or arose out of the driving of a motor

vehicle. However, it persisted with the position adopted in the court below, namely that

it was implicit in the legislation that the Tribunal had that power. Section 17 of the Act,

so it was contended, provided that the injury for which a claimant was to be

compensated must be caused by or arise from the driving of a motor vehicle.

Held that it is a fundamental principle of our law that public power can only be exercised within the bounds of the law. Repositories of power can only exercise such

power as has been conferred upon them by law. That is in keeping with the principle

of legality. The general rule is that express powers are needed for the actions and

decisions of administrators. Implied powers may, however, be ancillary to the express

powers or exist either as a necessary or reasonable consequence of the express

powers. Where the administrative action or decision is likely to have far reaching

effects, it is less likely that a court will in the absence of express provisions find implied

authorisation for it. In the present case, the Tribunal, an appellate body, purported to

have the power to decide finally upon the question of causation. The effect of what

was suggested on behalf of the Tribunal was that the jurisdiction of the court was

ousted. Noting that the power given to the Tribunal in terms of the legislation is

narrowly circumscribed, and is not of a broad discretionary nature, which would allow

for further powers to be implied, the court held that the Tribunal could not have the

final say in relation to causation. Moreover, the power contended for was not a

necessary or reasonable consequence of the express powers of the Tribunal or of the

Fund. If the contentions on behalf of the Tribunal were upheld, it would be oppressive

in relation to claimants and would deny them access to courts on an issue traditionally

reserved for adjudication by them.

The appeal was dismissed with costs.

Ferreiras (Pty) Limited v Naidoo and another [2017] JOL 39419 (GJ)

Default judgment – What constitutes- judgment can be given by default in the normal

course in motion proceedings as a result of default of opposition, in default of an

appearance at the hearing, or in default of a party placing its version before the court

(usually by affidavit).

Rule 30 procedure-irregular step-wrong technical approach-dismissed

In the main application in this matter, the applicant sought payment of about R1m from the respondents. Judgment was granted in the application, and the respondents

applied for rescission. In the present application, the applicant sought the setting aside

of the respondents’ application for rescission of judgment as an irregular step in terms

of Rule 30.

Held that the applicant chose to institute Rule 30 proceedings, rather than to answer

the rescission application. The matter came before the court more than three years

after the application for payment was launched.

The Rule 30 application was premised on an argument that the judgment was not a default judgment as the respondents’ counsel was present in court when it was

granted. The applicant’s case was that a judgment by default requires that it be given

in the physical absence of the respondents.

Shortly before the hearing, a decision by a full court was handed down in the Limpopo

Division, in which the issue decided in part was almost identical. The court followed

the decision in that case and confirmed that a judgment can be given by default in the

normal course in motion proceedings as a result of default of opposition, in default of

an appearance at the hearing, or in default of a party placing its version before the

court (usually by affidavit).

The applicant’s technical approach was rejected and the application was dismissed.

Phaladi v Lamara and another and a related matter [2018] JOL 39473 (WCC)

National Credit Act 34 of 2005 Consumer – Over-indebtedness – Application for

declaration that no longer over-indebted – Court’s powers

In two cases before the court, the factual bases of both applications were essentially identical. In each case the applicant had applied to the debt counsellor in terms of

section 86 of the National Credit Act 34 of 2005 to be declared to be over-indebted.

Debt-rearrangement orders were not obtained as a voluntary rearrangement was

agreed with the creditors pursuant to a recommendation by the debt counsellor in each

case. The arrangements were apparently satisfactorily adhered to, and in the present

applications, the applicants, claiming that they were now financially sound, sought to

be declared no longer over-indebted. They also sought the expungement of the

relevant records.

Held that the question was whether it was within the power of the court to grant the

relief sought.

The National Credit Act does not afford an adequate remedy to expunge the record

that persons were in debt review. The High Court does however, have an inherent

jurisdiction, and in appropriate circumstances even a duty, to develop the common law

taking into account the interests of justice. It also has inherent jurisdiction to regulate

its own procedures and processes. Its powers do not extend to improving legislation

by providing measures or remedies that the statutory enactments do not afford, merely

because the court considers it would just or equitable that they should be afforded.

The applicants’ resort to the present Court was therefore misconceived. They were

limited to the relief provided for in terms of section 71 of the Act, and could seek it only

in the manner set out therein. That entailed their approaching as a first step, the

National Consumer Tribunal.

The applications were accordingly dismissed.

Amya Mining (Pty) Limited v Madimetja Pheladi Projects and Mining CC and others [2017] JOL 39414 (GJ)

Application – Disputes – Request to refer to trial – Refusal by court

In the present application, the applicant sought relief pursuant to a mining and

exploration agreement concluded between it and the first respondent.

At the commencement of the hearing, the applicant sought a referral to trial, while the

respondent opposed that and sought a dismissal of the application. The applicant’s

case was that it was unaware of any disputes between the parties before launching

the proceedings as the respondents had ignored all communications between the

parties. subsequent thereto, various disputed issues arose.

Held that it being clear that the application could not properly be decided on affidavit, the court was of the view that it should not exercise my discretion to refer the matter

to trial. The application was dismissed with costs.

HOTZ AND OTHERS v UNIVERSITY OF CAPE TOWN 2018 (1) SA 369 (CC)

Costs — Constitutional litigation — Proper approach — Unsuccessful party in

constitutional litigation against state — Litigants involved in student protests at

university campus, which turned violent, in support of free and decolonised education

— Unsuccessfully opposing interdict brought against them by university — Court

ordering unsuccessful litigants to pay costs — Students protesting in vindication of

rights to education, freedom of association, freedom to demonstrate and freedom of

expression — Given constitutional context, inappropriate to award costs against

students.

During February 2016 on the campus of the University of Cape Town (UCT)

a student protest took place in which the applicants — students and ex-students —

participated. The protest fell under the umbrella of the '#RhodesMustFall' and

'#FeesMustFall' movements sweeping across South African higher-learning

institutions, whose respective goals were the decolonisation of education in South

Africa, and free education. The protest at UCT, however, went beyond being

peaceful and non-violent. Unlawful conduct in which the applicants were implicated

took place — inter alia, the destruction of property through acts of vandalism and

arson, and violence and threats of violence. An interdict at the instance of UCT was

successfully obtained in the High Court against the applicants, who had opposed it,

inter alia, prohibiting them from committing various unlawful acts on the campus. The

order went as far as barring the applicants from entering the campus, unless they

had the consent of the university to be there. The applicants were ordered to pay

costs. On appeal the SCA largely confirmed the interdict, but limited its scope,

finding that, in excluding students from campus, the order of the court a quo violated

the applicants' rights of free movement. The SCA confirmed the costs order against

the applicants.

The Constitutional Court granted the applicants leave to appeal. On the merits, it

agreed with the decision of the SCA (see [18] – [20]). However, it found that, in

ordering the applicants to pay the costs of UCT in respect of the Hight Court

proceedings, the High Court and the SCA had failed to exercise their discretion

judicially (thus entitling it to interfere with the costs award). More particularly, the

matter called for them to apply the Biowatch principle, which they did not do. (See

[37].) That principle provided that in constitutional litigation an unsuccessful litigant in

proceedings against the state ought not to be ordered to pay costs. This general rule

was subject to various exceptions, for example, where the unsuccessful party had

litigated in a frivolous or vexatious manner. (See [22] – [25].)

The starting point, the Constitutional Court held, was to have regard to the nature of

the issues (see [29], [31] and [33]). In addition to seeking to vindicate their rights to

freedom of association, freedom to demonstrate and freedom of expression, the

applicants had embarked on their protests (which led to the interdict) in support of

their belief that the state and universities should provide free and decolonised

education to South Africans. The issue was one impacting the right to education in

terms of s 29 of the Constitution of not only the protesters, but also of South African

students generally. (See [31], [33] and [39].) While the applicants' conduct went

beyond peaceful and non-violent protest, which left the university with no choice but

to interdict their unlawful conduct, this constitutional context should have been taken

into account by the High Court and the SCA in deciding costs. Although the

applicants were unsuccessful, the courts a quo should have considered the chilling

effect the costs order would have on the litigants, in the context of constitutional

justice, and erred in not doing so. (See [32] and [34].) The Constitutional Court

further held that the applicants had not acted in a frivolous or vexatious manner in

opposing the interdict application. This fact was illustrated by the finding — indicating

at least partial success on the part of the applicants — by the SCA that the order of

the High Court was overbroad. (See [37].) In conclusion, the Constitutional Court

upheld the appeal on costs, and ordered that each party pay its own costs in the

High Court, Supreme Court of Appeal and Constitutional Court (see [40]).

ETHEKWINI MUNICIPALITY v MOUNTHAVEN (PTY) LTD 2018 (1) SA 384 (SCA)

Prescription — Extinctive prescription — Debt — What constitutes — Claim for

retransfer of property under contractual reversionary clause registered as title

condition — Such claim constituting 'debt' as contemplated in Prescription Act 68 of

1969, ch III.

Prescription — Extinctive prescription — Debt — Meaning — Including obligation to

deliver immovable property — Prescription Act 68 of 1969, ch III.

Land — Rights in — Registered title condition entitling transferor to claim retransfer of

land if transferee not erecting building of prescribed value within prescribed period —

Nature of rights created — Right to claim retransfer personal right, not limited real

right.

A transferor's right in terms of a contractual reversionary clause incorporated as a

title condition, to claim retransfer should the transferee fail to erect a building of a

specified value within a specified time —

• is a personal right, not a limited real right (see [13] – [16]); and

• such claim for retransfer constitutes a 'debt' for the purposes of prescription (see

[16]), this because the meaning of 'debt' in ch III of the Prescription Act 68 of 1969

includes an obligation to deliver immovable property.

Arangies and another v Business Partners Ltd [2018] JOL 39468 (WCC)

Summary judgment – Warrant of execution – Application to set aside – Alleged

superannuation of a judgment after three years

In August 2006, summary judgment was granted against the applicants as sureties

and co-principal debtors, jointly and severally the one to pay the other to be absolved,

for payment of sums of money and interest, plus costs on attorney and client scale. A

writ of execution was issued by the Registrar in May 2007. In the present application,

the applicants sought the setting aside of the warrant of execution. The respondent

opposed the application. Its case was that the applicants were only galvanised into

action when the respondent took action in furtherance of execution of the judgment,

and that the applicants were involved in dilatory tactics employed to stave off

execution, which constituted an abuse of process.

The applicants relied on superannuation of a judgment after three years from the date

on which it was pronounced, where the judgment creditor did not proceed with

execution. The second issue was whether an issued writ of execution remains in force

if the judgment became superannuated.

Held that at the time of the judgment and the issue of the writ, Rule 66 of the Uniform

Rules of Court provided that after the expiration of three years from the day whereon

a judgment has been pronounced, no writ of execution may be issued unless the

debtor consents to the issue of the writ or unless the judgment is revived by the court

on notice to the debtor. Writs of execution of a judgment once issued remain in force,

and may at any time be executed without being renewed until judgment has been

satisfied in full. Section 63 of the Magistrates’ Courts Act 32 of 1944 mirrors Rule 66.

The Court held that Rule 66(2) provides that the time limit within which execution of a

writ issued by the Registrar is to be concluded is 30 years. On a proper understanding

of Rule 66(1), the judgment would become superannuated by the effluxion of time for

want of execution if the writ was not issued within three years. Based on the facts of

this case, the Court was not persuaded that the judgment granted in favour of the

respondent superannuated. It was also not persuaded that the respondent’s pursuit of

the satisfaction of the judgment amounted to abuse of court process under the

circumstances.

The application was dismissed with costs.

Wierzycka and another v Manyi [2017] JOL 39279 (GJ)

Jurisdiction – Equality Court and High Court – Section 16(1)(a) of the Act provides,

subject to section 31, that every High Court is an Equality Court for the area of its

jurisdiction. Section 16 however, provides for specific requirements for the designation

of presiding officers in the Equality Court -functions differ-High court can hear interdict

The present application related to statements concerning the applicants, published by the respondent on his social media accounts. Taking umbrage, the applicants

contended that the statements constituted a campaign of harassment and hate speech

under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

They also alleged defamation and an infringement on their constitutional rights. As a

result, they sought a declaration that the statements made by the respondent were

defamatory, constituted harassment against the applicants, and amounted to hate

speech. They also sought a final interdict prohibiting the respondent from making,

publishing or causing to be published any further defamatory statements or any hateful

or harassing statements concerning the applicants.

The statements published by the respondent were in retaliation to opinions expressed

by the first applicant during a radio interview. She had stated therein that the current

president of the country was bad for the economy and had to be removed. Her

comments attracted an accusation from the respondent, that she was racist and his

describing her as an economic terrorist. In other posts, the respondent made several

other negative comments about the first applicant. The responses from respondent’s

followers led to a fear on the part of the first applicant that she would be harmed.

The respondent admitted making the statements and defended them on the basis of, inter alia, freedom of expression.

Held that although the respondent contended that there were factual disputes which needed to be referred for oral hearing, it was not appropriate to refer any issue to oral

evidence or trial at the present juncture considering the jurisdictional issues which

arose in relation to the relief sought. The issues of the respective jurisdictions of the

High Court and the Equality Court and to what extent the High Court had jurisdiction

to determine the application were central to the ultimate determination of the

application.

The applicants' primary reliance was on sections 10 and 11 of the Promotion of

Equality and Prevention of Unfair Discrimination Act. while the Equality Court was the

correct forum to determine many of the issues, it still had to be determined whether

the High Court had any jurisdiction to determine the relief sought in relation to

harassment and hate speech under the Act.

Section 16(1)(a) of the Act provides, subject to section 31, that every High Court is an Equality Court for the area of its jurisdiction. Section 16 however, provides for specific

requirements for the designation of presiding officers in the Equality Court. The

present Court as currently constituted was not a designated presiding officer of the

Equality Court, and the application was not launched in the Equality Court in

accordance with the provisions of section 20, but in the High Court as an urgent

application. While the court did not have jurisdiction to determine the application as a

whole or to consider the granting of any final relief, that did not mean that the it had no

jurisdiction to entertain some of the relief sought, specifically insofar as it pertained to

the interim interdictory relief sought.

In determining whether the applicants were entitled to interim interdictory relief, the

Court set out the requirements thereof. The applicants satisfied such requirements

and interim relief was granted. the jurisdictional issue and the remaining relief sought

in the second part of the application stood over to be determined with the remaining

relief.

Master of the High Court, Eastern Cape Division, Mthatha v Linyana NO and another [2018] JOL 39475 (ECM)

Court orders – Non-compliance – Contempt of court – Requirements- Civil contempt

is the wilful and mala fide refusal or failure to comply with an order of court other than

a money judgment. The requirements for contempt are the order; service or notice;

non-compliance; and wilfulness and mala fides. It is necessary for an applicant to

demonstrate the existence of such requirements beyond reasonable doubt.

In March 2008, the applicant granted the first respondent letters of executorship in

respect of a deceased estate. The first respondent furnished the applicant with a first

and final liquidation and distribution account, but the applicant was not satisfied with

the account and issued a query sheet, listing all the shortcomings. The matter lay

dormant for a considerable period of time, despite the applicant’s sending a number

of reminders. The applicant then instructed the State Attorney to take steps against

the first respondent. That decision culminated in the applicant’s obtaining an order

against the first respondent to the effect that the account was declared to be non-

compliant with the provisions of the Administration of Estates Act 66 of 1965.

Furthermore, the order directed the first respondent to ensure compliance within a

period of 14 days of service. The first respondent failed to comply with the order and

the applicant returned to court and obtained a further order removing the first

respondent as executor and directing him to return the letters of executorship and to

provide a statement of account in respect of all transactions conducted in relation to

the estate. When first respondent failed to comply with that order too, the applicant

sought to hold him in contempt of the two orders of court.

The first respondent denied that the orders were ever served on him, and claimed to

have been unaware of them.

Held that the issue to be determined was whether the first respondent was ever aware

of the orders and the contents thereof. Only in the event that he was, would it be

necessary to decide whether the applicant had met the remaining requirements for a

contempt of court application.

Civil contempt is the wilful and mala fide refusal or failure to comply with an order of

court other than a money judgment. The requirements for contempt are the order;

service or notice; non-compliance; and wilfulness and mala fides. It is necessary for

an applicant to demonstrate the existence of such requirements beyond reasonable

doubt.

Knowledge of the orders has long been recognised in South African law as a fundamental prerequisite for a contempt application. The Court was not convinced that

the applicant had demonstrated that the requirements for contempt exist. There was

no proof, beyond reasonable doubt, that the first respondent was aware of the orders.

The application was dismissed.

ANNEX DISTRIBUTION (PTY) LTD AND OTHERS v BANK OF BARODA 2018 (1) SA 562 (GP)

Interdict — Interim interdict — Requirements — No such thing in our law as 'interim-

interim' interdict based on requirements other than those for common-law interim

interdict.

Interdict — Interim interdict — Requirements — Balance of convenience — Weighing

heavily in favour of party seeking to uphold integrity of established financial system

and rule of law.

Banking — Relationship between banker and client — Based on contract — Bank may

terminate on reasonable notice or as contractually provided for — Motives irrelevant,

save perhaps where there was abuse of rights — Termination on basis of reputational

risk posed by client.

The applicants, the Oakbay group of companies linked to the controversial Gupta

family, filed an urgent application for an interdict that would prohibit the respondent

bank, the Bank of Baroda (the bank), from closing their accounts and calling up their

loans. The bank made the decision to close the accounts on the grounds of

reputational harm and the risks posed by the applicants' presumed involvement in

money laundering.

In the present application the applicants sought 'interim-interim' relief to keep their

accounts open until their application for an interdict was heard early in December

2017. The applicants argued that, for the proposed interim-interim relief, they were

not required to prove the traditional requirements for an interdict, but merely had to

show that there was a 'triable issue' that required the court's attention under s 34 of

the Constitution. They also argued that the notice period given by the bank was not

reasonable, that they would suffer irreparable harm because they would be unable to

find another bank or pay their employees or suppliers, leading to their

'inevitable demise'.

Held: Although the proceedings were of an interim-interim nature, this did not

absolve the applicants from having to establish the traditional requirements for an

interim interdict, for if there was no merit in the 'main' December 2017 application for

an interim interdict, there would be no purpose in granting the present one either.

Our law did not recognise a cause of action for an 'interim-interim' interdict based on

requirements other than the existing common-law ones (see [8] – [9], [43]). The

applicability of s 34 of the Constitution was never properly raised by the applicants,

and while they had at least some prima facie right to be heard, it was subject to the

requirements of substantive and procedural law.

The banker – client relationship between the parties was of a contractual nature and

the bank's decision to terminate it was governed by the ordinary rules of contract,

which allowed banks to terminate their contracts with clients on proper notice (see

[22.4]). The bank was under no obligation to give reasons: its motives were

irrelevant, save perhaps where there was found to be an abuse of rights (see [22.2]).

Banks were fully entitled terminate on the ground that the client had a bad reputation

or because of business or reputational risks (see [22.5] and [22.6]).

Apart from being the applicants' counterparty in the private-law sphere, the bank was

also subject to statutory and other legal duties, under both domestic and

international law, to report on and combat money-laundering and other unlawful

activities (see [34] – [35]). Since the bank would be liable to administrative and even

criminal penalties if it failed to comply with these duties, the logical course for the

bank was to avoid these risks by cutting its ties with the applicants (see [36] –

[37]). Such a decision would enhance the integrity of the financial system and

enhance the rule of law (see [37]). The harm the bank would likely suffer if it were

forced, against its will, to continue with its relationship with the applicants meant that

it was entitled to terminate its banker – client relationship with the applicants and that

their December 2017 application therefore had little prospects of success (see [41]).

Since the bank sought to uphold the integrity of the financial system while the

applicants were suspected of subverting it, the balance of convenience also clearly

favoured the former (see [41]). Application dismissed.

Basson v Hugo and others [2018] JOL 39441 (SCA)

Review – Application for judicial review – Whether appellant was obliged to exhaust

an internal remedy as contemplated in section 7(2) of the Promotion of

Administrative Justice Act 3 of 2000 before launching his application to review –

Appellant was required to exhaust internal remedy unless he could show exceptional

circumstances to exempt him from that requirement – Where internal remedy was

ineffective and inadequate, that constituted exceptional circumstances as

contemplated in section 7(2)(c) of the Promotion of Administrative Justice Act,

requiring the immediate intervention of the court rather than resort to the internal

remedy

In terms of the Health Professions Act 56 of 1974 (“the Act”), the third respondent (“the

Council”) launched a disciplinary inquiry against the appellant, a practising

cardiologist. He was charged with unprofessional conduct before a professional

conduct committee (the Committee) constituted in terms of 15(2)(f) of the Act. The

charges related to the appellant’s participation in chemical and biological warfare

research during his employment with the South African Defence Force in the 1980s.

He was found guilty of unprofessional conduct on four of the charges. In argument on

sanction, two petitions were submitted for the removal of the appellant’s name from

the Register of Medical Practitioners, by registered health professionals and

organisations working in the fields of human rights and law.

The first and second respondents were members of the Committee. Alleging that they

were members of the organisations that supported the petition for his removal from

the register, the appellant sought their recusal from the Committee. The application

for recusal was refused by the Committee, and the appellant approached the court a

quo to review and set aside the decision.

The review application was dismissed – the court finding that the review application

was premature as the appellant had a duty to exhaust an internal remedy before

approaching the court to review and set aside the impugned decision. It found that the

appellant had not complied with such duty; that he failed to show exceptional

circumstances in terms of section 7(2)(c) of the Promotion of Administrative Justice

Act 3 of 2000; and that it was not in the interests of justice to exempt him from the

obligation to exhaust the internal remedy. The remedy in question, the court a quo

held, was an appeal to an ad hoc appeal committee established under section 10(2)

of the Health Professions Act.

Held that the issue on appeal was thus whether the appellant was obliged to exhaust

an internal remedy as contemplated in section 7(2) of the Promotion of Administrative

Justice Act before launching his application to review.

The starting point in determining whether the appellant was obliged to exhaust the

internal remedy in section 10(3) of the Health Professions Act, was section 7(2) of the

Promotion of Administrative Justice Act which prevents a court from reviewing any

administrative action in terms of the Act unless any internal remedy provided for in any

other law has first been exhausted. A court or tribunal may, in exceptional

circumstances and on application by the person concerned, exempt such person from

the obligation to exhaust any internal remedy if the court or tribunal deems it in the

interests of justice.

It was common cause that the impugned decision in casu constituted administrative action. Therefore, an internal remedy had to be exhausted prior to judicial review,

unless the appellant could show exceptional circumstances to exempt him from this

requirement. What constitutes exceptional circumstances depends on the facts and

circumstances of the case and the nature of the administrative action in issue. Factors

taken into account in deciding whether exceptional circumstances exist are whether

the internal remedy is effective, available and adequate. An internal remedy is effective

if it offers a prospect of success, and can be objectively implemented, taking into

account relevant principles and values of administrative justice present in the

Constitution of the Republic of South Africa, 1996 (“the Constitution”) and our law; and

available if it can be pursued without any obstruction, whether systemic or arising from

unwarranted administrative conduct.

The court a quo’s finding that an appeal committee was empowered to consider the

merits of the recusal application presupposed that the impugned decision was merely

voidable, which was somehow rendered valid as a result of a subsequent decision by

the Committee on sanction, or by an appeal committee. However, the court referred

to case authority in which the notion that a refusal by a presiding officer to recuse

himself from proceedings in respect of which he was reasonably suspected of bias,

rendered that decision voidable, was rejected. Instead, the consequence of a failure

to recuse renders the proceedings a nullity. If a presiding officer should have recused

himself, proceedings conducted after dismissal of an application for recusal must be

regarded as never having taken place at all. The court therefore confirmed that the

internal remedy was ineffective and inadequate as it did not offer a prospect of success

and could not redress the appellant’s complaint. The court below should have found

that there were exceptional circumstances as contemplated in section 7(2)(c) of the

Promotion of Administrative Justice Act, which required the immediate intervention of

the court rather than resort to the internal remedy.

It was held further that the appellant claimed a remedy beyond the powers of an appeal

committee: it does not exercise original jurisdiction and cannot hear the matter de

novo. An appeal committee does not have the power to set aside the proceedings

before the Committee.

In the premises, the court below should have found that exceptional circumstances did exist as contemplated by section 7(2)(c) of the Promotion of Administrative Justice

Act. The appeal was upheld and the matter remitted to the High Court to hear the

review application.

Drake Flemmer & Orsmond Inc and another v Gajjar NO [2018] 1 All SA 344 (SCA)

Attorney- Contract – Breach – Damages claim – Breach of mandate by first attorneys

in under-settling RAF claim – Breach by second attorneys in allowing claim against

first attorneys to prescribe – Damages to be assessed at notional trial date of RAF

claim.

On appeal in this matter, the question related to the date at which damages should be

assessed in an action against attorneys (the “second appellant”) for professional

negligence in the conduct of a claim of a client (the “respondent”) against the Road

Accident Fund (“RAF”), where the claim was settled at substantially below its true

value.

Held – The correct approach in the present case would have been for the respondent

to prove the nominal value of his damages as at the notional trial date of 1 December

2002. That would have been the value of the claim against the first appellant, which

the second appellant had allowed to prescribe on 21 December 2002. Where an

attorney’s negligence results in the loss by a client of a claim which, but for such

negligence, would have been contested, the court trying the claim against the attorney

must assess the amount the client would probably have recovered at the time of the

notional trial against the original debtor. Where the original claim is one for personal

injuries, the evidence available and the law applicable at the notional trial date would

determine the recoverable amount. The nominal amount which the client would have

recovered against the original debtor represents the client’s capital damages against

the negligent attorney. A similar approach applies where, as in the present case, a

second attorney has allowed the claim against the first attorney to prescribe. Generally

in such a case the client’s claim for damages against the second attorney is

determined by the amount the client would have obtained against the first attorney;

and that amount in turn is to be ascertained as described above. Damages are to be

assessed at the notional trial date of the RAF claim. The respondent approached the

matter differently, valuing his claim as at the date of the trial against the second

appellant rather than as at the date of the notional trial against the RAF.

The appeal was dismissed.

Minister of Rural Development and Land Reform v Normandien Farms (Pty) Ltd and others; Mathimbane and others v Normandien Farms (Pty) Ltd and others [2018] 1 All SA 390 (SCA)

Contempt of court – Occupants failed to establish beyond reasonable doubt that

respondent was in contempt of appellate process – Contempt application, including

related postponement application, dismissed.

Environmental law – First respondent had standing to seek removal of occupants’

livestock on land overgrazed in violation of Conservation of Agricultural Resources Act

43 of 1983 (“CARA”) – Labour tenants not exempt from CARA – Removal of animals

in terms of CARA not an eviction for purposes of Land Reform (Labour Tenants) Act

3 of 1996.

Land – Land reform – Labour tenants – Removal of livestock – Over-grazing – Appeal

– Whether Minister has power under Land Reform: Provision of Land and Assistance

Act 126 of 1993 to make land available solely for purposes of grazing – Court a quo

erred in compelling Minister to exercise permissive powers in favour of occupants.

The first respondent (“Normandien”) instituted proceedings in the Land Claims Court

(“LCC”) for the removal of livestock from its farm. The LCC gave judgment in favour of

Normandien, leading to the two appeals before the present Court. The first appeal was

by the Minister of Rural Development and Land Reform and the second appeal was

by a group of labour tenants occupying a part of Normandien’s farm. The occupants

had lived on the farm for many years. Members of their families were buried there.

They grazed livestock on the farm. In March 2013, they instituted action in the LCC

alleging that they were labour tenants as defined in the Land Reform (Labour Tenants)

Act 3 of 1996 and that they had duly submitted applications to the Director-General of

the Department of Rural Development and Land Reform (“Land Department”) for the

acquisition of land as contemplated in section 16 of the Act. As against Normandien

they sought orders declaring in terms of section 33(2A) that they were labour tenants

and awarding a part of the farm to them. As against the Director-General they sought

an order that moneys be made available to compensate Normandien for the part of

the farm to be awarded to them. In December 2013, while the action was pending,

Normandien launched the application giving rise to the present appeals (the removal

application). Normandien sought orders that the livestock be removed from the farm

and that the Land and Agriculture Ministers and/or the Regional Commissioner

facilitate their removal to alternative land. This relief was claimed on the basis that the

farm had been severely overgrazed and that the continued presence of the livestock

on the farm contravened the Conservation of Agricultural Resources Act 43 of 1983.

The LCC found that by virtue of the Land Reform Provision of Land and Assistance

Act 126 of 1993, the Minister was under an obligation to make alternative grazing land

available to the labour tenants. The court also directed the labour tenants to remove

their livestock from Normandien’s farm for a period of five years to enable the grazing

veld to recover.

Held – An application by the occupiers to hold Normandien in contempt was an abuse

of the court’s process. The Court was of the opinion that the contempt application was

a stratagem to delay the finalisation of the appeal so as to buy time.

The occupants’ heads of argument were filed out of time and condonation was

sought in that regard. While dissatisfied with the explanation for the delay, the Court,

in the interests of justice, condoned the failure to file their heads of argument

timeously.

The dismissal of the counter-application by the labour tenants for a declaration that

the relief sought by Normandien was subversive of rights acquired by the labour

tenants in terms of an order given in other litigation between the same parties was

confirmed as being correct. The purported order on which the labour tenants relied,

being a purported amendment of an earlier order, was a nullity because the judge had

been functus officio.

Although that finding should be the end of the case, the Court was obliged to

consider whether the order for removal of the livestock constituted an eviction. It was

held that Normandien was not seeking to evict the occupants within the meaning of

the Land Reform (Labour Tenants) Act.

The appeal by the Minister succeeded and the appeal by the occupiers was

dismissed.

CDH Invest NV v Petrotank South Africa (Pty) Ltd and another [2018] 1 All SA 450 (GJ)

Company law – Calling of shareholders’ meeting – Fiduciary duties of directors –

Companies Act 71 of 2008 – Duty to act bona fide and in the best interests of the

company is the fundamental duty which qualifies the exercise of any powers which the

directors have and directors have a duty to exercise powers for proper purposes.

The main application in this matter was brought by the majority shareholder in a private

company, and the counter-application was by the minority shareholder.

The majority shareholder sought an order in terms of section 61(12) of the

Companies Act 71 of 2008 (the “Act”) directing the company and the board to convene

a shareholders’ meeting in terms of section 61(3) for the purpose of considering and

passing five resolutions, viz the removal of a director; the election of a substitute

director; instructing the board to demand that the minority shareholder pays the

company R1m; instructing the board to sue the minority shareholder for such money;

and instructing the board to consider a pro-rata rights offer of 98 835 ordinary no par

value shares.

The minority shareholder consented to the first two resolutions, resulting in a consent

order being granted in respect thereof, but disputed the last three. In turn, it applied

for an order: setting aside the demand by the applicant to convene the shareholders’

meeting; setting aside the board resolution amending the memorandum of

incorporation (“MOI”) by increasing the authorised shares from 1 000 to 1 000 000

ordinary no par value shares; interdicting the applicant from calling a shareholders’

meeting to vote on certain resolutions; and directing the board to correct a certain

paragraph of its MOI by deleting 1 000 and substituting for it 100 000.

Held – Important facts in this dispute were that the two shareholders had clearly fallen

out, were involved in other litigation against each other, and did not trust each other.

The applicant effectively controlled the board and the general meeting and felt that the

second respondent made promises that had not materialised. The applicant believed

that it had put up substantially greater capital than the second respondent and

proposed that the general meeting meet to decide whether or not to sue the second

respondent for its capital contribution.

Section 38(1) of the Act gives power to directors to issue shares. The exercise of the

power to issue shares is constrained by section 76(3). The duty to act bona fide and

in the best interests of the company is the fundamental duty which qualifies the

exercise of any powers which the directors have. Directors have a duty to exercise

powers for proper purposes. The tenets of the parties’ agreement in their pre-

corporation founding consensus, whether embodied in a written agreement or not, is

a significant consideration in judging fair dealing and probity; and the yardstick, for

measuring the exercise of a power against the purpose for which it was given in the

first place, is objective.

Applying the above to the facts of this case, the Court found that the main application

had to fail, and the counter-application should succeed, to the extent that relief setting

aside the resolution to amend the MOI by increasing the authorised shares and relief

flowing from that consequence, were concerned.

Dube and another v City of Johannesburg Metropolitan Municipality [2018] JOL 39433 (GJ)

Interdict– Interdictory relief – Final interdict – Requirements- clear right; an injury

actually committed or reasonably apprehended; and the absence of similar protection

by any other ordinary remedy

The applicants were co-owners of a property which was subject to the respondent’s

by-laws. They had an account with the respondent, in terms of which the respondent

rendered certain municipal services to them, including water supply, and in turn billed

applicants for those services. The metre installed on the applicants’ property was said

by them to have been over-reading their water usage. They therefore approached the

court for an order compelling the respondent to comply with its constitutional and

statutory obligations in relation to the applicants. They stated that such relief would

include reversing excessive charges, furnishing of an amended account

Held that in essence, the applicants sought final mandatory / interdictory relief. They therefore needed to establish the requisites for such relief. Those requirements are a

clear right; an injury actually committed or reasonably apprehended; and the absence

of similar protection by any other ordinary remedy.

The Water Services By-Laws for the City of Johannesburg, as approved in terms of

section 13(a) of the Local Government: Municipal Systems Act 32 of 2000, contain a

detailed process specifically aimed at dealing with disputes such as those in issue

herein. Regulation 32(1) deals directly with defective measurement of consumption

and provides that, if a consumer has reason to believe that a measuring device which

was installed by the Council, is defective, he may make application in writing for the

measuring device to be tested and in terms of Regulation 32 (3) if it is alleged that a

measuring device is inaccurate, the device must be subjected to a standard industry

test to establish its accuracy. In terms of Regulation 35(1), if a measuring device is

found to be defective, the council may estimate the quantity of water supplied to the

consumer concerned during the period in which, in its opinion, such measuring device

was defective, on the basis of the average daily quantity of water supplied to him.

Instead of taking advantage of the processes afforded them under the By-Laws, the

applicants employed their own process and saw fit to bring the present proceedings.

The relief sought was overly widely framed and there was no basis in law for it. Their

failure to utilise the prescribed process meant that they had not established the third

requirement for an interdict, that there should be an absence of any other ordinary

remedy.

The application was dismissed with costs on the scale as between attorney and client.

Lowenthal v Street Guarantee (Proprietary) Limited and others [2018] JOL 39436 (GJ)

Pleadings – Particulars of claim – Application to amend - The court must not look too

critically at the pleadings nor should it adopt an overly technical approach.

An exception raised by the defendants to one of the plaintiff’s claims in this matter led

to the plaintiff being granted leave to amend the claim. However, the plaintiff’s

consequent notice of amendment was met with an objection by the defendants on the

basis that since the claim had been struck out in its entirety, the plaintiff could not

amend only certain paragraphs thereof and, instead, the whole claim had to be

amended. In the present application, the plaintiff sought leave to amend his particulars

of claim in terms of his notice of amendment.

Held that the legal principles applicable to the taking of an exception on the basis of a

pleading being vague and embarrassing are apposite when considering objections to

amendments on this basis. An excipient must show vagueness amounting to

embarrassment and embarrassment amounting to prejudice the vagueness and

embarrassment must strike at the root of the cause of action as pleaded. The court

must not look too critically at the pleadings nor should it adopt an overly technical

approach.

The first ground of objection was that the plaintiff failed to comply with the order

granting it leave to amend in that he failed to amend his particulars of claim within 20

days. The order plainly afforded am inclined to agree. In addition, the approach taken

by this objection loses sight of the fact that . owed its debtors to cothe plaintiff the

opportunity to seek to amend his particulars of claim within 20 days of the date of the

order by serving a notice of amendment in terms of Rule 28(1), which the defendants

could then elect to react to by way of a notice of objection or not. It did not mean, as

the defendants seem to suggest, that the plaintiff had to deliver, within the 20 days, an

already amended particulars of claim and that no further amendment would then be

allowed. In addition, the objection lost sight of the fact that the rules of court allow

amendment of pleadings at any stage up to judgment (see rule 28(10).

The second and third grounds were that the amendment would render the pleadings vague and embarrassing. The Court found no merit in the defendants’ submissions,

and granted the application to amend.

Groep v Golden Arrow Bus Services (Pty) Ltd and a related matter [2018] 1 All SA 508 (WCC)

Plea – Special plea – Prescription – Prescription Act 68 of 1969 – Whether the

defendant had undertaken to abandon the special plea of prescription – Court

examined the defendant’s offer to settle and its reliance on “without prejudice”

negotiations – Court was not persuaded that the letter relied on by the plaintiff was

admissible in evidence against the defendant, and the conclusion was that the special

plea of prescription was not abandoned by the defendant.

Whilst attempting to board a bus operated by the defendant (“Golden Arrow”), the

plaintiff was injured when the bus pulled away before he had fully embarked. He

suffered extensive orthopaedic injuries and he sought to claim damages therefor. The

particulars of claim stated that the plaintiff had been conveyed as a fare-paying

passenger on a Golden Arrow bus on 2 September 2002, that his statutory claim

against the Road Accident Fund (“the RAF”) was limited to R25 000, that he had

received that amount from the RAF and that Golden Arrow was therefore liable to the

plaintiff for damages in the sum of R855 000. The claim comprised general damages

in the sum of R500 000 with the balance claimed in respect of special damages (past

and future medical expenses, and past and future loss of income).

Golden Arrow defended the claim and raised a special plea of prescription. It said

that by no later than 2 September 2002, the plaintiff was aware of both the identity of

the debtor which had caused him to suffer damages and the facts from which that debt

arose. It alleged that, in the circumstances, the plaintiff’s debt had prescribed in terms

of the Prescription Act 68 of 1969 by no later than 3 September 2005.

The plaintiff filed a replication to the plea, stating that he only acquired knowledge of

the identity of his debtor and facts giving rise to his claim against Golden Arrow on 20

June 2006.

Held – The question was whether Golden Arrow had undertaken to abandon the

special plea of prescription. The facts showed that Golden Arrow’s undertaking not to

rely on the special plea of prescription came at a relatively early stage of negotiations,

all of which were classified throughout by the parties as being “without prejudice”. That

formed the basis of Golden Arrow’s offer to settle. Consequently, the Court was not

persuaded that the letter relied on by the plaintiff was admissible in evidence against

Golden Arrow, and the conclusion was that the special plea of prescription has not

been abandoned by Golden Arrow.

HL v MEC for Health of the Free State Provincial Government [2018] 1 All SA 522 (FB)

Action against State – Service of prior notice – Non-compliance – Condonation –

Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (“Act”)

– Before a creditor can institute an action to recover a debt from an organ of State,

section 3(2)(a) of the Act requires such creditor to serve on such organ of State a

notice of its intention to do so within six months from the date on which the debt

became due – A court’s discretion to grant condonation is not unfettered and section

3(4)(b) permits the court to do so only once it is satisfied that the applicant has

established that the debt has not been extinguished by prescription; good cause exists

for the failure by the creditor; and the organ of State was not unreasonably prejudiced

by the failure.

In her representative capacity as the mother and natural guardian of her minor son,

the applicant had instituted action against the respondent. The applicant alleges that

her son, who suffered from cerebral palsy, suffered a hypoxic-ischemic insult during

birth which resulted in permanent severe brain damage, because of her alleged

prolonged labour, and as a result of the alleged negligence of the respondent’s

employees.

In its plea, the respondent had denied that the plaintiff had complied with the

requirements of the Institution of Legal Proceedings against Certain Organs of State

Act 40 of 2002. Despite the requirement for condonation to be sought as soon as one

becomes aware of the need for it, the present application was filed more than two

years late – and only a month before the trial was due to start.

Before the trial could proceed, two issues had to be resolved. The first was whether

an agreement was reached that the respondent would not oppose the condonation

application, and if so, whether the respondent was entitled to resile therefrom, and

accordingly whether the condonation application should be heard on an unopposed

basis. If the court found that the respondent was entitled to oppose the application, the

second question was whether the applicant had made out a case for condonation.

Held – The letter relied upon by the applicant did not create an agreement from which

the respondent could not resile and, accordingly, the respondent had the right to

oppose the application and such opposition was not unreasonable.

In respect of the condonation application, the Court held that before a creditor can

institute an action to recover a debt from an organ of State, section 3(2)(a) of the

Institution of Legal Proceedings against Certain Organs of State Act requires such

creditor to serve on such organ of State a notice of its intention to do so within six

months from the date on which the debt became due. Section 3(4)(a) of the Act gives

a creditor the right to apply to court to have its non-compliance with section

3(2)(a) condoned where a respondent relies on such non-compliance. The court’s

discretion to grant condonation is not unfettered. Section 3(4)(b) permits the court to

do so only once it is satisfied that the applicant has established that the debt has not

been extinguished by prescription; good cause exists for the failure by the creditor;

and the organ of State was not unreasonably prejudiced by the failure. In dispute were

the second and third of those requirements. In view of all of the factors evaluated by

the Court and based on the facts, the Court found that it would be in the interests of

justice to find that good cause for the applicant’s delay did exist, so that the second

leg of the statutory requirement was satisfied.

The Court could also not find that the prejudice suffered by the respondent was unreasonable to such an extent that, in the absence of evidence to the contrary, the

applicant and the minor child should be penalised for that by depriving them of the

opportunity to state their case in court. It was considered fair and in the interest of

justice for the court to exercise its discretion to grant condonation for the applicant’s

non-compliance.

President of the Republic of South Africa v Office of the Public Protector and another (Economic Freedom Fighters and others as Intervening Parties) [2018] 1 All SA 576 (GP)

Costs – President of country – Personal liability for costs – Whether the President

conducted the litigation in a manner unbecoming of a reasonable litigant and whether

he was vindicating his personal interests in doing so – President’s persistence with the

litigation; in the face of the finality of the investigation and report, as well as his own

unequivocal statement regarding that finality, clearly amounted to objectionable

conduct by a litigant and to clear abuse of the judicial process – Court held that a

simple punitive costs order was not appropriate because that would make the tax

payer liable for the costs and as a result ordered that the President personally pay the

costs.

The President of the Republic of South Africa, President JG Zuma (the “President”),

represented by the State Attorney, had launched an urgent application the day before

the release of a report by the Public Protector on what has become known as State

capture, seeking to interdict the Public Protector from finalising and releasing that

report. The President sought to prevent the finalisation and release of the report

through the interdict, until such time as he had been afforded a reasonable opportunity

to provide input into the investigation carried out by the Public Protector. He initiated

two further interlocutory applications. When the stage was set for the President’s

application to be heard, he withdrew it and tendered costs on the attorney and client

scale as well as the costs occasioned by the employment of two Counsel where

applicable. Argument was then advanced by all the intervening parties, that the

President be ordered to pay all the legal costs occasioned by his application

personally. The basis for the order sought against the President was firstly that the

application launched by him had nothing to do with his official responsibilities as

President and Member of the National Executive, but was aimed at protecting his

personal interests. The other basis advanced for the personal costs order sought

against the President was that he conducted the litigation in an unreasonable and

reprehensible manner that would justify the present Court mulcting him, personally, in

a punitive costs order, as a mark of its displeasure.

Held – The two questions before the Court were whether the President conducted the

litigation in a manner unbecoming of a reasonable litigant and whether he was

vindicating his personal interests in doing so.

The evidence satisfied the Court that the President had proceeded with the

application despite knowing that the report had been finalised and signed by the Public

Protector. The President’s persistence with the litigation; in the face of the finality of

the investigation and report, as well as his own unequivocal statement regarding that

finality, clearly amounted to objectionable conduct by a litigant and a clear abuse of

the judicial process. An abuse of the judicial process is evinced when a party conducts

litigation in an unreasonable manner to the prejudice of those who are naturally forced

to defend their interests. It is such conduct that has been viewed by courts as a

justifiable basis to mulct the culpable litigant with a punitive costs order.

The Court held that a simple punitive costs order was not appropriate in this case because that would make the tax payer liable for the costs. As a result, the President

was ordered to personally pay the costs referred to in the Court’s order.

Saharawi Arab Democratic Republic and another v Owner and Charterers of the MV “NM Cherry Blossom” and others [2018] 1 All SA 593 (ECP)

Interdict-International law – Ownership of cargo on board ship – Application for

interdict – Whether proposed vindicatory action was non-justiciable by a domestic

South African court – Reliance on act of State doctrine which is a common law ground

of non-justiciability and, the principle of State immunity – No basis found on which it

could be contended that the dispute was non-justiciable before the present Court.

Western Sahara lies on the north-western coast of Africa. It is bordered by Morocco

to the north, Algeria to the north-east and Mauritania to the east and south. It was a

Spanish colony until 1976 when Spain, in effect, abandoned Western Sahara and

offered it to Morocco and Mauritania. That was relevant to the present case and the

court’s determination of the international law that applied in respect of the right to self-

determination of the people of Western Sahara, the position of Morocco in respect of

Western Sahara and the position in respect of its natural resources and their

exploitation.

On 1 May 2017, a vessel (the “NM Cherry Blossom”) entered the port of Coega,

South Africa with a cargo of phosphate on board. The vessel was on its way to New

Zealand to deliver the cargo. On that day, the applicants brought an ex

parte application, and obtained a rule nisi calling on the first to fifth respondents to

show cause why a final order should not be granted, interdicting them from taking

the cargo of phosphate from the jurisdiction of the court in question pending the

determination of the applicants’ action for, inter alia, delivery of the cargo, unless

suitable security was furnished to the applicants. The sheriff was directed and

authorised to attach the cargo pending the determination of the action and to remove

the ship’s registration documents and trading certificates.

The applicants were the Saharawi Arab Democratic Republic (the “SADR”) and the

Polisario Front (the “PF”). The latter was a national liberation movement. It was

established in 1973 with the aims of ending Spanish colonial rule of Western Sahara.

In February 1976, the PF proclaimed the SADR as a sovereign State.

Only the fourth respondent (“OCP”) and the fifth respondent (“Phosboucraa”)

opposed the confirmation of the rule nisi. Both were Moroccan companies. OCP mined

phosphate in three areas of Morocco and enjoyed a monopoly over phosphate

reserves in that country. Phosboucraa operated a phosphate mine at Boucraa in

Western Sahara. The phosphate that was the subject of this case was mined by

Phosboucraa from its Boucraa mine.

The essence of the applicants’ case was that the phosphate aboard the MV NM

Cherry Blossom was part of the national resources of Western Sahara and belonged

to its people, and that OCP and Phosboucraa misappropriated the phosphate and sold

it, having no right to do so. The applicants intended to institute a vindicatory action in

respect of the cargo and the purpose of the proceedings was to ensure that it remained

within the jurisdiction of this Court (except if suitable security was furnished) until the

vindicatory action was finalised. They, therefore, claimed an entitlement to an interim

interdict pending the final determination of their right of ownership of the cargo.

Held – The case concerned the ownership of the cargo aboard the MV NM Cherry

Blossom, albeit that, the central enquiry was whether the SADR and the PF had

established a prima facie right to the cargo.

Section 232 of our Constitution provides that customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament. The

Court confirmed that Morocco has no claim to sovereignty over Western Sahara. Its

claim to sovereignty as a result of its occupation of the territory was incompatible with

the status of Western Sahara as a non-self-governing territory. The Court referred to

the right of peoples of non-self-governing territories to sovereignty over the natural

resources of their territories, and pointed out that OCP and Phosboucraa did not claim

to have mined the phosphate in Western Sahara with the consent of the people of the

territory.

Turning to whether the requirements for an interim interdict had been established,

the Court stated that an applicant for an interim interdict is, generally speaking,

required to establish four elements, viz a prima facie right, which may even be open

to some doubt; an apprehension of irreparable harm if the interdict is not granted; a

balance of convenience in favour of the grant of the interdict; and the absence of any

other satisfactory remedy.

The SADR and the PF had established on a prima facie basis that sovereignty over

the cargo of phosphate was vested in the people of Western Sahara. In other words,

the people of Western Sahara owned the cargo. In considering the balance of

convenience, the Court acknowledged that the granting of the interdict would cause

great inconvenience to the respondents. However, that could be allayed to an extent

by the furnishing of security.

OCP and Phosboucraa based their opposition to the confirmation of the

rule nisi upon two separate but interrelated grounds. On the basis of each of the

grounds it was contended that the applicants’ proposed vindicatory action was non-

justiciable by a domestic South African court. The two grounds pleaded were, first, the

act of State doctrine which is a common law ground of non-justiciability and, secondly,

the principle of State immunity. Those were distinct grounds upon which the

justiciability of a suit is to be determined. In essence, a claim to State immunity, if

successful, has the effect that a domestic court does not have jurisdiction to adjudicate

the matter before it, whereas reliance upon the act of State doctrine concerns the

justiciability of the suit before the domestic forum notwithstanding its jurisdiction to

adjudicate on the matter before it.

The Court first dealt with the claim to State immunity. The phosphate cargo at issue in this matter was mined at a mine situated in Western Sahara and outside of the

international borders of Morocco. The SADR claimed sovereignty over the territory

where the mine was situated and in respect of which the Saharawi people, represented

by the PF, claimed a right of self-determination. Morocco exercised de

facto administrative control over that portion of the territory of Western Sahara in which

the mine was situated, and Moroccan law was applied there by Morocco. OCP and

Phosboucraa were corporate bodies with separate legal existence from the state of

Morocco. They operated the mine in accordance with Moroccan law, having been

granted rights to do so in accordance with Moroccan law. Both claimed that the

exploitation of the mineral accorded with the UN framework governing the exploitation

of resources in a non-self-governing territory.

State immunity is a rule of international law which serves to preclude a State or its

representatives from being sued or prosecuted in foreign courts. It, accordingly,

precludes a domestic court from exercising adjudicative and enforcement jurisdiction

in matters in which a foreign State is a party. In this matter the SADR and the PF

sought by way of a vindicatory action, to assert title to property as against OCP and

Phosboucraa. The latter in turn asserted title on the basis that the phosphate was

lawfully mined in accordance with Moroccan law which applied and by reason of their

compliance with the United Nations framework which regulated the exploitation of

minerals in non-self-governing territories. A finding on the issues by a South African

court applying South African law, which included customary international law by virtue

of section 232 of the Constitution, cannot in any legal sense affect the rights of

Morocco at international law. While the interests of Morocco might be affected, such

effect fell within the realm of political or moral interests and could not have legal effect.

Therefore, the claim to State immunity could not be upheld.

Unlike State immunity, which is a rule of public international law, the doctrine of a foreign act of State is a municipal law rule which derives from common law principles

as developed in Anglo-American courts. It is founded upon the principle of mutual

respect for equality of sovereign States. On this point, the Court found that there was

no public international law principle which obliges a domestic court to refrain to

adjudicate a matter involving a foreign act of State in respect of the subject matter over

which the court otherwise has jurisdiction.

There was, therefore, no basis on which it could be contended that the dispute was non-justiciable before the present Court.

Consequently, the claim as to non-justiciability on the basis of an act of a foreign State was to be determined by the forum hearing the vindicatory action in due course.

The relief sought by the applicants was, accordingly, granted.

Heath v President of the Republic of South Africa [2018] JOL 39378 (WCC)

Judges – Application by former judge to undo resignation – Legality challenge –

Undue delay in bringing of application for common law review – Once the defence of

undue delay is raised, it is incumbent upon an applicant for review to persuade the

court that the application has been brought within a reasonable time of the impugned

decision having been made – Court must decide if delay was unreasonable, and if

so, whether condonation should be granted

In May 2001, the applicant tendered his resignation as a High Court judge, and proceeded to pursue a career in the private sector. In August 2016, he launched the

present application to effectively undo his resignation as a judge more than 15 years

before. In that regard he relied on the common law and not the judicial review

provisions of the Promotion of Administrative Justice Act 3 of 2000.

The resignation of the applicant as judge came about in the following circumstances.

In 1997, the applicant had been appointed as head of the Special Investigations Unit

(“the SIU”) established under the Special Investigation Units and Tribunals Act, 74 of

1996. In March 1999, the SIU was mandated to investigate the affairs of certain

personal injury lawyers who were accused of fleecing the public purse in making

extravagant claims against the Road Accident Fund. A group of such lawyers formed

a voluntary association known as the South African Association of Personal Injury

Lawyers (“SAAPIL”), which approached first the High Court in Pretoria, and ultimately

the Constitutional Court, for relief which attacked the very heart of the SIU. It was

claimed that the position of a sitting judge as the head of the SIU was inconsistent with

the Constitution, in particular because it undermined the independence of the judiciary

and encroached upon the separation of powers principle. That argument was upheld

by the Constitutional Court. The Constitutional Court held that the SIU could not be

headed by a judge and gave the Legislature a year to amend the SIU Act, but until

that time, the applicant could continue in his position as head of the SIU. Thereafter,

he could no longer serve as head of the SIU and remain a sitting judge. The applicant

decided to explore relinquishing his judicial office in order that he could continue

holding his position as Head of the SIU. His request for discharge was refused by the

then President, and he therefore tendered his resignation.

Held that judges hold office under the Judges’ Remuneration and Conditions of

Employment Act 47 of 2001 and their removal from office is strictly controlled by that

statute. When they reach what would generally be regarded as the age of retirement,

they are entitled to be discharged from active service without more in terms of section

3(2) of the current Judges’ Remuneration and Conditions of Employment Act. The

applicant stated that central to his request for discharge was the SAAPIL judgment.

The thrust of the case in the founding affidavit was that his independence and integrity

as a judge were compromised by the judgment in SAAPIL and that that precluded him

from returning to the bench. As the respondents suggested that the applicant had

taken the matter unnecessarily personally and that there was nothing which precluded

his return to the bench in 2001, it was necessary to consider precisely what the

Constitutional Court had held.

The Constitutional Court was cautious not to cast any aspersions on the applicant

which suggested that his conduct as Head of the SIU was anything but bona fide and

exemplary. Instead, the judgment sought to stress the incompatibility of the position of

the head of the SIU with judicial independence. It could therefore not be said be said

that the applicant’s standing as a judge was in any way compromised by the work he

performed as head of the SIU.

It was argued for the applicant that that the decision of the President to refuse to grant

a discharge from judicial office in terms of section 3(1)(d) of the Judges’ Remuneration

and Conditions of Employment Act 88 of 1989 failed to meet the constitutional principle

of legality. It was argued that the President exercised his discretion in an unreasonable

and irrational manner and that it fell to be reviewed on that ground alone. The

argument was that, although the applicant’s appointment as a judge was terminated

by his own act of resignation, he was left with little choice to do so after the President

had refused to grant him a discharge. The present application therefore had to be

determined as a legality challenge – to be instituted in terms of Rule 53 of the Uniform

Rules of Court and the common law principles relevant thereto.

The respondents raised the objection of undue delay in the bringing of the application.

The common law delay rule applied. In terms thereof, once the defence of undue delay

is raised, it is incumbent upon an applicant for review to persuade the court that the

application has been brought within a reasonable time of the impugned decision

having been made. The court is then obliged to adopt a two-phase approach. If it finds

that the delay is reasonable, that is the end of the enquiry and the review proceeds.

But if it finds that the delay is not reasonable, it will be required to determine whether

the delay should be condoned. The court was not required to undertake the first part

of the inquiry, as the applicant brought an application for condonation of the delay –

thereby acknowledging that the application for review was late.

Having regard to the explanation put up in the founding affidavit in relation to the

question of delay, the court was unable to find any proper explanation for the failure

to lodge the review application within a reasonable time after May 2001, nor was there

any feasible explanation as to why the applicant delayed for such an extended period

of time thereafter. There was no basis for the Court to consider condoning the filing of

the application more than 15 years after the event. The application for condonation

and for the relief sought in the notice of motion was dismissed.

Minister of Rural Development and Land Reform and others v Normandien Farms (Pty) Limited and others and a related matter [2017] JOL 39324 (SCA)

Appeal-Property – Land reform – Labour tenants – Removal of livestock – Over-

grazing –

The first respondent (Normandien) instituted proceedings in the Land Claims Court (LCC) for the removal of livestock from its farm. The LCC gave judgment in favour of

Normandien, leading to the two appeal before the present Court. The first appeal was

by the Minister of Rural Development and Land Reform and the second appeal was

by a group of labour tenants occupying a part of Normandien’s farm. The occupants

had lived on the farm for many years. Members of their families were buried there.

They grazed livestock on the farm. In March 2013, they instituted action in the LCC

alleging that they were labour tenants as defined in the Land Reform (Labour Tenants)

Act 3 of 1996 and that they had duly submitted applications to the Director-General of

the Department of Rural Development and Land Reform (Land Department) for the

acquisition of land as contemplated in section 16 of the Act. As against Normandien

they sought orders declaring in terms of section 33(2A) that they were labour tenants

and awarding a part of the farm to them. As against the Director-General they sought

an order that moneys be made available to compensate Normandien for the part of

the farm to be awarded to them. In December 2013, while the action was pending,

Normandien launched the application giving rise to the present appeals (the removal

application). Normandien sought orders that the livestock be removed from the farm

and that the Land and Agriculture Ministers and / or the Regional Commissioner

facilitate their removal to alternative land. This relief was claimed on the basis that the

farm had been severely overgrazed and that the continued presence of the livestock

on the farm contravened the Conservation of Agricultural Resources Act 43 of 1983.

The LCC found that by virtue of the Land Reform Provision of Land and Assistance

Act 126 of 1993, the Minister was under an obligation to make alternative grazing land

available to the labour tenants. The court also directed the labour tenants to remove

their livestock from Normandien’s farm for a period of five years to enable the grazing

veld to recover.

Held that an application by the occupiers to hold Normandien in contempt was an

abuse of the court’s process. The Court was of the opinion that the contempt

application was a stratagem to delay the finalisation of the appeal so as to buy time.

The occupants’ heads of argument were filed out of time and condonation was sought

in that regard. While dissatisfied with the explanation for the delay, the court, in the

interests of justice, condoned the failure to file their heads of argument timeously.

The dismissal of the counter-application by the labour tenants for a declaration that the relief sought by Normandien was subversive of rights acquired by the labour

tenants in terms of an order given in other litigation between the same parties was

confirmed as being correct. The purported order on which the labour tenants relied,

being a purported amendment of an earlier order, was a nullity because the judge had

been functus officio.

Although that finding should be the end of the case, the Court was obliged to consider

whether the order for removal of the livestock constituted an eviction. It was held that

Normandien was not seeking to evict the occupants within the meaning of the Land

Reform (Labour Tenants) Act.

The appeal by the Minister succeeded and the appeal by the occupiers was dismissed.

Ekurhuleni Metropolitan Municipality v Erasmus [2018] JOL 39429 (GJ)

Non-joinder – defendant's right to demand that other parties be joined, which must be

distinguished from the position where the court is asked to exercise its discretion to

join some other party, is very limited. A plaintiff need not join as co-defendants lodgers,

boarders or subtenants, when the plaintiff sues the defendant (tenant) for ejectment.

Property – Wrongful use – Town planning scheme – Contravention of

The respondent owned property within the applicant municipality’s jurisdictional area.

Objecting to the respondent’s use of the property in contravention of the town planning

scheme, the applicant an order interdicting and restraining the respondent in that

regard. It was alleged that the respondent was using the property for purposes of a

boarding house and boarding rooms which did not form part of the dwelling house

erected on the property.

As defences, the respondent relied on the non-joinder of those people presently

leasing buildings on the property, and the fact that he had now made application to

the applicant to have the property rezoned from Residential 1 to Residential 4.

Held that as the property was zoned “Residential 1” in terms of the Scheme, the only purpose for which buildings could be erected and used and for which the land could

be used was a dwelling house and private roads.

If a party has a direct and substantial interest in any order the court might make in proceedings, he is a necessary party. A defendant's right to demand that other parties

be joined, which must be distinguished from the position where the court is asked to

exercise its discretion to join some other party, is very limited. A plaintiff need not join

as co-defendants lodgers, boarders or subtenants, when the plaintiff sues the

defendant (tenant) for ejectment. Other than to baldly state that the tenants had a

direct and substantial interest in the outcome of the application, the respondent made

no attempt to apprise the court of what that interest comprised. In argument, the point

of non-joinder was correctly conceded and was dismissed.

The only substantive defence upon which the respondent relied was that he had

submitted an application to the applicant for the rezoning of the property. However,

until such time as the respondent’s application had been adjudicated upon, he was

obliged to comply with the laws of the Scheme and adhere to its regulations.

The applicant sought an interdict against the respondent in order to prevent him from using or causing or permitting the use of the property for any purpose other than for

dwelling houses and private roads. The law in regard to the grant of a final interdict is

as follows. An applicant for such an order must show a clear right; an injury actually

committed or reasonably apprehended; and the absence of similar protection by any

other ordinary remedy.

The applicant had made out a proper case for the relief sought in the notice of motion and the court accordingly granted the interdictory relief.

Standard Bank of South Africa Limited v Associated Credit Management (Pty) Limited and others [2018] JOL 39439 (GJ)

Pleadings – Particulars of claim – Leave to amend-amendment applications are not intended or designed to determine factual issues

The defendants having objected to the plaintiff’s notice of amendment, the plaintiff applied for leave to amend its particulars of claim, in terms of Rule 28(4).

The defendant objected that the amendment sought to introduce a claim that had evidently prescribed. It contended further that it was necessary in the circumstances

for the plaintiff to set out in the application for leave to amend, why it contended that

the claim had not prescribed.

Held that amendment applications are not intended or designed to determine factual issues such as whether the claim has become prescribed. Furthermore, it is not

required in terms of Rule 28(1) that a party should explain or motivate amendments

that it seeks through a notice of intention to amend.

The plaintiff was granted leave to amend, and as the defendants should not have

opposed the application, they were ordered to pay the costs of this application jointly

and severally.

Maharaj v Gold Circle (Pty) Ltd [2018] JOL 39462 (KZP)

Courts-proceedings– Section 9 of Constitution – Right to equality and prohibition

against unfair discrimination – Equality Courts established in terms of Promotion of

Equality and Prevention of Unfair Discrimination Act 4 of 2000 – Proceedings in such

courts intended to be less formal that in traditional courts – Conduct of presiding officer

in refusing to allow appellant to place his case before the court and in proceeding to

dismiss the case on the basis of res judicata rendering proceedings unfair

The appellant was a South African and a member of the local Indian population. He

was a racehorse trainer by profession.

In 1989, when he first applied to the Jockey Club of South Africa to be admitted as a

horse trainer, his application was turned down on the basis of appellant’s skin colour.

That prompted the appellant to leave the country for Australia where he was allowed

to work in the horse racing industry. After the advent of democracy in South Africa in

1994, he returned to the country, and once again applied for a licence to the National

Horseracing Authority of Southern Africa (NHA), the authority in charge of horseracing

in the country. His licence was granted only after resistance to his application was

overcome, and the head executive steward of the NHA at the time intervened. Despite

being issued with a licence, the appellant experienced undue hardship in the

horseracing establishment. His training establishment was situated outside a training

centre managed by the respondent. The latter initially refused to lease him boxes to

house his horses, but subsequently allowed the appellant to lease 14 boxes at the

centre. In 2002, the appellant’s trainer’s licence was suspended for five years by the

NHA arising out of two incidents of assault which he committed at work against a White

person. The altercations in question involved the issue of race. The appellant was

escorted off the premises and was forced to make arrangements for the transfer of the

horses he was training to other trainers. That arrangement went on for about three

months during which he was charged a rental of R11 000 for the leasing of the stabling

boxes from the respondent. Upon expiry of his suspension in 2007, the appellant once

again applied for stabling facilities from the respondent. the latter refused the request,

providing no reasons for the decision. the appellant was convinced that he was being

racially discriminated against by the respondent. He held this view because other

trainers of the White group, who were also involved in acts of assault or other unlawful

conduct, continued to be accorded the privilege of holding stabling facilities with the

respondent. Those facilities, according to the appellant, were never withdrawn or

denied to such members, even after they were found guilty of unlawful behaviour.

As a result of the above, the appellant lodged a complaint with the Equality Court (“the

2008 case”). His complaint was dismissed, as was an appeal against that finding to

the High Court.

In January 2016, the appellant again applied in writing to the respondent for stabling

facilities, but was refused. He then lodged a complaint of unfair discrimination based

on race in the Equality Court, Durban (the 2016 case). The respondent filed a

statement in which it raised a plea of res judicata. The Equality Court dealt with the

matter solely on that plea - in the form of issue estoppel. Without hearing any evidence

on the substantive grounds raised by the appellant in his affidavit the court ruled that

the matter was indeed res judicata. In the present appeal against that decision, the

appellant sought the setting aside of the decision of the Equality Court with costs and

remitting the matter to that court for the leading of evidence before a different presiding

officer.

Held that section 9 of the Constitution of the Republic of South Africa, 1996 (“the

Constitution”) deals with the issue of equality, and prohibits unfair discrimination. The

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was

enacted to give effect to the constitutional imperatives in section 9 of the Constitution.

Section 16 establishes equality courts. Setting out the broad framework and objectives

of the Equality Act, the court pointed out that the proceedings in the Equality Court are

less formal and provide for convenient and easy access in order to correct an act of

discrimination and to seek redress in respect thereof. Also relevant to the present

dispute was the KwaZulu-Natal Gaming and Betting Act 8 of 2010, which provides for

the regulation of gaming, horse racing and betting in the province, and also provides

for the establishment of a Gaming and Betting Board.

The respondent held a licence to conduct horseracing, a sporting event or other event

or contingency in terms of the KwaZulu-Natal Gaming and Betting Act. The terms and

conditions of its licence were set out in various schedules. In terms of its licence

conditions, it was obliged to adhere to the transformation goals set out in the

legislation.

Turning to the proceedings before the Equality Court in the 2016 case, the Court stated

that the proceedings were not fair - largely due to the manner in which the magistrate

conducted himself at the time. The magistrate was simply not prepared to allow the

appellant to place his case before the court, adopted a bombastic and belligerent

attitude; and was extremely impatient to the point of being rude. The appellant’s

attempts to explain that the 2016 case was based entirely on new evidence which was

relevant and material to the issue before the court were brushed aside, and the

magistrate proceeded to dismiss the complaint on the plea of res judicata. The

magistrate’s attitude rendered the proceedings unfair from the start and on that basis

alone, the matter was to be remitted to start afresh before a different judicial officer.

The five grounds relied on by the appellant in the 2016 complaint were found to be

relevant and the Court ruled that he should be allowed to lead whatever relevant

evidence he wished to in that regard. It was confirmed that the 2016 complaint was

based largely on a new cause of action which required adjudication by the Equality

Court. The matter was remitted to the Equality Court to commence de novo before a

different presiding officer. The respondent was ordered to pay the appellant’s costs of

appeal, such costs to include the costs of counsel.

Groep v Golden Arrow Bus Services (Pty) Limited and another [2017] JOL 39374 (WCC)

Special plea – Prescription- facts showed that Golden Arrow not to rely on the special plea of prescription came at a relatively early stage of negotiations, all of which were

classified throughout by the parties as being “without prejudice”.

Whilst attempting to board a bus operated by the defendant (“Golden Arrow”), the plaintiff was injured when the bus pulled away before he had fully embarked. He

suffered extensive orthopaedic injuries and he sought to claim damages therefor. The

particulars of claim stated that the plaintiff had been conveyed as a fare-paying

passenger on a Golden Arrow bus on 2 September 2002, that his statutory claim

against the Road Accident Fund (“the RAF”) was limited to R25 000, that he had

received that amount from the RAF and that Golden Arrow was therefore liable to the

plaintiff for damages in the sum of R855 000. The claim comprised general damages

in the sum of R500 000 with the balance claimed in respect of special damages (past

and future medical expenses, and past and future loss of income).

Golden Arrow defended the claim and raised a special plea of prescription. It said that by no later than 2 September 2002, the plaintiff was aware of both the identity of the

debtor which had caused him to suffer damages and the facts from which that debt

arose. It alleged that, in the circumstances, the plaintiff’s debt had prescribed in terms

of the Prescription Act, 68 of 1969 by no later than 3 September 2005.

The plaintiff filed a replication to the plea, stating that he only acquired knowledge of

the identity of his debtor and facts giving rise to his claim against Golden Arrow on 20

June 2006.

Held that the question was whether Golden Arrow had undertaken to abandon the special plea of prescription. The facts showed that Golden Arrow not to rely on the

special plea of prescription came at a relatively early stage of negotiations, all of which

were classified throughout by the parties as being “without prejudice”. That formed the

basis of Golden Arrow’s offer to settle. Consequently, the court was not persuaded

that the letter relied on by the plaintiff was admissible in evidence against Golden

Arrow, and the conclusion was that the special plea of prescription has not been

abandoned by Golden Arrow.

HL v Member of the Executive Council for Health of the Free State Provincial Government [2017] JOL 39373 (FB)

Action against State – Service of prior notice – Non-compliance – Condonation- the applicant and the minor child should be penalised for that by depriving them of the

opportunity to state their case in court. it was considered fair and in the interest of

justice for the court to exercise its discretion to grant condonation for the applicant’s

non-compliance.

In her representative capacity as the mother and natural guardian of her minor son,

the applicant had instituted action against the respondent. The Applicant alleges that

her son, who suffered from cerebral palsy, suffered a hypoxic-ischemic insult during

birth which resulted in permanent severe brain damage, because of her alleged

prolonged labour, and as a result of the alleged negligence of the respondent’s

employees.

In its plea, the respondent had denied that the plaintiff had complied with the

requirements of the Institution of Legal Proceedings Against Certain Organs of State

Act 40 of 2002. despite the requirement for condonation to be sought as soon as one

becomes aware of the need for it, the present application was filed more than two

years late – and only a month before the trial was due to start.

Before the trial could proceed, two issues had to be resolved. The first was whether

an agreement was reached that the respondent would not oppose the condonation

application, and if so, whether the respondent was entitled to resile therefrom, and

accordingly whether the condonation application should be heard on an unopposed

basis. If the court found that the respondent was entitled to oppose the application, the

second question was whether the applicant had made out a case for condonation.

Held that the letter relied upon by the applicant did not create an agreement from

which the respondent could not resile and, accordingly, the respondent had the right

to oppose the application and such opposition was not unreasonable.

In respect of the condonation application, the court held that before a creditor can

institute an action to recover a debt from an organ of State, section 3(2)(a) of the

Institution of Legal Proceedings Against Certain Organs of State Act requires such

creditor to serve on such organ of State a notice of its intention to do so within six

months from the date on which the debt became due. Section 3(4)(a) of the Act gives

a creditor the right to apply to court to have its non-compliance with section 3(2)(a)

condoned where a respondent relies on such non-compliance. The court’s discretion

to grant condonation is not unfettered. Section 3(4)(b) permits the court to do so only

once it is satisfied that the applicant has established that the debt has not been

extinguished by prescription; good cause exists for the failure by the creditor; and the

organ of State was not unreasonably prejudiced by the failure. In dispute were the

second and third of those requirements. In view of all of the factors evaluated by the

court and based on the facts, the court found that it would be in the interests of justice

to find that good cause for the applicant’s delay did exist, so that the second leg of the

statutory requirement was satisfied.

The Court could also not find that the prejudice suffered by the respondent was

unreasonable to such an extent that, in the absence of evidence to the contrary, the

applicant and the minor child should be penalised for that by depriving them of the

opportunity to state their case in court. it was considered fair and in the interest of

justice for the court to exercise its discretion to grant condonation for the applicant’s

non-compliance.

Smit NO v Firstrand Bank Limited and Others In re: Firstrand Bank Limited formerly known as Firstrand Bank of South Africa Limited v Abrahams NO (23395/2016) [2018] ZAWCHC 13 (8 February 2018)

Rescission application-rule 42 judgment was erroneously sought and erroneously

granted- Master may remove section 18(3) appointee

The Applicant applies in terms of Rule 42 (1) (a) for the rescission of a default

judgment granted on 17 February 2017 against Ms Abrahams N.O. as Defendant, in

her capacity as Master’s Representative appointed in terms of Section 18 (3) of the

Administration of the Estates Act 66 of 1965 (“the Act”) to the Estate of the late

Magrieta Magdalena Loeks (“the Estate”). The Applicant contends that the judgment

was erroneously sought and erroneously granted, being the requirements for a Rule

42 (1) (a) rescission. The judgment ordered payment of moneys due to the Plaintiff

(First Rand Bank), being the First Respondent before me, and execution against a

property, known as Erf 24632 Bellville in the City of Cape Town (“the property”),

owned by the Estate.

[2] The First Respondent opposes the application and applies in a counter

application for the removal of the Applicant from his office as Master’s

Representative in the Estate and for the appointment of a new Master’s

Representative. The Applicant does not oppose the counter application on condition

that no cost order is granted against him therein. For ease of reference I shall refer

to the First Respondent as the Plaintiff and to Ms Abrahams, where required, as the

Defendant, being their citations in the main action.

[3] The Applicant, an attorney who acts for himself, is the current appointee as

Master’s Representative to the Estate. He is also interested in purchasing the

property. The Applicant contends that the default judgment was erroneously sought

and granted, given that at the time of the institution of the action in the main

application, Ms Abrahams, the Defendant therein, had resigned as the Master’s

Representative to the Estate.

[4] The Plaintiff, in its opposition to the application, contends that even though Ms

Abraham’s letter of resignation as the Master’s representative bore the Master’s

stamp, at the time default judgment was granted, the records of the Master did not

reflect the resignation and the Master had not committed the positive act of releasing

her from office, similar to that as is required for the removal of an executor in terms

of Section 54 (1) (b) (vi) of the Act

[7] Ms Abrahams resigned from her office as the Master’s Representative to the

Estate by way of a letter to the Master, on 19 May 2016. On 1 December 2016, a

summons was issued by the Plaintiff in which it sought judgment against the

Defendant in the sum of R148 173.45, an order declaring the immovable property

hypothecated under the mortgage bond executable, and an order authorising the

Plaintiff to sell the immovable property hypothecated under the bond by way of sale

in execution. Ms Abrahams was cited as Defendant in her capacity as executrix of

the Estate, even though she had not been appointed as executor, but as Master’s

Representative.

[8] An application for default judgment was set-down for 17 February 2017. On 16

February 2017 the Plaintiff’s attorney was furnished with proof that Ms Abrahams

had resigned as Master’s Representative on 19 May 2016. On 15 February 2017

Plaintiff’s attorney perused the Master’s file and concluded that Ms Abrahams was

still the Master’s representative.

[9] According to the Plaintiff, a copy of the letter of resignation was handed up to the

judge on 17 February 2017, and this notwithstanding, default judgment was granted

against the Defendant.

[10] A sale in execution was held on 15 August 2017 pursuant to default judgment

and the property was sold to the Third and Fourth Respondents. Mr Sybrand Smit,

the Applicant in this rescission application, tried to negotiate with the Plaintiff’s

attorney to stop the sale, but to no avail. At this juncture I pause to deal with how the

Applicant came to be involved in this matter, an exercise which is relevant to

questions about his bona fides, which are dealt with later in this judgment.

[11] The Applicant’s involvement in this matter arose out of his own interest in

purchasing the property through an entity, the Eureka Trust, of which he is a

trustee. In his founding affidavit the Applicant explains that as a side business, he

and the other trustees of the Eureka Trust purchase properties, that are due to be

sold at judicial auctions, from financially distressed owners to enable them to receive

more for their properties and to stave off the auction. On gaining knowledge of the

sale in execution to be held on 15 August 2017, of the property belonging to the

Estate, the Applicant established the identities of the children of the deceased,

approached them, and on 10 August 2017 the Eureka Trust concluded a deed of

sale with them for the purchase of the property, initially for R145000.00 and

thereafter for R150 000. The Applicant thereafter informed the Plaintiff’s attorney of

the deed of sale and sent him a copy. The Plaintiff’s attorney notified the Applicant

on 14 August 2017 that the sale in execution could be stopped if there was a signed

offer to purchase the property for at least R180 000.00 and if the arrear amounts

owing, were paid.

[12] The Applicant had (presumably when negotiating the deed of sale), also

approached the children of the deceased to nominate him to be appointed as the

new Master’s Representative and he obtained their nominations on 14 August

2017. He was appointed Master’s Representative on 24 August 2017. In explaining

what motivated his appointment, the Applicant stated that he was advised by counsel

that he would not have locus standi to institute any litigation in this matter before he

was appointed Master’s Representative to the Estate.

[13] The Applicant thereafter addressed an email to the Plaintiff’s attorney, on 24

August 2017, advising of his appointment and seeking an undertaking that the

property would not be transferred. In reply on 25 August 2017 the Plaintiff’s

attorney, inter alia, pointed out that Ms Abraham’s letter of resignation was not

endorsed by the Master in acceptance of her resignation and referred to Section 54

of the Act in support of his submission that Ms Abrahams had not been validly

absolved as executor. On 1 September 2017 the Applicant applied on an urgent

basis for an order interdicting the Second to Sixth Respondents from causing the

property to be transferred to the Third and Fourth Respondents, pending the

adjudication of this rescission application. The interdict was granted on 5 September

2017. Thereafter this application was launched.

[19] Given the Applicant’s personal interest, there is clearly a conflict of interest

between his position as Master’s Representative and his personal agenda to

purchase the property through the Eureka Trust, at a bargain price. Given this

conflict of interest he cannot, in my view, exercise his powers bona fide and manage

the assets of the Estate with impartiality and objectivity. In the circumstances I find

that the Applicant did not act in good faith, either in bringing this application or in the

administration of the Estate. The application for his removal must accordingly

succeed with costs. The fact that the Applicant might have been willing to facilitate

his removal by approaching the Master, is not in my view a bar to the Plaintiff being

able to obtain the costs of the counter application, as contended by Mr Walters.

[20] If the gross value of an estate is R250 000.00 or less, the Master can either

appoint an executor to administer the estate in accordance with the provisions of the

Act, or appoint a Master’s Representative in terms of Section 18 (3) of the Act, with

directions to finalise the estate in a fast and simple manner. Section 18 (3) thus

provides a short cut for the fast and inexpensive finalisation of small estates.

[21] Section 54 (1) (b) (vi) of the Act only prescribes the procedure for an executor to

be removed from office. The section, quoted above, states that the Master may

remove an executor if he applies in writing to the Master to be released from his

office. It does not deal with the removal from office of a Master’s Representative, nor

is this to be found elsewhere in the Act. The Act indeed is silent on the removal of a

Master’s Representative.

1. The application for rescission of judgment is dismissed with costs.

2. The Applicant shall pay the costs of the application and shall not be entitled

to recover same from the Estate of the late Magrieta Magdalena Loeks.

3. The interdict granted by this Court on 5 September 2017, interdicting the

Second to Sixth Respondents from causing the property known as Erf 24632

Bellville in the City of Cape Town to be transferred to the Third and Fourth

Respondents, is uplifted.

Counter Application

1. The Applicant is removed from his office as Master’s Representative in the

Estate of the late Magrieta Magdalena Loeks (“the Estate”);

2. The Master is directed to appoint a new Master’s Representative in the

Estate in terms of Section 18 (3) of the Administration of Estates Act 66 of

1965;

3. The Applicant shall pay the costs of the counter application. He shall not

be entitled to recover same from the Estate.

Mboso v Standard Bank of South Africa (19416/2016) [2018] ZAWCHC 20 (19 February 2018)

Rescission judgment-applicant elderly lady, was bona fide, judgment set aside.

This is an opposed rescission of judgment application pursuant to an order purported

to have been taken by agreement between the parties and granted on 10 November

2015. The application was argued on 12 February 2018.

[12] Applicant contends that in 2003, at the suggestion of her employer, she bought

a property situated at […] S. Close, Khanya Park, Gugulethu for R170 000.00.

According to Applicant, she applied for a loan of R133 00.00 from Respondent which

was registered as a mortgage bond against the property. She also used R70 000.00

from her occupational pension fund as a deposit.

[14] Respondent issued summons under case number 23273/09 for the outstanding

amount together with inter alia, interest on the sum claimed at the rate of 10% per

annum from 1 October 2009 to date of payment together with an order declaring the

property executable. The matter was set down for trial on 10 November 2015. Prior

to the commencement of proceedings, settlement negotiations were encouraged.

Applicant contends that she was not happy about the proposals made to her and

submitted that she rejected any form of settlement and refused to agree to the terms

of the proposed order and expressed her desire to defend the action.

[15] According to Applicant, she was asked to return to her home and wait for her

legal representative to contact her. Later that day, she was presented with a signed

copy of the order which she had earlier rejected.

Applicant’s Principle Submissions

[16] Applicant contends that the order was obtained without her consent despite her

strong opposition to settling the matter. The Applicant, claims that she did not

receive any statements for her bond account and was unaware that between the

periods November 2005 and July 2006, a total amount of R158 000.00 had been

transferred from her account in varying amounts which transfers she had not

authorised. She also contends that when she applied for the second bond, the

unauthorised transactions were not brought to her attention.

[17] Applicant believed that she had already settled the outstanding bond and that

the debt was caused by fraudulent transactions from her bond account. Applicant

argued that the prospect of success is good. Applicant contends that she has a bona

fide defence and asked for an order as prayed for.

Respondent’s Principle Submissions

Discussion

[28] Respondent invited Applicant to produce oral evidence to clarify the position in

relation to the circumstances under which the order was taken, failing which, the

court should make an adverse inference. Applicant indicated that there is acrimony

between Applicant and her erstwhile attorneys and that it will be unlikely that the

attorney would give an objective account of the day in question. Applicant has asked

that the court not make a negative inference given the circumstance in which

Applicant finds herself with her erstwhile attorneys.

Conclusion

[29] Applicant is an elderly, lay person who has acquired the immovable property in

Gugulethu with her earnings and with the guidance and assistance of her former

employer. She also acquired a loan from Respondent. It is common cause that

Applicant diligently honoured her commitment to Respondent until she allegedly

defaulted with the instalments in 2009. Applicant believed then as she still believes

now that she settled her indebtedness to Respondent. What transpired on the day

when the order was obtained remains a mystery. Jurisprudence leans towards the

legal principles of agency between attorney and client in this regard. Applicant

contends that her erstwhile attorney did not carry out her instructions as her express

instructions were that she was not interested in the settlement and wanted to oppose

the matter, which was her desire since the inception of the action. Thus, the

question which remains unanswered is whether Applicant’s erstwhile attorneys

exceeded their express or implied authority. Of course, this could have been cleared

up if the attorney was called to give oral evidence in this regard. Given the

arguments raised in this regard, I am not persuaded that a negative inference should

be drawn in relation to Applicant’s bona fides.

[30] Additionally, I am not persuaded that a negative inference should be drawn in

relation to the contradictory information encapsulated in the pleadings and changes

affected to the pleadings as it should be born in mind that Applicant has had

challenges with regards to her legal representation. Applicant is a lay person who

should not be prejudiced by the conduct of her erstwhile legal representatives.

[31] It is trite that each case must be adjudicated on its own merits and this case is

no different. The veracity of the defences raised by Applicant can be further

ventilated at the trial. I am of the view that a rigid approach to disregard Applicant’s

version as improbable would be prejudicial to her.

[32] In relation to the application for rescission of judgment, I am satisfied that

Applicant has given a reasonable and acceptable explanation for her default, namely

that she did not agree to the order and that she does not owe Respondent the

amount being claimed. Even if there was a balance owing, Applicant is entitled to

challenge the discrepancy particularly in light of the allegation of the unauthorised

fraudulent withdrawals from the Applicant’s bond account. I am furthermore satisfied

that the Applicant has launched this application in good faith and that on the merits

Applicant has a bona fide defence which prima facie carries some prospect of

success.

[33] I am of the view that Applicant should be afforded the opportunity to have her

day in court; proverbially speaking

[34] In the result, after considering the submissions made by Counsel on behalf of

both the parties and after considering the documents filed on record, the following

orders are made: (a) Applicant’s failure to comply with the provisions of the Rules of

court relating to time periods is hereby condoned;(b) The judgment granted in this

matter against applicant on 10 November 2015 under case no: 23273/09 is set aside

and applicant is given leave to defend the matter.(c) Costs are to stand over for later

determination.

Ex Parte Elsworth [2018] JOL 39504 (ECG)

Advocate – Striking off role – Application for readmission

In October 2001, the applicant’s name was struck from the roll of advocates. In the

present application, he applied to be readmitted as an advocate.

Held that the striking off of the applicant followed a finding by the court that he had

misappropriated money from a deceased estate. That conduct was extremely serious.

The Court found that in the present application, the applicant had not made full

disclosure of all the facts, and had attempted to mislead the court.

It was concluded that the applicant’s prior conduct and the dishonest and evasive

manner in which he conducted this application demonstrated that he had not reformed

and was not a fit and proper person to practise as an advocate. His application was

dismissed.

Mofokeng v Member of the Executive Council of the Free State Government (Department of Education) [2017] JOL 39575 (FB)

Pre-trial conference- correct that a party is not entitled to resile from an agreement

deliberately reached at a Rule 37 conference in the absence of any special

circumstances

Separation of trial issues – Uniform rules of court -even if parties agree, not automatic court should accept

Pursuant to a pre-trial conference, the parties, who engaged in litigation over the cancellation of a contract, concluded a pre-trial minutes whereby it was resolved that

certain issues in dispute between them specifically whether the respondent repudiated

or lawfully cancelled a contract and that other issues stand for later adjudication. The

parties further agreed that the respondent shall bear the onus of proof and the duty to

begin in respect of the relevant question.

Subsequent to such agreement and when the matter was to proceed to trial, the respondent’s legal team resiled from the pre-trial agreement which was binding on the

respondent. The applicant then instituted the present proceedings.

Held It is correct that a party is not entitled to resile from an agreement deliberately

reached at a Rule 37 conference in the absence of any special circumstances, given

that the rule in question was introduced to shorten the length of trials, to facilitate

settlements between the parties, narrow the issues and to curb cost. Where a court is

approached to sanction separation of issues, it bears the duty to satisfy itself that the

separation will serve the desired purpose and it is not simply bound by the agreement

between the parties. A concession which is wrong in law is not binding on the court

and a court does not hesitate to reject same. Ideally, a judge who is seized of

substantive matter is the best placed or qualified to make the decision as to whether

or not the trial should proceed in piecemeal fashion.

In casu, both the respondent’s special pleas, by their very nature, deserved the

attention of the trial court before anything else and in the Courts judgment it was not

convenient to separate the issues in the manner agreed upon by the parties.

Loni v Member of the Executive Council, Department of Health, Eastern Cape Bhisho (CCT54/17) [2018] ZACC 2 (22 February 2018)

Prescription Act 68 of 1969 — section 12(3) — medical negligence claim —

knowledge of the facts upon which a claim is based — objective assessment —

reasonable person — correctly applied by lower courts

On 22 February 2018, at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the Supreme Court of Appeal

refusing special leave to appeal against the order of the Full Court of the High Court

of South Africa, Eastern Cape Division, Grahamstown (Full Court). The High Court,

Eastern Cape Local Division (High Court) had dismissed the applicant’s application

for leave to appeal against its order dismissing his claim for medical negligence

against the Member of the Executive Council of the Department of Health for the

Eastern Cape. The High Court held that the applicant’s claim had been instituted

some 11 years after the facts giving rise to his claim had arisen, and had therefore

prescribed by the effluxion of time.

The factual background to this matter is as follows: the applicant, Mr Mzwandile Loni,

was admitted to Cecelia Makiwane Hospital on 6 August 1999 after sustaining a

gunshot wound in his left buttock, which shattered his left femur. He was given an

injection to ease the pain and x-rays were taken. On 10 August 1999, a Denham pin

was inserted to alleviate the pain and on 23 August 1999, he underwent a further

operation to insert a plate and screws on his femur. The bullet was not removed.

Mr Loni was discharged and given painkillers and medical items to clean the wound.

In addition, he was given his medical file so that he could go to the clinic for further

care. Mr Loni returned to the hospital from time to time as the wound was oozing

puss. He experienced pain and also developed a limp. He was told that he was fine

and that he must walk more.

It was only in 2008, when Mr Loni secured employment with the South African Police Service, that he was able obtain medical insurance and approach doctors in private

practice to establish the reason for his limp and constant pain in his leg. In

November 2011, Dr Olivier, an orthopaedic surgeon, considered his hospital file and

advised him that his condition was caused by medical negligence of the hospital

where he had initially been treated.

On 20 June 2012, Mr Loni instituted proceedings against the respondent, the

Member of the Executive Council of the Department of Health, Eastern Cape, Bhisho

(MEC), in the High Court for damages arising out of the alleged negligence by the

doctors and nurses in the MEC’s employ. The MEC raised a special plea of

prescription in terms of section 12(3) of the Prescription Act 68 of 1969. The High

Court upheld the plea of prescription and held that Mr Loni had acquired the

necessary knowledge to enable him to institute proceedings long before he met Dr

Olivier as the wound was still oozing puss, he experienced pain, was limping and

had been in possession of his medical file.

Dissatisfied with the outcome, Mr Loni appealed to the Full Court which dismissed his appeal. His petition to the Supreme Court of Appeal also was unsuccessful,

hence the application to the Constitutional Court.

The Constitutional Court held that the correct interpretation of section 12(3) of the Prescription Act and the application of the relevant principles have been

authoritatively dealt with by the Constitutional Court in Links v Member of the

Executive Council, Department of Health, Northern Cape Province [2016] ZACC 10.

It further held that the objective test, properly applied, established that a reasonable

person in the position of Mr Loni would have realised that the treatment and care that

he received was sub-standard and was not in accordance with what he could have

expected from medical practitioners and staff acting carefully, reasonably and

professionally. On Mr Loni’s own evidence, it is clear that long before his discharge

from hospital and certainly thereafter, he had knowledge of the facts upon which his

claim was based.

The Constitutional Court remarked that this is a sad matter that exhibits the poor

treatment to which Mr Loni was subjected by those who had an obligation, imposed

by the Constitution, to provide proper health care to him. Unfortunately, his claim

had prescribed. In the result, the Constitutional Court refused leave to appeal on the

merits.

Frieslaar NO and Others v Ackerman and Another (1242/2016) [2018] ZASCA 3 (2 February 2018)

Prescription: extinctive prescription: Prescription Act 68 of 1969, ss 10, 11 and 12:

obligation to pay transfer costs and to transfer property sold constituting a debt which

is susceptible to prescription: date of commencement of the running of prescription:

running of prescription commences once the creditor has acquired right to claim the

debt.

This appeal, once again, raises the perennial issue of when a debt falls due for purposes of prescription as contemplated in s 12(1) of the Prescription Act 68 of

1969 (the Prescription Act). The proceedings emanated in an action instituted by the

first and second appellants in their capacities as trustees of the Frieslaar Family

Trust (the Trust) jointly with the third appellant, G & I Plumbers CC against the first

respondent, Mr Petrus Andre Ackerman and alternatively against the second

respondent, Adlu Projects CC, in which the appellants sought the following relief:

‘1. An order in terms whereof it is declared that the purported cancellation by the first [respondent] alternatively second [respondent] of the agreements in relation to the

Kaldi Place properties and the Barrish Place properties were not validly effected;

2. The further agreements in relation to the Kaldi Place properties and the Barrish Place properties are valid and binding between the parties thereto;

3. The first and/or second [respondents] are ordered to take all such steps required

in order to give transfer of ownership in relation to the Kaldi Place properties and the

Barrish Place properties to the first and second [appellants], alternatively that the

sheriff of [the court below] is authorised to take all such steps in order to effect

transfer of ownership to the first and second [appellants];

4. In the alternative to prayer 3 above, the first/second [respondent] are ordered to make payment to the first and second [appellants] in the sum of R2, 160, 000;

. . .’

[2] As is apparent from the relief sought in terms of prayer 4 above, the appellants

also claimed, in the alternative, payment of damages in the sum of R2 160 000 with

interest of 15.5% per annum. The damages claim represented moneys allegedly

owed by Adlu Projects CC to G & I Plumbers CC in respect of material supplied and

services rendered by the latter to the former. In either event, the appellants, in

addition, claimed costs of suit. Several grounds were relied upon in support of the

claim. The appellants’ summons was served on the respondents on 7 March 2013.

In what follows I shall, for the sake of convenience, refer to Ackerman and Adlu

Projects CC collectively as the respondents.

[3] The action related to four pieces of immovable property sold by the respondents

to the Trust pursuant to agreements of sale couched in identical terms, concluded on

25 February 2010. The respective agreements of sale, inter alia, contained the

following terms:

‘15.2 Possession of the properties would be given to the Trust and the Trust would be obliged to take possession thereof on 1 March 2010 from which date the Trust

would be liable for all municipal rates and taxes and body corporate levies, and /or

fees payable on the properties, and from which date the properties would be the sole

risk, profit or loss of the Trust; and

15.3 The parties agreed that the agreement constituted the entire agreement

between the parties and that there would be no other conditions, stipulations,

warranties or representations whatsoever made, other that such as which was

included in the agreement and signed by the parties.’

[4] Clause 7.1 of the agreements also contained the following term and obligation imposed on the respondents as the sellers and enforceable by the Trust as the

purchaser:

‘The Seller shall be liable for all transfer costs, transfer duty, stamp duty, . . . and transfer of the property into the name of the Purchaser by the conveyancers of the

Seller, and the conveyancing shall only commence after such costs have been paid

by the Seller.’

It is necessary to record that the purchase price was, in terms of the agreements of

sale concerned, to be set off against the sum of R2 160 000 allegedly owed to G & I

Plumbers CC by the respondents.

[5] The Trust alleged that on 4 July 2012 and in breach of the agreements, the

respondents purported to cancel the agreements, which cancellation the Trust did

not accept. The respondents resisted the claims. They raised a special plea of

prescription asserting that the claim of the appellants had arisen on 25 February

2010 (when the agreements were concluded) and that the appellants’ summons was

served on them on 7 March 2013, more than three years after the date on which the

claims arose. The respondents also relied on additional defences which are not

material for present purposes.

[7] At the trial, the parties agreed, pursuant to rule 33(4) of the Uniform Rules of

Court, that the special plea of prescription be adjudicated prior to and separately

from the remaining issues. The court of first instance (Chwaro AJ), after hearing the

parties, dismissed the special plea of prescription with costs. It subsequently granted

the respondents leave to appeal to the full court.

[8] On appeal to the full court, however, the order of the court of first instance was reversed, and the special plea of prescription was upheld with costs. This appeal is

against that order, special leave to appeal having been granted by this court.

[9] In the court of first instance, the learned judge accepted that it was trite that prescription commences to run as soon as the debt becomes due, meaning that from

the date it becomes immediately claimable by the creditor and immediately payable

by the debtor. He also accepted, with reference to Desai NO v Desai NNO & others

[1995] ZASCA 113; 1996 (1) SA 141 (SCA) at 146 I-147A, that the respondents’

obligation to transfer the properties to the Trust was a debt as contemplated in s 10

of the Prescription Act. He nonetheless concluded that as the appellants’ action was

precipitated by the respondents’ purported cancellation of the sale agreements on 4

July 2012 – when the three year period from 25 February 2010 had not yet elapsed –

the running of prescription was thereby interrupted.

Moshoeshoe and another v FirstRand Bank Ltd and others [2018] JOL 39493 (GJ)

Rescission application – Common law grounds – Good cause – Applicants required to provide a reasonable explanation of their default, show that the application was bona fide, and show that they had a bona fide case which prima facie would succeed in setting aside the order

In 2006, the applicants concluded a loan agreement with the first respondent bank in order to purchase a home. The property was pledged as security for the loan, but the address was incorrectly recorded in the loan agreement. Although the applicants alerted the conveyancing attorney appointed by the bank, he advised them that the

error was of no consequence since the property was correctly described on the title deed issued by the Registrar of Deeds. The applicants also wrote to the bank and informed it that the address on the contract was incorrectly recorded and the bank made sure that its records had the correct address.

Despite the conveyancing attorney’s assurance that the error was of no material importance, it actually had a serious practical consequence for the applicants. Unable to honour all their obligations in terms of the loan agreement, the applicants successfully applied to have themselves declared over indebted in terms of the National Credit Act 34 of 2005 (“the Act”). In June 2010, an attorney of the bank issued notice in terms of section 129 of the Act, which notice came to the attention of the first applicant. He contacted the firm of attorneys and told an employee there that he was under debt review. That did not deter the bank from issuing a summons against the applicants. However, the summons identified the wrongly recorded address, and therefore did not come to the attention of the applicants. In consequence, they failed to note their opposition to the action and the bank obtained default judgment against them. The notice prescribed by section 86(10) of the NCA had also been sent per registered post to the wrong address and did not come to the attention of the applicants.

The ensuing writ of execution, unlike the summons and the section 86(10) notice, was correctly served on the applicants at their actual address. Despite that, the incorrect address was reflected on one of the two copies of the writ served on the applicants, and the notice advertising the sale in execution which was placed in the newspaper described the incorrect property.

On 11 November 2010, the applicants sought to have the order issued by the Registrar rescinded. The attorney instructed by them in that regard informed them that the application had been launched and that it would automatically stay the execution process. Nevertheless, the bank continued with the process of executing on the order of the Registrar. The bank’s attorneys had been made aware of the fact that the summons did not come to the attention of the applicants. By virtue of that knowledge, they also must have known that they sent the section 86 notice to the incorrect address.

The sale in execution took place even though a rescission application was supposedly pending. The property was sold to the second and third respondents, and was then registered in the name of the fourth respondent. The first applicant’s informing the bank that judgment was taken against him and the second applicant without summons being served upon them was to no avail. The bank refused to cancel the sale of the property.

The second, third and fourth respondents brought an application for the eviction of the applicants from the property. The application succeeded and the applicants brought another application to have the order rescinded, as well as to have the order of the sale of their home in execution set aside. As their application was outside the time periods allowed for the launching of a rescission application, they asked that the late filing be condoned.

In the rescission application, neither the bank nor the second to fourth respondents challenged the factual averments made by the applicants. In addition to opposing the rescission application, the second to fourth respondents brought a counter-application

for an order enforcing the eviction order. The applicants failed to make an appearance when the matter was called and the court issued a default judgment which dismissed the rescission application of the applicants with costs, postponed the counter-application of the second to fourth respondent and reserved the costs of the counter-application. In September 2014, the applicants and their family were evicted from the property at the instance of the fourth respondent.

On discovering the existence of the default judgment which dismissed the rescission application, the applicants applied for rescission of that order and condonation only the bank opposed the application. it raised two points of law, which were argued in the alternative. Those were that the matter had been finalised ( res judicata); and that the matter was still pending (lis pendens).

Held that while the court in question had issued a default order which dismissed the applicants’ rescission application, the order was made without going into the merits of the dispute and without making any findings on the merits. Accordingly, it was not complete and was susceptible to being revisited by the present Court. The only avenue open to the applicants was to have the order rescinded. The res judicata point taken by the bank therefore had no merit and was dismissed.

The bank’s contention that since the applicants had brought more than one rescission application this particular one was lis pendens was also not sustainable. The three applications referred to concern the rescission of a different order (issued by the Registrar). But none of those applications were the subject of the present application.

That left the question of whether the order should in fact be rescinded. As the applicants relied on the common law, it was necessary to consider whether they had shown good cause for the rescission. To succeed on that basis, they had to at least provide a reasonable explanation of their default, show that the application was bona fide, and show that they had a bona fide case which prima facie would succeed in setting aside the order of the Registrar.

The Court was satisfied that the application was bona fide. The applicants had suffered greatly as a result of the order of the Registrar and they had done everything that could be expected of them. The order granted by the Registrar had been issued without them ever being given an opportunity to present their case as they were never served with the summons. Moreover, the execution process took place without any judicial oversight. The Constitutional Court has pronounced that the Registrar does not have to power to issue an order declaring a person’s home to be executable. The applicant had lost their primary residence, which prima facie appeared to have occurred through unlawful means or to have occurred in unfair and unjust circumstances. The non-compliance with rules of court was therefore condoned. The judgment and order in question was rescinded and set aside.

ABSA Bank Limited v Coetzee and others [2018] JOL 39614 (ECP)

Default judgment – Credit agreements – Breach of – Cancellation of agreement

Three unrelated but identical cases, in which judgment was sought by default, were referred by the Registrar to open court to obtain a determination of certain matters pertaining to the grant of judgment by default.

In each case, the plaintiff bank sought an order confirming the cancellation of a credit agreement and the delivery to the plaintiff of a motor vehicle purchased in terms of the credit agreement. The plaintiff and each of the defendants entered into an instalment sale agreement in terms of which the defendants purchased the vehicle from the plaintiff. The particulars of claim alleged that the defendants were obliged, in terms of the respective agreements, to pay to the bank a specified amount (the principal debt), together with an amount designated as finance charges at an agreed interest rate over an agreed period (in each instance the period was 72 months). The agreement obliged the defendants to effect payment of the total amount due to the plaintiff in 72 equal monthly instalments.

Alleging default by the defendants, the plaintiff sought cancellation of the instalment sale agreement in each case, and the repossession of the motor vehicle purchased pursuant to it.

In referring the matter to court, the Registrar raised an issue around the date of cancellation of the agreements, and whether reinstatement of the agreement had occurred in terms of section 129(3) of the National Credit Act 34 of 2005.

The particulars of claim alleged that the defendants had defaulted upon their obligations to make monthly payments. In consequence they were in arrears in specified amounts. Following the furnishing of the required notices in terms of the National Credit Act, the plaintiff elected to cancel and claim possession of the vehicles.

Held that a contracting party who, by reason of the other party’s material breach of an agreement, acquires an election between upholding an agreement or cancelling it, and is required to exercise that election by making a choice. The choice is a unilateral act. However for the election to take effect it must be communicated to the defaulting party. In each case, the plaintiff made an election and communicated such election to cancel in unequivocal terms by service of summons upon the defendants. The effect was to render the question of reinstatement of the agreement moot. An agreement may only be reinstated, as provided by section 129(3), prior to cancellation of the agreement. A party who contests the plaintiff’s cancellation or right to cancel on the basis that it had paid the amount as stipulated by section 129(3) must raise the defence. None of the defendants did that.

The Court was satisfied that in each of the three matters, the plaintiff was entitled to judgment.

Ndinga v Cape Law Society [2018] JOL 39617 (ECM)

Attorneys – Application for admission

Having entered into a contract of articles of clerkship with an attorney,. And completed the requisite period of articles, the applicant sought to be admitted as an attorney of the court. Her application was opposed by the Law Society on the ground that the attorney with whom the contract had been entered was not practising the profession of attorney on the date on which he concluded a contract of articles with the applicant

because he was not in possession of a fidelity fund certificate on that date, and was thus not entitled in law so to practise.

Held that the issue for determination was whether the contract of articles of clerkship relied upon by the applicant was valid or whether it was void by virtue of the circumstances in which her principal was practising when the contract was entered into.

The Attorneys Act 53 of 1979 regulates the requirements for practise as an attorney. The question to be addressed related to the effect of non-compliance by an attorney with one or more of the relevant rules of the respondent which has the effect of denying him or her qualification for the issue of a fidelity fund certificate. The distinction drawn between a person who purports to act as a practitioner and a practitioner who practises without being in possession of a fidelity fund certificate was regarded by the court as significant. The distinction recognises that although it constitutes an offence, the practise by a practitioner of his profession without a fidelity fund certificate does not have the effect of invalidating that practise and reducing the attorney to the status of one who purports to act as a practitioner. Nowhere in the Act is there a provision for the automatic suspension or invalidation in any way of the practise of an attorney where such practise is conducted without a fidelity fund certificate.

The Court noted the manner in which the Law Society had handled the applicant’s case. The applicant had followed all the steps required of her for her admission to the profession. Her registration of her articles of clerkship was not objected to by the respondent, and objections were only raised after she had completed her period of clerkship. The Court granted an order admitting the applicant as an attorney of the court, and as a mark of the court’s censure of its conduct, the respondent was directed to pay the costs of the application on an opposed basis and on the scale as between attorney and client.

Holden v Assmang Limited [2018] JOL 39618 (KZP)

Special pleas – Prescription – Jurisdiction

Pursuant to a formal application by the defendant, the court granted an order for the separation of the defendant’s special pleas of prescription and jurisdiction from the merits of the action. Only the special plea were to be determined by the court in these proceedings.

The plaintiff, a psychologist, instituted action against the defendant for damages arising from the defendant’s alleged wrongful and malicious conduct in pursuing a complaint to the Health Professions Council of South Africa (HPCSA) against the plaintiff. She contended that as a consequence of the defendant’s conduct, she suffered damages relating to inter alia legal and professional costs, loss of income and contumelia, impugning of professional dignity and reputation, and deterioration of professional confidence.

In resisting the plaintiff’s action, the defendant filed two special pleas and a plea to the merits of the plaintiff’s claim. The special pleas related to the alleged prescription of

the plaintiff’s claim in terms of the Prescription Act 68 of 1969 and the lack of jurisdiction of the court to entertain the plaintiff’s action.

Held that the jurisdiction of the High Court is governed by the provisions of section 19 of the Supreme Court Act (as it was then known). Section 19(1)(a) thereof provides for jurisdiction of the provincial or local division over all persons residing or being in and in relation to all causes arising and all offences triable within its area of jurisdiction. Of relevance was the phrase “causes arising” and whether the plaintiff’s cause of action did in fact arise within the jurisdiction of the court. It is not necessary that all elements of a delict must have occurred in a court’s area of jurisdiction for it to be able to assume jurisdiction. The dispute arose as a direct consequence from the engagement of the plaintiff by the defendant to render professional services to the defendant’s employees within the jurisdiction of the court. The court therefore did have jurisdiction in the matter.

The defendant’s contention that the plaintiff’s claim had prescribed was premised on its submission that the plaintiff’s claim was based on the actio iniuriarum and was accordingly subject to a prescriptive period of three years from the date the plaintiff had knowledge of all the facts from which the debt arose, which it alleged was 30 June 2008, the date when the complaint was lodged with the HPCSA. The Court found however, that the plaintiff had clearly pleaded a case premised on malicious prosecution and in such circumstances the prescriptive period would commence to run once the plaintiff was notified by the HPCSA on 30 October 2009 that no further action would be taken against her. The summons commencing action was instituted within the three year period and the claim had not prescribed.

Both special pleas were thus dismissed, and the defendant was ordered to pay the costs associated with the hearing of the special pleas, such costs to include the costs associated with the application for separation of issues in terms Rule 33(4).

Padi v Jordan NO [2018] JOL 39620 (GJ)

Default judgment – Application for rescission

The applicant was the defendant in a divorce action instituted by his former wife. The respondent was appointed as the liquidator of the joint estate in terms of a settlement agreement which was made an order of court. The liquidator was to realise the whole of the joint estate’s assets, moveable and immoveable. Further he was specifically directed to investigate whether the sale of certain property by the applicant was contrary to the provisions of section 15 of the Matrimonial Property Act 88 of 1984 when effecting a division of the joint estate and whether it caused a loss to the joint estate.

In terms of the Liquidation and Allocation Account the applicant was required to pay his erstwhile spouse R541 040,55. The applicant did not lodge a formal dispute within fourteen days with the liquidator. He did not however agree with the liquidator regarding the manner in which assets were dealt with. The applicant was of the view that all assets which formed part of his medical practice as a separate incorporated entity did not fall within the joint estate by operation of law and that the liquidator included same in the liquidation and allocation account incorrectly. When no dispute was lodged and the amount due to the spouse was not paid, the liquidator issued a summons for payment of the amount of R584 218,45 for the applicant’s liability arising

from the winding up of the joint estate following the divorce. The applicant defended the action and filed a plea wherein he disputed the correctness of the Final Report Liquidation and Allocation Account. He questioned whether the respondent had the authority to bring legal proceedings against the applicant in terms of the mandate; whether the respondent exceeded his powers in launching legal proceedings without seeking leave of the court first; whether the respondent had not exceeded the limited power set out in the settlement agreement; and whether the settlement agreement empowered the liquidator to incorporate in a joint estate of persons married in community of property, properties previously held in an incorporated legal entity and having a distinct and separate legal persona from the spouses as individuals.

Default judgment having been granted the applicant sought rescission thereof.

Held that there was no authority referred to before the Court, to support the applicant’s submission that the respondent had no locus standi to realise the estate and in doing so to sue the applicant to divide and distribute the estate and fulfil his mandate. The applicant’s defence based on the respondents’ lack of locus standi was not sustainable and did not amount to a bona fide defence for purposes of rescission. He also failed to show an absence of wilfulness. The prerequisites for the granting of rescission were not present and the application fell to be dismissed.

Gopee v Hurdeen and others [2018] JOL 39621 (KZD)

Contract – Validity of – Dispute of fact – Oral evidence

In support of her claim for specific performance emanating from an alleged agreement concluded between herself and a third party (the deceased), the applicant sought a declarator directing the first respondent to sign all documents and carry out all acts necessary to transfer to a public permit to her. It was contended that an agreement of purchase and sale was concluded whereby the deceased sold to the applicant a public bus permit. The agreement contained suspensive conditions and was contingent upon the deceased acquiring transfer of the permit into his name. When the deceased died in December 2002, the permit vested in his deceased estate and was thereafter transferred to the first respondent.

Held that the defences raised by the defendant regarding locus standi, authority, prescription and transport legislation were without merit and were dismissed. However, a challenge to the validity of the agreement was found to have more substance. The first respondent submitted a report by a hand writing expert who had been asked to conduct a forensic examination of the signature of the applicant appearing on the purchase and sale agreement and to compare same with the applicant’s writing in other documents. The first respondent contended that the applicant did not sign the purchase and sale agreement, and was not a party thereto and did not suggest in her case that she was represented in concluding the agreement. The applicant responded that even if it was found that the signature on the agreement was not hers, it could be adopted by her. The dispute in that regard was an issue not capable of being resolved on the papers and warranted the hearing of oral of evidence.

Consequently, the application was referred for the hearing of oral evidence on the limited issues of whether the applicant’s signature appearing on the purchase and sale agreement was in fact hers and concomitantly whether the applicant and the deceased were the actual contracting parties; and if a finding was made in applicant’s favour on

that issue, whether she had complied with her obligations in inter alia effecting payment of the purchase price to the deceased.

One Time Dream Team Promotions and Events Management CC v Mangaung Metropolitan Municipality [2018] JOL 39622 (FB)

Settled litigation – Costs

Based on a written agreement entered into between the parties, the plaintiff sued for payment of R1 199 620,35 plus interest. On the day of trial, the parties requested time to engage each other with a view to settling the matter. They subsequently presented the court with a draft order and requested that it be made an order of court. They informed the court that they could not agree on the issue of costs, which was now issue which the court was called upon to adjudicate.

Held that the question to award costs or not lies within the discretion of the court. Such discretion must be exercised judicially upon a consideration of all the facts; and, as between the parties, in essence it is a matter of fairness to both sides.

In the exercise of its discretion and taking all relevant considerations into account, the Court found that it would be unjust and inequitable to order either party to pay costs. Each party therefore had to pay its own costs.

Moleko v Mahlafu and others [2018] JOL 39623 (FB)

Referral for oral evidence – Reasons

The applicant sought a declaration that an agreement entered into with the first respondent was valid and binding. An order was also sought directing the first respondent to give effect to the provisions of the agreement signing any and all papers effecting transfer and giving ownership of the relevant taxi operating license and / or permit to the applicant.

After the Court granted an order referring the matter for oral evidence, the respondents requested its reasons.

Held that a party wishing to claim specific performance in terms of a contract must prove both the terms of the contract as well as compliance or the reciprocal obligation to perform fully. According to the applicant, he had performed in terms of the contract. The first and second respondent raised three points in limine, resulting in a material factual dispute between the parties on the issue of a protectable interests and whether such interests existed and has been infringed. The question was whether it was appropriate and proper to resolve the factual dispute by referral to oral evidence, considering the normal principles applicable to factual disputes in motion proceedings. Motion proceedings are decided on the papers filed by the parties. In case there is a factual dispute which can only be resolved through oral evidence, it is appropriated that action proceedings should be used unless the factual dispute is not real and genuine. Where there is a dispute of facts final relief should only be granted in notice of motion proceedings if the facts as stated by the respondent together with the facts in the applicant's affidavit justify an order. As a general principle, the court has a

discretion to decide whether to refer motion proceedings to oral evidence where there is a dispute of fact that needs to be resolved. In exercising this discretion a litigant should at least set out the evidence presented by the other party in their affidavits. The court should also consider to what extent this referral to oral evidence could tip the scales in the support of the litigant seeking the referral. The final issue to consider is convenience of the court.

Setting out the requirements for the interim interdictory relief sought by the applicant, the court found that the applicant had met all the requirements. The matter was then referred for oral evidence.

Nedbank Limited v CBR Engineering CC and others [2018] JOL 39624 (FB)

Claim for payment – Enrichment claim – Interest

The plaintiff sued the defendants in October 2013, based on a loan agreement, after the defendants fell into arrears in respect of the loan. The defendants defended the matter and pleaded that no contract had come into being. In June 2016, the plaintiff amended its particulars of claim to incorporate an alternative claim for enrichment. In terms of a consent agreement, the defendants then conceded their liability based on enrichment as claimed in the alternative.

While conceding that as the order granted in its favour was based upon enrichment, it could no longer claim interest on the loan term in terms of the written agreement, the plaintiff argued instead that it was entitled to mora interest on the outstanding balance as from the date of the loan.

The defendants submitted that at the earliest, interest could only have begun to run from the date upon which the plaintiff amended its particulars of claim to incorporate an alternative claim for enrichment. They contended further contended that as the defendants' liability arose out of an agreed enrichment claim, it was an unliquidated claim that still had to be quantified. The contention continued that section 2A of the Prescribed Rate of Interest Act 55 of 1975 was applicable as the claim was unliquidated and there was no agreement as to the interest rate payable and no agreement as to the date from which interest started to run.

Held that a claim for enrichment is distinctly different from a claim based on contract. Section 1 of the Prescribed Rate of Interest Act refers to matters where a debt, which is a liquidated amount, bears interest and where the rate at which the interest is to be calculated is not governed by law, agreement or trade custom. In those circumstances the interest rate shall be calculated at the rate determined by the Minister of Justice, from time to time. The incorporation of section 2A to the Prescribed Rate of Interest Act abrogated the common law principle that pre-judgment interest on unliquidated damages cannot be claimed. Interest may be claimed only if there was an agreement to pay interest or when the defendant is in mora. Section 2A(2)(a) clearly states that interest shall run from the date on which payment of the debt is claimed by the service on the debtor of a demand or summons, whichever date is the earlier. There is no obligation to pay interest until the debt becomes due and payable.

As the amount was unliquidated and as there was no agreement as from when mora interest would start to run, the provisions of section 2A(2)(a) were applicable. The

defendants were ordered to pay interest on the remainder of the defendants' liability from date of demand to date of payment at a rate of 10.25% per annum.

Tutshana v Minister of Safety and Security [2018] JOL 39625 (ECM)

Cross-examination – Purpose of

Action was instituted by the plaintiff after he was allegedly assaulted by the police. While claiming that the plaintiff had failed to stop his motor vehicle immediately after a collision with another motor vehicle had occurred, the police did no more than assault the plaintiff. They then left him lying on the street.

Held that the plaintiff presented his material evidence in chief, after which he was subjected to cross-examination by the defence. The Court questioned the necessity for that when the evidence-in-chief was clear and uncontradicted. The objectives of cross-examination are to obtain evidence favourable to the client, to weaken evidence that has been given against the client, and finally, if nothing of value which is favourable can be obtained, to weaken or destroy the value of the evidence by attacking the credibility of the witness. Cross-examination of the plaintiff in this case did not meet the purposes of eliciting facts favourable to the defendant’s case; eliciting facts which may be used to cross-examine other witnesses; showing that adverse evidence is unacceptable; showing that the witness himself was not worthy of credence and putting the defendant’s case to the Plaintiff so that it may be known and commented upon. The Court therefore questioned the purpose of cross-examination in the circumstances.

The plaintiff bore the onus of proving his case on a balance of probabilities. The Court was impressed with the unassailable strength, quality and reliability of the plaintiff’s evidence.

It was ordered that the defendant pay the plaintiff’s proven damages. Taurus Group of Companies (Pty) Ltd v Vanto and another [2018] JOL 39506 (ECG)

Appeal – Lapsing of

Judgment was granted in April 2015 in favour of the applicant against the respondents jointly and severally for the payment of a sum of R104 428,38. According to the applicant, the respondents filed three notices of appeal against the judgment, but failed to apply for a date on which the appeal would be heard, failed to file a record and failed to file security for costs of the appeal. The applicant therefore sought an order declaring that the appeal against the judgment had lapsed.

It was common cause that respondents subsequently made three payments, and the applicants alleged that an amount of R72 000 was still outstanding.

In a counter-application, the respondents sought a declaration that the judgment had been fully complied with, and that pursuant to a settlement agreement, the full debt had been paid.

Held that section 50(1) of the Uniform Rules of Court provides that an appeal to the court against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of the appeal, and unless so prosecuted it shall be deemed to have lapsed. The respondents did not contend that there was compliance with the rule, and the court saw no reason not to grant the relief sought in the main application.

Insofar as the counter-application was concerned, the settlement agreement relied on by the respondents, besides not being signed on behalf of applicant did not support their case. The counter-application was dismissed with costs.

Less v Vosloo and others [2018] JOL 39628 (KZP)

Consumer – Over-indebtedness – Debt review – Declaration that no longer over-indebted – Jurisdictional pre-requisites

Having applied to a debt counsellor in March 2013, to have herself declared over-indebted in terms of section 86(1) of the National Credit Act 34 of 2005, the applicant now sought a declaration that she was no longer over indebted and under debt review. she also sought to have the Credit Bureau remove the debt review status from applicant’s credit reports, and for the debt counsellor to confirm that applicant was declared to be no longer over indebted.

Held that there was no court order declaring applicant over indebted. The debt restructuring was never confirmed by any court in terms of section 87(1) of the National Credit Act. Section 86(6) stipulates a debt counsellor who has accepted an application in terms of the section must determine within the prescribed time whether the consumer is over indebted and if it is concluded that he is over indebted then in terms of section 86(7)(1)(c) the debt counsellor may issue a proposal recommending that the magistrate’s court make either or both of the certain orders as provided for in the said section.

A debt counsellor after receiving an application from a consumer to be declared over indebted must follow the process as set out in the Act. within 90 days of receiving an application for a declaration of indebtedness and restructuring from a consumer, the debt counsellor issue and file such application at the relevant magistrate’s court for approval. The application for a declaration of over indebtedness and restructuring is only instituted once it is issued and filed at the magistrate’s court. Until then it is merely a pending application. If that is not done by the debt counsellor, the consumer can after the expiry of a period of 90 days and before the application is issued and filed notify the debt counsellor in writing not to proceed with the application. The debt counsellor must notify the credit bureaus accordingly, and the relevant credit bureaus must then remove such consumer’s name from the relevant records.

In the absence of institution of an application for a declaration of over indebtedness and restructuring, there was no valid declaration of over indebtedness. The application was therefore dismissed. KM v M (born H) [2018] JOL 39562 (GJ)

Appeals – Leave to appeal – Requirements

Application was made for leave to appeal against the court’s order pertaining to relocation, maintenance and costs in the dispute between the parties.

Held that section 17(1) of the Superior Courts Act 10 of 2013 provides that a court may grant leave to appeal only where of the opinion that the appeal would have a reasonable prospect of success; or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration; the decision sought on appeal does not fall within the ambit of section 16(2)(a); and where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties. The section empowers the trial judge to give leave to appeal, and that that power must be exercised judicially.

An applicant seeking leave to appeal must set out its grounds of appeal succinctly and in unambiguous terms in order to enable the court and the respondent to understand the case the applicant seeks to make out and which the respondent has to meet in opposing the application for leave to appeal.

The Court proceeded to consider each of the numerous grounds of appeal in this application, to establish whether the appeal had a reasonable prospect of success.

The only ground of appeal found to be sustainable was that relating to the granting of spousal maintenance. It was possible that another court would consider different criteria and come to a different decision pertaining to the amount and period of rehabilitative maintenance. That ground of appeal was thus upheld and the plaintiff was granted leave to appeal the duration and amount of the maintenance order.

Leave to appeal the remainder of the judgment was refused. Reynolds v Reynolds [2018] JOL 39537 (WCC)

Divorce order – Non-compliance

In terms of a consent paper which was incorporated into a final decree of divorce, the parties agreed inter alia, that the applicant would transfer her half share in their jointly owned immovable property to the respondent; and respondent undertook to forthwith arrange to take transfer of applicant’s half-share of the property and agreed and

undertook to pay all amounts which might be due in respect to give effect to this clause, to sign all documentation as he may be required to sign in order to give effect to it.

In the present application, the applicant sought an order that the respondent effect transfer of the immovable property within 30 calendar days of the granting of the order. Alternatively, in the event of the property not being transferred within 30 days, the property was to be sold on public auction within 60 calendar days and the nett proceeds from the sale of the property was to be paid over to respondent. Applicant also sought a cost order against the respondent on an attorney and client scale.

The respondent in turn sought an indulgence of 3 months for the transfer to be finalised.

Held that the respondent had failed to raise any defences which were good in law. The Court was not persuaded that the balance of convenience favoured the respondent. Any further delay would cause further prejudice to the applicant. The delay thus far had been unreasonable.

Although the applicant had been made to wait a long time for compliance with the consent order, the Court deemed 30 days insufficient. It ordered the respondent to effect compliance within 60 days of the order.

August v Minister of Home Affairs [2018] JOL 39566 (ECM)

Pleadings – Exception – Late filing

In terms of Rule 30 of the Uniform Rules of Supreme Court, the applicant sought an order declaring the fifth defendant’s filing of a document captioned “defendant’s exception to the plaintiff’s amended particulars dated 18 November 2014” to be an irregular step and for it to be set aside. The application was premised on the fact that the said exception was filed out of time.

Held that the issue was whether the exception should be set aside as an irregular step and whether for the extension of the time period within which to file the exception or condonation for its late filing should be granted.

The Court was ultimately satisfied that the respondent had made out a case for condonation for the late filing of the exception. No prejudice was suffered by the applicant, who had been timeously served with the exception. The respondent’s application for leave to file the answering affidavit was granted. SS v VV-S [2018] ZACC 5

Orders- non-compliance with maintenance obligations — rule 46(1)(a)(ii) — writ of execution against immovable property — non compliance with court orders.

Proceedings analogous to formal contempt — Biowatch principle on costs not applicable — costs on attorney client scale — punitive cost order. On 1 March 2018, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court granted an order authorising

the issuance of a warrant of execution to attach and sell Mr S’s immovable property. The sale in execution was to satisfy a debt that Mr S owed Ms V-S in respect of maintenance for their only child. The exact amount owing is disputed. Mr S and Ms V-S had been married, but were granted an order of divorce by the High Court on 29 October 2010. The divorce order incorporated the terms of a settlement agreement between them. That agreement governed the amount Mr S would pay, on a monthly basis, for the basic maintenance of their child. It also contained separate provisions relating to Mr S’s contributions toward school fees, medical expenses, costs for text books and other special costs. In May 2010 Ms V-S relocated to the United States of America, where she remained for approximately four years. During this time, Ms V-S claims to have paid various amounts in respect of school fees, medical bills, and extra-mural activities for the child. Mr S paid maintenance for the child from October 2010 until close to the end of 2012, whereafter he ceased making payments. Upon her return to South Africa, Ms V-S applied successfully to the High Court for the issuance of a writ of execution in the amount of R 306 550.18. She alleged Mr S owed that amount for basic maintenance and the contribution to the child’s medical bills, school fees, and fees for extra-mural activities. The Sheriff visited Mr S’s home to attach movable property pursuant to the warrant of execution and found that Mr S had insufficient movable assets to satisfy the debt. Ms V- S applied to the High Court in terms of rule 46(1)(a)(ii) of the Uniform Rules of Court to have Mr S’s home declared specially executable. Mr S opposed the application. In August 2015, the High Court ordered execution against Mr S’s immovable property. Mr S applied to the High Court to have the warrant of execution set aside, however this application was dismissed. Mr S made an application for leave to appeal to the Supreme Court of Appeal. That application was also dismissed. The matter was first set down to be heard before the Constitutional Court on 29 August 2017. At the hearing, it became clear that Mr S was in substantial arrears with his basic maintenance obligations. He had not paid maintenance in the period between early 2014 and August 2017. The Court made an order to postpone the proceedings to 8 November 2017 to provide Mr S with time to remedy his default with regard to basic maintenance payments. Mr S was ordered to pay (i) Ms V-S’s costs of postponement, (ii) an amount of at least R150 000 on or before 30 September 2017 in respect of the arrears maintenance, and (iii) monthly amounts in respect of his maintenance obligations and other expenses in accordance with the settlement agreement. When the matter resumed on 8 November 2017, it was discovered through submissions made during the hearing that Mr S had not fully complied with the Court order made on 29 August 2017. In particular, he had failed to make monthly payments in respect of the basic maintenance obligations and other expenses of the child. The Court acknowledged that the matter raises a constitutional issue, but held that it would not be in the interests of justice to grant the applicant leave to appeal. The Court ordered Mr S to pay Ms V-S’s costs on the basis of his conduct towards the child, and the need to safeguard the Court’s integrity. Further, the Court held that a punitive order of costs was justified in this matter as Mr S’s conduct was the kind of “extraordinary” conduct worthy of the Court’s rebuke. Mr S was ordered to pay

Ms V-S’s costs relating to the proceedings of 8 November 2017 on an attorney and client scale.

Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Limited (CCT236/16) [2018] ZACC 7 (20 March 2018)

Labour Relations Act — unfair dismissal claims — applicability of Prescription Act

Prescription — interruption — referral to conciliation process

On 20 March 2018, the Constitutional Court handed down a judgment in an appeal against the judgment and order of the Labour Appeal Court (LAC) granted against Food and Allied Workers’ Union (FAWU) to the effect that its claim for unfair dismissal against Pieman’s Pantry (Pty) Ltd (Pieman’s) had prescribed. In reaching this decision, the LAC concluded that the Prescription Act 68 of 1969 (Prescription Act) applies to claims for unfair dismissal under section 191 of the Labour Relations Act 66 of 1995 (LRA), and that referral of a dispute to conciliation does not interrupt prescription. During June 2001, FAWU and Pieman’s were engaged in wage negotiations which resulted in what Pieman’s alleges was an unprotected strike by its employees and members of FAWU. On 1 August 2001, FAWU’s members were dismissed for their alleged participation in the unprotected strike, after a disciplinary hearing was convened. Upon the dismissal of its members, FAWU referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), in terms of section 191(1) of the LRA, for conciliation on 7 August 2001. On 3 September 2001, the CCMA certified that the dispute remained unresolved. Thereafter, FAWU referred the matter to the CCMA for arbitration. On 15 March 2002, the CCMA ruled that it did not have jurisdiction to arbitrate the dispute because the alleged reason for the dismissal related to participation in a strike that did not comply with the provisions of Chapter IV of the LRA. FAWU subsequently launched a review application which was dismissed by the Labour Court (LC) on 9 December 2003. On 16 March 2005, FAWU referred the claim to the Labour Court for adjudication in terms of section 191(5)(b) of the LRA. In response, Pieman’s pleaded that the claim had prescribed and contended that the statement of claim had been delivered late without a “proper” application for condonation. The LC subsequently granted FAWU’s application for condonation of the late filing of its statement of claim on 22 June 2008 and dismissed Pieman’s plea of prescription. On 24 June 2009, the parties agreed to vary the LC’s order of 22 June 2008 dismissing the prescription plea and that Pieman’s prescription point be adjudicated separately. In the LC, FAWU challenged the dismissal of its members on the basis that the dismissal was substantially and procedurally unfair. Pieman’s objected to FAWU’s claims by contending, amongst other things, that FAWU’s claim had prescribed in terms of the Prescription Act. The LC upheld the plea of prescription on 15 August 2014 holding that the Prescription Act applies to labour disputes; particularly unfair dismissal claims. The LC further rejected FAWU’s suggestion that the referral of a dispute for conciliation to the CCMA interrupted the running of prescription and, as a result, held that FAWU’s claim had indeed prescribed. FAWU then appealed to the

LAC against the LC’s judgment upholding the plea of prescription. The LAC dealt with four points of contention which were raised by FAWU. First, the LAC considered FAWU’s argument that in the light of the fact that the interpretation of statues must be driven by section 39(2) of the Constitution, which obliges a court to harmonise existing law with constitutional values, the LAC’s decision in Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus (Myathaza) was wrong insofar as it failed to comply with this obligation. The LAC rejected FAWU’s contention on the ground that there was no support for it to come to the conclusion that the decision in Myathaza was wrong. As a result, the LAC concluded that it was bound by its earlier decision in Myathaza. Second, the LAC considered FAWU’s argument that to apply the Prescription Act to labour disputes would undermine the objectives of labour peace aimed to be fulfilled through the LRA’s specific remedies and procedures. The LAC agreed that the LRA scheme has created a set of rights which are uncommon and unknown to our common law. But it rejected the argument that public interest considerations which seek to promote the advancement of labour peace imply that the extinction of a labour dispute by prescription is contrary to the aims and purposes of the LRA. The LAC concluded that, without a constitutional challenge to the prescription, the policy considerations raised by FAWU were irrelevant to determining whether the Prescription Act applied. Third, the LAC considered FAWU’s argument that the litigation regime under the LRA is inconsistent with the Prescription Act, as contemplated in section 16(1) of the Prescription Act (which provides for the exclusion of the operation of the Prescription Act if its provisions are inconsistent with another Act that prescribes a specific prescription period in a given context). The LAC held that the crucial question is whether the provisions of the LRA and the Prescription Act give rise to a functional inconsistency. If the two are capable of being reconciled, there is no inconsistency. Unlike the Prescription Act, section 191 does not extinguish a claim but rather regulates the process whereby proceedings are instituted. Accordingly, the LAC held that the two Acts are compatible and therefore reconcilable. Fourth, the LAC dealt with FAWU’s contention that a claim for unfair dismissal does not constitute a “debt” for the purposes of the Prescription Act. The LAC concluded that the “debt’ in this instance could be described as the workers “claim of right”, namely that their employment was terminated unfairly and that the unfairness should be remedied. As a result, the LAC concluded that the Prescription Act applied to all litigation proceedings under the LRA, specifically unfair dismissal referrals. In deciding whether FAWU’s claim had prescribed, the LAC upheld FAWU’s contention that the debt, which is the right not to be unfairly dismissed, arose upon dismissal and as such prescription began to run upon the dismissal of the employees. However the LAC rejected the contention that the referral of the dispute to the CCMA is a “process” which interrupts prescription. The LAC held that a referral to the CCMA is merely a functional requirement and is a condition precedent to approaching the LC. The LAC concluded that FAWU’s claim had indeed prescribed as prescription began running from the date of dismissal. In the Constitutional Court, FAWU made four main submissions: (1) that the

Prescription Act does not apply to unfair dismissal disputes in terms of section 191 of the LRA; (2) that prescription was interrupted by the referral of the dispute to the CCMA; (3) that a purposive interpretation of the relevant provisions, read with section 39(2) of the Constitution, requires that the Prescription Act not apply to claims under section 191 of the LRA; and (4) that this Court’s decisions in Myathaza and Mogaila v Coca Fortune (Pty) Ltd mean that the appeal must succeed. Pieman’s, in turn, made three principal submissions: (1) that a claim for unfair dismissal under the LRA is a “debt” for the purposes of the Prescription Act; (2) that there is no inconsistency between the Prescription Act and the LRA dispute resolution procedures; and (3) that the claim in this case has prescribed as the referral to conciliation did not interrupt prescription. The Constitutional Court considered two primary issues. First, whether the Prescription Act applies to litigation under the LRA, and second, whether the unfair dismissal dispute referred by FAWU to the LC on behalf the employees of Pieman’s had prescribed. The first judgment, written by Zondi AJ (Mogoeng CJ, Zondo DCJ and Jafta J concurring), finds that, on a holistic assessment of the LRA and the Prescription Act, the provisions of the Prescription Act are inconsistent with section 191 of the LRA, to the extent that there are material differences between the two statutes. One material difference, states Zondi AJ, is the differently stipulated time periods in which to institute litigation under the two statutes. Under section 191 of the LRA a dispute about an unfair dismissal must be referred to a bargaining council or the CCMA within 30 days of the date of dismissal. In the event that the bargaining council or CCMA has certified that the dispute remains unresolved or if 30 days has passed since the referral, and the dispute remains unresolved, the dispute may be referred, within 90 days, to a bargaining council or the CCMA for arbitration, or the LC for adjudication. Subject to good cause being shown section 191 empowers the CCMA to condone late referrals to conciliation, and authorises the LC to condone delays in referring conciliated disputes to it. Zondi AJ holds that the need to apply the Prescription Act does not arise when there has been compliance with the above time frames, and neither does it apply when condonation has been refused by the CCMA, as this would signal the end of the matter, because without conciliation the LC has no jurisdiction to adjudicate the dispute. As the delay in question may extend beyond the three year prescription period contemplated in the Prescription Act, Zondi AJ states that the provision for condonation in the LRA is alien to the concept and scheme of the Prescription Act. He further states that if the Prescription Act applies to litigation under the LRA, it will limit the CCMA’s and LC’s power to permit late referral of disputes, and it will deprive employees of their right to refer disputes to these fora. In light of this inconsistency between the two statutes, Zondi AJ concludes that the Prescription Act does not apply to litigation under section 191 of the LRA. In a separate judgment concurring in the first judgment, Zondo DCJ held that the Prescription Act does not apply to unfair dismissal disputes or claims under the LRA and such disputes or claims are only subject to the periods provided for in the dispute resolution system of the LRA. Zondo DCJ pointed out that this was so because the dispute resolution system created by the LRA is a self-standing system that was carefully crafted with a view to striking a fair balance between the interests of workers and those of employers. Zondo DCJ stated that interpreting the LRA so as to bring

the Prescription Act into the LRA dispute resolution system undermines this purpose and unduly tilts the balance in favour of employers to the detriment of workers.

Zondo DCJ took the view that applying the Prescription Act to unfair dismissal disputes under the LRA enables employers to use both the LRA and the Prescription Act to avoid liability for unfair dismissal claims whereas, if the LRA is interpreted so as to exclude the Prescription Act, both workers and employers are confined to the LRA in dealing with unfair dismissal disputes. On this approach common law disputes of wrongful dismissals would remain subject to prescription periods under the Prescription Act but unfair dismissal disputes or claims would not be subject to the Prescription Act and its prescription period but subject only to the periods specified in the LRA.

Zondo DCJ also stated that there is a conflict between the requirements that workers are obliged to satisfy under the LRA if they want to avoid forfeiting their unfair dismissal claims and those they would be required to satisfy if the Prescription Act applied to unfair dismissal claims and they sought to avoid forfeiting their claims under the Prescription Act and section 210 of the LRA provides that, when there is a conflict between the LRA and any other Act of Parliament, the provisions of the LRA prevail. Zondo DCJ would have for these reasons upheld the union’s appeal. In the third judgment written by Kollapen AJ (Cameron J, Froneman J, Kathree-Setiloane AJ, Madlanga J, Mhlantla J and Theron J concurring) Kollapen AJ held that the provisions of the Prescription Act and those of the LRA are consistent and compatible with one another. In reaching this conclusion, he observed that what must first be established is whether, what is being asserted is a debt in terms of section 16(1) of the Prescription Act. In this respect, the Kollapen AJ held that a claim for unfair dismissal constitutes a debt as contemplated in section 16(1). Kollapen AJ noted that once it is established that a claim for unfair dismissal constitutes a debt; the next leg of the enquiry is to determine whether a consistency between the two Acts exists. He agreed with the reasoning of the LAC judgment, that the mere fact that the Prescription Act and the LRA deal with time periods or impose conditions, does not demonstrate an inconsistency, it merely triggers the risk of inconsistency. He held that for an inconsistency to arise, a further enquiry into whether the two Acts are inconsistent with section 16(1) of the Prescription Act is required. He then concluded that the provisions of the Prescription Act and the LRA are consistent with each other, in so far as they relate to time periods and that the time periods in section 191 of the LRA which deal with when a litigant is expected to take the necessary steps to resolve a dispute, cannot be found to be inconsistent with those in the Prescription Act which provide a cut-off point when those steps can no longer be taken, because both time periods seek to achieve different objectives. Kollapen AJ held that had the LRA provided for prescription periods, as the Prescription Act does, then the inconsistency envisaged in section 16(1) of the Prescription Act would have been clear. He found that the time periods in the LRA and the Prescription Act are not only reconcilable but can exist in harmony alongside each other. Further, Kollapen AJ addressed the meaning of “good cause at any time” as contemplated in terms of section 191(2) of the LRA. He held that interpreting the phrase “at any time” to mean that a party may refer a dispute to conciliation at any

time notwithstanding the 30 and 90 days in section 191(2) would be inconsistent with the very objectives of the LRA, which seek to advance expeditious resolution of disputes. He concluded that the phrase “at any time” does not extend the time frames of 30 and 90 days in section 191(2) of the LRA and thus do not provide a basis for an inconsistency argument with the Prescription Act. Finally, Kollapen AJ dealt with whether a referral of a matter to conciliation interrupted prescription and in answering this question; he had to determine whether a referral to conciliation constituted a document which commences legal proceedings in terms of section 15(6) of the Prescription Act. He held that the referral of disputes to the CCMA for conciliation constitutes the service of a process commencing legal proceedings. He concluded that although the debt became due on 1 August 2001, it was interrupted by the referral to conciliation on 7 August 2001 and continued to be interrupted until the review proceedings on 9 December 2003. He further concluded that when the dispute was referred to the Labour Court on 16 March 2005, it had not prescribed and for these reasons the he upheld the appeal. In conclusion, the third judgment concurred with the order of the first judgment.

Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (South Africa) Limited (288/2017) [2018] ZASCA 9 (1 March 2018)

Exception to plea – upholding an exception disposes of the pleading, not the action or defence – ordinarily therefore the court should grant leave to amend and not dispose of the matter – an excipient has a duty to persuade the court that upon every interpretation which the plea can bear no defence is disclosed - tacit agreement pleaded constitutes a termination of the written agreement, not a variation thereof. the Supreme Court of Appeal (SCA) upheld an appeal by the appellants, Ocean Echo Properties 327 CC (Ocean Echo) and Mr Angelo Giannaros against a judgment of the Full Court of the Western Cape Division of the High Court, Cape Town (the court a quo) in favour of Old Mutual Life Assurance Company (South Africa) Limited (Old Mutual). Old Mutual had sued Ocean Echo, on the strength of a lease agreement and Mr Giannaros, on the strength of a suretyship for arrear rentals. They pleaded that the lease agreement had been terminated by virtue of a tacit agreement. Old Mutual excepted to the plea. That meant that Old Mutual had the duty as excipient to persuade the court that upon every interpretation which the plea could reasonably bear, no defence had been disclosed. The dispute between the parties which gave rise to this appeal emanates from the following factual background. On 11 November 2008 Ocean Echo entered into a lease for a business premises with the respondent in Cape Town. The second appellant, Mr Giannaros, executed a deed of suretyship on 29 October 2008 in terms of which he bound himself as surety and co-principal debtor to the respondent for the due and proper fulfilment of all the obligations of Ocean Echo under the lease. The lease agreement provides, inter alia, that Ocean Echo is precluded from giving up possession of the leased premises without the respondent’s prior written consent; that no variation of the lease shall be of any force or effect unless reduced to writing; that the lease contains all of the terms and conditions of the agreement; and that no acceptance of payment of any amount owed to the respondent will prejudice the

respondent’s rights in terms of the lease. In December 2011, Ocean Echo vacated the premises. The respondent began invoicing for and receiving rental, rates and other payments in respect of the property from a 3rd party. At the time of vacating the premises, Ocean Echo was not in arrears in respect of any payments due under the lease. On 9 October 2013 Old Mutual instituted action against the appellants for arrears in the amount of R457,816.07. The appellants’ plea was met with the exception that the terms of the lease explicitly precluded the tacit termination relied upon. The court at first instance upheld the exception, struck out the appellants’ plea and granted judgment in favour of Old Mutual against the appellants jointly and severally. The appellants were granted leave to appeal to the full court of the Western Cape division of the High Court. The full court dismissed the appellants’ appeal with costs. The SCA observed that the trial court had erred in entering judgement in favour of the respondent instead of granting leave to the appellants, if so advised, to amend their plea. The upholding of an exception disposes of the pleading against which the exception was taken, not the action or defence. In the absence of a good reason why the pleading could not be amended, leave to do so is a matter of course. The SCA further held that the respondent did not persuade the court that the appellants’ plea is bad in law. The SCA reasoned that the plea is reasonably capable of an interpretation that sustains a defence. The tacit agreement pleaded by the appellants in this case, if proved, would have the effect of terminating, not varying, the lease agreement and would accordingly not be hit by the non-variation clause. The SCA accordingly allowed the appeal with costs.

Mobile Telephone Networks (Pty) Ltd and Another v Spilhaus Property Holdings (Pty) Ltd and Others (208/2017) [2018] ZASCA 16 (15 March 2018)

Sectional title scheme – locus standi of unit owners to institute proceedings – matter falling within s 41(1) of the Sectional Titles Act 95 of 1986 – owners obliged to apply for the appointment of a curator ad litem.

The Supreme Court of Appeal (SCA) upheld an appeal against the judgment of the Western Cape Division, Cape Town (high court). The issue on appeal was whether owners in a sectional title scheme had the requisite locus standi to seek interdictory relief. The high court answered that question in favour of the owners. Prior to the coming into existence of the sectional title scheme and by agreement between the two appellants, MTN and Alphen, an antenna had been erected on the rooftop of a building in the scheme. It would seem that the antenna had been erected unlawfully. Some of the sectional owners (the present respondents) applied to the high court for an order directing MTN to remove the antenna and Alphen to co-operate to the extent necessary in the removal of the installation. That application succeeded before the high court. Before the SCA the appellants argued that as the structure was on common property in the sectional title scheme, the respondents did not have the requisite locus standi

to approach the high court for relief. Interpreting the relevant provisions of the Sectional Titles Act No 95 of 1986 (the Act), the SCA held that it was for the body corporate to institute proceedings in relation to the issues raised by the litigation. The SCA reasoned that such a conclusion accords with the general principle at common law that where a wrong is done to it, only the company (in this case the body corporate), and not the individual members, may take proceedings against the wrongdoers. The SCA thus concluded that s 41 of the Act, which provides a comprehensive statutory right to an owner of a sectional title unit aggrieved at the failure of the body corporate to act in respect of a matter mentioned in s 36(6), was applicable. The SCA accordingly held that the relief available to an owner in the position of the respondents is to approach the court for the appointment of a curator ad litem. The curator would investigate the events complained of and, if so advised, take action aimed at remedying the position.

Patmar Explorations (Pty) Ltd and Others v Limpopo Development Tribunal and Others (1250/2016) [2018] ZASCA 19 (16 March 2018)

Stare decisis – SCA does not depart from its own previous judgments unless satisfied clearly wrong – High Court – judges in same division bound by judgments of that division unless satisfied clearly wrong – costs In overturning a planning approval by the Limpopo Development Tribunal for the construction of a service station, the SCA reaffirmed its judgment in Shelton v Eastern Cape Development Tribunal, where it held that once the Constitutional Court’s suspension of an order of invalidity in relation to the statutory provisions under which development tribunals operated had lapsed the tribunals lacked any authority to grant development approvals. The SCA pointed out that the rule of law required courts to adhere to their own previous decisions and that it is only in rare circumstances that courts depart from earlier judgments. The High Court had overlooked this principle in not following an earlier judgment in its own court. The SCA also pointed out that for the Tribunal and the Provincial Government to have persisted with the appeal after becoming aware of Shelton meant that the legal costs incurred in the appeal constituted fruitless and wasteful expenditure.

[6] This was not the only case after 17 June 2012 in which the Tribunal approved land development applications that were pending prior to that date. Running virtually in parallel with it, in the same court, was another involving the Mogalakwena Municipality.[10] In a judgment delivered on 6 May 2013, Mothle J held that the Tribunal had been divested of its powers to grant development applications with effect from 17 June 2012 in consequence of the expiry of the period of suspension of the Constitutional Court’s order of constitutional invalidity in relation to the relevant provisions of the DFA. He interdicted the Tribunal from performing any functions under the DFA in respect of the land development application in that case. There was no appeal against his decision.[11]

[7] Accordingly, when the present case came to be argued in the High Court on 24 November 2014, there existed a judgment of the same court on the very point in issue. The principles of stare decisis required the judge to follow that decision unless satisfied that it was clearly wrong.[12] The High Court disregarded that principle. It

said in regard to the submission that the replacement legislation[13] and its transitional provisions would have been unnecessary if invalidity had not taken effect from 17 June 2012 that: ‘The jury is still out on this submission.’ The jury was not out because a judgment had already been delivered on the point. Mothle J’s judgment was rejected on the basis that ‘it is not correct as it is inconsistent with the Constitutional Court’s judgment’. This approach was entirely incorrect.

[8] The judge was only entitled to depart from the earlier judgment if satisfied that it was clearly incorrect. The proper approach was to ask whether Mothle J’s judgment was a tenable interpretation of the Constitutional Court’s decision and order. There could be only one answer to that question, namely, that it was, as the lengthy discussion of that very issue in the High Court’s judgment amply demonstrated. And once that conclusion was reached nothing more needed to be said. Kgomo J was obliged to follow his colleague’s decision and should have done so. The test for departing from a judgment from one’s own court is set high so that it is only done in few cases and then only after anxious consideration.

[9] Turning to costs the appellants are entitled to their costs and entitled to recover them from the Tribunal and the MEC, who supported the Tribunal in pursuing the proceedings to this court. Whilst it is deplorable that as a result of decisions by unnamed officials these costs, as well as the costs of resisting this appeal, have been incurred unnecessarily and are a burden on the public purse, it is beyond our remit to address and solve this problem. The appellants were brought to this Court by the first to third respondents and it is legitimate for them to insist that the respondents pay their costs and not the officials responsible for this situation, who may in any event not have the means to pay them.

[10] The following order is made:

1 The appeal is upheld with costs, such costs to be paid by the First to Third Respondents jointly and severally, the one paying the other to be absolved.

2 The order of the High Court is set aside and replaced by the following:

‘1 The decision of the First Respondent on 8 November 2012 approving the application by the Gawie Labuschagne Trust for development rights in respect of erven 756 and 757 Groblersdal Extension 11 is set aside as null and void.

‘2 The First to Third Respondents are ordered to pay the costs of the application, jointly and severally the one paying the other to be absolved.’

STATE INFORMATION TECHNOLOGY AGENCY SOC LTD v GIJIMA HOLDINGS (PTY) LTD 2018 (2) SA 23 (CC)

Administrative law — Administrative action — Review — Organs of state may not use PAJA to review their own decisions — Promotion of Administrative Justice Act 3 of 2000.

Review — Grounds — Legality — Organs of state may bring legality reviews of their own decisions. Sita, an organ of state, contracted Gijima to provide computing services to a government department. When Sita unlawfully terminated the agreement, Gijima instituted proceedings, but the dispute was resolved, by Gijima agreeing to drop its damages claim, in return for Sita awarding it a new services contract. The agreement was duly entered, performed, and extended, before a payment dispute arose, which Gijima referred to arbitration. There, Sita's defence to Gijima's claim for payment, was that the agreement was invalid for non-compliance with s 217 of the Constitution (it requires organs of state to contract in accordance with a competitive system.) It also asserted that Gijima had failed to perform. The arbitrator's finding was that he had no jurisdiction to determine the s 217 issue. Sita then applied to the High Court for legality review of its decision to contract. (This on the basis of its non-compliance with s 217.) The High Court dismissed the application, holding inter alia, that PAJA applied, and could not be 'circumvented' by reliance on legality review. (See paras 2, 19, 28 and 41 of the High Court's judgment. † Sita then appealed to the Supreme Court of Appeal. In dismissing the appeal, it held that PAJA applied to an organ of state seeking to review its own decision. It also confirmed that when PAJA applied, a litigant could not sidestep it by resort to legality review. (See paras 15 – 16, 27, 37 – 38 and 45 of that court's judgment. Sita then appealed to the Constitutional Court. It held as follows. • An organ of state could not use PAJA to review its own decision. (It reasoned that the rights in s 33 of the Constitution were available only to private parties; that PAJA was enacted to give effect to those rights; and thus that PAJA was available only to private parties.) • An organ of state could bring a legality review of its own decision (see [41]). • The award of the contract was unlawful (it contravened s 217 of the Constitution). (See [40] – [41].) • Sita's 22-month delay before instituting the review was inexcusable. (See [42], [47], [49] and [51].) • Nonetheless, s 172(1)(a) of the Constitution compelled the declaration that the award of the agreement was invalid (see [52]). • Despite this invalidity, it would be ordered under s 172(1)(b), that Gijima would not lose its rights under the agreement. (See [54] – [55].) • Gijima would receive its costs (see [55]). Appeal upheld.

MOSTERT NO v REGISTRAR OF PENSION FUNDS AND OTHERS 2018 (2) SA 53 (SCA) Administrative law — Administrative action — Review — Application — When to be brought — From when 180-day time limit starts running — Review of promulgation of regulation — 180-day period to run from when public at large might reasonably be expected to have become aware of promulgation of regulation — Promotion of Administrative Justice Act 3 of 2000, s 7(1). In the High Court the appellant, in his capacity as joint liquidator of the Picbel Groepvoorsorgfonds, sought the review under the Promotion of Administrative

Justice Act 3 of 2000 of the making of reg 35(4) of the regulations promulgated by the Minister of Finance in terms of s 36 of the Pension Funds Act 24 of 1956. Dismissing the application, the High Court held, in acceptance of the arguments of the Minister, that it had no power to entertain the review, because the application had not been instituted within the required 180-day period prescribed in s 7(1) of PAJA and the appellant had not applied for condonation. The court granted the appellant leave to appeal to the Supreme Court of Appeal, where the Minister of Finance opposed the relief sought. The first issue, as raised by the appellant, was whether the court a quo could mero motu have raised the question of non-compliance with s 7(1), or whether it could have allowed the Minister to raise the point in argument where he had not done so in in his pleadings. A further issue was whether the appellant had in fact brought review proceedings within the required 180-day period. The answer depended on when the period of 180 days commenced to run. Held, that it could not be said that the court a quo had raised the issue of non-compliance with s 7(1) mero motu, when that point was in fact first raised in the appellant's heads of argument, dealt with in the Minister's heads of argument, and raised by counsel in argument. (See [32].) In any event, the law did not prohibit the court from doing so. Where it appeared to the court on the papers that there had been a manifest delay and that the proceedings might not have been instituted within the period of 180 days, it would be entitled mero motu to raise the point as such a delay would be unreasonable per se and the court would not have the power to entertain the review. In such circumstances the applicant should be given an opportunity to deliver a further affidavit to explain the apparent delay, or apply for an extension in terms of s 9. It would, of course, be entitled not to do so and to argue the matter on the papers as they stood. (See [33] – [35].) Held, further, that where it appeared from the applicant's papers that there had been a delay of more than 180 days, and there was no application for an extension of the period, a respondent him- or herself was entitled to raise the point in argument that the court had no power to hear the review. This was not raising a defence: it was a submission that, on the applicant's own papers, the court had no power to entertain the review. If the court was entitled to raise the point mero motu, then there could be no reason why the respondent should not be allowed to raise it. (It was in any event dealt with by both parties in their heads of argument, and the appellant elected not to seek leave to file a further affidavit.) (See [36].) Held, further, that where a person sought the review of the making of a particular regulation, the 180-day period started to run from when the 'public at large' — in this case a reference to those members of the public who were involved with the pension fund industry — might reasonably be expected to have become aware of the promulgation of the regulation. (See [43] – [44] and [50].) Here, the regulation in question was promulgated on 22 April 2003. The application for it to be reviewed was brought nearly 12 years later. In the absence of any evidence to the contrary, it could safely be accepted that this was well outside a period of 180 days after the date on which the public at large might reasonably have been expected to have become aware of the regulation. Accordingly, appeal dismissed with costs. PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA v PUBLIC PROTECTOR AND OTHERS 2018 (2) SA 100 (GP)

Constitutional law— Chapter 9 institutions — Public Protector — Powers — To direct President, via remedial action, to appoint commission of enquiry into allegations of state capture — Lawfulness and rationality — Constitution, s 182. Constitutional law— Chapter 9 institutions — Public Protector — Powers — Investigation — May direct other organs of state to conduct further investigations. Costs — Costs de bonis propriis— When to be awarded — Against President — President's ill-advised and reckless litigation against Public Protector resulting in unjustifiable delay of appointment of commission of enquiry into state capture — President's conduct falling short of constitutional norms and what is expected of head of state — Court making costs order de bonis propriis against President. President — Powers — To appoint commission of enquiry — Like all presidential powers, constrained by Constitution and principle of legality — Power to appoint commission of enquiry curtailed where in conflict with such constraints — Constitution, s 84(2)(f). President — Conduct — Involvement in 'state capture' — Public Protector's report revealing prima facie case of serious misconduct and impropriety on part of President and others implicated in alleged state capture — Constituting appropriate basis for remedial action directing President to appoint commission of enquiry — Court directing President to comply. The President sought the review and setting aside of the remedial action of the former Public Protector (PP) which instructed him to appoint, within 30 days, a commission of inquiry, headed by a judge appointed by the Chief Justice, into the allegations of corruption outlined in her report No 6 of 2016/17, entitled State of Capture (the Report). The report was the result of the PP's investigation of complaints that the President had improperly — and contrary to the Executive Members' Ethics Act 82 of 1998 (the Ethics Act) and the Executive Ethics Code (the Code) — allowed the Gupta family to be involved in the removal and appointment of cabinet ministers (including the Minister of Finance in December 2015) and directors of state-owned enterprises (including the board of Eskom). Of particular relevance were s 2.3(c) and (e) of the Code, which prohibited members of the executive from, respectively, acting in a way that was inconsistent with their position and using information received in confidence otherwise that in the discharge of their duties. The complaints were broadly confirmed by the Report, which found that the relationship between the President and the Guptas had evolved into one of 'state capture', with the Guptas leveraging their influence on the appointment of ministers and SOEs to get preferential treatment in state contracts, access to state-provided finance and the award of business licences. The PP noted that the President's conduct and the conflict between his duties as head of state and his private interests may have violated items 2.3(c) and 2.3(e) of the Code and s 195 of the Constitution, which required a high level of professional ethics in public administration. The PP gave three reasons for her decision to instruct the President to establish a commission of enquiry: (1) she lacked adequate resources; (2) she had not completed the investigation and her term of office was coming to an end; and (3) she had concerns about the limited qualifications and experience of her successor, Adv Mkhwebane.

In his notice of motion the President sought an order that the matter be remitted to the PP for further investigation on the basis that the PP lacked the power to delegate her functions to a commissions of enquiry. This prompted the PP to deliver a conditional counter-application for an order directing the President to ensure that the PP was given enough funds to conduct the investigation. The review was directed at the lawfulness and rationality of the remedial action, the primary question being whether the President's constitutional power to appoint a commission of enquiry could be limited by remedial action taken by the PP. Counsel for the President also argued that the remedial action was unlawful because the PP did not make a finding of impropriety or prejudice, which was a jurisdictional fact required for the PP to take action. Held The President's power (under s 84(2)(f) of the Constitution) to appoint a commission of enquiry was curtailed where his conduct was in conflict with his constitutional obligations and the principle of legality (see [61] – [71]). The PP's investitive powers (under s 182(1)(c) of the Constitution) encompassed the power to direct members of the executive, including the President, to exercise powers entrusted to them under the Constitution (see [82]). In order to fulfil their constitutional mandate PPs had power, in appropriate circumstances, to direct the President to appoint commissions of enquiry and to direct the manner of their implementation (see [85]). For these reasons the first ground of review, namely that it was unlawful for the PP to instruct the President to appoint a commission of inquiry, was without merit (see [86]). Nor was there anything in either the Public Protector Act 23 of 1994 or the Ethics Act to prevent the PP from instructing another organ of state to conduct a further investigation (see [91]). The Public Protector Act envisaged that PPs would exercise their powers with the assistance of other relevant entities, and expressly allowed them to require other parties to 'make appropriate recommendations' after they had concluded an investigation (see [94]). Hence this ground of review also fell to be dismissed (see [95]). The primary role of the PP was that of an investigator, not an adjudicator, and the fact that she made no firm findings on whether the evidence collected established wrongdoing by the President, the Gupta family or anyone else did not preclude her from taking remedial action (see [105] – [106]). The PPs observations in the Report, which were supported by a considerable body of corroborative evidence, constituted a prima facie case of serious misconduct and impropriety on the part of the President, the Gupta family and others (see [107]). It constituted an appropriate basis for the PP's remedial action, and the President's argument that it was unlawful because the Public Protector did not make findings of misconduct and impropriety fell to be rejected (see [112]). The PP was given compelling evidence that the relationship between the President and the Gupta family had evolved into state capture, a matter of great public concern, but she lacked the capacity to conduct an investigation on the scale required (see [128] – [129], [138]). A judicial commission of inquiry was pre-eminently suited to carry out the task of investigating the allegations of state capture contained in the Report (see [140]). Since the President was himself implicated in the allegations of state capture, his insistence that he alone select a judge to head the commission of inquiry was at odds with the legal principle of recusal (see [144], [146]). Hence the PP had to ensure that someone other than the President select the head of the commission,

and the Chief Justice was a perfectly sensible and rational choice (see [147], [150]). The PP was, in addition, plainly entitled to give directions at to the manner in which the commission of enquiry was to be implemented (see [152]). The PP's concerns about her lack of resources, the time constraints and her successor's abilities were justified, and the reasons she gave for the taking of the remedial action satisfied the rationality test (see [161] – [167]) In the premises the President's review grounds fell to be rejected (see [168]). The President had in addition preempted his right of review by stating in Parliament and in a press statement that he accepted the necessity of establishing the judicial commission of enquiry referred to in the remedial action (see [169] – [185]). Since none of the grounds of review had any merit, the President was not entitled to the relief sought. The application, a clear non-starter, was recklessly pursued by the President — whose conduct fell far short of constitutional standards — and had to be dismissed with costs de bonis propriis (see [186] – [190]). The court in addition declared the PP's Report to be binding and directed the President to appoint a commission of enquiry within 30 days, to be headed by a judge selected by the Chief Justice (see [191]).

Basson v Hugo and others [2018] 1 All SA 621 (SCA) Administrative law – Application for judicial review – Whether appellant was obliged to exhaust an internal remedy as contemplated in section 7(2) of the Promotion of Administrative Justice Act 3 of 2000 before launching his application to review – Appellant was required to exhaust internal remedy unless he could show exceptional circumstances to exempt him from that requirement – Where internal remedy was ineffective and inadequate, that constituted exceptional circumstances as contemplated in section 7(2)(c) of the Promotion of Administrative Justice Act, requiring the immediate intervention of the court rather than resort to the internal remedy. In terms of the Health Professions Act 56 of 1974, the third respondent (“the Council”) launched a disciplinary inquiry against the appellant, a practising cardiologist. He was charged with unprofessional conduct before a professional conduct committee (the “Committee”) constituted in terms of section 15(2)(f) of the Act. The charges related to the appellant’s participation in chemical and biological warfare research during his employment with the South African Defence Force in the 1980s. He was found guilty of unprofessional conduct on four of the charges. In argument on sanction, two petitions were submitted for the removal of the appellant’s name from the Register of Medical Practitioners, by registered health professionals and organisations working in the fields of human rights and law.

The first and second respondents were members of the Committee. Alleging that they were members of the organisations that supported the petition for his removal from the register, the appellant sought their recusal from the Committee. The application for recusal was refused by the Committee, and the appellant approached the court a quo to review and set aside the decision.

The review application was dismissed – the court finding that the review application was premature as the appellant had a duty to exhaust an internal remedy before approaching the court to review and set aside the impugned decision. It found that the appellant had not complied with such duty; that he failed to show exceptional

circumstances in terms of section 7(2)(c) of the Promotion of Administrative Justice Act 3 of 2000; and that it was not in the interests of justice to exempt him from the obligation to exhaust the internal remedy. The remedy in question, the court a quo held, was an appeal to an ad hoc appeal committee established under section 10(2) of the Health Professions Act. Held – The issue on appeal was thus whether the appellant was obliged to exhaust an internal remedy as contemplated in section 7(2) of the Promotion of Administrative Justice Act before launching his application to review. The starting point in determining whether the appellant was obliged to exhaust the internal remedy in section 10(3) of the Health Professions Act, was section 7(2) of the Promotion of Administrative Justice Act which prevents a court from reviewing any administrative action in terms of the Act unless any internal remedy provided for in any other law has first been exhausted. A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it to be in the interests of justice.

It was common cause that the impugned decision in casu constituted administrative action. Therefore, an internal remedy had to be exhausted prior to judicial review, unless the appellant could show exceptional circumstances to exempt him from this requirement. What constitutes exceptional circumstances depends on the facts and circumstances of the case and the nature of the administrative action in issue. Factors taken into account in deciding whether exceptional circumstances exist are whether the internal remedy is effective, available and adequate. An internal remedy is effective if it offers a prospect of success, and can be objectively implemented, taking into account relevant principles and values of administrative justice present in the Constitution and our law; and available if it can be pursued without any obstruction, whether systemic or arising from unwarranted administrative conduct.

The court a quo’s finding that an appeal committee was empowered to consider the merits of the recusal application presupposed that the impugned decision was merely voidable, which was somehow rendered valid as a result of a subsequent decision by the Committee on sanction, or by an appeal committee. However, the Court referred to case authority in which the notion that a refusal by a presiding officer to recuse himself from proceedings in respect of which he was reasonably suspected of bias, rendered that decision voidable, was rejected. Instead, the consequence of a failure to recuse renders the proceedings a nullity. If a presiding officer should have recused himself, proceedings conducted after dismissal of an application for recusal must be regarded as never having taken place at all. The Court therefore confirmed that the internal remedy was ineffective and inadequate as it did not offer a prospect of success and could not redress the appellant’s complaint. The court below should have found that there were exceptional circumstances as contemplated in section 7(2)(c) of the Promotion of Administrative Justice Act, which required the immediate intervention of the court rather than resort to the internal remedy.

It was held further that the appellant claimed a remedy beyond the powers of an appeal committee: it does not exercise original jurisdiction and cannot hear the matter de novo. An appeal committee does not have the power to set aside the proceedings before the Committee.

In the premises, the court below should have found that exceptional circumstances did exist as contemplated by section 7(2)(c) of the Promotion of Administrative Justice Act. The appeal was upheld and the matter remitted to the High Court to hear the review application. Mandela v Executors, Estate Late Nelson Rolihlahla Mandela and others [2018] 1 All SA 669 (SCA) Administrative law – Administrative decision – Common law review – Delay in bringing review application – Court required to determine whether there was an unreasonable delay, and if so, whether such delay should be condoned – Potential for prejudice if impugned decision were to be set aside leading to refusal to condone delay. In November 1997, the third respondent (the “Minister”) took a decision to donate certain immovable property to the late former President of South Africa, Nelson Mandela. By then Mr Mandela’s civil marriage to the appellant had been terminated by divorce. In December 2013, Mr Mandela passed away and left a will in which he bequeathed the property to the Nelson Rolihlahla Mandela Family Trust (the “Trust”). In October 2014, the appellant instituted review proceedings in which she sought an order declaring the Minister’s decision to donate the property as null and void; alternatively, reviewing and setting aside the decision and ancillary relief. She also sought an order declaring as invalid the legacy set out in the will of the late Mr Mandela in respect of the property.

The High Court dismissed the review application, as well as an application for leave to appeal. However, the appellant obtained special leave to appeal from the present Court. The first respondent, the executors of the estate late NR Mandela (the “executors”) and the Minister opposed the appeal – and were referred to jointly in the court’s judgment as “the respondents”.

The review application was dismissed on the basis that there was an unreasonable delay which resulted in severe prejudice to the respondents. The court did not extensively deal with the merits of the review but made reference thereto when considering whether to condone the appellant’s unreasonable delay in launching the review proceedings and whether the appellant had reasonable prospects of success on the merits. It held that almost 17 years had gone by without the appellant doing anything to assert her rights. The delay was therefore inordinate with no acceptable explanation. Held – As the impugned decision was taken in 1997, long before the coming into effect of the Promotion of Administrative Justice Act 3 of 2000, the administrative action and the impugned decision had to be adjudicated in terms of the common law and not the latter Act.

It is desirable and in the public interest that finality be reached within a reasonable time, in respect of judicial and administrative decisions and litigation in general. It was a long-standing rule that courts have the power, as part of their inherent jurisdiction to regulate their own proceedings, to refuse a review application if the aggrieved party has been guilty of unreasonable delay in initiating the proceedings. The rationale for the rule is two-fold: First, the failure to bring a review within a reasonable time may cause prejudice to the respondent. Second, there is a public interest element in the finality of administrative decisions and the exercise of administrative functions. The

application of the rule requires consideration of two questions. The first is whether there, was an unreasonable delay. If so, it had to be decided whether the delay should, in all the circumstances, be condoned. The reasonableness or unreasonableness of a delay is dependent on the facts and circumstances of each case. It is a matter of a factual enquiry upon which a value judgment is called for in the light of all the relevant circumstances, including any explanation that is offered for the delay. A material fact to be taken into account in making that value judgment was the nature of the challenged decision, as not all decisions have the same potential for prejudice.

The appellant’s conduct was found not to be consistent with that of a reasonable person who would have taken steps to establish the outcome of her counterclaim and the fate of her claim to the property. The court agreed with the court a quo that there was an unreasonable delay by the appellant in instituting the review proceedings.

The next question was whether the court a quo, in the exercise of its discretion, correctly concluded that the unreasonable delay should not be condoned, with the result that the application for review could not be entertained. Of primary concern in this inquiry was the inherent potential for resultant prejudice to the heirs of Mr Mandela if the challenged decision was set aside. Although prepared to assume that the appellant’s case on the merits had good prospects of success and that a meaningful result for the appellant would be achieved by setting aside the decision of the Minister, the Court held that the assumed prospects of success were not sufficient to swing the balance in appellant’s favour in deciding whether to overlook the delay, when regard was had to the potential for severe resultant prejudice if the decision of the Minister was set aside.

On the issue of costs, the Court found that the appellant was challenging the legality of a decision of the Minister to donate what she alleged to be her property to Mr Mandela. The litigation thus implicated the constitutional principle of legality as well as her rights to property. Unsuccessful litigants who approach the court, in good faith, to assert constitutional rights, should not be discouraged to do so for fear of having costs awarded against them. The fact that a delay is found by the court to be objectively unreasonable does not mean that the litigation is frivolous or vexatious in the sense contemplated in the Constitutional Court jurisprudence. Concluding that the court a quo misdirected itself by ordering the appellant to pay the costs as against the Minister, the court upheld the appeal on the issue of costs. Each party was to bear its own costs. On the merits, the appeal failed.

Apleni v President of the Republic of South Africa and another [2018] 1 All SA 728 (GP) Civil procedure – Urgency – Where allegations are made relating to abuse of power by a Minister or other public officials, which may impact upon the rule of law and may have a detrimental impact upon the public purse, the relevant relief sought should normally be urgently considered. Constitutional law – Director-General of national department – Suspension of – Minister’s authority to suspend – Power to suspend head of national department

resided with the President of the country and for Minister to exercise such power, there had to have been a lawful delegation by the President – Delegation ostensibly made by President had been done in terms of a provision of the Public Service Act 103 of 1994 which had since been repealed by the Public Service Amendment Act 30 of 2007 – Delegation, being executive action, had to comply with the provisions of section 101(1)(a) of the Constitution, which it did not – Minister having no lawful authority to suspend Director-General. The applicant was the Director-General of the Department of Home Affairs. In September 2017, he was placed on “precautionary suspension” by the second respondent (“the Minister”). In the present urgent application, the applicant sought a declaratory order that the Minister lacked authority to suspend him, and that the suspension was unconstitutional, invalid and of no force and effect. As a secondary line of argument, the applicant contended that even if the Minister had the power to suspend him, the reasons for such suspension were irrational, as the Minister did not have justifiable reason to believe, prima facie at least, that he had engaged in the serious misconduct alleged. It was also contended that the process followed by the Minister in putting into effect the precautionary suspension was procedurally unfair. Held – The Court accepted that the application was urgent. Where allegations are made relating to abuse of power by a Minister or other public officials, which may impact upon the rule of law and may have a detrimental impact upon the public purse, the relevant relief sought should normally be urgently considered.

Regarding the precautionary suspension, the applicant averred that the Minister had exercised a power reserved for the President and which had not been delegated to her. It was stated that the only way in which the Minister would have been empowered to suspend the applicant and exercise the power she purported to exercise, was if she had a proper and lawful delegation from the President, which had not occurred. The precautionary suspension was therefore alleged to be unlawful and the Minister was said to have acted ultra vires. The delegation ostensibly made by a former President had been done in terms of a provision of the Public Service Act 103 of 1994 which had since been repealed by the Public Service Amendment Act 30 of 2007. Section 12 of the 2007 amending Act deals with the appointment of Heads of Department and career incidents and states that such, in the case of a head of a national department, shall be dealt with by the President.

Rejecting the respondents’ contention that the former President’s purported delegation was akin to an administrative decision, the Court found that the delegation, relating as it did to policy matters, was an executive act. Accordingly, it had to comply with the provisions of section 101(1)(a) of the Constitution. The evidence established that it did not – being unsigned by the President or by a Cabinet member as envisaged in the section.

The upshot of the above was that the Minister had no lawful authority to suspend the applicant. The suspension of the applicant by the second respondent was declared unconstitutional, and of no force or effect. The precautionary suspension was thus set aside.

Heath v President of the Republic of South Africa and another [2018] 1 All SA 740 (WCC)

Legal Practice – Judges – Application by former judge to undo resignation – Legality challenge – Undue delay in bringing of application for common law review – Once the defence of undue delay is raised, it is incumbent upon an applicant for review to persuade the court that the application has been brought within a reasonable time of the impugned decision having been made – Court must decide if delay was unreasonable, and if so, whether condonation should be granted. In May 2001, the applicant tendered his resignation as a High Court judge, and proceeded to pursue a career in the private sector. In August 2016, he launched the present application to effectively undo his resignation as a judge more than 15 year before. In that regard he relied on the common law and not the judicial review provisions of the Promotion of Administrative Justice Act 3 of 2000.

The resignation of the applicant as judge came about in the following circumstances. In 1997, the applicant had been appointed as head of the Special Investigations Unit (“the SIU”) established under the Special Investigation Units and Tribunals Act 74 of 1996. In March 1999, the SIU was mandated to investigate the affairs of certain personal injury lawyers who were accused of fleecing the public purse in making extravagant claims against the Road Accident Fund. A group of such lawyers formed a voluntary association known as the South African Association of Personal Injury Lawyers (“SAAPIL”), which approached first the High Court in Pretoria, and ultimately the Constitutional Court, for relief which attacked the very heart of the SIU. It was claimed that the position of a sitting judge as the head of the SIU was inconsistent with the Constitution, in particular because it undermined the independence of the judiciary and encroached upon the separation of powers principle. That argument was upheld by the Constitutional Court. The Constitutional Court held that the SIU could not be headed by a judge and gave the Legislature a year to amend the SIU Act, but until that time, the applicant could continue in his position as head of the SIU. Thereafter, he could no longer serve as head of the SIU and remain a sitting judge. The applicant decided to explore relinquishing his judicial office in order that he could continue holding his position as Head of the SIU. His request for discharge was refused by the then President, and he therefore tendered his resignation. Held – Judges hold office under the Judges’ Remuneration and Conditions of Employment Act 47 of 2001 and their removal from office is strictly controlled by that statute. When they reach what would generally be regarded as the age of retirement, they are entitled to be discharged from active service without more in terms of section 3(2) of the current Judges’ Remuneration and Conditions of Employment Act. The applicant stated that central to his request for discharge was the SAAPIL judgment (SA Association of Personal Injury Lawyers v Heath and others 2001 (1) BCLR 77 (2001 (1) SA 883) (CC)). The thrust of the case in the founding affidavit was that his independence and integrity as a judge were compromised by the judgment in SAAPIL and that that precluded him from returning to the bench. As the respondents suggested that the applicant had taken the matter unnecessarily personally and that there was nothing which precluded his return to the bench in 2001, it was necessary to consider precisely what the Constitutional Court had held.

The Constitutional Court was cautious not to cast any aspersions on the applicant which suggested that his conduct as Head of the SIU was anything but bona fide and exemplary. Instead, the judgment sought to stress the incompatibility of the position of the head of the SIU with judicial independence. It could therefore not be said that the

applicant’s standing as a judge was in any way compromised by the work he performed as head of the SIU.

It was argued for the applicant that the decision of the President to refuse to grant a discharge from judicial office in terms of section 3(1)(d) of the Judges’ Remuneration and Conditions of Employment Act 88 of 1989 failed to meet the constitutional principle of legality. It was argued that the President exercised his discretion in an unreasonable and irrational manner and that it fell to be reviewed on that ground alone. The argument was that, although the applicant’s appointment as a judge was terminated by his own act of resignation, he was left with little choice to do so after the President had refused to grant him a discharge. The present application therefore had to be determined as a legality challenge – to be instituted in terms of rule 53 of the Uniform Rules of Court and the common law principles relevant thereto.

The respondents raised the objection of undue delay in the bringing of the application. The common law delay rule applied. In terms thereof, once the defence of undue delay is raised, it is incumbent upon an applicant for review to persuade the court that the application has been brought within a reasonable time of the impugned decision having been made. The court is then obliged to adopt a two-phase approach. If it finds that the delay is reasonable, that is the end of the enquiry and the review proceeds. But if it finds that the delay is not reasonable, it will be required to determine whether the delay should be condoned. The Court was not required to undertake the first part of the inquiry, as the applicant brought an application for condonation of the delay – thereby acknowledging that the application for review was late.

Having regard to the explanation put up in the founding affidavit in relation to the question of delay, the Court was unable to find any proper explanation for the failure to lodge the review application within a reasonable time after May 2001, nor was there any feasible explanation as to why the applicant delayed for such an extended period of time thereafter. There was no basis for the Court to consider condoning the filing of the application more than 15 years after the event. The application for condonation and for the relief sought in the notice of motion was dismissed. Maharaj v Gold Circle (Pty) Ltd [2018] 1 All SA 760 (KZP) Constitutional and Administrative law – Section 9 of Constitution – Right to equality and prohibition against unfair discrimination – Equality Courts established in terms of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 – Proceedings in such courts intended to be less formal than in traditional courts – Conduct of presiding officer in refusing to allow appellant to place his case before the court and in proceeding to dismiss the case on the basis of res judicata rendering proceedings unfair. The appellant was a South African and a member of the local Indian population. He was a racehorse trainer by profession.

In 1989, when he first applied to the Jockey Club of South Africa to be admitted as a horse trainer, his application was turned down on the basis of his skin colour. That prompted the appellant to leave the country for Australia where he was allowed to work in the horse racing industry. After the advent of democracy in South Africa in 1994, he returned to the country, and once again applied for a licence to the National Horseracing Authority of Southern Africa (“NHA”), the authority in charge of horseracing in the country. His licence was granted only after resistance to his

application was overcome, and the head executive steward of the NHA at the time intervened. Despite being issued with a licence, the appellant experienced undue hardship in the horseracing establishment. His training establishment was situated outside a training centre managed by the respondent. The latter initially refused to lease him boxes to house his horses, but subsequently allowed the appellant to lease 14 boxes at the centre. In 2002, the appellant’s trainer’s licence was suspended for five years by the NHA arising out of two incidents of assault which he committed at work against a White person. The altercations in question involved the issue of race. The appellant was escorted off the premises and was forced to make arrangements for the transfer of the horses he was training to other trainers. That arrangement went on for about three months during which he was charged a rental of R11 000 for the leasing of the stabling boxes from the respondent. Upon expiry of his suspension in 2007, the appellant once again applied for stabling facilities from the respondent. The latter refused the request, providing no reasons for the decision. The appellant was convinced that he was being racially discriminated against by the respondent. He held this view because other trainers of the White group, who were also involved in acts of assault or other unlawful conduct, continued to be accorded the privilege of holding stabling facilities with the respondent. Those facilities, according to the appellant, were never withdrawn or denied to such members, even after they were found guilty of unlawful behaviour.

As a result of the above, the appellant lodged a complaint with the Equality Court (“the 2008 case”). His complaint was dismissed, as was an appeal against that finding to the High Court. In January 2016, the appellant again applied in writing to the respondent for stabling facilities, but was refused. He then lodged a complaint of unfair discrimination based on race in the Equality Court, Durban (the “2016 case”). The respondent filed a statement in which it raised a plea of res judicata. The Equality Court dealt with the matter solely on that plea – in the form of issue estoppel. Without hearing any evidence on the substantive grounds raised by the appellant in his affidavit, the court ruled that the matter was indeed res judicata. In the present appeal against that decision, the appellant sought the setting aside of the decision of the Equality Court with costs and remitting the matter to that court for the leading of evidence before a different presiding officer. Held – Section 9 of the Constitution deals with the issue of equality, and prohibits unfair discrimination. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was enacted to give effect to the constitutional imperatives in section 9 of the Constitution. Section 16 establishes Equality Courts. Setting out the broad framework and objectives of the Equality Act, the Court pointed out that the proceedings in the Equality Court are less formal and provide for convenient and easy access in order to correct an act of discrimination and to seek redress in respect thereof. Also relevant to the present dispute was the KwaZulu-Natal Gaming and Betting Act 8 of 2010, which provides for the regulation of gaming, horse racing and betting in the province, and also provides for the establishment of a Gaming and Betting Board.

The respondent held a licence to conduct horseracing, a sporting event or other event or contingency in terms of the KwaZulu-Natal Gaming and Betting Act. The terms and conditions of its licence were set out in various schedules. In terms of its

licence conditions, it was obliged to adhere to the transformation goals set out in the legislation.

Turning to the proceedings before the Equality Court in the 2016 case, the Court stated that the proceedings were not fair – largely due to the manner in which the magistrate conducted himself at the time. The magistrate was simply not prepared to allow the appellant to place his case before the court, adopted a bombastic and belligerent attitude; and was extremely impatient to the point of being rude. The appellant’s attempts to explain that the 2016 case was based entirely on new evidence which was relevant and material to the issue before the court were brushed aside, and the magistrate proceeded to dismiss the complaint on the plea of res judicata. The magistrate’s attitude rendered the proceedings unfair from the start and on that basis alone, the matter was to be remitted to start afresh before a different judicial officer.

The five grounds relied on by the appellant in the 2016 complaint were found to be relevant and the Court ruled that he should be allowed to lead whatever relevant evidence he wished to in that regard. It was confirmed that the 2016 complaint was based largely on a new cause of action which required adjudication by the Equality Court. The matter was remitted to the Equality Court to commence de novo before a different presiding officer. The respondent was ordered to pay the appellant’s costs of appeal, such costs to include the costs of Counsel.

Changing Tides 17 (Pty) Limited NO v Wagg (Formerly Weitsz) and another [2018] JOL 39594 (ECP)

National Credit Act-Consumer – Debt review – Debt review order – Alleged breach- applicant’s attempt to challenge the debt review orders made was without merit

The applicant was a registered credit provider which had granted the respondents a home loan. Alleging that the respondents had not adhered to the terms of the loan agreement, the applicant sought to foreclose on the property secured by a bond in favour of the applicant. It instituted the present proceedings, claiming payment and an order declaring the property executable. The applicant alleged that the respondents also failed to adhere to the terms of a debt review order which entitled the applicant to enforce the terms of the loan agreement without having to apply for a variation or a setting aside of the order of the magistrate who made the rearrangement or debt review order.

The respondents disputed being in breach of the debt review order on the basis that any short payment by them was caused by payment of the debt counsellor’s fee as well as legal costs that was catered for in the debt arrangement order.

Held that the applicant’s attempt to challenge the debt review orders made was without merit as the orders were made by consent. Furthermore, the applicant failed to demonstrate to what extent the respondents were in arrears, or in breach of the debt review orders. It also did not show why, in the light of the respondent’s denial that they were in breach of any debt arrangement, the applicant alleged that they were in default.

The application was dismissed.

Funeka v T Qina & Sons [2018] JOL 39597 (ECM)

Prescription- Special plea – knowledge of attorney imputed to the plaintiff

The plaintiff sued the defendant, who was an attorney she had instructed to pursue a claim against the Road Accident Fund (“the RAF”). The action arose after the claim was allowed to prescribe. The plaintiff alleged negligence on the defendant’s part in that regard. She alleged further that she had suffered damages and that the defendant was liable to compensate her accordingly.

The defendant filed a special plea of prescription, averring that the summons was served against him more than three years after his alleged negligence was said to have occurred. The prescriptive period set out in section 12(1) of the Prescription Act 68 of 1969 was relied on in that regard. In resisting the plea, the plaintiff alleged that the defendant had wilfully prevented her from finding out about the prescription of her claim, and that the cause of action could therefore only be said to have arisen after the date on which the alleged negligence was said to have occurred.

Held that the plaintiff had terminated her mandate with the defendant in 2009, and instructed new attorneys. As her duly appointed agents, the knowledge of the existence of the debt owed by the defendant to the plaintiff which her new attorneys ought reasonably to have had on receipt of the contents of her file from the defendant, was knowledge which ought to be imputed to the plaintiff. In the circumstances, any belief held on behalf of the plaintiff that she was entitled to an extension of the time before the commencement of the prescription was unfounded. The defendant’s special plea was thus upheld.

Bannister’s Print v D & A Calendars (1078/2016) [2018] ZASCA 17 (15 March 2018)

Court orders-Settlement agreements- An agreement of settlement of litigation, forged by a lawyer for one of the parties, cannot be relied on by the other party. It is a nullity.

[1] The facts giving rise to the litigation between the parties in this appeal are extraordinary, but not in dispute. Two of the parties are corporate entities each owned by members of the Bannister family. The appellant is Bannister’s Print (Pty) Ltd (Print), controlled by Mr Sonny Bannister. The respondents are D & A Calendars CC (Calendars), and Mr Darryl Bannister (Darryl) the son of Sonny Bannister. The members of Calendars are Darryl and his wife. The Bannisters are not on good terms and Print and Calendars have a dispute about various financial claims against each other.

[2] In April 2011, Print instituted action against Calendars and Darryl as second defendant in the South Gauteng High Court for payment of certain amounts, and Calendars in turn raised various claims against Print. Darryl consulted Mr M Strauss, an attorney working for Ian Levitt Attorneys (Levitt), and asked him to represent Calendars and him in the litigation. Strauss delegated the matter to a professional assistant working for Levitt. The professional assistant left the employ of Levitt in 2012.

[3] In June 2012 Levitt hired Mr Marc Lieberthal, who had completed his articles of clerkship, but had not been admitted as an attorney because his previous employer had refused to sign a certificate of good conduct. Mr Levitt was aware of this, but the firm nonetheless gave the work of conducting the litigation on behalf of Calendars to Lieberthal – something of which Mr Levitt maintained he was ignorant.

[4] Lieberthal advised Darryl in November 2012 that he would be dealing with the matter, and Darryl and his wife consulted Lieberthal in that month. Lieberthal told them that the trial had been set down for hearing in February 2013, but was unlikely to proceed then. Darryl’s attempts to contact Lieberthal towards the end of 2012 and at the beginning of 2013 were unsuccessful. He assumed that the trial was not proceeding.

[5] Early in the morning on 5 February 2013, Darryl was phoned by Lieberthal, who asked whether he had received an email allegedly sent by Lieberthal the previous day. Darryl had not in fact received anything. Lieberthal advised that Print’s attorney had sent him an agreement in an attempt to settle the litigation, such that claims and counterclaims would be withdrawn. Lieberthal wanted the agreement signed and sent to him immediately, as he needed it in court that morning. Darryl said that Lieberthal sounded frantic. He was astonished that Print was willing to withdraw its claim, but believed Lieberthal.

[6] Later in the day Darryl received an email with the draft settlement agreement attached. He printed it out on yellow scrap paper, and amended it by deleting various provisions that would have left the claims against Calendars and him extant. The effect of the draft, before Darryl amended it, would have been to record that Calendars was indebted to Print in the sum of R846 626 plus interest, and that if it were not paid within 30 days of the date of the agreement, the full sum claimed by Print, some R2 390 707, would become due immediately. Darryl crossed these provisions out, initialed the first to fourth pages with his deletions, and signed the draft on the last page. He sent the amended draft to Lieberthal by fax.

[7] In about March, possibly April, of 2013 Lieberthal phoned Darryl and asked him to send the signed original of the draft agreement to the Levitt offices. Calendars’ driver delivered it there. Darryl heard nothing more until 10 May 2013, when the sheriff of the high court arrived at the premises of Calendars with a writ of execution. He phoned Lieberthal to ask why this had occurred. Lieberthal undertook to investigate, and asked for a copy of the writ.

[8] Darryl managed to obtain a copy of the court order that had given rise to the writ. It transpired that it was in the form of the draft that had been sent to him by Lieberthal in early February, emanating from Print’s attorneys, and the amendments made by Darryl were not reflected in the agreement in the court file. It became common cause that Lieberthal had forged Darryl’s initials on the document submitted to court, but had used the last page which Darryl had signed. The entire document was thus a fiction created by Lieberthal.

[9] When the action was called at roll call before Mojapelo DJP in the then South Gauteng High Court, Print and Calendars were represented by counsel. They advised the Deputy Judge President that the matter had been settled. But the original of the alleged agreement of settlement was not in the file so the matter stood down until a copy was transmitted by fax to the court building, and was then handed up. The court made the alleged agreement an order of court, provided that it was not

uplifted until the original was placed in the court file. The original document that Lieberthal possessed, delivered to him by Calendars, was never placed in the court file. The signed yellow scrap paper draft was found some time after his departure from Levitt, hidden behind a cupboard.

[10] In early July 2013, Calendars and Darryl applied to the South Gauteng High Court for an order declaring the agreement of settlement to have been fraudulently created and void ab initio. Satchwell J granted the application. Darryl deposed to the founding affidavit and Ian Levitt deposed to a supplementary affidavit in support of the application. Levitt made much of his ignorance of the matter, and advised that when he had discovered the way in which Lieberthal had dealt with his clients, he had instituted disciplinary proceedings against Lieberthal, and appointed someone to chair a disciplinary hearing. The details of what happened are not germane to this appeal. Suffice it to say that Lieberthal did not appear at his hearing, and regarded himself as dismissed. He subsequently wrote to Levitt apologizing for his behaviour, which he claimed was the result of a psychiatric disorder. It is not necessary to deal with the question whether Levitt was to blame for the whole fiasco. A claim against him is not before us.

[11] Print opposed the application for an order that the alleged agreement of settlement was a nullity. It argued that, although the agreement might have been obtained fraudulently, Calendars and Darryl had led it reasonably to believe that Lieberthal had authority to conclude the agreement and were thus estopped from asserting its invalidity. Sonny Bannister, in his answering affidavit, contended that Calendars and Darryl had authorized Lieberthal to act on their behalf, and that Print was entitled to accept that he was acting on their instructions. Print, he contended, had been detrimentally affected by Lieberthal’s conduct.

[23] The appeal is dismissed with the costs of two counsel.

Phofung Project Consulting (Pty) Ltd v Standard Bank Of South Africa Ltd (A232/2017) [2018] ZAFSHC 21 (8 March 2018)

Summary judgment-full disclosure-technical defences-mistake to rely on it

Summary judgment-Generally ordered that costs of the application shall be costs in the principal matter, alternatively that costs shall stand over for adjudication-not when materially defective, as in casu.

This is an appeal by the two unsuccessful defendants in summary judgment proceedings heard in the Magistrate's Court, Bloemfontein ("the court a quo"). The crucial issue on appeal is whether or not the summary judgment application is defective to such an extent that summary judgment should not have been granted.

It may be argued that appellants did not make a full disclosure and might have been found wanting if they were facing a proper application for summary judgment. It is merely denied that first appellant, the principal debtor, breached any of the terms of annexure “A". By so contending they apparently wished to state that the principal debtor was never in default with any of its obligations and, therefore, that summary judgment could not be granted against either the principal debtor or the surety. The court a quo mistakenly focused on appellants' reliance on technical defences and as a result found that they "failed to set out a bona fide defence." Such an approach was incorrect. In acting as it did, it failed to accept that the starting point in

adjudicating summary judgment applications is the application itself. Once it is found to be defective, then "cadit quaestio.” Even if the court a quo's criticism of appellants' answering affidavit is regarded as fair and it is accepted that appellants failed to set up a defence to meet the standard required to successfully resist summary judgment, this is immaterial for the reasons stated by Wallis J in Shackelton Credit Management supra. Consequently the appeal is bound to succeed.

Generally, and once the court is satisfied that a defendant has made out a bona fide defence in opposed summary judgment proceedings, it is ordered that costs of the application shall be costs in the principal matter, alternatively that costs shall stand over for adjudication at the trial. However, where the plaintiff launches a summary judgment application which is materially defective, as in casu, there is no valid reason why he shall not bear the costs of the application, including the costs of opposition. That is the order I intend to make.

Loggenberg N O & others v Maree (286/2017 [2018] ZASCA 24 (23 March 2018)

Exceptions-exception – non-compliance with s 2(1) of the Alienation of Land Act 68 of 1981 – alleged sale of land not reduced to writing – appellants orally agreed with respondent that he purchase a farm for the benefit of a trust to be formed and that trust would be entitled to transfer of the farm upon reimbursement of respondent’s costs – trustees seeking to enforce oral agreement – vagueness – agreement not a contract of sale – not invalid in terms of s 2(1) of Act 68 of 1981 – appellants’ pleadings disclosing a cause of action and not vague – case remitted for trial.

The SCA Set aside a decision by the Free State High Court which upheld an exception to particulars of claim on the ground that they did not disclose a cause of action. In 2011, Mr Loggenberg, a farmer in financial difficulty, and Mr Maree, a local attorney, entered into an oral agreement that Mr Maree would purchase the Loggenberg’s family farm, Weltevreden, at a sale in execution for the benefit of a trust that would be created to protect the Loggenberg family interests. The farm would be registered in Mr Maree’s name until the trust could acquire ownership of it, against reimbursement of Mr Maree’s costs in purchasing and holding the farm. Mr Maree bought the farm for R500 000. It was alleged that he reneged on the oral agreement and sold the farm to a third party for R5, 2 million. Mr Loggenberg obtained an interdict to prevent the transfer of the farm to the third party. He then sought to enforce the agreement but the high court held that the agreement to transfer the farm to the trust was a sale which fell foul of s 2 of the Alienation of Land Act 68 of 1981 because the agreement was not in writing. Mr Loggenberg appealed. The SCA upheld the appeal and found that the particulars of claim disclosed a cause of action. Properly interpreted, the oral agreement did not constitute a sale of the farm. The case was remitted to the high court for trial.

Brompton Court Body Corporate v Khumalo (398/2017) [2018] ZASCA 27 (23 March 2018)

Prescription – an arbitration award generally does not create a new debt for purposes of the Prescription Act 68 of 1969 (the Act) – a claim to make an arbitration award an

order of court in terms of s 31 of the Arbitration Act 42 of 1965 is not a ‘debt’ in terms of the Act.

The appellant is the body corporate of the Brompton Court sectional title scheme. At all relevant times the respondent, Ms Christina Fundiswa Khumalo, owned a sectional title unit in the scheme. Disputes arose between the parties, which, by agreement, were referred to arbitration.

[2] The respondent was the claimant in the arbitration. She claimed that her account with the appellant be credited with various amounts in respect of levies, other charges and interest that I find unnecessary to particularize. She also claimed: (a) the costs of repairs to the structure of the unit, for which she asserted the appellant was responsible; (b) damages on the basis that as a result of the conduct of the appellant, she was unable to rent out the unit for a period of three months; and (c) damages for defamation. The appellant counter-claimed for payment of the outstanding balance owed to it by the respondent in respect of ordinary levies, special levies, a security levy, consumption of electricity and interest.

[3] The arbitrator published his award on 21 December 2012. He allowed the claims for the costs of repairs (in the amount of R20 000.00) and for loss of rental income (in the amount of R27 750.00) but dismissed all of the respondent’s other claims. The arbitrator found that the respondent owed the amount of R135 099.48 in respect of the counter-claim. He subtracted the aforesaid amounts of R20 000.00 and R27 750.00 from this amount and made an award in favour of the appellant for payment of the balance of R87 349.48, interest thereon and costs of the arbitration.

[4] Per notice of motion issued on 26 March 2014, the appellant applied in terms of s 31 of the Arbitration Act 42 of 1965 to the Gauteng Local Division of the High Court, Johannesburg that the arbitration award be made an order of court. The respondent opposed the application in effect only on the basis that the debt in question had prescribed in terms of the Prescription Act 68 of 1969 (the Act). (In the absence of an application to review the arbitration award, the allegations in the answering affidavit that the arbitrator was biased or exceeded his authority, did not constitute a defence to the application.) The court a quo (Mokose AJ) upheld the defence of prescription and dismissed the application with costs. She refused leave to appeal but the appellant was subsequently granted leave to appeal by this court. The issue in the appeal is whether the defence of prescription was correctly upheld.

It is immediately apparent that prescription was raised as if s 13(1)(f) of the Act provided for a one year period of prescription in respect of an arbitration award. This proposition formed the basis of the judgment of the court a quo. The proposition is of course clearly wrong. Section 13(1)(f) provides nothing of the sort. It deals with the delay in the completion of the running of prescription. The requisite periods of extinctive prescription in terms of the Act are to be found in s 11 thereof. Applied to the facts of this case, s 13(1)(f) provides that if the relevant period of prescription in respect of a debt would, but for the provisions of the subsection, have been completed before or on within one year of the date of publication of the award on 21 December 2012, the completion of the period of prescription in respect of such debt would be delayed for one year after 21 December 2012.

Nkola v Argent Steel Group (Pty) Limited t/a Phoenix Steel (406/2017) [2018] ZASCA 29 (26 March 2018)

Execution-A judgment debtor who claims that he has sufficient movable assets to satisfy the debt cannot avert execution against his immovable property unless he makes the movables, including incorporeals, available for execution.

The issue in this appeal is whether a judgment creditor is entitled to have two immovable properties belonging to the debtor declared specially executable when the movable assets of the debtor are alleged to exceed the value of the judgment debt. The parties have been locked in litigation for several years. The appellant, Mr B S Nkola, has an admitted liability to the respondent, Argent Steel Group (Pty) Ltd t/a Phoenix Steel (Argent). The court of first instance (the East London Circuit Local Division of the High Court – Jacobs AJ) granted the application and declared the properties, both residential, executable.

[2] Jacobs AJ gave leave to appeal to a full court of the Eastern Cape Division, Grahamstown. The full court (Beard AJ, Beshe and Lowe JJ concurring) dismissed the appeal. Mr Nkola has brought a second appeal with the special leave of this court. The argument he makes is that he has substantial movable assets in the form, largely, of shares in companies that he controls, but also expensive motor cars, and that Argent should have obtained execution in respect of these before seeking execution in respect of the immovable properties. He proffers no explanation as to why he has not realized these assets in order to pay his admitted liability. His argument assumes that the creditor, Argent, must find these assets, and that he is under no obligation to make them available for execution. I shall consider the essential facts giving rise to the litigation before discussing the argument that Mr Nkola makes.

[3] The judgment debt is in the sum of R914 712, plus interest and costs. It arose from a deed of suretyship that Mr Nkola signed in 2008 in favour of Argent, guaranteeing the obligations of a company controlled by him, School Furniture and Timber Products (Pty) Ltd (School Furniture), to which credit facilities had been extended by Argent. School Furniture did not honour its obligations to Argent, which claimed R2 851 504 from Mr Nkola as surety.

[4] In July 2011, Argent applied for and was granted a default judgment against Mr Nkola in the sum of R914 712. Mr Nkola’s application for rescission of the judgment was dismissed. Argent first tried to execute against the movable property of Mr Nkola. The sheriff attached household furniture at one of his houses in October 2013. His return stated that Mr Nkola was unable to pay the judgment debt, and that goods described by him in an inventory had been attached. Mr Nkola’s wife filed an affidavit shortly after the sheriff’s return was made claiming that the furniture and household goods belonged to her. The goods were released from attachment.

[5] On 17 January 2014, Argent brought the application under consideration for a declaration that the two immovable properties be declared specially executable. However, the parties entered into a settlement agreement in May 2014, in terms of which the latter would pay R100 000 a month to Argent to settle the debt. The agreement was made an order of court and Mr Nkola consented to execution in the event of his default. Mr Nkola failed to pay a single instalment.

[6] As I have said, Mr Nkola has throughout, including in this appeal, argued that before the immovable properties could be sold in execution, his movable assets should have been attached and sold in execution. It is of course correct that in executing a judgment, a debtor’s movable property must be attached and sold to

satisfy the debt before the creditor can proceed to execute against immovable property. Only if they are insufficient to fulfill the debt may a creditor proceed against immovable property. The common law rule is given effect in rules 45 and 46 of the Uniform Rules of Court.

[7] Rule 45(3) requires the officer of the court executing the order to demand payment of the debt by the debtor, and failing payment, ‘demand that so much movable and disposable property be pointed out as he may deem sufficient to satisfy’ the writ of execution, and failing such pointing out, search for such property. The rules specify how incorporeal movable property is to be attached.

[8] There is no evidence on record that any movable assets, corporeal or incorporeal, were pointed out by Mr Nkola to the sheriff. Yet in his answering affidavit in the application, he claims to have ‘more than sufficient movable assets of significant value (far in excess of the judgment debt) against which the applicant can execute should it choose to do so, without having to execute against my immovable properties.’ Mr Nkola continued:

‘I am the shareholder in five active companies . . . .The applicant would be at liberty to execute against any/all of my shares or loan accounts in these companies . . . but which attachment has not been done for reasons which are not apparent to me presently. I have other movables too, which should be excussed, over and above my said shares and loan accounts (in four of aforementioned companies these are valued at the sum of R2,763,00.00) These other movables of mine are, inter alia, motor vehicles (valued at R1,597,617.00), furniture and fittings . . . and a Liberty Life retirement annuity policy . . .’.

[9] Mr Nkola went on to say that, although he owned assets of significant value, he could not afford to pay the instalments that he had undertaken to pay under the settlement agreement for various reasons. But, he said, when certain problems had been resolved (which he anticipated would occur in December 2014), he would be able to settle the debt to Argent.

[10] The question that springs to mind immediately is why Mr Nkola, possessed of such wealth, did not dispose of his incorporeal property and pay the admitted debt to Argent. His stance is that Argent must seek out the movables and sell them before attempting to execute against his immovable properties. He would place the duty on the judgment creditor instead of resolving his financial problems himself.

[11] I consider that the common law and the rules place no obligation on a creditor to execute against movable assets where a judgment debtor has failed to point these out and make them available. The sheriff’s return read together with Mr Nkola’s ‘defence’ raised in his answering affidavit, show him to be a ‘tricky’ debtor of the kind referred to by Voet 42.1.42 (in Gane’s translation), cited by Wunsh J in Silva v Transcape Transport Consultants & another 1999 (4) SA 556 (W). Voet wrote:

‘Generally the judgment debtor himself is asked to point out to the person making the execution the property which he wishes to be taken and sold off with a view to the securing of a judgment debt. If he refuses to do so or does so in a tricky manner or points out what is not enough, the court servant himself seizes at his discretion those things from which the money can most readily be made up. He does so up to the limit of the debt.’

There is no justification for interfering with the exercise of her discretion by Jacobs AJ, as the full court rightly found.

[20] Accordingly, the appeal is dismissed with costs. FirstRand Bank Ltd t/a Wesbank v A and E Registrations (Pty) Ltd and another [2018] JOL 39675 (GJ)

Summary judgment-Instalment sale agreement – Suretyship agreement – no bona fide defence only technical points, judgment granted

National Credit Act 34- applicable- no, defendants had signed the instalment sale agreement acknowledging that the National Credit Act did not apply to it.

In November 2015, the plaintiff and the first defendant concluded an instalment sale agreement for a vehicle. The plaintiff performed in terms of the agreement by delivering the vehicle to the first defendant. It was not in dispute that the second defendant had signed a deed of suretyship in terms of which she bound herself jointly and severally as surety and co-principal debtor for the punctual payment of all sums due or to become due to the plaintiff by the first defendant. The second defendant signed a deed of suretyship limited to the amount of R161 063,43.

In the present application for summary judgment, the plaintiff sought cancellation of the agreement, and an order directing the first and / or second defendants to return the vehicle to the plaintiff.

The defendants contended that there was no valid agreement between the plaintiff and the first defendant since the plaintiff did not sign the agreement. Further, it was argued the deponent to the affidavit in support of summary judgment did not state why he swore positively to the cause of action of the plaintiff but failed to disclose that the second defendant had signed a limited surety. The defendants further contended that the National Credit Act 34 of 2005 was applicable in the agreement between the parties, and that the agreement was not a large credit agreement as claimed by the plaintiff. The plaintiff, so it was contended, had failed to comply with section 129 of the Act.

Held that where the parties performed in terms of the agreement and where there was no statutory provision that provided for the agreement to be signed by both the parties, it was not open to the defendants to challenge the validity of the agreement due to the plaintiff not having signed it.

The Court found further that the defendants had signed the instalment sale agreement acknowledging that the National Credit Act did not apply to it. The parties having agreed to transact outside the prescripts of the Act, it was absurd for the defendants to now attempt to rely on the provisions of the Act. Compliance with section 129 was therefore not required.

For a defendant to successfully resist an application for summary judgment, it must satisfy the court that it has a bona fide defence by disclosing fully the nature of the grounds of the defence and the material facts relied upon for such defence. The defendants filed an affidavit resisting summary judgment which affidavit contained only the technical defences referred to above. The Court was satisfied that the first defendant had no bona fide defence to the claim of the plaintiff and that the

appearance to defend had been entered solely for the purposes of delaying the plaintiff from getting the relief sought. Summary judgment was granted.

Special Investigating Unit and another v Smith and others [2018] JOL 39606 (ECG)

Exceptions-Unjust enrichment – vague and embarrassing or lacks the averments which are necessary to sustain a cause of action- exceptions dismissed

The first plaintiff was the Special Investigating Unit (SIU) established in terms of the Special Investigating Units and Special Tribunal Act 74 of 1996, and the second plaintiff was the Member of the Executive Council for the Eastern Cape Provincial Department of Education, responsible for the functions of the Department. The defendants were the trustees of a trust. They were cited in their capacities as trustees of the trust as well as in their personal capacities.

The plaintiffs’ claim against the defendants arises from a Service Level Agreement (SLA) which was concluded on 26 August 2014 by the Eastern Cape Provincial Department of Education (the Department) and the trust. In terms of the aforesaid SLA, the department procured laptops, computers and photocopiers from the trust. Later there was an investigation into the validity of the SLA. It was not clear from the particulars of claim whether there were any findings that were made by the SIU. Nevertheless, the plaintiffs instituted an action against the defendants alleging that there was non-compliance with the procurement processes and that the SLA was consequently unlawful and void ab initio.

Three exceptions were raised against the particulars of claim.

Held that Rule 23(1) provides that an exception may be taken against a pleading on the ground that it is vague and embarrassing or lacks the averments which are necessary to sustain a cause of action. Where an exception is taken, the court must look at the pleading as it stands, no fact outside those stated in the pleadings can be brought into issue except in the case of inconsistency and no reference may be made to any other document. An exception that a pleading is vague and embarrassing will not be upheld unless the excipient will be seriously prejudiced if the offending allegations were not expunged. The effect of that is that the exception can be taken only if the vagueness relates to the cause of action. The test is a stringent one. To succeed in an exception that a pleading is vague and embarrassing, the excipient must establish that the pleading lacks particularity to the extent that it is vague. In addition the vagueness must cause embarrassment of such a nature that the excipient is prejudiced.

The first exception to be addressed, the defendants averred that no case had been made in the particulars of claim as to why the second defendant should be held personally liable, or that he benefitted in his personal capacity in circumstances which attracted delictual or contractual liability. It was submitted that the particulars of claim were fatally defective, alternatively vague and embarrassing and that the second defendant was unable to plead. The court was satisfied from the particulars of claim that a case had been made why the second defendant should be held personally liable. The facts as pleaded were sufficient to infer the existence of a duty of care.

The next exception was not upheld either, as the Court found that the basis for alleging that the trust was justly enriched have been clearly set out in the particulars of claim.

In the final exception to be considered, it was contended that the plaintiff’s particulars of claim did not disclose a cause of action for damages - alternatively they were vague and embarrassing. The Court held that it had been pleaded that the loss was suffered as a result of the unlawful agreement, and the loss suffered had been set out in the particulars of claim.

The exceptions were dismissed.

Keyter NO v Keevy and others [2018] JOL 39704 (ECG)

Prescription – Nature of agreement – Whether claim was rei vindication- a deceased estate-claim was a debt

The appellant was appointed as the executor in a deceased estate in 2006. The testator was survived, inter alia, by his spouse (Hazell). In September 1993, the administrators in the estate of the testator (the trustees in the trust) and Hazell, on the one hand, entered into a written agreement of lease with the first respondent, on the other hand, in terms of which certain farms, implements and livestock were leased to the first respondent. The written deed of lease acknowledged that Hazell held the stock as usufructuary and it recorded that the lease would terminate upon the death of Hazell. Hazell died in June 2003, bringing the lease to an end. The first respondent was accordingly obliged then to re-deliver sheep of equal number and value as he had received at the commencement of the lease (the stock) to the administrators of the estate of the testator (the trustees of the trust). He failed to do so. Instead, the person who had been duly appointed as the executor in the deceased estate of Hazell, took possession of the stock and declined to deliver all or any of them to the trustees. Upon his appointment, the appellant demanded delivery of the stock to him. He sought the rendering and the debatement of an account and payment of such sums as were found to be due by the third respondents to the appellant. The third respondents raised a plea of prescription which was upheld in the court a quo. That led to the present appeal.

The appellant argued that the action instituted was a rei vindicatio founded upon the appellant’s ownership of the stock and that it was therefore not a “debt” as envisaged in Chapter 3 of the Prescription Act.

Held that the agreement in question, although commonly referred to as “a lease” was in fact not a lease, but a loan for consumption. An essential feature of a contract of lease is that the lessee is required at the termination of the contract to return the property which had been delivered to him at the commencement of the lease. A “lease” of livestock (commonly referred to as “sheep lease”), however, is an agreement, as stipulated in clause 10 of the deed of lease, in terms of which the lessee was required to return livestock of equal number and value at the conclusion of the agreement. What he had to return was therefore not the same animals which he received. Under an agreement of this nature ownership does not vest in the lessor but in the lessee or the possessor.

The risk in respect of the livestock was that of the lessee and he was under an obligation to return to the lessor the same quantity and quality of animals at the end of

the period of lease as he received at the commencement. Thus, the first respondent became the owner of the stock in terms of the agreement of lease. The appellant was accordingly not the owner of the stock, his claim did not proceed on the basis of ownership, and; the claim was not a rei vindicatio; and the claim for delivery of the stock was a “debt” as envisaged in Chapter 3 of the Prescription Act.

The appeal was dismissed with costs.

Absa Bank Limited v Njolomba and another; and other related matters [2018] JOL 39713 (GJ)

National Credit Act – Home loan agreements – Default – Application for money judgment – National Credit Act 34 of 2005, section 129(4) – Interpretation of – Section 129(4) does not touch on the process of general execution against other assets of the debtor after judgement and it finds no application in the case of a mortgage agreement

Properly construed with reference to its language and purpose, section 129(4)(b) relates exclusively to the instalment sale, secured loan, and lease variety of credit agreement which are singled out for debt enforcement by sale of the movable property which is their subject matter and further resort to judgment for the balance remaining after the sale of such property – Section 129(4) does not touch on the process of general execution against other assets of the debtor after judgement and it finds no application in the case of a mortgage agreement

Eight matters came before the court for default judgment in terms of rule 31(5). All the matters related to credit agreements subject to the National Credit Act 34 of 2005. Furthermore, all related to home loans, with the indebtedness in each case secured by a mortgage bond over immovable property. Each credit agreement contained an acceleration clause providing for all payments under the loan agreement to become immediately payable in one lump sum in the event of default. Each of the applicants sought a money judgement in respect of the accelerated debt in each instance. At the present stage, they did not seek that the properties be declared executable.

Held that in conformity with the accepted need to promote constitutional values, our law has shifted towards a measure of flexibility in the execution process where it is sought to execute against the home of a debtor. The requirement that all relevant circumstances be considered before depriving a person of his home includes the requirement that immovable property not be executed against without judicial oversight being brought to bear thereon and the recent introduction of rule 46A into the Uniform Rules which requires that the court consider alternative means of satisfying the judgment debt, other than execution against the judgment debtor’s primary residence. The objective is to maintain the mortgage loan and the rehabilitate the debtor if at all possible.

At the heart of the court’s function in preserving the credit agreement and thus the debtor’s home, is section 129(3) of the Act, which affords to the debtor rights that he did not have before the advent of the Act. in terms of the section, a debtor, even after judgment, is entitled to remedy any default by paying the arrear amounts together with default charges and reasonable costs of enforcing the credit agreement. In relation to immovable property, that right endures until the proceeds from the sale have been realised.

An applicant who has not yet been able to comply with the requirements for obtaining a declaration of executability in terms of rule 46, but who has in terms of its agreement the right to seek judgment, will generally seek to obtain judgment for the accelerated indebtedness and to postpone the declaration of executability so that the processes set out in rules 46 and 46A can be undertaken in due course if this becomes necessary. The prevailing practice manual contains a directive that expressly precludes the granting of a default judgment for a money claim where it is necessary to postpone the claim for a declaration of executability. The central reason given in the practice manual for that approach, is that if a money judgment is given and the judgment debtor’s movables executed against, section 129(4)(b) of the Act will preclude the debtor from reinstating the credit agreement by paying the arrears. If that construction of section 129(4)(b) was correct, there would be compelling reasons to avoid piecemeal execution as a matter of general practice. The right to reinstate the agreement is essential to the preservation of the mortgaged property and the operation of rule 46A. If that right is lost, the process contemplated in rule 46A would be rendered nugatory.

Relying on their right to enforce their contractual rights, the applicants argued that, whilst the court is expressly given a discretion to postpone the declaration that the immovable property may be executed upon, it does not have discretion to postpone the granting of the money judgment sought by the applicants.

The meaning of section 129(4) and especially the effect of section 129(4)(b), was thus pivotal to the relief sought by the applicants.

According to the applicants, rules 46 and 46A, rather than militating against the granting of a judgement before a declaration of excecutability, in fact, envisage a procedure where a money judgement has already been taken. In terms of rule 46(1)(a), a return of process against movable property, is to be a first step of execution against immovable property. It is argued thus, that this could not be in contemplation if the taking of a money judgement separately should not to be entertained. Furthermore on a linguistic and sensible reading thereof, rule 46A proceeds from the assumption that a “judgment debt” already exists. Reference is pertinently made to “judgment debtor” and “judgement creditor” throughout the rule, suggesting that it is contemplated that judgment has been taken under the credit agreement before the process set out by the rule is implemented. The court agreed that the interpretation of section 129(4)(b) posited by the practice manual was irreconcilable with rules 46 and 46A and the common law. Section 129(4)(b), on the construction provided for in the practice manual, is assumed to relate to all credit agreements and thus to a mortgage agreement. That has led to the assumption being made that section 129(4)(b) has the effect that, whenever any form of execution is levied pursuant to a judgment debt which arises from any credit agreement, no matter how paltry the recovery, it will trigger a situation where the rights afforded by 129(3) are no longer available to a debtor. That construction in the context of mortgage loans is anomalous. The purpose of section 129(3) is to allow for a reinstatement of the agreement at any time up to cancellation provided it has not in the interim become legally impossible. The purpose of section 129(4) is no more than to explain that where the subject movable has been legally repossessed and sold to a third party, the agreement can no longer be reinstated on its terms. A different position has been prescribed where immovable property is acquired under a mortgage agreement. In that case, the maintaining of the mortgage agreement will only become impossible when the immovable property has been sold

and transferred to the third party purchaser. If execution takes place in respect of movable property of the judgment debtor, this will not create a situation where the mortgage agreement in respect the debtor’s home cannot be reinstated.

Thus, properly construed with reference to its language and purpose, section 129(4)(b) relates exclusively to the instalment sale, secured loan, and lease variety of credit agreement which are singled out for debt enforcement by sale of the movable property which is their subject matter and further resort to judgment for the balance remaining after the sale of such property. Section 129(4) does not touch on the process of general execution against other assets of the debtor after judgement and it finds no application in the case of a mortgage agreement. Such a construction creates no tension between sections 129(4) on the one hand and the Constitution of the Republic of South Africa, 1996 ("the Constitution"); rules 46 and 46A and the common law on the other.

Consequently, the applicants were entitled to the orders they sought in relation only to the money judgements.

Minister of Home Affairs and another v Public Protector of the Republic of South Africa [2018] JOL 39715 (SCA)

Review application– Office of Public Protector – Powers of – Challenge to report issued by Public Protector, and remedial action prescribed therein – Whether review should be based on Promotion of Administrative Justice Act 3 of 2000 or principle of legality – Exercise of powers by Public Protector not constituting administrative action and review had to be based on principle of legality – Appeal dismissed because no grounds of review were found to be sustainable

An employee of the Department of Home Affairs was the subject of a complaint by the Cuban Deputy Minister of Foreign Affairs. The employee (Marimi) was stationed at the South African embassy in Cuba, where he held the position of first secretary. As a result of the complaint, Marimi was recalled to South Africa. The letter informing him of his recall gave him notice that disciplinary action would be taken against him. On his return to South Africa, no disciplinary action was taken and he heard nothing further in that regard, however his cost of living allowance (COLA) that he had been paid while in Cuba was stopped. He lodged a complaint with the Public Protector (the respondent) against the Department, alleging maladministration on its part in relation to his transfer from Cuba to South Africa. The Public Protector produced a final report in which she found that the Department was indeed guilty of maladministration in relation to Marimi. She directed that the Department take certain remedial action to redress Marimi’s grievance.

An application for review of the Public Protector’s report was dismissed in the court a quo, leading to the present appeal.

Held that the Court would in its judgment, consider the facts; the powers and functions of the Public protector; whether the exercise of power by the Public Protector was reviewable in terms of the Promotion of Administrative Justice Act 3 of 2000 or the principle of legality; and the individual grounds of review.

While the primary source of the Public Protector’s powers is the Constitution of the Republic of South Africa, 1996 (“the Constitution”), the Public Protector Act 23 of 1994

is the legislation that supplements her powers. The court described the provisions of section 6 of the Public Protector Act, which sets out the matters which the Public Protector may investigate.

Review in terms of both the Promotion of Administrative Justice Act and the principle of legality stems from the rule of law. Section 33(1) and (2) of the Constitution as well as the Promotion of Administrative Justice Act gives effect to the rule of law in respect of only administrative action. The principle of legality gives effect to the rule of law in relation to all other exercises of public power. An applicant for judicial review must choose the right option and does not have a choice as to the pathway to review.

The definition of administrative action in the Promotion of Administrative Justice Act refers to a decision of an administrative nature, taken by an organ of State when it exercises either a constitutional power or a public power in terms of legislation that adversely affects rights and has a direct, external legal effect. The court held that the Office of the Public Protector is a unique institution designed to strengthen constitutional democracy. It does not fit into the institutions of public administration but stands apart from them. The decision of the Public Protector do not constitute administrative action. As a result, the Promotion of Administrative Justice Act does not apply to the review of exercises of power by the Public Protector, and the review of the decisions in issue in this case had to be addressed in terms of the principle of legality.

The appellants attacked the Public Protector’s decision to entertain the complaint made by Marimi on the grounds that the complaint had not been made on oath; that the Public Protector entertained the complaint despite Marimi not having exhausted his remedies in terms of the Public Service Act or other legislation; and that directing the Department to pay Marimi’s COLA was vitiated by an error of law and was unreasonable. In order to succeed with the first ground, the appellants had to establish that the Public Protector acted irregularly in taking Marimi’s complaint otherwise than on oath. In terms of section 6(1) of the Public Protector Act a complaint may be reported to the Public Protector by means of a written or oral declaration under oath, or by such other means as the Public Protector may allow with a view to making her office accessible to all persons. The Public Protector has a choice as to the form of the complaint, and therefore did not act irregularly in taking Marimi’s complaint otherwise than on oath.

Regarding the second ground of review, the court pointed out that the Public Protector’s investigative jurisdiction is extremely wide. She was entitled in terms of section 6(3) of the Public Protector Act, to investigate a complaint even though the complainant had not exhausted his or her remedies.

Addressing the final ground of review, the court found the Department to have laid no basis for its contention that the directive that the COLA be paid was vitiated by an error of law and was unreasonable.

The appellants having failed to establish any ground of review, the appeal failed.

Brain and another v Cheralee : In re Cheralee v Brain and another [2018] JOL 39793 (GJ)

Costs – A party withdrawing action must tender costs of other party – Special costs orders – When costs de bonis propriis awarded against attorney

The respondent’s husband, namely one Mr MB Saby, died after which the Saby family Trust was established. The first and second applicants were appointed as trustees. In time, problems arose concerning the running of the affairs of the Trust resulting in an application by the respondent for the removal of the trustees and the termination of the Trust. The action was set down for hearing. The plaintiff delivered a notice of withdrawal of the action unconditionally, but with a very limited tender as to the applicant’s costs. Being aggrieved, the applicants instituted the present application for costs in terms of Rule 41 (I) (c).

Held (1) There is no doubt that where a party withdraws an action the other party is entitled to costs unless there are good reasons for not doing so. (2) The pertinent issue for determination is whether costs on the attorney and own client scale against the respondent, on the one hand, and costs de bonis propritis on the scale as between attorney and own client against Mr. Oosthuizen for the postponed application, on the other hand, was justified. These are special costs orders. (3) Applying the legal principles to the facts of the present matter, it will be just and equitable that the respondent should pay the costs of the present application on the scale as between attorney and client. (4) In the present matter, the punitive costs order, de Bonis proprits, sought against Mr. Ousthuizen in respect of the costs of the postponement application is equally a severe one. It is not easily granted by the courts, however circumstances may warrant it, where the conduct of the attorney is reprehensible. His conduct was simply inexcusable entitling the Court to demonstrate its displeasure by a punitive costs order.

Application granted.

Omega Civils (Pty) Limited v C Max Civil Construction & General Trading (Pty) Limited [2018] JOL 39729 (FB)

Discovery of documents-rule 35 (3)- applicant was entitled to a better discovery affidavit from the respondent.

In its action against the respondent, the applicant had delivered a notice in terms of rule 35(3) requesting the respondent to make available for inspection certain documents in accordance with rule 35(6) or to state under oath if it did not have such documents in its possession, in which case the respondent had to state the documents’ whereabouts. In the present application, the applicant contended that the respondent's responses to the rule 35(3) notice did not constitute compliance with the provisions of rule 35(3). In the circumstances, the applicant request better discovery.

Held that the Court had to determine the nature of the relief sought by the applicant, by scrutinising the wording of Rule 35(3) with the background facts to the case. In so doing, it had to determine if the respondent had complied with the Rule in its response to applicant's request. More specifically, the court had to decide whether the Rule 35(3) notice described the requested documents with sufficient accuracy for proper identification and whether the documents requested were relevant to the issues, in the main action.

Rule 35(1) and (2) requires a party to an action, upon request, to make discovery on oath of all documents and tape recordings relating to any matter in question in such action which are, or have at any time been in the possession or control of such party. If a party is not satisfied with the other party's discovery, it may make use of the procedure provided for in Rule 35(3) to obtain inspection of documents which that party believes are in the possession of the other party and which are relevant to any matter in question. The object of discovery is to ensure that before the trial, both parties are made aware of all the documentary evidence that is available. Discovery of such documents are intended to assist the parties and the Court to discover the truth and, in doing so, to contribute to a just determination of the case.

The Court was satisfied that the applicant had described the document under request with sufficient accuracy to be able to be identified within a genus. In the premise therefore, the applicant was entitled to a better discovery affidavit from the respondent. The defendant was ordered to furnish a proper reply to plaintiff's rule 35(3) notice as set out in the order.

Standard Bank of South Africa Limited v Botha (54753/16) [2018] ZAGPPHC 35 (7 March 2018)

Prescription-insolvency- claim in the principal debtor's insolvency on 27 September 2012- On 8 November 2012 the three bonds were cancelled- surety to pay even if debt older than 3 years as bond’s 30 years applicable

The plaintiff claims against the defendant as surety for the shortfall of a claim arising from a loan secured by a mortgage bond. The plaintiffs claim against the defendant became due when it proved its claim against the principal debtor in the principal debtor's insolvency.

The only defence in which the defendant persists is that the plaintiff's claim against her has prescribed. The defence of prescription is before me for determination pursuant to a statement of agreed facts submitted by the parties under rule 33(1).

First, a brief outline of the facts. Three bonds were registered against a property as security for the plaintiffs claim against the principal debtor; on 18 July 2003, 7 April 2006 and 12 December 2008 respectively. The home loan and the suretyship were concluded on 20 November 2008. The principal debtor was sequestrated on 28 September 2011. The trustees in the principal debtor's insolvency sold the bonded property to Titantrade 225 CC on 30 March 2012. Titantrade sold the bonded property to Mr and Mrs van Rooyen on 28 May 2012. The plaintiff proved its claim in the principal debtor's insolvency on 27 September 2012.

On 8 November 2012, the property was transferred first to Titantrade and then to Mr and Mrs van Rooyen. On the same date, the three bonds were cancelled.

On 22 November 2012, the trustees made a provisional payment of R1 million to the plaintiff. On 9 June 2014, the trustees paid a final dividend of R74 374,43 to the plaintiff. On 26 January 2015, the trustees' first and final liquidation, distribution and contribution account in the insolvency of the principal debtor was accepted by the Master.On 26 July 2016, the plaintiff served its summons in the present action on the defendant.

The periods of prescription of debts are set out in s 11 of the Prescription Act, 68 of 1969. The period of prescription of "any debt secured by mortgage bond" is 30 years. Counsel for the defendant contend that the 30 year period is not any longer applicable to the debt owed by the defendant to the plaintiff. That is so, counsel say, because the bonds were cancelled and the debt therefore ceased to be one secured by mortgage bond. If that is correct, then the prescriptive period is three years. The plaintiff's summons was served after the lapse of the three year period and therefore (thus the argument) the claim has prescribed.

Counsel for the plaintiff argue that the prescriptive period applicable to a specific debt is fixed when the debt in question becomes due and does not change. Therefore (reason counsel for the plaintiff) irrespective of the fate of the bonds, the debt due under the home loan remained, for purposes of the Prescription Act, one secured by mortgage bond.

Alternatively, say counsel for the plaintiff, if the prescriptive period transmuted to three years, prescription was interrupted by the payments made by the trustees. This is because, they say, s 14(1) of the Prescription Act provides that the running of prescription shall be interrupted by an express or a tacit acknowledgement of liability by a debtor. Both sides accept the triteness of the propositions that a payment on account is such an acknowledgement of liability and that such an acknowledgement of liability by the principal debtor will interrupt prescription against the surety. Under s 14(2), prescription "shall commence to run afresh from the day on which the interruption takes place".

But, say counsel for the defendant, the principal debtor did not acknowledge liability: the trustees in his insolvent estate did so. The trustees are not the agents of the insolvent and the Prescription Act contemplates only the acknowledgement of the debtor or, possibly, his agent.

19 In the present case, when the debt fell due it was secured by mortgage bonds and, on the authority of Oliff, what thereafter befell the bonds is of no legal relevance. I therefore hold that the prescriptive period applicable was thirty years and that the defence of prescription must therefore fail.

20 I turn to the question whether the payments on account of the claim submitted by the plaintiff in the insolvency of the principal debtor interrupted prescription.

27 There seems to me, moreover, no reason why a trustee should not be empowered to achieve the benefit in the context of prescription of an agreement to postpone the due date of the debt, a power conferred on debtors by the provisions of s 14(2).

28 I therefore respectfully decline to follow Consolidated Textile Mills and hold that the payments by the trustees in the insolvent estate of the principal debtor interrupted prescription against the principal debtor. Counsel were agreed that the interruption of prescription against the principal debtor operates as an interruption against the surety.

29 The defendant's only defence has accordingly failed. The plaintiff must therefore succeed in its claim. Counsel were agreed that the case warrants the costs of two counsel.

Absa Bank Limited v Marx NO and Others (9757/2017) [2018] ZAWCHC 42 (29 March 2018)

Irregular step- rule 30(1) and (3)- failed to give the plaintiff any prior notice-

Counterclaim-failed to apply for leave from the court-rule 27(1), rule 24(1), for late delivery of the counterclaim-out of time constitutes an irregular step-condonation not granted

Prescription-counter-claim lodged-minimum knowledge needed to claim

Condonation applications-seriousness stressed-not granted in this case

This is an application for the setting aside of the defendants’ claim in reconvention (‘the counterclaim’), as an irregular step, in terms of uniform rule 30(1) and (3) (‘the main application’), and a counter application instituted by the first to third defendants (‘the defendants’) for inter alia condonation for the late filing of their claim in reconvention (‘the counterclaim’), in terms of rules 24(1) and 27.

Before dealing with the merits of the application and the counter application, it is necessary to set out the procedural background to the matter, which bears on the relief sought by both the plaintiff and the defendants.

[13] It is well established in our law that condonation of the non-observance of court orders and rules is not a mere formality. A party seeking condonation must satisfy the court that there is sufficient cause for excusing the non-compliance. Whether condonation should be granted or not is a matter of discretion that has to be exercised having regard to all the circumstances of the particular case.

[20] To my mind there is no reason why the principles expounded in the abovementioned decisions, dealing in the main with condonation applications in respect of non-compliance with the rules relating to the noting of appeals, should not apply with equal force to the failure by the defendants to comply with rule 24(1).

The prescription issue

[37] Mr Walters, who appeared for the defendants, conceded that counter claim could have been instituted at the time the plea was delivered, ‘but not for the full extent of the damages as it (sic) largely consists of the interest that were (sic) charged by the Plaintiff on a monthly basis which was suffered during consecutive months as and only when the interest was charged by the Plaintiff. It thus constitutes damages that were (and still are) suffered on a continuous basis on condition that is (sic) actually charged by the Plaintiff.’

[38] The plaintiff’s position is that the defendants’ counterclaim has prescribed, and if the late delivery (by over two and a half years) is condoned, it will require the plaintiff to plead to and deal with a prescribed claim, with the resultant delays in the prosecution of its claim in convention.

[39] The defendants’ cause of action for their counterclaim against the plaintiff is founded on an alleged repudiation or breach of certain contractual obligations owed by the plaintiff to the Trust.

[40] The facta probanda in support of this cause of action are set out in the defendants’ plea, which states in some detail the arrangements between the parties

regarding the restructuring of the debt towed by the Trust to the plaintiff. This debt arose from the overdraft facilities in respect of the banking account of the Trust (‘the overdraft debt’).

[48] To sum up, the defendants contend that the counterclaims have not prescribed, alternatively that this is not a matter where it can be said that the counterclaims are ‘known to have prescribed’, and the court cannot, on the facts in casu, make such a finding.

[49] In Minster of Finance v Gore NO[14] the Supreme Court of Appeal reiterated that:

‘This Court has, in a series of decisions, emphasised that time begins to run against the 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, nor until the creditor has evidence that would enable it to prove its case “comfortably”.’

[50] The fact that all investigations have not been finalised and are ongoing does not delay prescription.[15] The plaintiff who really and honestly cannot quantify his claim may seek a declaration of rights.[16] [62] I am accordingly unpersuaded by the defendant’s contentions in this regard.

In any event, I need not even decide whether the issue of prescription has merit, particularly in light of the fact that in my view the breach of the court rules is so egregious that it is not even necessary to consider the merits. To the extent that the issues of authority and prescription have been canvassed in some detail in this judgment, this was done for the purpose of demonstrating that I have not only considered the explanation for delay, but have also weighed the explanation given against the circumstances of the case and the relief which the defendants ultimately seek in their counterclaim.

[66] I am not persuaded that the defendants should be ordered to pay the plaintiff’s costs on a punitive scale, however, there is no reason why the costs, in relation to both the main application and the counter application, should not follow the event.

[67] In the circumstances, the following order is made:

67.1 The counter application is dismissed, with costs;

67.2. The defendants’ counterclaim is set aside;

67.3 The defendants are ordered to pay the plaintiff’s costs, including the costs occasioned by the rule 30 notice and application.

PUBLIC SERVANTS ASSOCIATION OBO UBOGU v HEAD, DEPARTMENT OF HEALTH, GAUTENG AND OTHERS 2018 (2) SA 365 (CC)

Jurisdiction — Labour Court having jurisdiction to declare legislation unconstitutional. Constitutional law — Legislation — Validity — Public Service Act 103 of 1994, s 38(2)(b)(ii) — Authorising unilateral deductions by state employer to recover moneys wrongly paid to its employees directly from their salaries or wages — Amounting to

unlawful limitation of right of access to courts —Offending rule of law by promoting self-help — Labour Court's declaration of constitutional invalidity confirmed — Constitution, ss 1(c) and 34. Section 38(2)(b)(i) of the Public Service Act 103 of 1994 (quoted at n3) permits the state, as an employer, to recover moneys wrongly paid to its employees directly from their salaries or wages. The Labour Court held that to the extent that the provision permitted this without any requirement of legal proceedings or agreement between the parties, it amounted to untrammeled self-help as prohibited by s 1(c) of the Constitution, violating the principle of legality. It then invoked an interpretative remedial mechanism to correct the defect by ordering the section to be read, in a manner consistent with the Constitution, as requiring either consent or legal process (see [14] – [16]). In this application to the Constitutional Court for confirmation of the Labour Court's order of constitutional invalidity in terms of s 167(5) of the Constitution (consolidated with an appeal against the order), the issues were (1) whether the Labour Court had jurisdiction to declare as unconstitutional legislation in respect of which it did not expressly have jurisdiction; (2) whether the Labour Court's interpretation saved the impugned provision from invalidity so that the matter was not properly before the court as a confirmation application; (3) whether the declaration of constitutional invalidity should be confirmed or whether, as contended by one of the state respondents, the deductions in terms of s 38(2)(b)(i) regulated set-off under the common law and so did not amount to self-help; and (4) an appropriate remedy. Held, as to (1): In terms of s 157(2) of the Labour Relations Act 66 of 1995 (the LRA), the Labour Court had concurrent jurisdiction with the High Court to decide constitutional issues. Given that the High Court's jurisdiction included the ability to declare legislation constitutionally invalid, surely in terms of s 157(2) the Labour Court had the same jurisdiction as the High Court to make an order concerning the constitutional validity of an Act of Parliament. Held, as to (2): The Labour Court did, in substance, declare s 38(2)(b)(i) unconstitutional. The order was competent and the confirmation proceedings were thus properly before this court (see [58]). Held, as to (3): The impugned provision imposed strict liability, attenuating the employee's procedural rights to fair legal redress (s 34), and offended the rule of law in that it permitted self-help (s 1(c)). On these bases it did not pass constitutional muster. The impugned provision was not comparable to set-off under the common law: the doctrine of set-off did not operate ex lege and there were no mutual debts. (See [59] – [68] and [71].) Held, as to (4): The appropriate remedy should obviate self-help and arbitrary salary deductions by the state. Reading-in will not be appropriate here: it was just and equitable to declare s 38(2)(b)(i) of the Act unconstitutional.

ABSA Bank Ltd and related matters v Public Protector and others [2018] 2 All SA 1 (GP) Review applications-Administrative law – Public Protector – Report by Public Protector – Review – Argument that the review application was outside of the 180-day period prescribed by the Promotion of Administrative Justice Act 3 of 2000 – Court rejected that argument as the decision to investigate was not under attack, but the conclusions,

findings and remedial action, consequent upon her investigation, was the subject-matter of the review applications. Administrative law – Public Protector – Report by Public Protector – Review – Court held that the decision on remedial action constituted administrative action, both according to the provisions of the Promotion of Administrative Justice Act 3 of 2000 and the principle of legality.

Three applications by separate entities were brought against the Public Protector, for the review of a report issued on 19 June 2017. In the report, the Public Protector concluded that the South African Government had improperly failed to implement a report (the “CIEX report”) which dealt with alleged stolen State funds, after commissioning and paying for the report. It was held that the government and the Reserve Bank had improperly failed to recover R3,2 billion from Bankorp Limited/ABSA, and that the South African public was prejudiced. As a result of those conclusions, the Public Protector prescribed certain remedial actions. That led to the South African Reserve Bank, the Minister of Finance and the Treasury, and ABSA, respectively, instituting review proceedings, challenging the report. The applications were consolidated before the present Court.

The Reserve Bank instituted the review in terms of Uniform Rule 53 of the Uniform Rules of Court. It requested the court to review and set aside the whole of paragraphs 7.1.1, 7.1.1.1 and 7.1.2 of the report. ABSA’s application was to review and set aside the remedial action in paragraphs 7.1.1, 7.1.1.1 and 7.1.2, as well as paragraph 8.1, which imposed the obligation on the second respondent (“SIU”) and the fourth respondent the South African Reserve Bank. The application was brought in terms of the Promotion of Administrative Justice Act 3 of 2000, alternatively the principle of legality. The Minister and Treasury’s review application was also based on the Promotion of Administrative Justice Act, alternatively the principle of legality.

The review applications were based on the contentions that the Public Protector was not authorised either by the Public Protector Act 23 of 1994or any other law and therefore acted contrary to section 6(2)(a)(i) of the Promotion of Administrative Justice Act. Various other contraventions of the latter Act were alleged. The Public Protector raised two points in limine. The first was that the remedial action was not administrative action. The second point was that there was an unreasonable delay in bringing the review applications without a proper explanation for the delay. Held – The Public Protector’s assertion that the remedial action in the report was not administrative action as it did not have a direct external legal effect on the applicants’ rights was rejected. The Court rejected the Public Protector’s averment that she had merely made recommendations and not findings. She did not stop at requiring the SIU to investigate the matter, but went further by informing the SIU that ABSA was guilty. That violated the principle of legality. The Court held that the decision on remedial action constituted administrative action, both according to the provisions of the Promotion of Administrative Justice Act and the principle of legality, and therefore the first point in limine was dismissed.

According to the Public Protector the review application was out of time as it should have been brought in 2012 when the parties became aware that she was investigating the matter. According to her, the review application was outside of the 180-day period

prescribed by the Promotion of Administrative Justice Act. The Court rejected that argument as the decision to investigate was not under attack, but the conclusions, findings and remedial action, consequent upon her investigation, which was the subject-matter of the review applications. It was held that the proceedings were instituted without any unreasonable delay and before the expiry of 180 days.

The grounds of review relating, inter alia, to the lawfulness of the remedial action, the fact that the Public Protector had acted ultra vires, and procedural unfairness, were upheld.

The Court therefore issued an order dismissing the Public Protector’s preliminary points and setting aside the remedial action impugned in all three applications.

Moshoeshoe and another v Firstrand Bank Ltd and others [2018] 2 All SA 236 (GJ) National Credit Act 34 of 2005 – Rescission application – Common law grounds – Good cause – Applicants required to provide a reasonable explanation of their default, show that the application was bona fide, and show that they had a bona fide case which prima facie would succeed in setting aside the order of the Registrar. In 2006, the applicants concluded a loan agreement with the first respondent bank in order to purchase a home. The property was pledged as security for the loan, but the address was incorrectly recorded in the loan agreement. Although the applicants alerted the conveyancing attorney appointed by the bank, he advised them that the error was of no consequence since the property was correctly described on the title deed issued by the Registrar of Deeds. The applicants also wrote to the bank and informed it that the address on the contract was incorrectly recorded and the bank made sure that its records had the correct address.

Despite the conveyancing attorney’s assurance that the error was of no material importance, it actually had a serious practical consequence for the applicants. Unable to honour all their obligations in terms of the loan agreement, the applicants successfully applied to have themselves declared over indebted in terms of the National Credit Act 34 of 2005 (“the Act”). In June 2010, an attorney of the bank issued notice in terms of section 129 of the Act, which notice came to the attention of the first applicant. He contacted the firm of attorneys and told an employee there that he was under debt review. That did not deter the bank from issuing a summons against the applicants. However, the summons identified the wrongly recorded address, and therefore did not come to the attention of the applicants. In consequence, they failed to note their opposition to the action and the bank obtained default judgment against them. The notice prescribed by section 86(10) of the NCA had also been sent per registered post to the wrong address and did not come to the attention of the applicants.

The ensuing writ of execution, unlike the summons and the section 86(10) notice, was correctly served on the applicants at their actual address. Despite that, the incorrect address was reflected on one of the two copies of the writ served on the applicants, and the notice advertising the sale in execution which was placed in the newspaper described the incorrect property.

On 11 November 2010, the applicants sought to have the order issued by the Registrar rescinded. The attorney instructed by them in that regard informed them that the application had been launched and that it would automatically stay the execution process. Nevertheless, the bank continued with the process of executing on the order of the Registrar. The bank’s attorneys had been made aware of the fact that the summons did not come to the attention of the applicants. By virtue of that knowledge, they also must have known that they sent the section 86 notice to the incorrect address.

The sale in execution took place even though a rescission application was supposedly pending. The property was sold to the second and third respondents, and was then registered in the name of the fourth respondent. The first applicant’s informing the bank that judgment was taken against him and the second applicant without summons being served upon them was to no avail. The bank refused to cancel the sale of the property.

The second, third and fourth respondents brought an application for the eviction of the applicants from the property. The application succeeded and the applicants brought another application to have the order rescinded, as well as to have the order of the sale of their home in execution set aside. As their application was outside the time periods allowed for the launching of a rescission application, they asked that the late filing be condoned.

In the rescission application, neither the bank nor the second to fourth respondents challenged the factual averments made by the applicants. In addition to opposing the rescission application, the second to fourth respondents brought a counter-application for an order enforcing the eviction order. The applicants failed to make an appearance when the matter was called and the court issued a default judgment which dismissed the rescission application of the applicants with costs, postponed the counter-application of the second to fourth respondent and reserved the costs of the counter-application. In September 2014, the applicants and their family were evicted from the property at the instance of the fourth respondent.

On discovering the existence of the default judgment which dismissed the rescission application, the applicants applied for rescission of that order and condonation only the bank opposed the application. It raised two points of law, which were argued in the alternative. Those were that the matter had been finalised (res judicata); and that the matter was still pending (lis pendens). Held – While the court in question had issued a default order which dismissed the applicants’ rescission application, the order was made without going into the merits of the dispute and without making any findings on the merits. Accordingly, it was not complete and was susceptible to being revisited by the present Court. The only avenue open to the applicants was to have the order rescinded. The res judicata point taken by the bank therefore had no merit and was dismissed.

The bank’s contention that since the applicants had brought more than one rescission application this particular one was lis pendens was also not sustainable. The three applications referred to concern the rescission of a different order (issued by the Registrar). But none of those applications were the subject of the present application.

That left the question of whether the order should in fact be rescinded. As the applicants relied on the common law, it was necessary to consider whether they had shown good cause for the rescission. To succeed on that basis, they had to at least provide a reasonable explanation of their default, show that the application was bona fide, and show that they had a bona fide case which prima facie would succeed in setting aside the order of the Registrar.

The Court was satisfied that the application was bona fide. The applicants had suffered greatly as a result of the order of the Registrar and they had done everything that could be expected of them. The order granted by the Registrar had been issued without them ever being given an opportunity to present their case as they were never served with the summons. Moreover, the execution process took place without any judicial oversight. The Constitutional Court has pronounced that the Registrar does not have to power to issue an order declaring a person’s home to be executable. The applicant had lost their primary residence, which prima facie appeared to have occurred through unlawful means or to have occurred in unfair and unjust circumstances. The non-compliance with rules of court was therefore condoned. The judgment and order in question was rescinded and set aside. Ndinga v Cape Law Society [2018] 2 All SA 250 (ECM)

Attorneys – Application for admission – Attorneys Act 53 of 1979 – Issue for determination was whether the contract of articles of clerkship relied upon by the applicant was valid or whether it was void by virtue of the circumstances in which her principal was practising when the contract was entered into – Distinction drawn between a person who purports to act as a practitioner and a practitioner who practises without being in possession of a fidelity fund certificate – Nowhere in the Act is there a provision for the automatic suspension or invalidation in any way of the practise of an attorney where such practise is conducted without a fidelity fund certificate.

Having entered into a contract of articles of clerkship with an attorney and completed the requisite period of articles, the applicant sought to be admitted as an attorney of the court. Her application was opposed by the Law Society on the ground that the attorney with whom the contract had been entered was not practising the profession of attorney on the date on which he concluded a contract of articles with the applicant because he was not in possession of a fidelity fund certificate on that date, and was thus not entitled in law so to practise. Held – The issue for determination was whether the contract of articles of clerkship relied upon by the applicant was valid or whether it was void by virtue of the circumstances in which her principal was practising when the contract was entered into.

The Attorneys Act 53 of 1979 regulates the requirements for practise as an attorney. The question to be addressed related to the effect of non-compliance by an attorney with one or more of the relevant rules of the respondent which has the effect of denying him or her qualification for the issue of a fidelity fund certificate. The distinction drawn between a person who purports to act as a practitioner and a practitioner who practises without being in possession of a fidelity fund certificate was regarded by the court as significant. The distinction recognises that although it constitutes an offence, the practise by a practitioner of his profession without a fidelity fund certificate does not have the effect of invalidating that practise and reducing the attorney to the status of

one who purports to act as a practitioner. Nowhere in the Act is there a provision for the automatic suspension or invalidation in any way of the practise of an attorney where such practise is conducted without a fidelity fund certificate.

The Court noted the manner in which the Law Society had handled the applicant’s case. The applicant had followed all the steps required of her for her admission to the profession. Her registration of her articles of clerkship was not objected to by the respondent, and objections were only raised after she had completed her period of clerkship. The Court granted an order admitting the applicant as an attorney of the court, and as a mark of the court’s censure of its conduct, the respondent was directed to pay the costs of the application on an opposed basis and on the scale as between attorney and client.

Reformed Presbyterian Church in Southern Africa v Minister of Police and another [2018] 2 All SA 260 (ECM) Applications-Disputes of fact – A final order may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The departure of several members of the applicant church for another church (“UPC”) resulted in tension between the two congregations. The tension culminated in the disruption of the applicant’s church services. On 19 November 2014, the applicant obtained interim relief in the Libode Magistrates’ Court against its erstwhile members, which order was made final on 22 January 2015. However, the individuals who were the subject of that order were unmoved by it, and when they caused a stand-off between themselves and the applicant’s members at the applicant’s premises, the police were called to assist the applicant. Pursuant thereto, members of the applicant went to the Libode Police Station to lay charges of contempt of court and malicious injury to property. That met with no success, and the applicant had to instruct its attorneys to intervene, whereupon they lodged a complaint with both the National and Provincial Police Commissioners. As a result, the first respondent’s legal services division informed the applicant that its members could indeed lay charges. That was as far as the matter went. Repeated enquiries by the applicant as to progress revealed that the charges were not being actively prosecuted by the police. The applicant managed to get hold of a copy of the police docket, and discovered that the police officer who was instructed to take a number of steps in the case had not done most of them. The applicant noted that the last entry in the docket stated that the criminal case would be taken further only after a civil case in the matter was completed.

As a result of the above, the applicant maintained that the second respondent or officials under his control closed the investigation and disposed of the docket on 11 March 2015 without any basis upon which to do so. Their conduct was said to be unlawful and in breach of the applicant’s constitutional right of access to court and in breach of the constitutional duties imposed on the police.

In the present application, the applicant sought an order declaring unlawful the respondents’ disposal of the police docket and the subsequent filing thereof in the police archives; as well as the discontinuation (alternatively delay) of the investigation into criminal charges made by the applicant. A further order was sought directing the respondents to conduct thorough investigations into the charges and to update the applicant of progress.

Opposing the application, the first respondent averred that the relief sought was incompetent and inappropriate and infringed upon the doctrine of the separation of powers. It was also stated that the applicant had failed to join the National Prosecuting Authority (“NPA”) despite the instruction to await the outcome of the civil proceedings having been given by the public prosecutor, and had failed to make out a case in terms of the provisions of the Promotion of Administrative Justice Act 3 of 2000. Held – The first determination to be made was purely factual – involving whether the second respondent’s officials discontinued investigations and disposed of the docket. While the applicant alleged that to be the case, the respondents denied it. In proceedings on notice of motion, where disputes of fact have arisen in the affidavits, a final order may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The Court found no evidence that the second respondent’s officials disposed of the docket, as contended by the applicant. On the contrary, it was common cause that the remarks entered on the cover of the docket were to the effect that it was to be filed. There was nothing to indicate that the investigations were discontinued and that the docket was disposed of.

The next question was whether the filing of the docket was unlawful and liable to be set aside. In that regard, the applicant framed its application within the context of the right to just administrative action, as envisaged under sec-tion 33(1) of the Constitution and the provisions of the Promotion of Administrative Justice Act. The underlying premise was that the filing of the docket qualified as administrative action. The Court referred to seven elements in defining what constitutes administrative action. Those are that there must be: (a) a decision of an administrative nature; (b) by an organ of State or a natural or juristic person; (c) exercising a public power or performing a public function; (d) in terms of any legislation or an empowering provision; (e) that adversely affects rights; (f) that has a direct, external legal effect; and (g) that does not fall under any of the listed exclusions. Whether the filing of the police docket included the fifth and sixth elements was placed in doubt by the court. While the filing of the docket could be seen to adversely affect rights, it did not constitute a direct, external legal effect. The decision to file the docket pending the finalisation of civil proceedings, therefore did not constitute administrative action.

In argument, Counsel for the applicant raised the principle of legality that is available to a litigant who wishes to enforce the constitutional right to just administrative action where this cannot be achieved under the Promotion of Administrative Justice Act. The principle rests on the requirement that the exercise of power by the State must be done rationally and lawfully. To pass the test for rationality in the present case, there had to be a rational connection between the decision to file the docket and the purpose of such decision. Here, the purpose was clearly the effective use of police resources, pending the finalisation of civil proceedings, and ultimately the successful prosecution of the perpetrators where the outcome of the civil proceedings warranted the continuation of the investigation. Finding an obvious connection between the second respondent’s decision to suspend the investigation and the objective of such decision, the Court was satisfied that the connection was rational. With regard to lawfulness, the decision had to be authorised by an empowering provision. Section 205(3) of the Constitution authorises the police services to prevent, combat and investigate crime. The decision was therefore also lawful.

For the complaint about delay in investigation of the matter to be upheld, the applicant was required to have reported the matter to the provincial executive, as envisaged under section 206(5) and (6) of the Constitution. It made no attempt to take such steps. Without a complaint about any delay in the investigations having been brought to the attention of the provincial executive, any judicial pronouncement on the matter would be premature.

The final issue concerned the authority of the court to direct the respondents to carry out thorough investigations and to inform the applicant on progress and the outcome of such investigations within 30 days. That brought into play questions pertaining to the doctrine of the separation of powers. Courts must be slow to intervene in the exercise and performance of powers and functions by the police in relation to the investigation of crime, especially where the officials involved possess the experience and expertise to make a better decision than a court on how to conduct such an investigation. To the extent that the applicant was not satisfied that a sufficiently thorough investigation had been carried out, the remedies under section 206(5) and (6) of the Constitution, read with the Independent Police Investigative Directorate Act 1 of 2011, first had to be exhausted. While the applicant was entitled to progress updates, it was required to use those remedies in that regard too.

The application was dismissed and the applicant was ordered to pay the first respondent’s costs.

Law Society of the Free State v Ndobela [2018] JOL 39730 (FB)

Attorneys – Misconduct – Striking from roll-fidelity fund certificate

As the relevant Law Society, the applicant sought the striking of the respondent’s name from the roll of attorneys, alternatively, that he be suspended from practice.

The respondent was practising without a fidelity fund certificate. The applicant had received three complaints against the respondent, from members of the public. The complaints related to his failure to keep the complainants informed of progress in their cases, delaying the cases, and not accounting to the complainants properly.

Held that having regard to the provisions of the Attorneys Act 53 of 1979 and the Rules of the Law Society, the Court found that the respondent was in serious transgression of the law and the applicable ethical standards in respect of the keeping of books and the conduct expected of an attorney.

The Court was satisfied that all the charges of misconduct had been proved against the respondent, and that he had furthermore, provided false information in response thereto. That satisfied the Court that he was not a fit and proper person to practise as an attorney and that he should be struck off the roll. The steps to be taken by the respondent in that regard were set out in detail in the court’s order.

Oscar Nite (Pty) Limited v Standard Bank of South Africa Limited and others [2018] JOL 39732 (FB)

Execution of judgment – Attachment of bank account – Nature of

Having obtained default judgment against the applicant, the second and third respondents caused a writ of execution to be issued followed by a notice in terms of Uniform Rule 45(12)(a). The sheriff of the court served the writ of execution on the first respondent and thereby proceeded to attach the bank account of the applicant held by the first respondent. There were no funds available in applicant's bank account and a caveat was registered against the applicant's account.

In the present application, the applicant sought an order in terms of which the attachment of its bank account held at the first respondent was declared incomplete, irregular, unlawful, null and void and/or of no legal force. It further sought an order setting aside the said attachment.

Held that the first issue for determination was whether the writ of execution of Uniform Rule 45(12)(c) was served on the applicant, and the second issue was whether the attachment of the bank account extended to future payments standing to the credit of the applicant.

Uniform Rule 45(8) makes provision for the attachment of incorporeal property. The relationship between a banking institution and its customer whose account with it is in credit is that of a debtor and creditor. The customer makes deposits to the credit of his account with the bank, and the transaction is not one of depositum, but of loan without interest. Rule 45(8)(c) indicates that where an attachment is made a notice of attachment must be given to the judgment debtor.

An attachment of a right, title and interest of judgment debtor will only be complete once the sheriff has given notice of the attachment in writing to all interested parties. In this case, the applicant being the holder of the account, was an interested party.

Rule 45(8)(c) does not require that service be effected personally. It would in any case be impossible to do so in view of the juristic personality of the applicant. The court was therefore satisfied that the service effected was proper and was effected in terms of the rules.

Not only does Rule 45(12)(a) of the rules empower sheriff to attach debts owing but it is clear that the sheriff may also attach accruing debts. It was therefore, not correct that Rule 45(12)(c) was limited to the funds held by the first respondent at the time of the execution of the process. The attachment of the incorporeal property extends to future or accruing debts.

The application was dismissed with costs.

Heavy Commercial Vehicle Underwriting Managers (Pty) Limited and another v Ossie Pretorius Landgoed CC [2018] JOL 39747 (GJ)

Appeal – Leave to appeal – Test

The respondent’s vehicle was insured by the second applicant. The vehicle overturned when it braked and swerved when the driver attempted to avoid a collision with the vehicle in front of it. In the subsequent action by the respondent against the applicants, the court found that the respondent was entitled under the insurance policy, to compensation from the second applicant for the loss suffered in the accident.

The applicants sought leave to appeal against the court’s order, averring that the court had erred in various respects.

Held that the traditional test in deciding whether leave to appeal should be granted was whether there was a reasonable prospect that another court might come to a different conclusion to that reached by the court in the judgment sought to be challenged. Section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, which came into operation on 23 August 2013, provides that leave to appeal may only be given where the judge concerned is of the opinion that the appeal would have a reasonable prospect of success.

The applicant raised issues in its application for leave to appeal in respect of which there was a reasonable prospect of another court coming to different conclusions to the ones reached by the present court. Accordingly, the appeal did have a reasonable prospect of success, and the application for leave succeeded.

Absa Bank Limited v Maritz [2018] JOL 39749 (GP)

Summary judgment – Opposition of application – Bona fide defence-reckless credit- discretion- unjust enrichment

National Credit - summary judgment – Opposition of application – Bona fide defence-reckless credit- discretion- unjust enrichment

The plaintiff bank had advanced a loan to the respondent, against the security of a mortgage bond over certain immovable property. The loan constituted a credit agreement in terms of the National Credit Act 34 of 2005.

In the present application, the bank sought summary judgment for payment of the amount due in terms of the loan, as well as orders declaring the mortgaged property specially executable and authorising the issue of a warrant of execution against the property.

The defendant opposed the application on the ground that the transaction was “reckless credit” in that she had been granted credit in circumstances described in section 80 of the Act.

Held that a credit agreement is reckless if, at the time that the agreement was entered into, the credit provider failed to conduct an assessment as required by section 81(2), or the credit provider, having conducted an assessment as required by section 81(2), entered into the credit agreement with the consumer despite the fact that the preponderance of information available to the credit provider indicated that the consumer did not generally understand or appreciate the consumer’s risks, cost or obligations under the proposed credit agreement, or entering into that credit agreement would make the consumer over-indebted. - of the consumer at the expense of the credit provider.

Rule 32(3) required the defendant to show that she had a bona fide defence, to resist summary judgment. The defendant did not meet that requirement. Her allegations that no proper assessment was conducted by the bank before granting her credit was

rejected on the facts, and her unsubstantiated averments were insufficient to constitute a bona fide defence.

Summary judgment was thus granted.

Absa Bank Limited v Mathibela [2018] JOL 39750 (GP)

Execution-claim for property to be declared specially executable – Primary home of debtor – Court’s duties-court critical of bank’s approach-dimissed

The dispute between the plaintiff bank and the defendant, arose from three mortgage bonds registered over defendant’s property. The property was at the time of registration of the mortgage bonds, the defendant’s primary residence.

When the defendant fell into arrears with payments, the bank sued for payment and an order declaring the property specially executable. In other words, the bank sought payment on the full outstanding amount on the three bonds, as well as the right to sell the property in execution to recoup the amount due.

At the heart of the dispute between the parties in these proceedings was confusion about the amount of arrears on the basis of which the bank decided to proceed with litigation. The defendant contended that the amount stated in the summons was incorrect.

Held that the critical issue distilled by the court from the facts before it, was that there was nothing to indicate whether or not the bonded property was indeed the defendant’s home. The defendant was not present in court and could not be examined on that aspect. In terms of case law, the court is duty bound to enquire mero motu, whether a bonded property was a home and if so, to determine whether or not such property may be declared specially executable. The Court accepted, from the evidence, that the property was the family home of the defendant and her parents.

In deciding on the questions required to be asked, as referred to above, the Court was hindered by the failure of the parties to place appropriate information before it.

The Court was critical of the bank’s approach to the matter. It did not attempt to resolve the issue by any means other than resorting to trial, and its seeking judgment in respect of a relatively small amount of arrears was disproportionate as a means of recourse. Its claim was thus dismissed with costs.

Colour Tech Panel and Paint (Pty) Limited v Crest Investments CC and others [2017] JOL 37554 (KZD)

Mandament van Spolie-eviction order – application for interim interdictory relief - validly issued warrant of ejectment

In an application for urgent interim relief, the applicant sought to declare its eviction from certain premises unlawful, and to prevent first and third respondents from unlawfully evicting it from the property. The applicant indicated that the relief it sought was a mandament van spolie.

Held that the declaratory relief sought was not competent relief to seek on an interim basis.

The purpose of a spoliation application is to prevent self-help. An applicant need only prove two requirements to succeed in an application in terms of the mandament van spolie, namely proof that it was in peaceful and undisturbed possession of the property; and that it was unlawfully deprived of such possession. The applicant must prove that it had actual possession and control coupled with an intention to derive some benefit.

In casu, the evidence showed that even though the applicant may have met the first requirement for spoliation, in that it was in peaceful and undisturbed possession of the property, it had not been unlawfully spoliated or dispossessed of the property. The third respondent had evidently attempted to evict the applicant in these proceedings from the premises pursuant to a validly issued warrant of ejectment. The application was dismissed with costs.

The property which the applicant occupies, namely, Erf 143 Phoenix Industrial Park and Erf 144 Phoenix Industrial Park, formed part of the estate of Tiradeprops 1187 CC ("Tiradeprops"). It is common cause that Tiradeprops was wound up and liquidators were appointed.

In such application the applicant (Govindsamy Shanmugam) alleged that on 1 June 2011 he concluded two agreements of lease with Tiradeprops for the immovable property. Such lease agreement granted him the right of first refusal in the event of Tiradeprops wanting to sell the property. As the liquidators had not afforded him a right of first refusal to purchase the property he sought the relief.

He also indicated that he had become aware of the fact that the liquidators had concluded a sale agreement in respect of the property with the second respondent, Crest Investments CC. He indicated that he had become aware of the sale of the property to the second respondent after its member visited the property and advised his tenant, Colour Tech Auto Centre, that it had purchased the property. After informing the liquidator of his right of first refusal pursuant to a lease agreement, Shanmugan contacted the member of Tiradeprops, Mrs Padayachee, who furnished him with copies of the leases.

When the matter came before court on the expedited trial roll, Shanmugam and the liquidators of Tiradeprops and Crest Investments CC had concluded a settlement agreement in respect of the action under Case No. 13802/14 and the application under Case No. 11269/2014. Cilliers NO and others v Ellis and another [2017] JOL 37555 (SCA)

Appeal – Appealability of order – Required attributes of order- final in effect and not susceptible of alteration by the court of first instance

“Abide the order”-effect- a litigant “abiding the order” cannot appeal-court perplexed by the fact that she was granted leave to appeal the order.

Locus standi-a litigant “abiding the order”- perplexed by the fact that she was granted leave to appeal the order-does not have locus standi

The respondents had purchased certain immovable property from the second appellant and her husband. The latter died prior to the sale of the property and the second and third appellants were appointed as the co-executors of his estate. After taking occupation of the property, the respondents allegedly discovered that the property suffered from material latent defects, which had not been disclosed to them. They launched urgent proceedings in the court a quo seeking that the sale of the property be cancelled and that upon the restoration of the property, the purchase price be repaid to them.

However, in a subsequent declaration filed by them, they expanded the relief sought to include a claim for damages and reduction of the purchase price. The second appellant objected to that on the ground that the respondents were legally precluded from approbating and reprobating. The trial court did not attempt to circumscribe or at least identify the issues relating to the merits and that failure led to an unclear order being made at the conclusion of the hearing. It was held that the respondents had succeeded on the merits “for such relief as he [they] can prove”. The relief (if any) to which the respondents might be entitled, would only be determined at the subsequent hearing of the issue of quantum.

The appellants appealed against the order.

Held that the appellants were confronted with two significant obstacles, namely whether the order appealed against was appealable; and whether they had the necessary locus standi to pursue the appeal.

A judgment or order is susceptible to appeal if the decision is final in effect and not susceptible of alteration by the court of first instance; it is definitive of the rights of the parties; and it has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. Even where a decision does not bear all the attributes of a final order it may nevertheless be appealable if some other worthy considerations are evident, including that the appeal would lead to a just and reasonable prompt solution of the real issues between the parties. Furthermore, the interests of justice may be a paramount consideration in deciding whether a judgment is appealable. The order of the court a quo clearly did not possess any of the main three attributes referred to above. As the proceedings in the court below were unterminated, if the court were to entertain the appeal at this stage, it would not be able to finally dispose of the issues relating to the merits.

The Court also found that the appellants had no standing in the appeal. The third appellant had indicated that she abided by the court’s decision, and did not pursue the appeal. Her peremption of the appeal meant that she had no locus standi to participate in this appeal as the third appellant. The purported substitution of the second appellant was irregular.

The appeal was accordingly dismissed.

Standing of the appellants

[21] Mrs Cilliers in her representative and personal capacity and Du Toit in her representative capacity, sought and were granted leave to appeal the order of the court a quo, as the first, second and third appellants, respectively.

[22] As recorded above, Du Toit had abided the judgment of the court a quo and one is perplexed by the fact that she was granted leave to appeal the order. The decision of Du Toit to abide the judgment clearly constituted a peremption of the appeal. In Hlatshwayo v Mare and Deas 1912 AD 242 at 253, Solomon JA put it as follows:

". . . under our law, by acquiescence in a judgment the right to appeal from it is perempted. And when once the appeal has been perempted, there is an end of the matter; there is no going back from that position."

In regard to the question what is meant by a party acquiescing in a judgment, the learned Judge of Appeal added the following at 253:

"In my opinion the effect of the authorities on this subject is to show that when once a party to an action has done an act from which the only reasonable inference that can be drawn by the other party is that he accepts and abides by the judgment, and so intimates that he has no intention of challenging it, he is taken to have acquiesced in it.

[23] The conduct of Du Toit in abiding the judgment of the court a quo; not filing a plea and not participating in the trial, constitutes clear evidence of acquiescence resulting in so far as she is concerned in a peremption of the appeal against the order. It follows that Du Toit, as the co-executrix in the estate of the late Mr Cilliers, had no locus standi to participate in this appeal as the third appellant.

Be that as it may, absent an application to court for the substitution of the executrix of the deceased estate of Mrs Cilliers, the purported substitution is irregular and the executrix has no locus standi to participate in this appeal. It follows therefore that there is simply no appellant herein with the necessary locus standi to pursue the appeal.

[26] For all the above reasons there is no proper appeal before this Court. The appeal accordingly falls to be dismissed.

Rennies Travel (Pty) Limited v South African Municipal Workers Union [2018] JOL 39740 (GJ)

Summary judgment application – Supporting affidavit – Requirements

In an application for summary judgment, the plaintiff sought payment in respect of services rendered.

Although in its affidavit resisting summary judgment, the defendant only relied on points in limine and did not disclose its defence to the plaintiff’s claim as required by Rule 32 of the rules of court, it insisted that the points in limine were its defence as envisaged in Rule 32.

The first point was that the affidavit in support of summary judgment did not comply with Rule 32 in that the deponent did not state the amount as it appeared in the summons. According to the defendant, the rule requires the deponent to swear positively that the defendant is liable to the plaintiff in a specified amount and the deponent in this case failed to do so. The second point was that the plaintiff’s summons was defective in that it did not comply with Rule 18(6) of the Rules of Court, as it was not clear on what the plaintiff’s claim was based.

Held that it is sufficient for the deponent in the affidavit in support for summary judgment to swear positively and verify the cause of action of the plaintiff as it appears in the particulars of claim to the summons. It is not necessary to repeat what is alleged in the summons verbatim in the affidavit filed in support of the application for summary judgment. That the plaintiff did not explicitly state and identify the amount as claimed in the summons could not be said to be prejudicial to the defendant and the defendant did not make that allegation.

On the second point, the Court held that the claim of the plaintiff was a liquidated amount and the account statement annexed to the summons was sufficient proof of that amount. The second point in limine was also dismissed.

For a defendant to successfully resist an application for summary judgment, it must satisfy the court that it has a bona fide defence by disclosing fully the nature of the grounds of the defence and the material facts relied upon for such defence. In deliberately avoiding setting out the nature and grounds of its defence and the facts upon which it was based with sufficient clarity, the defendant failed to satisfy the court that it had a bona fide defence which was good in law.

The defendant was held liable to pay the plaintiff the amount claimed.

Centrafin (Pty) Limited v Street Talk Trading 131 CC trading as Royal Food and another [2018] JOL 39741 (GJ)

Summary Judgment-claim for payment – Arrear rental – Application for summary judgment – Bona fide defence

In January 2016, the plaintiff and the first defendant concluded a written Master Rental Agreement whereby the plaintiff rented a telephone system to the defendant. The second defendant bound himself as a guarantor and co-principal debtor in solidium with the first defendant in favour of the plaintiff. It was common cause that the plaintiff performed in terms of the master rental agreement by delivering the equipment to the first defendant. However, it alleged that the first defendant was in breach of the agreement, by failing to pay rentals due. In the present application, summary judgment was sought.

The defendants’ defence was that the equipment had been destroyed by lightning and new and more expensive equipment was provided by the supplier replacing the one which was the subject of the master rental agreement. It was averred that there was no agreement between the first defendant and the plaintiff in respect of the new equipment nor was any rental amount discussed and agreed upon between the parties. The master rental agreement which was concluded between the plaintiff and the first defendant was terminated when the equipment was replaced.

Held that for a defendant to successfully resist an application for summary judgment, it must satisfy the court that it has a bona fide defence by disclosing fully the nature of the grounds of the defence and the material facts relied upon for such defence. The defendant need not detail its defence to the same extent as in the plea, but must furnish sufficient particularity which would sustain a defence at the trial that might ensue.

The Court was satisfied that the defendants had raised a bona fide defence which was good in law. The plaintiff sued the defendants based on a master rental agreement for specific equipment which had been identified by its serial number. That equipment had been destroyed by lighting and was replaced by new and more expensive equipment by the supplier.

The defendants having succeeded in showing that there was a triable issue between the parties, summary judgment was refused.

Manukha v Road Accident Fund [2017] JOL 37587 (SCA)

Prescription-motor vehicle accident – Claim for compensation – Non-pecuniary loss – Defence of prescription

On 14 August 2008, the appellant was a passenger in a motor vehicle when it overturned allegedly as a consequence of the negligence of the driver of a passenger bus. The appellant suffered personal injuries. She sued the respondent fund for compensation arising out of the accident in terms of section 17(1) of the Road Accident Fund Act 56 of 1996. She claimed damages in the sum of R700 000, of which R200 000 was for non-pecuniary damages. However, she only submitted the form which was required in respect of the non-pecuniary damages, outside the five-year period after the accident occurred. The fund raised a special plea of prescription, claiming that the serious injury form ought to have been delivered by 13 August 2013 (and not on 26 July 2014 – as it had been). The High Court’s upholding of the objection resulted in the present appeal.

Held that both the Act and its regulations require that a third party who claims for non-pecuniary loss furnish the fund with a serious injury assessment report in an RAF4 form. The RAF4 form need not be submitted to the Fund simultaneously with the RAF1 form. Long before she submitted the RAF4 form, the appellant had instituted action against the fund in which she, inter alia, claimed payment of R200 000 representing non-pecuniary loss for pain and suffering which she had included in her RAF1 form. The fund raised the special plea of prescription relative to the claim for non-pecuniary loss. It was necessary to determine whether the appellant’s lodgement of the RAF4 form with the Fund in substantiation of her claim for non-pecuniary loss can be defeated by a defence of prescription. The Court held that the relevant provisions of the Act all indicated that a claim for non-pecuniary loss forms part of a unitary claim for compensation, and does not constitute a separate discrete claim. The late filing of the serious injury form did not constitute a separate claim, and thus, appellant’s claim had not prescribed. The appeal was thus upheld.

Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8 (24 April 2018)

Rule 53(1)(b)- Judicial Service Commission (JSC)-obliged to furnish a review applicant seeking the review and setting aside of a JSC decision with a recording of the private deliberations that inform the decision. Judicial Service Commission (JSC)- )-obliged to furnish a review applicant seeking the review and setting aside of a JSC decision with a recording of the private deliberations that inform the decision.

The Constitutional Court handed down judgment in an application for leave to appeal against an interlocutory order of the High Court of South Africa, Western Cape Division, Cape Town (High Court). The dispute concerns whether the Judicial Service Commission (JSC) is obliged, under rule 53(1)(b) of the Uniform Rules of Court (rules of court), to furnish a review applicant seeking the review and setting aside of a JSC decision with a recording of the private deliberations that inform the decision. In October 2012 the JSC decided to recommend that the President appoint certain candidates as judges of the Western Cape Division of the High Court, and not to appoint others. This decision followed private deliberations held by the JSC after the candidates had been interviewed publicly. The Helen Suzman Foundation (HSF), a non-profit organisation, approached the High Court seeking to have that decision reviewed and set aside on the grounds that it was unlawful and irrational. The application was brought in the public interest. The JSC subsequently filed a record of its proceedings as required in terms of rule 53(1)(b) of the rules court. The record included reasons prepared by the Chief Justice following the deliberations. It did not include the deliberations themselves. The HSF discovered that the JSC routinely recorded its deliberations. The HSF therefore launched an interlocutory application in the High Court for an order compelling the JSC to provide the recording as part of the full rule 53(1)(b) record. The application was denied. The HSF approached the Constitutional Court for leave to appeal after an appeal against the interlocutory order failed in the Supreme Court of Appeal. The HSF contended that rule 53(1)(b) exists to facilitate effective review proceedings and that review applicants are entitled to the record, lest they be forced to launch their review applications in the dark. This accords with the right of access to court or fair trial right enshrined in section 34 of the Constitution. The HSF argued that the standard for what information must be disclosed in the record is whether the information is relevant to the impugned decision. It then argued that the recording of the deliberations was clearly the most relevant evidence of what considerations were factored into the decision-making process and was thus liable to be disclosed. It also argued that the disclosure of the recording under rule 53(1)(b) is crucial to holding the JSC accountable in its performance of a vital democratic state function. The JSC argued that it is empowered by section 178(6) of the Constitution to determine and regulate its own procedure. Pursuant to this constitutional provision, it has made regulations that provide for its deliberations to be in private. In turn, the privacy of its deliberations entitles the JSC to withhold the recording of its deliberations. Also, continued the argument, section 38 of the Judicial Service Commission Act (JSC Act), the statute governing JSC processes, permits the non-disclosure of confidential information. Further, the JSC contended that the disclosure of its deliberations would hamper its ability to perform its constitutionally assigned role by, among other things, reducing the opportunity for candour in the deliberation process, discouraging potential applicants from subjecting themselves to such a process, and by endangering the privacy and reputations of applicants. In a majority judgment concurred in by Zondo DCJ, Cameron J, Froneman J, Kathree-Setiloane AJ, Mhlantla J, and Theron J (first judgment) Madlanga J reasoned

that the JSC’s contention for a blanket ban on disclosure, rather than a fact-specific case for non-disclosure, is unjustifiable in an open and democratic society in which the rule of law and the values of accountability, responsiveness and openness are paramount. The first judgment also held that rule 53(1)(b) helped to promote an important fundamental right, the right to a fair trial under section 34 of the Constitution, and thus rejected the argument that deliberations, as a class of information, can be shielded from disclosure in all circumstances. It also held that the broad terms of section 178(6) of the Constitution do not empower the JSC to determine procedures that are at odds with specific rights and foundational values contained in the Constitution. On the JSC’s argument founded on section 38 of the JSC Act, the first judgment concluded that what this section protects from disclosure is “confidential” information. In this matter the JSC has pleaded for blanket non-disclosure without demonstrating why the content of the recording at issue in these proceedings is confidential. For purposes of section 38, confidentiality must be proved. And the JSC has failed to do that in the instant matter. On the point that disclosure might be a dampener on the candour of deliberations, the first judgment held that JSC members worth their salt ought not to be deterred from deliberating freely and honestly purely because of the prospect that the content of the deliberations might be disclosed. It also held that worthy candidates were not likely to be deterred from availing themselves for interviews because of this same prospect. Lastly, the first judgment held that the JSC has failed to demonstrate why recordings of its deliberations that are truly confidential may not be adequately protected by a suitably couched confidentiality regime. Such a regime could limit access to the deliberations only to the court concerned and a few individuals like the parties’ lawyers. Consequently, this Court has upheld HSF’s appeal and set aside the orders of the High Court and the Supreme Court of Appeal. These orders are substituted with an order compelling the JSC to deliver the full recording of the proceedings sought to be reviewed by the HSF. In a dissenting judgment (second judgment) Jafta J held that rule 53(1)(b) of the rules of court was never intended to apply to proceedings before the JSC and, even if it did, it would not entitle a party to the deliberations of the JSC, as such deliberations do not form part of the record of proceedings as contemplated in the rule. The central issue, however, in this matter was whether the High Court properly exercised its discretion in terms of rule 30A of the rules of court, when it held that there was compliance by the JSC with rule 53(1)(b). Rule 30A confers a discretion on the High Court where there is non-compliance with any rules of court to grant an order it deems fit. This discretion is in line with the powers that the Constitution confers on the High Court, the Supreme Court of Appeal and this Court to regulate their own internal processes and is further consonant with the underlying purpose of the rules of court. The second judgment holds that this discretion was judicially exercised by the High Court. The second judgment would dismiss the appeal on this basis.

In a separate dissenting judgment (third judgment), Kollapen AJ considered whether deliberations form part of the record. In answering this question, he agreed with the first judgment that the general exclusion of deliberations from the record would not pass constitutional muster. However, the third judgment held that deliberations should

only form part of the record if they satisfy the test for relevance. The judgment concludes that, even if the test for relevance is satisfied, the deliberations could still be excluded if there was a justifiable reason for their exclusion. In these proceedings, the third judgment held that the deliberations of the JSC were relevant to the decision that was under review and, as such – save for a legally justifiable reason – should be included in the record.

The third judgment also addressed the question of whether a justifiable reason existed for the exclusion of the deliberations of the JSC in the matter before this and found that a justifiable reason did exist in this case. According to the third judgment, preserving the confidentiality of the JSC deliberations not only served as a justifiable reason for the exclusion of the deliberations from the record, but was also necessary to safeguard multiple constitutional values encompassed in the Bill of Rights.

In conclusion, the third judgment held that the exclusion of the private deliberations of the JSC from the record would not violate HSF’s right to properly bring review proceedings nor would it breach the principles of openness and transparency enshrined in the Constitution. The third judgment would dismiss the appeal with no order as to costs.

Pretorius and Another v Transport Pension Fund and Another (CCT95/17) [2018] ZACC 10 (25 April 2018)

Exceptions — pension funds— pension benefits — class action

Constitutional causes of action-class action proceedings-leave to appeal

Leave to appeal- Constitutional causes of action-class action proceedings

The Constitutional Court handed down judgment in an application for leave to appeal and two conditional applications for leave to cross-appeal arising from a class action instituted in the High Court of South Africa, Gauteng Division, Pretoria (High Court), in terms of section 38(c) of the Constitution. The applicants, Mr Pretorius and Mr Kwapa, are acting in a certified class action on behalf of approximately 60 000 similarly situated former employees of the third respondent (Transnet) who are now pensioner-members of the first two respondents, the Transport Pension Fund and the Transnet Second Defined Benefit Fund (collectively “the Funds”) in a certified class action. The applicants brought three claims in the High Court. The first claim related to a “1989 promise” allegedly made during the run-up to the establishment of Transnet. The applicants claim that they were promised that the practice of annually increasing members’ pensions by at least 70% of the rate of inflation, in addition to the annual 2% increase to which they were contractually entitled, would continue. They contended that there had been a breach of contract by the Funds since 2003 because the Funds’ annual increase to the members’ pensions was significantly lower than what they contend had been promised by Transnet’s and the Funds’ predecessors. The applicants also argued that the failure to keep the

promise constituted unlawful state action and an unfair labour practice. They asked the High Court to declare that the Funds’ failure to keep this “promise” was unlawful. The second claim concerned Transnet’s obligations to maintain the Funds in sound financial condition, paying into them if necessary. That obligation was said to have been inherited by Transnet from its previous transportation bodies. The applicants argued that Transnet did not fulfil its obligation and asked that Transnet be declared indebted to the Funds for the necessary payments. The third claim related to an alleged “unlawful donation” made by one of the Funds to Transnet. The fund is said to have donated 40% of its members’ surplus to Transnet. The applicants sought to have the donation declared unlawful and invalid and for the Fund to be reimbursed by Transnet. The respondents raised various exceptions to these in the High Court. The High Court dismissed some of the exceptions raised by the respondents but upheld three exceptions to the cause of action. The first upheld exception concerned the claim for “unlawful state action” on the basis that the claim ought to have been brought under the Promotion of Administrative Justice Act. The second was that the breach of contract claim was “vague and embarrassing” as the applicants’ amended particulars of claim lacked the particularity necessary to sustain the cause of action based on breach of contract. The last exception related to the cause of action based on an unfair labour practice which was partially upheld on the grounds that it lacked particularity with respect to averring that an employment relationship had existed between the applicants and the Fund. The High Court, however, rejected the argument that such claim could only have been brought under the Labour Relations Act. The Supreme Court of Appeal refused leave to appeal against the orders upholding exceptions, and refused conditional leave to cross-appeal against the orders rejecting exceptions. It did so on the grounds that there were no prospects of success, nor any other compelling reason to hear the appeals. In this Court, the applicants sought leave to appeal against the High Court order upholding the exceptions. They argued that the effect of the High Court order was to deprive them of the opportunity to pursue two constitutional causes of action in the class action proceedings as those causes of action were effectively dismissed on exception. In a unanimous judgment written by Froneman J, the Constitutional Court granted leave to appeal and upheld the appeal against the order of the High Court upholding the exceptions. The Constitutional Court replaced the High Courts’ main orders with an order that the exceptions raised by the respondents are dismissed with costs. The cost order against the applicants in the SCA was replaced with a cost order in their favour in the Constitutional Court. The second and third applications were conditional applications filed by the Funds and Transnet respectively for leave to cross-appeal against the High Court’s order. The applications concerned exceptions raised by the respondents in the High Court which

were not upheld. Those applications were only to be considered in the event that the Constitutional Court granted the applicants’ leave to appeal. The Constitutional Court did grant the applicants’ leave to appeal and the conditional applications were considered and dismissed with costs. They failed on the well-established ground that a dismissal of an exception is not a final dispositive pronouncement of the legal issues in a matter. The dismissal of the conditional applications does not preclude the respondents from raising substantive defences to the applicants’ claims to be determined at the trial in the High Court.

Van der Westhuizen v Strombeck Pieterse Incorporated and Others (851/2017) [2018] ZAECGHC 25 (3 April 2018)

Rule 33 (4)- court may mero motu separate -question of law or fact - before any evidence is led -question concerning fault-cannot be separated [2] Applicant, who is the plaintiff in the main action wants the court to order that the following question of law be separated and decided before any evidence is led:

“Is it necessary for the plaintiff to prove fault on the part of the defendants, or any one of them, in order for her claim to succeed?”

It is common cause that the dispute between the parties arises out of an agreement between the parties wherein the defendant’s firm of attorneys was to attend to the transfer of plaintiff’s property. It is common cause that the said property was indeed sold for a consideration of R740 000.00. Plaintiff did not receive the ± R679 219.00 being the amount she was entitled to after certain disbursements were made, from the defendants. She is now suing the defendants for payment of that amount. According to the applicant, her claim is no longer founded in a contract of a mandate, but on a debtor-creditor relationship. It is on that basis that applicant would like the question whether, that being the case (action based on a debtor-creditor relationship) she is required to prove that the defendants or any of them was negligent, before evidence can be led. Initially, applicant had sued on the basis that the first defendant had breached a mandate she gave to it. The liability of the remainder of the defendants is based on them being directors in first defendant.

[8] I am inclined to agree with Mr Van Der Linde especially for the second and third ground of opposition mentioned above, that the question contended for by the applicant cannot be decided separately. That it will not be convenient to decide this question separately due especially to the fact that it is extricably linked to the other issues in this matter. I am of the view that it will convenient, costs effective and time saving to deal with all the issues in one hearing.

[9] Accordingly the application for a separation of issues in respect of Rule 33 (4) is dismissed with costs.

JM and Another v Free State Care In Action and Others (5829/2017) [2018] ZAFSHC 42 (5 April 2018)

Appeal-orders of a lower court-directly set aside-single judge- appeal or review route to be followed

This judgment in essence concerns the question whether the orders of a lower court [in this instance a Magistrate’s Court sitting as Children’s Court in terms of the Children’s Act, 2005 (Act No 38 of 2005)] can legitimately be directly set aside by way of normal urgent application procedure before a single judge (in other words, not following the route of appeal according to the Rules, or the Rule 53 review procedures).

[2] The Applicants brought an urgent application to set aside an order of the Children’s Court for the district of Brandfort granted on 9 March 2018 together with an order that the Family Advocate be requested to conduct a thorough investigation on urgent basis in respect of the best interests of the Applicants’ minor child, born on 2 June 2017, in respect of whether the Applicants should attend to her primary care and residence. The Notice of Motion further made provision that pending the Family Advocate’s investigation and recommendation, the Applicants to retain full parental rights and responsibilities in respect of their minor child subject to primary care by the maternal grandparents, that parental rights and responsibilities in respect of contact be awarded in accordance with the provisions of Section 18(2)(b) of the Children’s Act regarding reasonable telephonic contact and unrestricted contact visits under supervision of the maternal grandparents. A Rule Nisi would then have issued calling upon all interested persons to show cause on 26 April 2018 why the above orders should not be made final.

The Court a quo was empowered by the Children’s Act to make a decision whether the minor was in need of care and protection , and has jurisdiction over the minor if she is ordinarily resident within the jurisdiction, or where it is unclear which Court has jurisdiction. The Children’s Court did not usurp for itself a power that it did not have. The Applicants thus could not resort to self-help by ignoring the order of the Children’s Court.

Furthermore, an order of a Magistrate’s Court and/or Children’s Court is not readily and easily set aside overnight by way of application to set aside before a single Judge. The correct procedure is by way of review or appeal in accordance with the Rules. The application is dismissed.

Standard Bank of South Africa and Another v Caine and Others, In Re: Caine and Others v Standard Bank of South Africa and Another (6309/2017) [2018] ZAKZDHC 8 (25 April 2018) Rule 30(1)- No cause of action-There are no allegations to support any legal duty or obligation owed by the "plaintiffs" who were not the owners of the property and were not party to the impugned action and processes served thereunder-fourth plaintiff is a minor and there are insufficient allegations to confer locus standi on the fourth plaintiff-respondents rely on the "family unit" and non-service on "the family". The legal nature of the family unit and the family is unclear and not pleaded-particulars of claim the respondents refer to paragraph 33(ii) but there is no such paragraph.

Rule 28-notice of amendment-does not comply with Uniform Rule 28 of the rules of court and stands to be set aside as irregular-set aside.

The first applicant, Standard Bank of South Africa, made an application in terms of Rule 30(1) of the rules of court wherein it sought an order in the following terms:

(1) Setting aside the particulars of claim filed under case number 6309/2017;

(2) Affording the respondents a period of 15 days following service of the order on the respondents to deliver their amended particulars of claim;

(3) Authorising the applicants' attorneys of record to attend to the delivery of the order on the respondents;

(4) That first to fourth respondents be ordered to pay the costs of the rule 30 application, jointly and severally, the one paying the other to be absolved.

[2] In respect of the second applicant, the Sheriff lnanda District Two, two matters served before this court namely:

(a) Exception to the plaintiff's particulars of claim.

(b) The rule 30 application, in respect of the plaintiffs' "purported notice" to amend.

[3] Before I proceed with this matter, I may as well mention that on the day of the hearing of these opposed applications there were no appearances by or on behalf of the respondents. It is clear from the documents that notices of set down were properly served on the addresses chosen by the respondents. Counsel for the first applicant in the exception mentioned that his instructing attorney received a copy of a sick note on behalf of the first respondent. The document did not properly indicate the first respondent's ailment. The first respondent did not notify the court through the registrar or in any other way that he would not be able to attend the proceedings. The names of the second, third and fourth respondents were called and there was no appearance by or on their behalf.

[4] It became clear that the respondents were all aware of the date of the opposed application. The notices of set down of the matters on the opposed roll were served on the address chosen by the respondents. It is also clear from the reading of the papers that the respondents drafted their own papers and that they have not been legally represented right through these proceedings.

[5] Counsel, for the first and second applicants, applied that the matter proceeded despite the absence of the respondents. The application was accordingly granted and the court proceeded with the matter in their absence.

[6] The respondents contend that the first applicant instituted action against Ms Van Zyl under case number 2824/2014. The respondents complain that the summons, and other documents were not served by the second applicant, the sheriff, and that the property at issue (owned by and in the name of Van Zyl) was listed to be sold. As a result the respondents' claimed damages exceeding R62 millions.

[7] On the 2 June 2017 the first to fourth respondents caused summons to be issued again the first and second applicants. Subsequent to receipt of the summons on 7 July 2017 and 28 July 2017 both first and second applicants served upon the respondents notices in terms of rule 23 calling upon the respondents to remove various causes of complaints.

[8] On 4 August 2017 the first to fourth respondents served their responses to the first and second applicants' notices to remove the causes of complaint.

[9] On 30 August 2017 and in consequence of the first to fourth respondents' failure to remove the causes of complaint, the first applicant served on the respondents its notice of exception. The second respondent, the sheriff, also served his notice of exception, objecting to the notice of amendment, dated 24 May 2017 and stating that it does not comply with Uniform Rule 28 and that it is irregular.

[10] On 10 June 2014 Madam Justice Moodley granted a judgment sounding in money against Melanie Nannie Van Zyl, the first and second respondents' daughter.

[11] On 11 August 2014 Mr Justice Koen granted an order against Melanie Nannie Van Zyl, in favour of the first applicant declaring the mortgaged property described as Erf […] Newlands (Extension 16) specially executable.

[12] Notwithstanding that the respondents claim is founded on the orders that were granted by Judge Moodley and Judge Koen, Melanie Nannie Van Zyl is not cited as a co-plaintiff in the action instituted by the respondents against the applicants.

[13] On 27 November 2017 the first to fourth respondents served a notice of amendment citing Melanie Nannie Van Zyl as a first plaintiff and Ursula Andrea Caine as a fourth ·plaintiff in the main action and seeking to effect certain amendments to its particulars of claim.

[14] Insofar as the first applicant's rule 30 application is concerned, it contended that on 28 July 2017, Jason Michael Smith Incorporated Attorneys, the applicant's erstwhile attorneys of record, served a joint notice in terms of rules 23(1) and 30(1) on the respondents, and allowed the respondents 15 days within which to remedy the causes of complaints set out in the notice. The notice is annexed to the application in terms of the rule 30 as RT1 and contains 24 causes of complaints.

[15] The 15 day period within which the respondents were afforded to cure the defects in the particulars of claim has lapsed yet the respondents have still not rectified the causes of complaint set forth in the notice to date. It has been contended on behalf of the applicant in the rule 30 application that it is prejudiced in the running of the matter due to the respondents' failure to address the causes of complaint.

[16] Having considered all the above, in my view, there is no reason why the order sought in the notice of application cannot be granted.

[17] On 11 December 2017 the second applicant caused a notice in terms of Uniform Rule 30(2) of the rules of court to be served upon the respondents and filed it with registrar of this court on the same day. The notice is annexure "A" to the founding affidavit in support of the second applicant's application in terms of rule 30(2). The second applicant in the main application identified the causes of complaint as irregular steps by the respondents as follows:

"1. On 27 November 2017, the respondents caused a notice of amendment of the Respondents' particulars of claim to be served upon the second applicant (which notice is dated 24 November 2017), in which the respondents inform the second applicant that "...the respondents hereby amend the particulars of claim to read as follows... "

2. The said notice of intention to amend the respondents' particulars of claim does not comply with Rule 28(2) which regulates proposed amendments to pleadings.

3. In addition to the foregoing, the existing respondents purport to join a new plaintiff as first plaintiff by means of the aforementioned irregular notice of intention to amend. No application for joinder of the first plaintiff, as provided by the rules has been made."

[18] The notice indicated that the respondents herein took irregular steps in delivering a notice of intention to amend their particulars of claim which was not compliant with the rules of this court. This notice of intention to amend sought to introduce a new party without complying with the rules and procedures of this court. The respondents were called upon to remove the causes of complaint, and the irregular steps within 1O days of delivery of notice. The 10 day period in the notice expired on 27 December 2017. The respondents failed to remove the causes of complaint or irregular steps either timeously or at all.

[19] It was submitted, correctly in my view, on behalf of the second applicant that the claim against the second applicant is excipiable for the following reasons:

"1. No cause of action: There are no allegations to support any legal duty or obligation owed by the "plaintiffs" who were not the owners of the property and were not party to the impugned action and processes served thereunder. The "plaintiffs" are complete legal strangers to that action and those processes. The respondents advance no averments as to why they are suited to advance the claims.

2. No cause of action - fourth plaintiff: The fourth plaintiff is a minor and there are insufficient allegations to confer locus standi on the fourth plaintiff.

3. No cause of action/vague and embarrassing: the respondents rely on the "family unit" and non-service on "the family". The legal nature of the family unit and the family is unclear and not pleaded.

4. No cause of action/vague and embarrassing: In paragraph 32(iii) of particulars of claim the respondents refer to paragraph 33(ii) but there is no such paragraph.

5. Vague and embarrassing: the particulars of claim are replete with general references to corruption, court capture and so on. None of these are linked to any cause of action against the second applicant. Their inclusion renders the claim vague and the second applicant is embarrassed in pleading."

[20] Furthermore the allegations in the following paragraphs of the particulars of claim are irrelevant: 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 30, 33, 34, 36, 38 and 39. The second respondent is and will be prejudiced if these allegations remain. They stand to be struck out. It is further contended that the "further particulars" do not cure the complaints.

[21] In an undated response, the respondents opposed the applicants' exceptions and the motion to strike out certain averments in the particulars of claim. Their response mainly contains denials of the averment made on behalf of the applicants and refers to the corruption and capture of the courts and accuses the courts of making rulings based on fraudulent documents.

[22] I have considered the document filed on behalf of the respondents in response to the applicants' exceptions and the motion to strike out. I am satisfied that the issues raised as causes of complaint by the applicants have not been addressed by the respondents in their response.

[23] In my view there is no reason why the second respondent's exception should not be upheld.

[24] On 27 November 2017, the respondents delivered a "notice of amendment" dated 24 November 2017. In this notice the respondents sought to introduce Van Zyl as the first respondent. This notice does not comply with Uniform Rule 28 of the rules of court and stands to be set aside as irregular.

[25] In my view there is no reason why this notice should not be set aside.

Costs

[26] On the issue of costs both counsel argued that their applications should be upheld with costs. In my view there is no reason why the costs should not follow the result.

[27] In the result I make the following order:

1. The first and second applicants'/defendants' exceptions to the respondents/plaintiff's particulars of claim are upheld.

2. The respondents/plaintiffs are afforded a period of 15 days to deliverer their amended particulars of claim.

3. If the respondents/plaintiffs fail to amend their particulars of claim in accordance with above paragraph, the applicants/defendants are given leave to set the matter down without notice to the respondents/plaintiffs for an order striking out the respondents'/plaintiffs' particulars of claim and granting the judgment in favour of the applicants/defendants with costs.

4. The following paragraphs of the respondents'/plaintiffs' particulars of claim are struck out: 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 30, 33, 34, 36, 38 and 39.

5. The respondents'/plaintiffs' "notice of amendment" dated 24 November 2017 is set aside as an irregular step and shall be of no force or effect.

6. The respondents/plaintiffs jointly and severally, the one paying the other to be absolved, are ordered to pay the costs occasioned by the exceptions, the rule 30 application and the opposed motion.

Maja v Absa Bank Limited and Another (968/12) [2018] ZALMPPHC 17 (18 April 2018)

Costs-taxed- items taxed off-travel and accommodation costs of witnesses and counsel allowed-Pretoria to Polokwane

The defendants are dissatisfied with the rulings of the Taxing Master relating to the items taxed off on their bill of costs. The defendants have made their submissions to the Taxing Master in terms of Rule 48(1) of the Uniform Rules of Court (“the Rules”). The Taxing Master has made his stated case in terms of Rule 48(5)(a) and the plaintiff has also made her submissions in terms of Rule 48(5)(a).

[2] The matter has now been laid before me for a decision. Rule 48 (6) (a) read as follows:

“The Judge may:

(i) Decide the matter upon the merits of the case and submission so submitted;

(ii) Require any further information from the Taxing Master;

(iii) If he or she deems it fit, hear the parties or their advocates, or attorneys in his or her chambers; or

(iv) Refer the case for decision to the court.”

The Taxing Master must allow fees and disbursements that are reasonable and necessary to pursue a successful litigation. The defendants’ witnesses travelled from Cape Town and Pretoria respectively to Polokwane for the purposes of the trial, and their evidence was necessary to attain justice. The defendants’ counsel and attorney had to travel from Pretoria to Polokwane in order to represent the defendants’ in this matter. Both defendants’ witnesses and legal representatives had to be accommodated in Polokwane overnight. In my view, it was necessary for the witnesses, the defendants’ counsel and attorney to travel from their respective places and be accommodated overnight in Polokwane which is nearer to Court. Therefore, in my view the travelling and accommodation costs or expenses for defendants’ witnesses and legal representatives were necessary costs or expenses incurred in attaining a successful litigation. It will be up to the Taxing Master to determine whether the costs or expenses incurred are reasonable or not.

11.1 The Taxing Master’s allocatur is set aside and the matter is remitted back for taxation afresh before another Taxing Master in the light of this judgment and also in the light of such information and argument as the parties may present on that occasion.

11.2 The items which the parties have settled upon remain settled.

11.3) No order as to the costs.

Mostert and Others v Firstrand Bank t/a RMB Private Bank (198/2017) [2018] ZASCA 54 (11 April 2018)

National Credit Act-Debtor and creditor – remedying of default in a credit agreement in terms of s 129(3) of the National Credit Act 34 of 2005 – s 129(3) requires payment by or on behalf of the consumer – consumer relied on payments during 2013 and 2015 – not established that 2013 payment settled the arrears – 2015 payments did settle the arrears but were not made by or on behalf of the consumer.

The first appellant, Mr David Carl Mostert, and the first respondent Firstrand Bank Limited t/a RMB Private Bank (RMB), entered into a loan agreement in terms of which RMB lent and advanced the amount of R30 million to Mr Mostert. The loan had to be repaid in monthly instalments. The second, third and fourth appellants, the trustees of the Carpe Diem Trust (the Trust), bound the Trust to RMB as surety and co-principal debtor for the due compliance by Mr Mostert of his obligations in terms

of the loan agreement. The Trust also registered a first mortgage bond over its property situated at Bishopscourt, Cape Town (the property) in favour of RMB. The property is the residence of Mr Mostert and his family. Mr Mostert failed to comply with his obligations in terms of the loan agreement. RMB consequently obtained judgment against Mr Mostert and the Trust for the full outstanding balance in terms of the loan agreement and the property was declared specially executable. The appellants brought an application in the Western Cape Division, Cape Town, for an order prohibiting RMB to execute the judgment against the property. The Western Cape Division dismissed the application and the appellants appealed to the Supreme Court of Appeal (SCA). The appellants contended that the loan agreement had been reinstated in terms of s 129(3) of the National Credit Act 34 of 2005 (the Act) by payment of the arrears in terms of the loan agreement on 31 May 2013 (the 2013 payment) or during 2015 (the 2015 payments). RMB denied that the 2013 payment had settled the arrears but admitted that the 2015 payments had done so. The 2015 payments were, however, made by a third party. The 2015 payments constituted the proceeds of shares which Mr Mostert had pledged to RMB as security, but had disposed of without the knowledge and consent of RMB. The third party sold the shares but paid the proceeds thereof to RMB, only because of RMB’s insistent conduct in following up its security. The appeal raised three issues: (i) Whether the appellants should be permitted to rely on s 129(3) of the NCA for

the first time in reply; (ii) Whether the 2013 payment had settled the arrears in terms of the loan

agreement; and (iii) Whether the 2015 payments remedied Mr Mostert’s default within the meaning

of s 129(3) of the NCA. The SCA dismissed the appeal. It held that in the exceptional circumstances of the case it was in the interests of justice to permit the appellants to rely on the case made only in reply. It held that it was not shown that the 2013 payment had settled the arrears. The SCA interpreted s 129(3) of the NCA in its context and concluded that the remedying of a default in a credit agreement in terms thereof takes place only by payment made by or on behalf of the consumer. As the 2015 payments were not made by or on behalf of Mr Mostert, but resulted from RMB’s enforcement of its rights against a third party, they did not remedy his default. The SCA therefore held that the Western Cape Division correctly dismissed the appellants’ application to prevent execution of the judgment in respect of the property.

Kelbrick and Others v Nelson Attorneys and Another (307/2017) [2018] ZASCA 55 (16 April 2018)

Prescription-attorney sued for negligence-prescription begins to run as soon as the creditor acquires knowledge of the facts necessary to institute action-whether knowledge of delay in constructing a sectional title scheme constituted knowledge of facts constituting a complete cause of action-the appeal is upheld with costs-the order of the court a quo is set aside and replaced with the following:‘The first defendant’s special plea of prescription is dismissed with costs’.

The appellants sold their immovable properties to a property developer, Headline Trading 124 CC t/a Status Homes (Status Homes). They concluded written agreements on 4 September 2006, in terms of which they sold their immovable properties to Status Homes, each for a purchase price of R1 400 000. Status Homes was not able to comply with the terms of the agreements. It was eventually liquidated, and its sole member was sequestrated. The appellants instituted a claim for damages based on negligence against the first respondent as the attorneys who had drawn the agreements and acted as conveyancers in the transaction. The first respondent raised a special plea of prescription which was upheld by the court a quo. The appeal is with leave of the court a quo.

The second and third appellants are husband and wife. Where it is necessary to refer to them separately from the first appellant, they are referred to as ‘the Van den Bergs’. The second respondent, Pierre Kitching Attorneys, another firm of attorneys, was joined to the proceedings as a second defendant on 4 June 2013. The special plea did not affect it, and it is therefore not part of this appeal. Accordingly, for the sake of convenience, the first respondent is henceforth referred to in this judgment as ‘the respondent’.

[3] In terms of the agreements, the appellants’ properties and that of another seller, Jonker, would be transferred to Status Homes and consolidated into one property. Status Homes would build 16 upmarket townhouses in a sectional title development on the consolidated property. This entailed that the homes of the appellants and Jonker built on their respective properties had to be demolished. In lieu of payment of the purchase price for the properties, Status Homes would build townhouses for the appellants - one for the first appellant and two for the Van den Bergs. The appellants were apparently attracted to the transaction by the fact that although their properties were worth approximately R500 000 each, the new townhouse units were expected to be worth approximately R1 400 000 each.

[4] In order for the construction to proceed, the properties had to be re-zoned and consolidated; and certain restrictive conditions reflected in the title deeds of the properties, had to be removed. The municipality under which the properties fall, the Nelson Mandela Metropolitan Municipality, consented to the re-zoning of the properties on 28 June 2006. This was subject to, among others, the properties being consolidated and the restrictive conditions being removed. The properties were transferred to Status Homes on 27 July 2007, and were simultaneously consolidated.

[5] The process of removing the restrictive conditions commenced on 15 January 2008 when the respondent, on behalf of Status Homes, launched an application in the Eastern Cape Local Division, Port Elizabeth (the court a quo) for their removal. A provisional order was issued on 15 July 2008, with a return date of 26 August 2008, on which date a final order was made for the removal of the restrictive conditions. The construction of the dwelling units in the development commenced in October 2008, but the development came to a halt in February 2009 when the financiers of the development refused to allow further drawings against the development bond.

[6] As stated already, the appellants instituted action in the court a quo against the respondent, claiming payment of the amounts they could not recover from Status Homes. The combined summons was served on the respondent on 30 August 2011. In its particulars of claim, the appellants alleged that the respondent owed them a

duty of care because it had drafted the sale agreements, and had acted as the conveyancer in the transaction. The appellants alleged that the respondent had breached the said duty of care by failing to advise them of the risks inherent in the transaction and the development of the sectional title scheme. In its plea to the appellants’ particulars of claim, the respondent admitted that it owed the appellants a duty of care in the terms pleaded by the appellants, but denied having breached it.

[7] In addition, the respondent raised a special plea, contending that the appellants’ claim had prescribed. The essence of the special plea was the following: the properties were transferred to Status Homes on 27 July 2007. As no construction had taken place for a period of a year since registration, it alleged that it must have been apparent to the appellants that no construction was going to commence and that Status Homes was in material breach of the agreement and that they (the appellants) would suffer damages as a result.

[8] In the circumstances, the first respondent contended that by 27 July 2008 the appellants had a completed cause of action. Accordingly, prescription commenced to run from that date and was completed on 26 July 2011. As the combined summons was served on 30 August 2011, more than three years after 26 July 2008, the appellants’ claims had prescribed. In the alternative, the first respondent contended that the appellants’ claims prescribed on 3 September 2009, three years after the signing of the agreements. This alternate contention was not pursued with any vigour in argument.

[19] That the construction of the townhouses could not commence without the removal of the restrictive conditions on the title deed of the consolidated property, was common cause. As stated earlier, Nelson conceded that much during cross-examination. The restrictive conditions were only removed on 26 August 2008. Therefore, on 28 July 2008, the date on which the respondent contended was the inception date of the prescriptive period, the construction could not have commenced. Nelson conceded further that in view of this fact, had the appellants approached him before 26 August 2008 with complaints about the development not commencing, he would have informed them to be patient as it was Status Homes’ intention to commence construction once the restrictive conditions had been removed.

[23] The respondent’s main difficulty is this: during July and August 2008 it was engaged in efforts to remove the restrictive conditions so that construction could commence. It is therefore difficult to see how a court can hold that by 27 July 2008, notwithstanding those efforts, there was no prospect that construction would go ahead and that the appellants had a completed claim against the respondent for alleged negligence. Even if the court could reach that conclusion, on the basis that the application to remove the restrictive conditions was a desperate last attempt by the developer, there is no basis on which it could be concluded that the appellants would have had knowledge of that fact. On the contrary, the respondent’s efforts would have given assurance to the appellants that once the restrictions were removed, construction would commence. This is in fact what happened. It is an untenable proposition, which in my view, exposes the flawed premise of the respondent’s argument.

[24] As a matter of fact, construction could not legally commence on 27 July 2008. As a result, the removal of the legal impediment occurred after the respondent’s ‘cut-

off’ date. Nelson could not adduce any evidence that on 27 July 2008 the appellants had actual knowledge of all the requisite facts contemplated in s 12(3) of the Prescription Act. Indeed, as the very existence of the claims depended upon the failure of the development project, it is debatable whether the pleaded claims could have arisen before the conditions were removed, but if they did there is no reason to think that the appellants were aware of the facts giving rise to that claim.

[29] For the reasons set out above, the appeal should succeed. In the result the following order is made:1. The appeal is upheld with costs, including costs attendant upon the employment of two counsel.

2. The order of the court a quo is set aside and replaced with the following:

‘The first defendant’s special plea of prescription is dismissed with costs’.

Modibedi v Health Professions Council of South Africa and others [2018] JOL 39758 (GP)

Judgment-abandonment of judgment – Tendering of costs – Rule 41(2) of the Uniform Rules of Court

In the court a quo, the appellant had applied for the review and setting aside of a decision of the third respondent regarding the nature and extent of the appellant’s injuries in a motor vehicle accident. Without dealing with the merits, the court upheld a point in ljmine raised by the respondents regarding the appellant’s alleged non-compliance with section 7(1) of the Promotion of Administrative Justice Act 3 of 2000. It was subsequently accepted that the court had erred in that regard.

Despite the respondents’ attempting to abandon the judgment and order of the court below, the appellant persisted with the appeal on the ground that the respondents, in failing to tender costs, had failed to comply with Rule 41(2) of the Uniform Rules of Court.

Held that Rule 41(2) provides that once a party in whose favour a decision has been made decides to abandon its judgment, it must give notice of such abandonment and tender costs. The present Court agreed that by not tendering costs, the respondents did not comply with Rule 41(2).

The appeal was upheld and the respondents held liable for the costs of the appeal, including costs of the application or leave to appeal.

Discovery Health Medical Scheme and others v Afrocentric Healthcare Limited and others [2018] JOL 39831 (CT)

Jurisdiction-Competition – Self-referral to Competition Tribunal – Jurisdictional prerequisite – Lodging of complaint with Competition Commission

In June 2014, a company (“Afrocentric”) submitted a complaint to the Competition Commission against two other companies (“DHMS” and “DH”) in terms of section 49B(2) of the Competition Act 89 of 1998. Afrocentric objected to DH’s negotiating of hospital tariffs collectively for all the medical schemes it administered, averring that such conduct amounted to a contravention of section 4(1)(b)(i), (ii) and (iii) of the Act.

The Commission issued a notice of non-referral, finding no merit in the complaint, and Afrocentric filed a self-referral to the Competition Tribunal.

That led to exception applications being filed by DHMS and DH in terms of section 51(1) of the Act. it was contended that Afrocentric had failed to set out a valid cause of action in its self-referral because on its own version DHMS and DH were not competitors in a horizontal relationship but were in a vertical relationship with DH providing administrative services to DHMS. Furthermore, Afrocentric was said to have changed its case in the self-referral, departing from the complaint first referred to the Commission.

Held that the only conduct which Afrocentric complained of in its referral to the Commission was that of DHMS and DH. It had not alleged any contravention of the Act by the other medical schemes administered by DH. That was the basis of the non-referral by the Commission, namely that there was no horizontal relationship between the parties, nor were DHMS and DH competitors. In seeking to overcome that difficulty in its self-referral, Afrocentric made new averments resulting in a substantially different case being mounted in the self-referral. That case had not been addressed in the section 49B referral to the Commission. Afrocentric was not permitted, following a non-referral by the Commission, to self-refer to the Tribunal, particulars of conduct which had not been previously been lodged with the Commission. The Tribunal therefore lacked jurisdiction to entertain the referral.

The exceptions were upheld and the complaint referral dismissed.

Jigger Properties CC v Maynard NO and others [2017] JOL 37547 (KZP)

Mandament of Spolie-Property – Use of property – Threat to continued use – Mandament van spolie – Appropriate recourse

The first, second and third respondents were the trustees for the time being of a family trust. The trust owned three units in a sectional title scheme. The developers of the sectional scheme granted permission to the trust to install underground tanks in the exclusive area allocated to one of the units (unit 16). The tanks were used for the purpose of storing solvents for the business of the trust, and the trust had access to the exclusive use area in order to service and maintain the tanks.

When the owner of unit 16 sold the unit to the appellant, the appellant acknowledged the arrangement in terms of which the trust was entitled to access to the exclusive area for the purpose of servicing underground tanks. However, it subsequently decided to charge the trust rent for using its exclusive use area in order to access the tanks. The trust refused to pay rent, and the appellant threatened to prevent its access to the exclusive use area. That led the trust to bring an urgent application for spoliatory relief. It was granted a spoliation order (mandament van spolie) by the court below.

The main issue in the present appeal was whether the respondents’ access to the exclusive use area amounted to a quasi-possessio which was deserving of protection by means of a mandament van spolie.

Held that a key characteristic of a mandament van spolie is that it is a possessory remedy (remedium possessoruim). The essential characteristic of a possessory remedy is that the legal process whereby the possession of a party is protected

(iudicium possessorium), is kept strictly separate from the process whereby a party’s right to ownership or other right to the property in dispute, is determined (iudicum petitoruim). The reason behind the practice of granting spoliation orders is that no man is allowed to take the law into his own hands and to dispossess another illicitly of possession of property. If he does so, a court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute. The rule is spoliatus ante omnia restituendus est.

An essential requirement that must be satisfied for spoliatory relief is that there must have been a spoliation – that there must have been a wrongful deprivation of another’s right of possession.

The trust’s rights of access to the underground tanks arose initially from a prior agreement which it had with the developers of the sectional scheme firstly for the installation of such tanks in the exclusive use area allocated to unit 16, and secondly for it to access that area in order to service and maintain the tanks. The appellant acknowledged the arrangement when it purchased the property. Therefore, the respondent’s right to access the tanks flowed from a contractual arrangement which the parties had with each other over the years, and the appellant had threatened that contractual right. The respondents’ claim in the court a quo amounted to nothing more than a claim for specific performance of their contractual rights. They could not enforce that claim by way of a mandament van spolie. They were thus not entitled to the relief they sought in the court a quo, and the appeal had to be upheld.

Sader v Pick 'n Pay Retailers (Pty) Limited trading as Pick 'n Pay – Norwood Hyper and another [2018] JOL 39762 (GJ)

Appeal-Application or leave to appeal – Test

The plaintiff’s claim for delictual damages against both the first and the second defendants having been dismissed, the present application for leave to appeal was brought. The application was not directed at the court’s order in respect of the second defendant.

Submitting that the court had erred in its finding that the plaintiff had failed to discharge the onus resting on her to prove her case, the plaintiff directed her application for leave to appeal at the factual findings of the court. She submitted that the court should have found that the first defendant and/ or its employees were negligent in that they allowed the shop floor to be wet, which caused her to slip and fall.

Held that nothing new was raised by the plaintiff in the application for leave to appeal. The traditional test in deciding whether leave to appeal should be granted was whether there is a reasonable prospect that another court may come to a different conclusion to that reached in the impugned judgment. That approach has now been codified in section 17(1)(a)(i) of the Superior Courts Act 10 of 2013, which came into operation on 23 August 2013, and which provides that leave to appeal may only be given where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success.

The Court was not persuaded that the issues raised by the plaintiff in her application for leave to appeal were issues in respect of which another court was likely to reach

different conclusions. The appeal therefore did not have a reasonable prospect of success, and the application was dismissed.

Roelitta CC trading as RVR Consulting and another v National Youth Development Agency and others [2018] JOL 39763 (GJ)

Default judgment – Erroneous granting – Rescission – Appeal against rescission order – Appealability of order

In the court below, default judgment which was granted against the respondents in July 2017, was rescinded and set aside. That led to the present appeal.

The respondents’ rescission application had been granted on the ground that the default judgment had been erroneously granted as the respondents had already delivered a notice of appearance to defend.

Held that Rule 49(1) of the Magistrate’s Court Rules provides that a party to proceedings in which default judgment has been granted may apply on notice to all parties, for rescission of the judgment – and the court may on good cause shown, rescind the judgment on such terms as it deems fit.

Critically in this case, the respondents were not in default when the judgment was granted.

The question on appeal was whether the magistrate was correct in finding that the respondents were entitled to rescission. A preliminary issue raised by the respondents was whether the order was appealable. That depended on whether the order was interlocutory or final and definitive. Following the approach to that test as evident from case law, the court concluded that the order in question was interim in effect and therefore not appealable. The appeal was thus struck from the roll. Vosloo Cloete [2018] JOL 39860 (GP)

Interdict-Interdictory relief – Entitlement to-a wall dividing two properties- both owners liable for upkeep

The respective properties of the applicant and respondent were situated adjacent to each other and were separated by a retaining wall. According to the applicant, the respondent’s property was elevated and the wall provided support for the property.

Anticipating damage to his own property as a result of the wall’s disintegration, the applicant sought interdictory relief requiring the respondent to take all reasonable steps to prevent damage or harm to the applicant, his family and his property – which damage might be caused by the collapse of the retaining wall.

The respondent disputed that the entire wall had to be rebuilt as maintained by the applicant, and he also disputed that the wall posed any danger to the applicant or his family. It was also disputed that the wall was progressively disintegrating.

Held that both parties had bought their respective properties with the wall already in existence, and neither had done any excavating to affect the state of the wall. In order to determine whether the applicant had made out a case for interdictory relief, the court had to determine whether there was any legal basis for the contention that the

respondent was solely responsible for the costs pertaining to the upkeep, repair or maintenance of the wall. The applicant’s suggestion was that the wall was “used” primarily by the respondent. The Court rejected that submission, finding that the wall served both parties equally. The applicant had not made out a case for the relief sought and the application was dismissed.

Absa Bank Limited v Marx NO and others [2018] JOL 39873 (WCC)

Summons-Counter-claim – Late filing – Condonation-more than two years late-application dismissed

The defendants were the trustees of a trust. Application was made by the plaintiff, for the setting aside of the defendants’ claim-in-reconvention as an irregular step.

Two and a half years after the delivery of their plea, the defendants delivered the counterclaim. They failed to give the plaintiff any prior notice of their intention to do so, and failed to obtain leave from the court, in terms of rule 27(1), alternatively rule 24(1), for the late delivery of the counterclaim. The defendants therefore conceded in their heads of argument that the filing of the counterclaim out of time constituted an irregular step. They then took the stance that because they conceded that the late filing of the counterclaim constituted an irregular step, the outcome of the matter should be determined by the outcome of the counter application.

Held that the first question which arose was whether a proper case had been made for the relief first claimed by the plaintiff, for the setting aside of the counterclaim in terms of rule 30(3), and costs, pending the determination of the defendants’ counter-application.

The Court first considered the explanation furnished by the defendants’ attorney for the two-and-a-half-year delay in delivering the counterclaim, and, to a more limited extent, the merits of the amended counterclaim which the defendants wished to institute. Condonation of the non-observance of court orders and rules is not a mere formality. A party seeking condonation must satisfy the court that there is sufficient cause for excusing the non-compliance. Whether condonation should be granted or not is a matter of discretion that has to be exercised having regard to all the circumstances of the particular case. The court highlighted the inadequacy of the defendants’ explanation for the delay in this case. I then moved to consider the main substantive defence on the merits of the counterclaim raised by the plaintiff, namely, that, any counter claim which the defendants might have had prescribed prior to the late (and defective) delivery of the counterclaim.

The defendants contended that the counterclaims had not prescribed, alternatively that this was not a matter where it could be said that the counterclaims were known to have prescribed, and the court could not, on the facts in casu, make such a finding.

The Court concluded that the counter application was without merit, and accordingly had to fail. Mtati v Whitesides Attorneys [2018] JOL 39875 (ECG)

Prescription-Attorney-Delictual claim – Special plea

In October 2010, the appellant entered into a written deed of sale in terms of which he purchased immovable property from the sellers. The deed of sale provided that the purchase price was payable by the purchaser to the seller upon registration of transfer. It further stipulated that transfer of the property was to be passed by the sellers’ conveyancer, the respondent herein. The deed of sale was prepared by the respondent and was signed in the offices of the respondent. The purchase price paid by the appellant was however, paid directly to the sellers, who then reneged on the deal and kept the money. The appellant issued summons against the respondent for damages in delict as a result. That was met with a special plea of prescription by the respondent. The trial court’s upholding of the special plea and dismissing appellant’s claim led to the present appeal.

Held that it was necessary for purposes of determining when the appellant had actual knowledge of the facts from which the debt arose to clarify the nature of the appellant’s claim. In accepting the mandate to act as conveyancer in the property sale, the respondent attracted a legal duty of care towards the appellant. The appellant’s claim against the respondent was based on an alleged breach on 28 October 2010 of a legal duty of care owed by the respondent. However, the respondent denied that the debt against the respondent had prescribed by virtue of a number of features relating to the subsequent conduct of the respondent. According to the appellant, prescription did not begin to run against the respondent until he was ultimately advised, as a fact, that the transfer of the property would not occur.

Section 10(1) of the Prescription Act 68 of 1969 provides that a debt shall be extinguished by prescription after the lapse of a period which in terms of the relevant law applies in respect of the prescription of such debt. The appellant’s claim constituted a debt as envisaged in the Act and the prescribed period of prescription relating to the debt was three years as provided for in section 11(d). Section 12 of the Act lay at the heart of the dispute between the parties. in terms of section 12(3), “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 party raising the issue of prescription must allege and to prove both the date of the inception and the date of completion of the period of prescription.

The present matter turned on the factual issue regarding the date of the communication to the appellant, that is whether he was informed in 2012 that the transfer would not take place, or in 2013 as he averred. The Court found that the evidence established that the earlier date was the correct one. In the premises, the special plea had been correctly upheld and the appeal had to fail.

Road Accident Fund v Isaacs (1552/14) [2018] ZANCHC 27 (11 May 2018)

Costs-order by the court a quo awarding costs on the High Court scale- should have

argued this at pre-trial stage

[1] This appeal is against the findings of my sister Erasmus AJ with her leave. Two

crisp issues were argued: first, that the trial court erred in awarding costs on the High

Court scale whereas the damages claimed fall within the Magistrates Court

jurisdiction; and, secondly, the trial court’s criticism levelled against the defendant’s

attorney.

[13] The court was alive to the considerations akin to the case at hand as succinctly

expressed in the unreported judgment of Vermaak v Road Accident Fund[1] where

Jones J said that:

“The High Court frequently restricts costs to the magistrates’ courts scale on

the ground that the plaintiff could and should have proceeded in the

magistrates’ court where litigation is less expensive. In doing so….”

[18] Had the RAF used Rule 37 to its advantage, it ought to have, in the mandatory

pre-trial conference which is aimed at narrowing down issues and reaching

agreement on matters which may expedite the proceedings, suggested or reserved

its rights to have the matter resolved on the magistrates’ court scale from the onset.

Costs already incurred should follow the event on the scale of the court in which they

were heard. Each decision by the court is informed mainly by the court’s discretion in

light of its own facts and circumstances. . I could not discern any misdirection on the

part of the trial court in respect of granting costs on the High Court scale. The Court

exercised its discretion properly which, in my view, does not necessitate tampering.

This ground of appeal must therefore fail.

The appeal is dismissed with costs where applicable. The appellant is ordered to pay

the costs of suit, including the wasted costs of the court attendances on the 1st of

March 2016 and the 8th of November 2016, counsel’s fees, and the costs relating to

the experts and travelling costs on the High Court scale.

Proxi Smart Services (Pty) Ltd v Law Society of South Africa (74313/16) [2018] ZAGPPHC 333 (16 May 2018)

Attorneys-conveyancing- business model for performing the administrative and related services pertaining to property transfers that applicant contends is not by law reserved to conveyancers or legal practitioners.

This is an opposed application for declaratory relief concerning the lawfulness of the applicant's business model for performing the administrative and related services pertaining to property transfers that applicant contends is not by law reserved to conveyancers or legal practitioners.

[2] The applicant applies in its notice of motion for an order:

"Declaring that the performance of the steps involved in the process of transfer of ownership of immovable property ("the transfer process") in accordance with the model described more fully in the founding affidavit, and pursuant to which the applicant performs the steps in the transfer process identified in schedule 'FA4B' hereto, does and will not:

1.1. contravene or otherwise fall foul of:

1.1.1. s 83(8)(a) of the Attorneys Act 53 of 1979;

1.1.2. s 33(3) of the Legal Practice Act 28 of 2014

1.1.3. ss15 and 15A of the Deeds Registries Act 47 of 1937 ("the Deeds Registries Act"); or

1.1.4. regulations 43(1),44(1) and 44A of the regulations made under the Deeds Registered Act and Published in GN474 of 1963;

1.2. otherwise constitute the performance by the applicant of conveyancing work reserved by law to an attorney or conveyancer in

[3] The first respondent, the fourth respondent, the fifth respondent (the fund) have formally opposed the relief sought by the applicant. The seventh and ninth respondents have made common cause with other respondents who have filed answering papers. The other respondents were joined at the insistence of the first respondent.

[4] The first respondent in addition to opposing the relief sought by the applicant, seeks by way of counter-application, an order declaring the applicant's model to be in contravention of:

4.1. paragraph 7 of the Code of Conduct for Estate Agents, published by the Estate Agencies Affairs Board under section 8 of the Estate Agency Affairs Act 112 of 1976;

4.2. rules 43.1, 48, 49.8 and 49 17 of the Consolidated Rules for the Attorneys Profession published in accordance with section 74 (4) of the Attorneys Act;

4.3. the contractual freedom and autonomy a seller and common under common law to appoint his or her conveyancer; in a new

4.4. section 11(1) of the Consumer Protection Act, 68 of 2008;

4.5. sections 4 (1)(a) and 4 (1)(b) of the Competition Act, 89 of 1998.

[5] The opposing respondents contend that all work, of whatever nature associated with immovable property transactions and transfers indivisibly and inseparably forms part of conveyancing practice, which has, by usage, custom and practice over centuries, became work that is performed, and ought to continue to be performed, exclusively by conveyancers. The applicant is a newly established company which had intended to commence business operations by implementing its business model with effect from 1st March 2016 with a pilot operation with third respondent commencing in April 2016. In terms of the model, the applicant will perform what it terms "administrative and related services" that are routinely performed in the course of property transfer.

[77] Applicant seeks legal advice from the court about the permissibility of its proposed business model under circumstances where the model is an abstract hypothetical intended entry into the conveyancing industry which is not set out and is liable to change.

[78] The applicant does not comply with the first requirement to obtain declaratory relief. Failing in that regard, there is no basis why the court must determine whether the present case is one in which the court's discretion is to be exercised in determining the application. Accordingly, the applicant's application stands to be dismissed.

[79] The applicant has not made out a case for the relief it seeks. In the result, the application is dismissed with costs including the costs of two counsels where so employed

Douglasdale Diary (Pty) Ltd and Others v Bragge and Another (731/2017) [2018] ZASCA 68 (25 May 2018)

Appeal-when of no practical effect-death of fiduciary-effect

The Supreme Court of Appeal handed down a unanimous judgment dealing with ownership rights of fideicomissaries of property upon the death of the fiduciary where the property was registered in the fiduciary’s name. This appeal follows acrimonious litigation between the parties in the Gauteng High Court Division, Johannesburg.

The litigation began when the owner of Douglasdale Dairy Farm (the farm), who

bought the farm from which dairy operations were conducted, passed away and left

the farm to his wife (first respondent) subject to the condition that upon her death the

farm will devolve to his sons, 60% thereof to the second appellant and 40% to the

second respondent as fideicommissaries. Subsequent to the death of the owner, a

number of changes took place in respect of the shareholding of first appellant.

Following the distribution of the owners’ estate, first respondent held 1%, second

appellant 63.3% and second respondent 35.7% of the shares of first appellant.

Needless to say, a company called MERB Pty (Ltd) was created which held 100%

shares in the first appellant in which second appellant held 50% shares and second

respondent also held 50% shares.

The ownership of the farm and the dairy business was separated which necessitated

the dairy business to conclude a ten year renewable lease with first appellant. This

lease was entered into by the owner and the first appellant in 1986. The renewal

endured until the demise of the owner in 2000. The second respondent and the

executors of the owners’ estate entered into subsequent leases with first appellant.

Between 2006 and 2009 no formal written lease agreement was concluded.

Subsequently, first respondent, who had been bequeathed the fiduciary interest in the

farm, entered into a further lease renewal. Disagreements regarding the running of the

farm ensued between the sons and that resulted in their own litigation. Needless to

say, the first respondent brought an eviction application against the dairy business

before the court a quo. The second respondent and second appellant also brought an

application to intervene as interested parties. Suffice to say the court a quo granted

the eviction application but dismissed the intervention application.

With leave of this court, leave to appeal was granted against the order of the court a

quo. Subsequent thereto, on 06 September 2016, first respondent died. The crisp

issue before the court was the legal implications of the law relating to the death of the

fiduciary who had successfully brought an eviction application. The court found that

when dealing with the death of a fiduciary where the property is registered in his/her

name, upon his/her death, ownership of the property is acquired by the

fideicommissaries. Accordingly as owners, it is the erstwhile fideicommissaries who

are the only ones who could claim the ejection of the lessee.

The court held further that ownership of the property passed to second appellant and

second respondent in undivided shares of 60% and 40% respectively. This had the

consequence that the order obtained in the court a quo by the first respondent is

unenforceable and cannot have any practical effect.

The court concluded that for this reason this case falls within the scope of s 16(2)(a)(i)

of the Superior Courts Act 10 of 2013, namely that the issue before this court, being

an order granting the first respondent the right to evict first appellant from the property

will have no practical effect or result; nor are there any exceptional circumstances

which would justify an appeal. Thus the appeal was dismissed with no order as to

costs

Magnum Simplex International (Pty) Ltd v MEC Provincial Treasury, Provincial Government of Limpopo (556/17) [2018] ZASCA 78 (31 May 2018) Pleadings-amendments-application to amend counterclaim in terms of Rule 28(1) of the Uniform Rules – claims for damages and not specific performance – amendment of counterclaim did not introduce a new cause of action – no prejudice.

This appeal concerns an application for leave to amend its counterclaim by the

appellant (defendant in the court a quo) during the trial. The main action is still

pending in the Gauteng Division of the High Court Pretoria (the high court). The trial

which was set down from 28 February to 4 March 2016 proceeded before Mabuse J.

After the respondent had led the evidence of several witnesses and before closing its

case, the appellant served and filed a notice to amend its counterclaim by increasing

the amount originally claimed from R50 315 884.87 to R250 million. The respondent

objected to the amendments. The high court upheld the objection. Dissatisfied with

that decision, the appellant unsuccessfully applied for leave to appeal. This appeal is

with the leave of this court.

[11] If the amendment is granted no prejudice or injustice would occur because the

parties would be put back in the same position as they were when the pleadings

sought to be amended were filed. On the other hand, if the amendment is refused a

substantial portion of the appellant’s claim will be extinguished. On the face of it such

prejudice would have the effect of disposing of the bulk of the appellant’s claim

before the appellant could lead evidence. The proposed amendment would not put

the respondent in a worse position than it would have been if the pleading in its

amended form had been filed in the first instance. There will not be any new

evidence required to disprove the appellant’s counterclaim. I say this because the

respondent led its case on the basis that the appellant was not entitled to anything

beyond 2008 and 2010 and misconstrued the fact that the applicant’s claim was one

of damages and not specific performance.

[12] In my view any notion that the appellant’s claim was not a damages claim is

negated by paragraphs 29.6.5 and 29.6.6 of the appellant’s consequential amended

special plea, plea and counterclaim. As correctly submitted by counsel for the

appellant, the claim had always been one for damages and not specific performance.

And it was founded upon the same breach which was part and parcel of the original

right of action.

[13] There is one more important observation to make. As to whether the

agreements are interlinked or dependent upon each other is an issue that requires

proper ventilation and evaluation by the trial court. This issue cannot be decided

during interlocutory proceedings.

[14] I cannot see how the granting of the amendment can cause the respondent any

prejudice which cannot be cured by a costs order or postponement. The respondent

can still recall all its witnesses if necessary and proceed with the trial without any

prejudice. It follows that the high court erred in refusing the proposed amendment.

For these reasons the appeal must succeed.

[15] It is ordered that: 1 The appeal is upheld with costs such costs to include the

costs of two counsel. 2 The order of the high court is set aside and substituted with

the following: ‘The defendant’s amendment is granted with costs.’

Kekana v Road Accident Fund (206/2017) [2018] ZASCA 75 (31 May 2018)

Prescription- s 12(3) of the Prescription Act 68 of 1969 – whether knowledge of a

duty of care constitutes a factual or legal conclusion – whether acceptance of offer

by a claimant with hindsight and new information constitute facts from which the debt

arose – appeal dismissed.

[1] This appeal, with leave of the court a quo, is against the judgment and order

upholding a special plea of prescription. The crisp question before the court a quo

was thus whether the appellant had actual or deemed knowledge of the facts from

which the debt arose. In essence it concerns the proper construction of s 12(3) of the

Prescription Act 68 of 1969 (the Act).

[2] The background facts are that on 8 August 1996, the appellant, a 57 year old

male detective employed with the South African Police Services, was involved in a

motor vehicle accident in which he sustained bodily injuries. He subsequently lodged

a direct claim for damages against the respondent, the Road Accident Fund (the

Fund), a juristic person incorporated in terms of the Road Accident Fund Act 56 of

1996 (the RAF Act). The Fund proposed a settlement figure of R48 853.31, which

the appellant rejected. On 2 August 1999 the Fund made an improved offer in the

sum of R63 088.45 in full and final settlement. The appellant was still unhappy, as he

could not understand why the offer was below his medical costs. The Fund explained

to the appellant that in 1998 he had injured his loin in an unrelated incident; that the

offer was fair and reasonable in the circumstances; that if he appointed an attorney

to assist him such costs would be for his own account; and that his claim was

nearing prescription. In order to avoid further costs, the appellant accepted the offer.

[3] In 2013 the appellant read a newspaper report on how a certain person, who had

been under-compensated by the Fund, but who after consulting an attorney was able

to ‘resuscitate’ his claim under similar circumstances. The appellant consulted with

an attorney who advised him that he had been under-compensated. Hence the

summons was issued in 2013. The cause of action was that the Fund had failed to

act in the best interests of the appellant in that it ignored a report of a neurosurgeon

specialist who examined him and found that he had a permanent disability; that the

Fund failed to discharge its duties by advising him properly as a direct claimant; and

that the Fund failed to act in accordance with its policy to treat the direct claim fairly

and compensate the appellant accordingly.

[4] The Fund raised, in limine, a special plea of prescription, arguing that the

appellant’s claim had prescribed, more than three years having expired after it had

arisen , in terms of s 11 of the Act. The motor vehicle accident occurred in 1996 and

the settlement was concluded in 1999. However, the summons was issued and

served in 2013. The court a quo upheld the special plea and consequently dismissed

the appellant’s claim.

[5] The appellant contended that prescription only started to run when he read the

newspaper report in 2013. Until then he lacked the required knowledge of the

necessary facts as contemplated in s 12(3) of the Act.

[8] The facts of this case are clear. The accident occurred on 8 August 1996. The

appellant filed his claim on time and he accepted the offer of settlement in 1999,

albeit under protest. He knew that he would be responsible for the legal fees

incurred. However the appellant did nothing until approximately 14 years later when

he acquired information that he could revive his claim. The information he acquired

in 2013 had no relation to the facts from which the debt arose. It had to do with a

legal conclusion that the respondent could be liable on the basis of a duty of care.

Summons was served on 18 October 2013 which was well over the three year period

prescribed in s 11(d) of the Act. Counsel for the appellant readily conceded that no

valid cause of action was pleaded. The appellant alleged in the particulars of claim

that the cause of action was premised on the duty of care, which is in fact and in law

not a cause of action. Clearly the appellant appreciated and believed from as early

as 1999, that a wrong had been committed against him by the respondent. Between

1999 and 2013 there were no new facts that emerged which the appellant could

present to the respondent. The newspaper reports the appellant read in 2013 was

merely an opinion in the form of a conclusion that there had been negligence, which

opinion was based on the same facts which had been available from 1996 and or

1999.

[10] Section 12(3) of the Act contains a deeming provision that the creditor is

deemed to have such knowledge if he could have acquired it by exercising

reasonable care. The appellant was a police officer who ought to have known that he

could approach an attorney for legal advice at any time, one may even go further to

say that he was aware that he could get the necessary help but did not want to pay

legal fees.

[11] In conclusion, if the appellant failed to appreciate the legal consequences which

flowed from the facts, his failure to do so did not delay the running of prescription.

[12] In the result the appeal is dismissed with costs.

Standard Bank of South Africa Limited v July and Others (525/2017) [2018] ZASCA 85 (31 May 2018)

Locus standi- A beneficiary of a deceased estate may, under the Beningfield exception, claim assets from the person in possession where the executor of the estate has died and where the executor had previously sold the assets unlawfully before his death.

A family feud about a deceased estate, and immovable property owned by it, has

given rise to the litigation on which this appeal turns. The dispute itself is not before

us. The only issue determined by the court a quo (the Eastern Cape Local Division,

Mthatha, per Dawood J), to which I shall refer for convenience as the high court, was

whether the respondents, the applicants in the high court, had locus standi in

judicio to claim return of immovable property transferred from the deceased estate to

the first respondent, Mrs Tembisa Mbuqe. They were not the executors of the

deceased estate. The objection to their standing was raised by the appellant, the

Standard Bank of South Africa Ltd (the bank), which was joined as a respondent by

virtue of its having two mortgage bonds registered over the property in question.

[2] The high court held that although as a general rule only an executor can claim on

behalf of an estate, there is an exception to this principle, known as the Beningfield

exception, which allows beneficiaries of an estate to claim where the executor will

not or cannot. Dawood J considered that since the executor of the estate was

himself deceased, the beneficiaries could make claims against a person who had

taken transfer of immovable property when not entitled to do so. She held that the

applicants hadlocus standi to make the claims. A referral to oral evidence is pending

the decision of this court on the respondents’ locus standi. Only the bank, raised the

issue of locus standiand only it has appealed against the order, with Dawood J’s

leave. The other respondents in the high court abide the decision of this court.

[11] When Tembisa had bought the first immovable property from the estate,

she financed its purchase through registering a bond in favour of the bank. She

obtained a loan against the security of the bond on 25 April 2006. She obtained a

second loan from the bank on 20 June 2010, and registered a second bond over the

immovable property. Her total indebtedness to the bank was R1.785 million. Mr July

alleged that the late Ray’s and Tembisa’s conduct was a blatant fraud. The sale

agreement was void because of the requirement of the Master’s consent in terms of

s 49(1) of the Act, and the transfer to Tembisa was vitiated by fraud. If the

allegations are found to be correct the transfer would indeed be of no force and

effect, but that does not currently concern us.

[12] Mr July alleged a second fraudulent transaction and transfer in respect of the

second immovable property that had been owned by his wife, Linda. She had never

disposed of it, but when he conducted a search in the deeds office, he discovered

that Linda’s property had been transferred to Ray, who had claimed to have a power

of attorney to do so from Linda. The grandchildren were entitled to have inherited

that property, he said.

[13] That brings me to the crux of the appeal – locus standi of the applicants in the

high court. When the application was brought, the estate of Eunice had not been

wound up. There was no executor as Ray had died and no one had been appointed

in his place.

[14] The argument of the bank on appeal is that the remedy in the hands of Mr July,

in his personal capacity, and in his capacity as executor of Linda’s estate, and in the

hands of the grandchildren, is to apply in terms of s 18(1) of the Act for the

appointment of an executor in the deceased estate of Eunice. The executor so

appointed would then have the power to bring a rei vindicatio claiming possession of

the first immovable property and the setting aside of the transfer to Tembisa.

[15] Dawood J in the high court found that it was unnecessary to follow this process.

As persons with interests in Eunice’s estate, the respondents were entitled to make

the claim themselves. She likened their claim to that in Gross & others v

Pentz [1996] ZASCA 78; 1996 (4) SA 617 (A). There the beneficiaries had

themselves asserted claims as contingent beneficiaries because one of the trustees

of a testamentary trust was alleged to have maladministered the assets in the trust.

Corbett CJ held that the position is the same in a case where an executor has

maladministered a deceased estate (at 625D-E). Corbett CJ drew a distinction

between an action on behalf of a trust – to recover trust assets or nullify transactions,

the representative action – and an action brought by trust beneficiaries in their own

right against the trustees or a trustee for maladministration, what he called a direct

action.

[16] This court followed the decision of the Privy Council in Beningfield v

Baxter (1886) 12 AC 167 (PC), an appeal from the Natal Supreme Court, in which an

exception to the general rule that only an executor of an estate has locus standi in

relation to estate assets and transactions, was recognized. The exception has come

to be known in South Africa as the ‘Beningfield exception’ or the

‘Beningfield principle’. It was expressed thus by the Earl of Selborne (at 178-9):

‘When an executor cannot sue, because his own acts and conduct, with reference to

the testator’s estate, are impeached, relief, which (as against a stranger) could be

sought by the executor alone, may be obtained at the suit of a party beneficially

interested in the proper performance of his duty. . . .’

[17] Corbett CJ, with reference to this passage, stated in Gross that a similar

exception had been applied in earlier cases in South Africa without reference

to Beningfield. A summary of these cases is to be found in Gross at 627D-628F.

Corbett CJ said (at 628G-H):

‘In my view, the Beningfield exception should be recognized and the general rule

modified to this extent. Clearly a defaulting or delinquent trustee cannot be expected

to sue himself. The only alternative to allowing the Beningfield exception would be to

require the aggrieved beneficiaries to sue for the removal of the trustee and the

appointment of a new trustee as a precursor to possible action being taken by the

new trustee for the recovery of the estate assets or other relief for the recoupment of

the loss sustained by the estate. This, in my opinion, would impose too cumbersome

a process on the aggrieved beneficiaries.’

[18] This court went on to hold that beneficiaries who have no vested rights to the

future income or assets in a deceased estate, such that their rights are merely

contingent, have rights to ensure that the estate is properly administered, and that

such beneficiaries may bring the representative action. Linda, as Eunice’s heir,

would have a vested right in Eunice’s estate. And Mr July, as the executor of Linda’s

estate, would be able to enforce that right.

[19] The bank argues on appeal that the high court wrongly applied

the Beningfield exception. It should not have done, because there was no delinquent

executor in place. There was no executor at all and thus no question that an

executor continued to defraud the estate. There was no impediment that stopped the

respondents from approaching the Master to make a new appointment.

[20] Dawood J held that it would be too cumbersome a process for the respondents

to first sue for the removal of the executor, and then the appointment of a new

executor, and that the beneficiaries should be allowed to pursue the application.

That, asserts the bank, is unnecessary, given Ray’s death in November 2008, and

that as at the date of the application Eunice’s death estate had not yet been wound

up.

[21] The bank contends further that Mr July and the grandchildren, while heirs to

Linda’s estate, are not heirs to Eunice’s estate. They are more remote than the

contingent beneficiaries in Gross. However, Linda was herself an heir, and died

intestate, so all three do have an interest in the proper administration of Eunice’s

estate.

[22] It is true that the respondents would not have to sue for the removal of an

incumbent executor, thus making the process less cumbersome. And it is also true

that they can request the Master to make a suitable appointment to the position. As

the bank argues, if no executor is appointed there can be no execution against it,

and it is important that the estate not be ‘rudderless’. It is now, however, some 15

years after Eunice’s death. The Master, if Mr July’s averments have any truth,

allowed a sorry state of affairs to continue under his watch.

[25] In my view, it is unnecessary for the respondents first to ask the Master to

appoint an executor to Eunice’s estate. There is no doubt that Linda could have sued

Ray for maladministration of the estate and would have been entitled to a declarator

that the transfer of the first immovable property was invalid. She would have

had locus standi in an action against him. The fact that she died before him should

not deprive her estate of that locus standi. And the fact of his subsequent death

equally should not have deprived her estate of the standing to sue. Equally, the

executor of Linda’s estate (Mr July) and the contingent beneficiaries in her estate, Mr

July and the grandchildren, would then have standing in an action against the

executrix of Ray’s estate (Tembisa) and his heirs, Tembisa and their children.

[26] The bank is correct in saying that Eunice’s estate needs an executor and that if

the respondents are successful before the high court, an executor would be needed

to prepare a liquidation and distribution account and to distribute the assets in the

estate. However, until a court finds that the transfer of the first immovable property

should be set aside, an executor will not know what assets there are to distribute. It

is unhelpful thus to assert that the proper remedy for the respondents was to ask the

Master to appoint an executor in terms of s 18(1)(e) of the Act. If they fail in the high

court there may be no assets to distribute. It is in any event open to the bank itself to

ask the Master to make such an appointment if it wishes to protect its security in the

property, which is its only interest in this litigation.

[27] I accordingly find that Mr July in his capacity as the executor of Linda’s estate,

and the other respondents, as contingent beneficiaries in the estate of Mrs Eunice

Mbuqe, have locus standi to claim against the executrix of the estate of Mr Z R

Mbuqe and his heirs.

[28] The appeal is dismissed with costs. BASSON v HUGO AND OTHERS 2018 (3) SA 46 (SCA)

Review applications— Administrative action — Review — Duty to exhaust internal remedy before instituting proceedings for judicial review — Exceptional circumstances exempting from duty — Ineffective internal remedy — Doctor asking members of professional conduct committee to recuse themselves for bias but they refusing — Whether doctor obliged to appeal refusal to appellate committee before

instituting review thereof — Health Professions Act 56 of 1974, s 10(3); Promotion of Administrative Justice Act 3 of 2000, s 7(2). Dr Basson asked the members of the professional conduct committee sitting on his disciplinary inquiry to recuse themselves for bias or a reasonable apprehension thereof. They refused, and he applied to the High Court to review the refusal and for setting-aside of the proceedings. The High Court declined to hear the review because of his failure to exhaust an internal remedy (appeal to an appellate committee); and he then appealed to the Supreme Court of Appeal. (See [8]; s 7(2)(a) of the Promotion of Administrative Justice Act 3 of 2000; and s 10(3) of the Health Professions Act 56 of 1974.) The issue was whether there were exceptional circumstances exempting him from exhausting the internal remedy. (Such exceptional circumstances are an inadequate, ineffective or unavailable internal remedy.) (See [11] – [12].) Held, per Shongwe AP, that there were (see [28]): • The appellate committee lacked the power to grant the relief asked for — setting-aside of the conduct committee's proceedings (see [21] and [61]); and • if the proceedings were null (owing to bias or a reasonable apprehension thereof), they would be unappealable (see [18] – [19]). Appeal upheld; the High Court's order set aside; and the matter returned to the High Court to decide the review (see [29]). Swain JA concurred. The internal remedy was ineffective because: • Absent immediate judicial consideration of the bias claim, a penalty might be imposed which might cause irreparable harm, where both penalty and finding of guilt could be null for bias (see [55] – [56]); and because • the appellate committee could not grant the relief sought on the claim of bias. Extracts from the judgment: [26] The rule against bias is thus firmly anchored to public confidence in the legal system, and extends to non-judicial decision-makers such as tribunals. And the rule reflects the fundamental principle of our Constitution that courts and tribunals must not only be independent and impartial, but must be seen to be such; and the requirement of impartiality is also implicit, if not explicit, in s 34 of the Constitution (Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) (2011 (4) BCLR 329; [2010] ZACC 28) paras 28 and 31). [27] The determination of what constitutes 'exceptional circumstances' within the meaning of s 7(2)(c) of PAJA, is necessarily informed by the nature of the complaint for which judicial relief is sought (Koyabe supra para 39). In the present case the complaint is actual or a reasonable apprehension of bias, raised directly and promptly at first instance, ie before the Committee. The rule against bias is entrenched in the Constitution, which places a high premium on the substantive enjoyment of rights (Koyabe supra para 44). Section 38 of the Constitution gives the appellant the right to approach a competent court if a right in the Bill of Rights (s 34) has been infringed or threatened, and the court may grant appropriate relief. In ruling against the appellant, the Committee has set out its position and there is a proper record of the proceedings before it. If the relevant members of the Committee should have recused themselves, the proceedings before it would be null and void; and any appeal to an appeal committee would suffer the same fate. The pursuit of an internal remedy would therefore be futile.

[28] These factors, in my view, constitute exceptional circumstances which justify judicial intervention in the interests of justice, and which exempt the appellant from the obligation to exhaust the remedy under s 10(3) of the Act. [29] In the result, I make the following order: The appeal is upheld and the order of the court a quo is set aside. The third respondent is ordered to pay the costs of the proceedings before the court a quo and the costs of appeal, such costs to include the costs of two counsel. The case is remitted to the Gauteng Division of the High Court, Pretoria, to decide the review application. DE KOCK v MIDDELHOVEN 2018 (3) SA 180 (GP)

Pleadings — Amendment — Application — Form — Rule 28(4) postulating two procedures by which party might approach court for leave to amend — One, by substantive application for leave to amend, and another by simply orally applying for leave to amend on day of hearing — Choice up to discretion of applicant — Uniform Rules of Court, rule 28(4). The present matter was an application for an amendment of particulars of claim. The background was briefly the following. Consequent to suffering complications arising from plastic surgery she had undergone, the plaintiff issued and served summons on the defendant for the payment of damages. Her claim was initially solely based on breach of contract: she asserted that the defendant had contravened a term of their oral agreement that he would perform her surgery with such professional expertise that could reasonably be expected from a professional plastic surgeon performing such an operation. The plaintiff and her attorneys later reconsidered their case and decided to introduce an alternative claim based on medical negligence. Accordingly, in terms of rule 28(1) of the Uniform Rules of Court, they served notice to amend on the defendant. The latter in response, in terms of rule 28(3), served on the plaintiff a notice of objection. Without responding to such objections, and without further lodging an application for leave to amend in terms of rule 28(4), the applicant set down the amendment for hearing. The issues were as follows: (a) Rule 28(4) provided that if an objection to a notice of amendment was timeously served, the party wishing to amend 'may', within 10 days, lodge an application for leave to amend. Did this mean that, as the defendant insisted, an amendment-seeking party served with an objection, who wished to proceed with such amendment, was obliged to formally lodge a substantive application for leave to amend? Or was it sufficient for it, as occurred here, to simply orally apply for leave from the court to amend on the day of hearing? (b) Did the present amendment introduce a new cause of action that had become prescribed? Held, that rule 24(8) postulated two procedures by which a party seeking an amendment may approach a court for leave to amend. One was oral: by this method, all that the applicant had to do after receiving the notice of objection was to set such a matter down for hearing and on the date of hearing simply walk into court and orally apply for leave to amend. The other was to lodge a formal application for leave to amend as enjoined by the provisions of rule 28(4). It was left entirely to the discretion of the applicant to decide with which course to proceed. Accordingly, the present application was properly before the court. (See [17] and [18].) Held, that the amendment had introduced a new cause of action — medical negligence — separate and distinct from the original cause of action of breach of

contract. This was so despite both causes of action arising from the same conduct of the defendant. (See [23] – [27].) Held, on the facts, that the new cause of action was extinguished by prescription. Application for amendment accordingly dismissed.

MEC FOR CO-OPERATIVE GOVERNANCE AND TRADITIONAL AFFAIRS v MAPHANGA 2018 (3) SA 246 (KZP) Court — Process — Vexatious proceedings — Common law and Act — Respective scope of application — Meaning of 'persistently. . . instituted' — Vexatious Proceedings Act 3 of 1956, s 2(1)(b). Respondent gave applicant MEC notice he intended instituting legal proceedings against her; and she then commenced this application. Thereafter, respondent launched his application. Here, applicant sought an order that respondent not be permitted to institute legal proceedings against herself, her department or any past or present member of the public service, in any High Court or inferior court, except with leave of that court. She claimed that s 2(1)(b) of the Vexatious Proceedings Act 3 of 1956 or the common law entitled her to this relief. Held, that: • The common law could be called in aid against instituted (existing) legal proceedings; while the Act applied only to yet to be instituted (future) legal proceedings (see [14] – [15]); and that • 'persistently. . . instituted legal proceedings' (s 2(1)(b)) meant repeatedly instituted legal proceedings (see [19]). — Order declined (the requirements of the common law and Act not having been met); but separate, interdictory relief granted.

OLD MUTUAL FINANCE (PTY) LTD v MAKALAPETLO 2018 (3) SA 258 (LP) Court— High Court — Jurisdiction — Review jurisdiction — High Court having no inherent power to review irregular judgments of magistrates' courts. Magistrates' court — Powers — Court may not mero motu refer civil judgment of magistrate or clerk of court to High Court for review — Court faced with irregular judgment should instead point out irregularity to affected parties and advise them that matter reviewable by High Court — Judgment may also be rescinded at instance of judgment debtor. A magistrate, confronted with a default judgment erroneously entered by the clerk of the Polokwane Magistrates' Court, mero motu submitted the matter to the High Court for review. She was following precedent set in the Limpopo High Court in terms of which magistrates could of their own accord send magistrates' court judgments to the High Court for review as they would criminal judgments. The matter at hand came to the attention of the Judge President of the Limpopo Division, who was of the opinion that the Uniform Rules of Court did not allow for such a procedure, and constituted a full bench to look into the correctness of the precedent. The full bench examined the following issues: (i) whether, in civil proceedings, a magistrate can mero motu send a judgment or decision to the High Court for review; and (ii)

what magistrates should do when faced with a situation where a civil judgment was null and void and needed to be set aside by the High Court. Held High Court reviews were regulated by the rules 6(5) and 53(1) – (2) of the Uniform Rules, which, in conformity with the audi rule, required notice to the respondent (see [18]). Magistrates' mero motu submission of judgments to the High Court for review would be contrary to this procedure (see [19]). Nor did the High Court have an inherent power to conduct such reviews (see [23]). A magistrate faced with an irregular judgment should, instead of sending it up for review, point out the irregularities to the affected parties and advise them that the matter was reviewable by the High Court under Uniform Rules 6 and 53. An alternative procedure, in the case of a judgment that was void ab origine, was an application for rescission under s 36(1)(b) of the Magistrates' Courts Act 32 of 1944 read with rule 49 of the Magistrates' Courts Rules. (See [17] – [21].) Since the precedent set in the Limpopo High Court was clearly wrong, the matter before the court was not subject to review and would be struck from the roll.

PHALADI v LAMARA 2018 (3) SA 265 (WCC) Credit agreement — Consumer credit agreement — Consumer credit records — Removal of record of debt rearrangement by credit bureau or national credit register — Not judicial process — May only be effected through prescribed administrative process — National Credit Act 34 of 2005, s 71. Consumers who have fulfilled all their obligations under credit agreements that are subject to debt rearrangement, are entitled to obtain a clearance certificate in terms of s 71 * of the National Credit Act 34 of 2005 (the NCA). The record of the debt rearrangement of consumers who succeed in obtaining such a clearance certificate will be expunged from credit bureau records; if they encounter problems their remedy lies in an approach to the National Consumer Tribunal (the Tribunal). The process is administrative, not judicial. It is only the Tribunal that is empowered to assist them at first instance. The NCA does not afford the High Court jurisdiction to deal at first instance with matters falling within the province of the Tribunal. The role of the High Court in the legislative scheme was limited to dealing with judicial reviews of, or appeals from, the decisions of the Tribunal. Minister of Home Affairs and another v Public Protector of the Republic of South Africa [2018] 2 All SA 311 (SCA) Review-Office of Public Protector – Powers of – Challenge to report issued by Public Protector, and remedial action prescribed therein – Whether review should be based on Promotion of Administrative Justice Act 3 of 2000 or principle of legality – Exercise of powers by Public Protector not constituting administrative action and review had to be based on principle of legality – Appeal dismissed because no grounds of review were found to be sustainable. An employee of the Department of Home Affairs was the subject of a complaint by the Cuban Deputy Minister of Foreign Affairs. The employee (“Marimi”) was stationed at the South African embassy in Cuba, where he held the position of first secretary. As a result of the complaint, Marimi was recalled to South Africa. The letter informing him of his recall gave him notice that disciplinary action would be taken against him. On

his return to South Africa, no disciplinary action was taken and he heard nothing further in that regard, however his cost of living allowance (“COLA”) that he had been paid while in Cuba was stopped. He lodged a complaint with the Public Protector (the “respondent”) against the Department, alleging maladministration on its part in relation to his transfer from Cuba to South Africa. The Public Protector produced a final report in which she found that the Department was indeed guilty of maladministration in relation to Marimi. She directed that the Department take certain remedial action to redress Marimi’s grievance.

An application for review of the Public Protector’s report was dismissed in the court a quo, leading to the present appeal. Held – The Court would in its judgment, consider the facts; the powers and functions of the Public Protector; whether the exercise of power by the Public Protector was reviewable in terms of the Promotion of Administrative Justice Act 3 of 2000 or the principle of legality; and the individual grounds of review.

While the primary source of the Public Protector’s powers is the Constitution, the Public Protector Act 23 of 1994 is the legislation that supplements her powers. The Court described the provisions of section 6 of the Public Protector Act, which sets out the matters which the Public Protector may investigate.

Review in terms of both the Promotion of Administrative Justice Act and the principle of legality stems from the rule of law. Section 33(1) and (2)of the Constitution as well as the Promotion of Administrative Justice Act gives effect to the rule of law in respect of only administrative action. The principle of legality gives effect to the rule of law in relation to all other exercises of public power. An applicant for judicial review must choose the right option and does not have a choice as to the pathway to review. The definition of “administrative action” in the Promotion of Administrative Justice Act refers to a decision of an administrative nature, taken by an organ of State when it exercises either a constitutional power or a public power in terms of legislation that adversely affects rights and has a direct, external legal effect. The Court held that the Office of the Public Protector is a unique institution designed to strengthen constitutional democracy. It does not fit into the institutions of public administration but stands apart from them. The decision of the Public Protector do not constitute administrative action. As a result, the Promotion of Administrative Justice Act does not apply to the review of exercises of power by the Public Protector, and the review of the decisions in issue in this case had to be addressed in terms of the principle of legality.

The appellants attacked the Public Protector’s decision to entertain the complaint made by Marimi on the grounds that the complaint had not been made on oath; that the Public Protector entertained the complaint despite Marimi not having exhausted his remedies in terms of the Public Service Act or other legislation; and that directing the Department to pay Marimi’s COLA was vitiated by an error of law and was unreasonable. In order to succeed with the first ground, the appellants had to establish that the Public Protector acted irregularly in taking Marimi’s complaint otherwise than on oath. In terms of section 6(1) of the Public Protector Act a complaint may be reported to the Public Protector by means of a written or oral declaration under oath, or by such other means as the Public Protector may allow with a view to making her office accessible to all persons. The Public Protector has a choice as to the form of

the complaint, and therefore did not act irregularly in taking Marimi’s complaint otherwise than on oath.

Regarding the second ground of review, the Court pointed out that the Public Protector’s investigative jurisdiction is extremely wide. She was entitled in terms of section 6(3) of the Public Protector Act, to investigate a complaint even though the complainant had not exhausted his or her remedies.

Addressing the final ground of review, the Court found the Department to have laid no basis for its contention that the directive that the COLA be paid was vitiated by an error of law and was unreasonable.

The appellants having failed to establish any ground of review, the appeal failed.

ABSA Bank Ltd v Njolomba and another and related matters [2018] 2 All SA 328 (GJ) National Credit Act-Consumer – Credit agreements – Home loan agreements – Default – Application for money judgment – National Credit Act 34 of 2005 – Section 129(4) – Interpretation of – Properly construed with reference to its language and purpose, section 129(4)(b) relates exclusively to the instalment sale, secured loan, and lease variety of credit agreement which are singled out for debt enforcement by sale of the movable property which is their subject matter and further resort to judgment for the balance remaining after the sale of such property – Section 129(4) does not touch on the process of general execution against other assets of the debtor after judgment and it finds no application in the case of a mortgage agreement. Eight matters came before the court for default judgment in terms of rule 31(5). All the matters related to credit agreements subject to the National Credit Act 34 of 2005 (the “Act”). Furthermore, all related to home loans, with the indebtedness in each case secured by a mortgage bond over immovable property. Each credit agreement contained an acceleration clause providing for all payments under the loan agreement to become immediately payable in one lump sum in the event of default. Each of the applicants sought a money judgment in respect of the accelerated debt in each instance. At the present stage, they did not seek that the properties be declared executable. Held – In conformity with the accepted need to promote constitutional values, our law has shifted towards a measure of flexibility in the execution process where it is sought to execute against the home of a debtor. The requirement that all relevant circumstances be considered before depriving a person of his home includes the requirement that immovable property not be executed against without judicial oversight being brought to bear thereon and the recent introduction of rule 46A into the Uniform Rules which requires that the court consider alternative means of satisfying the judgment debt, other than execution against the judgment debtor’s primary residence. The objective is to maintain the mortgage loan and rehabilitate the debtor if at all possible.

At the heart of the court’s function in preserving the credit agreement and thus the debtor’s home, is section 129(3) of the Act, which affords to the debtor rights that he did not have before the advent of the Act. In terms of the section, a debtor, even after judgment, is entitled to remedy any default by paying the arrear amounts together with

default charges and reasonable costs of enforcing the credit agreement. In relation to immovable property, that right endures until the proceeds from the sale have been realised. An applicant who has not yet been able to comply with the requirements for obtaining a declaration of executability in terms of rule 46, but who has in terms of its agreement the right to seek judgment, will generally seek to obtain judgment for the accelerated indebtedness and to postpone the declaration of executability so that the processes set out in rules 46 and 46A can be undertaken in due course if this becomes necessary. The prevailing practice manual contains a directive that expressly precludes the granting of a default judgment for a money claim where it is necessary to postpone the claim for a declaration of executability. The central reason given in the practice manual for that approach, is that if a money judgment is given and the judgment debtor’s movables executed against, section 129(4)(b) of the Act will preclude the debtor from reinstating the credit agreement by paying the arrears. If that construction of section 129(4)(b) was correct, there would be compelling reasons to avoid piecemeal execution as a matter of general practice. The right to reinstate the agreement is essential to the preservation of the mortgaged property and the operation of rule 46A. If that right is lost, the process contemplated in rule 46A would be rendered nugatory.

Relying on their right to enforce their contractual rights, the applicants argued that, whilst the court is expressly given a discretion to postpone the declaration that the immovable property may be executed upon, it does not have discretion to postpone the granting of the money judgment sought by the applicants.

The meaning of section 129(4) and especially the effect of section 129(4)(b), was thus pivotal to the relief sought by the applicants.

According to the applicants, rules 46 and 46A, rather than militating against the granting of a judgment before a declaration of executability, in fact, envisage a procedure where a money judgment has already been taken. In terms of rule 46(1)(a), a return of process against movable property, is to be a first step of execution against immovable property. It is argued thus, that this could not be in contemplation if the taking of a money judgment separately should not be entertained. Furthermore on a linguistic and sensible reading thereof, rule 46A proceeds from the assumption that a “judgment debt” already exists. Reference is pertinently made to “judgment debtor” and “judgment creditor” throughout the rule, suggesting that it is contemplated that judgment has been taken under the credit agreement before the process set out by the rule is implemented. The Court agreed that the interpretation of section 129(4)(b) posited by the practice manual was irreconcilable with rules 46 and 46A and the common law. Section 129(4)(b), on the construction provided for in the practice manual, is assumed to relate to all credit agreements and thus to a mortgage agreement. That has led to the assumption being made that section 129(4)(b) has the effect that, whenever any form of execution is levied pursuant to a judgment debt which arises from any credit agreement, no matter how paltry the recovery, it will trigger a situation where the rights afforded by 129(3) are no longer available to a debtor. That construction in the context of mortgage loans is anomalous. The purpose of section 129(3) is to allow for a reinstatement of the agreement at any time up to cancellation provided it has not in the interim become legally impossible. The purpose of section 129(4) is no more than to explain that where the subject movable has been legally repossessed and sold to a third party, the agreement can no longer be reinstated on

its terms. A different position has been prescribed where immovable property is acquired under a mortgage agreement. In that case, the maintaining of the mortgage agreement will only become impossible when the immovable property has been sold and transferred to the third party purchaser. If execution takes place in respect of movable property of the judgment debtor, this will not create a situation where the mortgage agreement in respect the debtor’s home cannot be reinstated.

Thus, properly construed with reference to its language and purpose, sec-tion 129(4)(b) relates exclusively to the instalment sale, secured loan, and lease variety of credit agreement which are singled out for debt enforcement by sale of the movable property which is their subject matter and further resort to judgment for the balance remaining after the sale of such property. Section 129(4) does not touch on the process of general execution against other assets of the debtor after judgment and it finds no application in the case of a mortgage agreement. Such a construction creates no tension between sections 129(4) on the one hand and the Constitution; rules 46 and 46A and the common law on the other.

Consequently, the applicants were entitled to the orders they sought in relation only to the money judgments.

Eureka Diy Solutions (Pty) Ltd v Soda Cleaning and Equipment North and another [2017] JOL 39038 (GP)

National Credit Act- Credit facility – What constitutes a credit facility.

Having supplied goods to the respondent, the appellant sued for payment. The court below found that the agreement between the parties was a credit agreement, falling under the ambit of the National Credit Act 34 of 2005. The appellant’s claim was dismissed on the ground that a section 129(1)(a) notice was not delivered to the respondent as required by the Act.

The appellant submitted that the magistrate erred in not considering the totality of section 8 of the Act. It stated that if consideration was given to the whole of section 8 then it was clear that there was a further requirement which would render the agreement as attached to the summons as not being a credit facility as defined in the Act.

Held that section 8(3) deals with what constitutes a credit facility. In the case of a credit facility described in section 8(3) part and parcel of the arrangement between the consumer and the credit provider is that the consumer may take advantage of the offer of credit and the credit provider profits from this agreement in enforcing charges, usually by way of interest, for this advantage of credit. There is an entitlement to charge interest on default if the contractual terms were silent on that point by virtue of the provisions of the Prescribed Rate of Interest Act 55 of 1975. The agreement between the parties did not comply with the requirements of section 8(3) and the magistrate erred in finding that the standard terms and conditions as attached to the particulars of claim qualified as a credit facility. The appeal was thus upheld.

DSD Trading trading as Eveready Brick & Block v eThekwini Municipality [2017] JOL 37723 (KZD)

Joinder – Contract – Cession – Claim for payment-court refused joinder

The plaintiff sued the defendant municipality for payment of a certain sum of money, on the basis that an entity known as Siyathembana Trading 264 (Pty) Ltd had ceded its book debts to the plaintiff, and that the defendant was obliged to pay all monies owed to Siyathembana, to the plaintiff. Despite having received notification of the cession of debts, the municipality failed to make payment to the plaintiff. Instead, it paid various amounts to Siyathembana, which amounts the plaintiff contended should have been paid to it, in law.

The municipality requested a postponement of the matter on the basis that it intended joining Siyathembana as a party to the proceedings as it considered Siyathembana to have a pivotal role in the matter.

Held that an aspect which weighed heavily against the defendant was that the court had not been fully, or at all, informed of the interest that Siyathembana has in order to be joined as a party to the proceedings. The onus rested on the defendant to show that Siyathembana had a direct and substantial interest in the issues involved and the order which the court might make. The Court regarded the application for a postponement as unsubstantiated and misconceived. Where a party requests an indulgence of the court, it is incumbent that a full and satisfactory explanation of the circumstances giving rise to the application must be set out. That was not done in this case, and the postponement was refused.

The uncontradicted evidence confirmed that the plaintiff supplied goods and materials to Siyathembana, which were intended to be used by building contractors having a contractual relationship with the defendant. It was also evident that a cession existed in favour of the plaintiff by Siyathembana of any monies owed to it by the defendant. The Court found that the plaintiff had proved its case and that no defence was raised by the defendant. Judgment was granted in plaintiff’s favour.

Road Accident Fund v Masindi (586/2017) [2018] ZASCA 94 (1 June 2018) Prescription- Road Accident Fund Act 56 of 1996 – statutory interpretation – s 4 of the Interpretation Act 33 of 1957 – regulation 1 under the RAF Act – whether a claim that was due to be served on the last day of the five year prescription period which last day fell on a public holiday had prescribed – application of s 34 and s 39 of the Constitution – consideration of foreign law. The SCA dismissed an appeal by the Road Accident Fund which had unsuccessfully raised a special plea of prescription in terms of s23 (3) of the Road Accident Fund Act 66 of 1956 as amended by the Road Accident Fund Amendment Act 19 of 2005 read with s 4 of the Interpretation Act 33 of 1957 and regulation 1 under the Road Accident Fund Act.

The Road Accident Fund appealed against the judgment and order of the Gauteng Local Division of the High Court, Johannesburg (Mbongwe AJ, sitting as a court of first instance) which dismissed the special plea of prescription it had raised in a claim for damages. The appeal concerned the question of how the five year prescription period applicable to the respondent’s claim should be computed, in circumstances where the last day of the five year period, strictly calculated, falls on a day when the court is closed so that summons cannot be issued and served.

The SCA, relying on English authorities Pritam Kaur v S Russel & Sons and Nottingham City Council and Calverton Parish Council with reference to the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 WLR. 276 where Lord Neuberger in paras 83-84 specifically endorsed Pritam Kaur, held that, on a proper interpretation of s 23(3) of the RAF Act - where the five year period for bringing a claim ends on a day when the court office is closed, so that summons cannot be issued and served on that day - the five year period should end on the next working day.

Smith NO v Clerk of the Court, Pietermaritzburg [2017] JOL 37612 (KZP)

Jurisdiction -Administration orders – Emoluments attachment order – Issue of - only the court of the district in which the employer or the judgment debtor resides, carries on business or is employed, or if the judgment debtor is employed by the State, in which the judgment debtor is employed, has jurisdiction to issue an emoluments attachment order.

The appellant was an attorney and the respondent was the clerk of the Pietermaritzburg Magistrates’ Court. In addition to being an attorney, the appellant was and administrator appointed in terms of section 74 of the Magistrate’s Courts Act 32 of 1944, and in terms of an administration order granted on 26 May 2015, in the present matter. As an administrator, his primary duty was to collect payments from debtors made in terms of the administration order and distribute such payments pro-rata amongst their creditors. The collection of such payments was made through emoluments attachment orders.

On 26 May 2015, the Pietermaritzburg Magistrates’ Court granted an administration order against a debtor, as well as an emoluments attachment order to attach the emoluments of the judgment debtor. In June 2015, the appellant requested the respondent to issue the authorised emoluments attachment order. However, on 10 June 2015 the respondent refused to issue the emoluments attachment order on the ground that the garnishee address fell outside the jurisdiction of the Pietermaritzburg Magistrate’s Court. The appellant then took the refusal by the respondent on review at the court a quo, and he also sought an order directing the respondent to issue and sign the emoluments attachment order. At issue, at the court a quo, was whether an emoluments order authorised under an administration order must be issued by the clerk of the court having jurisdiction over the employer. The appellant’s review application was dismissed with no order as to costs, leading to the present appeal.

The question was whether an emolument attachment order authorised under an administration order must be issued by the clerk of the court which authorised its issue or by the clerk of the court which exercised jurisdiction over the garnishee. The appellant’s appeal was grounded, firstly, upon the contention that the magistrate’s court which acts as the supervisor of the execution of the administration order has exclusive jurisdiction to authorise, issue and amend or vary an emoluments attachment order. Secondly, it was contended that the act of issuing the emoluments attachment order which is to be served on the employer of the judgment debtor cannot be performed by any clerk other than the clerk of the court which has authorised the issue of such order.

Held that the court a quo correctly found that the provisions of section 65J of the Act are clear. The section provides that only the court of the district in which the employer

or the judgment debtor resides, carries on business or is employed, or if the judgment debtor is employed by the State, in which the judgment debtor is employed, has jurisdiction to issue an emoluments attachment order. The magistrate could not be faulted in finding that the entire provisions of section 65J applied in the present case.

Not satisfied that the appellant had made a case for the relief sought, the Court dismissed the appeal.

Skyscape Investments 110 CC v Livinafrica (Pty) Ltd and others [2018] JOL 39880 (WCC)

Locus standi-Sectional title schemes – Action against owner of unit in scheme - only the body corporate and not individual members who may institute proceedings against wrongdoers.

The applicant (“Skyscape”) and the first respondent (“Livinafrica”) were the only two members of a sectional title scheme, which comprised a luxury triple storey residential block. In December 2016, Livinafrica started building and construction work in its section of the scheme as well as on parts of the common property. Skyscape launched an urgent application seeking inter alia, an interim interdict restraining Livinafrica from undertaking further building and/ or construction work on the property without all the necessary building and planning approvals and the consent of the body corporate having been obtained. it also sought a demolition and/or restoration order. An interim order in that regard was issued.

The first respondent challenged the applicant’s locus standi to bring the application. The court dealt with that issue first, as a decision in favour of the first respondent would be dispositive of the matter.

The point raised was that the applicant had failed to serve the notice of the application as required in section 41 of the Sectional Titles Act 95 of 1986 which provides that any owner wishing to bring proceedings on behalf of the body corporate had to first serve a notice on it to institute proceedings. Essentially, the argument was that the applicant did not have the requisite locus standi to bring the application because section 38(j) of the Act empowers the body corporate to do all things reasonable and necessary for the enforcement of the rules and for the control, management and administration of the common property. the respondents argued that although the 1986 Act was partially repealed by the Sectional Titles Schemes Management Act 8 of 2011, the latter Act contains a similar provision.

Held that the provisions of section 9 of the Sectional Titles Management Act and section 41 of the Sectional Titles Act were precisely the same. Any judicial interpretation of section 41 of the Sectional Titles Act therefore had to apply to section 9 of the Sectional Titles Management Act.

What had to be determined was whether the applicant, as the owner of property had the requisite standing to bring the present application in light of the fact that the body corporate was, in terms of section 4(1), responsible for the enforcement of the rules and for the control, administration and management of the common property for the benefit of all owners. The Court referred to case authority which stated that is only the body corporate and not individual members who may institute proceedings against wrongdoers. The locus standi point was thus upheld and the application dismissed.

Van Blommestein and another v East Cape Game Properties (Pty) Ltd and others [2018] JOL 39882 (ECG)

Summary judgment – Bona fide defence- defence based on the plaintiffs’ failure to register as credit providers was a sound defence and raised a triable issue between the parties.

National Credit Act-Consumer – Loan agreement – Claim for payment – Defence – Failure to register as credit provider

In June 2014, the parties in this matter executed a written acknowledgment of debt and suretyship agreement pursuant to which the plaintiffs lent a sum of R2 500 000 to the defendants. When the plaintiff made a demand for payment, the defendants to pay the capital sum and interest within 90 days. They failed to comply with that undertaking and the plaintiff issued summons. In the present application, summary judgment was sought.

Held that summary judgment will be refused if the defendant is able to demonstrate that it has a triable issue or a sustainable defence to the plaintiff’s claims.

The plaintiffs were obliged to register as credit providers in terms of the National Credit Act 34 of 2005 before extending credit and making a loan with an aggregate principal debt in excess of R500 000. There was no averment in the particulars of claim that the plaintiffs were registered credit providers in terms of section 89(2)(d) of the Act. In terms of section 40(4) of the Act, a credit agreement entered into by a credit provider who is required to be registered but who is not registered is an unlawful agreement and void to the extent provided for in section 89. When an unregistered credit provider who is required to be registered lends money to a consumer he or she will have no contractual cause of action and will be obliged to sue the consumer under the law of unjustified enrichment, by means of the condictio ob turpem vel iniustam causa, to recover the money. Accordingly, the second and third defendants’ defence based on the plaintiffs’ failure to register as credit providers was a sound defence and raised a triable issue between the parties.

Summary judgment was accordingly refused.

LONI v MEC FOR HEALTH, EASTERN CAPE (BHISHO) 2018 (3) SA 335 (CC) Prescription — Extinctive prescription — Commencement — Knowledge of debt — Claim based on delict — Medical negligence — Objective assessment — Whether reasonably apparent that treatment received substandard — Sufficiency of information at claimant's disposal — Prescription Act 68 of 1969, s 12(3). Medicine — Negligence — Claim — Prescription — Commencement — Discovery of harm — Deemed discovery — Objective assessment — Sufficiency of information at claimant's disposal — Whether claimant should have realised that treatment substandard — Prescription Act 68 of 1969, s 12(3). In August 1999 the applicant went to the provincial hospital in Bhisho with a gunshot wound. He was operated on and, upon discharge, handed his medical file. Already the wound was visibly infected, oozing pus. When the fixtures were removed in 2001, a doctor informed him his leg was fine and just needed exercise. But the applicant experienced constant pain and later developed a limp. In 2008 he obtained

medical insurance and was able to approach doctors in private practice. They told him he was disabled. In November 2011 an orthopaedic surgeon, Dr O, informed him that his condition was attributable to medical negligence. Dr O established that the applicant had developed chronic osteitis (inflammation of the bone) and advanced degeneration of the hip joint, which, he testified at the trial, could have been prevented by the application of standard medical care (see [10]). The applicant instituted an action for damages against the MEC in charge of the hospital. Summons was served on 20 June 2012. The action was met with a special plea of prescription. The applicant denied prescription on the ground that he only realised he had a claim when Dr O told him that hospital staff had been negligent. Section 12(3) of the Prescription Act 68 of 1969 provides that a debt shall not be deemed 'due' — and prescription shall not start running — until the creditor has knowledge of the identity of the debtor and 'the facts from which the debt arose', and that such knowledge shall be assumed if it could have been acquired by the exercise of reasonable care. The issue was when the applicant acquired, or should have acquired, the knowledge necessary to set prescription in motion. In Links v Department of Health, Northern Province 2016 (4) SA 414 (CC) the Constitutional Court held that the 'facts from which the debts arose' were those that would cause a reasonable plaintiff to suspect that something had gone wrong and to seek further advice (see [23], [27]). The High Court found that the applicant had acquired the knowledge needed to institute proceedings long before he met Dr O. It found that it was unreasonable for him to have waited seven years before instituting a claim and upheld the special plea. On appeal a full court agreed. It found that the applicant had reasonable grounds for suspecting fault and should have sought further advice. It therefore dismissed the appeal. An application for leave to appeal to the Supreme Court of Appeal having been denied, the applicant approached the Constitutional Court, arguing that both courts below had erred in finding that he had acted unreasonably. The Chief Justice directed the parties to file written submissions, firstly, on whether this court's decision in Links would find application in this case and, secondly, on whether leave to appeal should be granted, and the remedy the court ought to grant. Held Objective assessment — appropriately applied by both courts below — established that a reasonable person in the position of the applicant would have realised that the treatment and care given at the hospital were substandard and were not in accordance with what he could have expected from medical personnel acting carefully, reasonably and professionally. By December 2000 it should have been apparent to the applicant, on a reasonable assessment, that his pain and suffering were a direct result of the sub-standard care which he had been given (see [33]). He should have suspected fault on the part of the hospital staff. His personal experience and the medical records at his disposal meant that all the necessary facts giving rise to his claim were present since his discharge in 2001. He should have acted then instead of waiting more than seven years to do so. The fact that he was not aware that he was disabled or had developed osteitis was irrelevant (see [34] – [35]). Sadly for the applicant, Links did not assist him (see [38]). The application for leave to appeal would accordingly fail. BROMPTON COURT BODY CORPORATE SS119/2006 v KHUMALO 2018 (3) SA 347 (SCA)

Prescription-arbitration — Award — Whether creates new debt — Right to make award order of court — Whether 'debt' in Prescription Act — Arbitration Act 42 of 1965, s 31; Prescription Act 68 of 1969. In an arbitration, the arbitrator awarded Brompton * a monetary sum, comprised, inter alia, of unpaid levies. Brompton then applied to the High Court to make the award an order, and Ms Khumalo raised prescription. The court upheld the defence and dismissed the application. On appeal to the Supreme Court of Appeal, held, that: • An arbitration award does not create a new debt: it merely affirms the existing debt that was in dispute (see [5], [6]); and that • The right to make an award an order of court is not a 'debt' in the Prescription Act. (See [5], [11]; the Arbitration Act 42 of 1965, s 31; and the Prescription Act 68 of 1969.) The appeal upheld, on grounds of an error of law by the High Court and Khumalo's failure to prove prescription. The High Court's order set aside, and substituted with an order granting the application.

DRAKE FLEMMER & ORSMOND INC AND ANOTHERV GAJJAR 2018 (3) SA 353 (SCA) Attorney — Negligence — Liability to client — Damages — Negligent under-settlement of personal injury claim — Time at which damages assessed — Claim settled without proper investigation — Damages to be assessed at notional date of claim — Court may shield plaintiff against corroding effect of inflation by using s 2A(5) of Prescribed Rate of Interest Act 55 of 1975. Interest — A tempore morae — Mora interest on unliquidated debt — Court's discretion under s 2A(5) of Prescribed Rate of Interest Act 55 of 1975 — May be used to neutralise effect of inflation. The principal issue in the present case was how to account for the effects of inflation and trial delay on the value of a claim. The plaintiff was badly served by two law firms in succession: the first firm, DFO, under-settled a Road Accident Fund (RAF) claim instituted by the plaintiff; and the second firm, LRI, allowed his resultant claim for damages against DFO to prescribe. * The only claim still in issue was the one against LRI, and the question was the time at which the plaintiff's damages had to be assessed. The plaintiff, acting on DFO's (bad) advice, had accepted the RAF's offer of settlement on 21 December 1999, which meant that his right to recover was extinguished by prescription three years later, on 21 December 2002. To prove the amount he would have been awarded had his claim been properly conducted, he had it actuarially valued as at 1 December 2015. The court a quo, while accepting the valuation, reduced it by 43,69% to account for the plaintiff's seven-year delay — from September 2006 to September 2016 — in suing LRI (which meant an effective valuation date of September 2009). The court then subtracted from the reduced sum the actual settlement amount, and awarded the plaintiff the difference. DFO and LRI appealed to the Supreme Court of Appeal, contending that the plaintiff's claim should have been valued at the date of settlement — 21 December 1999 — or at the date of a notional trial against the RAF, and that the claim should

have been dismissed for this reason. The plaintiff cross-appealed against the reduction of 43,69%. Section 2A of the Prescribed Rate of Interest Act 55 of 1975 allows the award of pre-judgment interest. It provides that interest at the prescribed rate runs on an unliquidated debt from the date on which payment was claimed unless the court in the interests of justice determines a different date or rate: see s 2A(5). Held The applicable law could be summarised as follows: Where an attorney's negligence resulted in the loss by a client of a claim which, but for such negligence, would have been contested, the court trying the claim against the attorney had to assess the amount the client would probably have recovered at the time of the notional trial against the original debtor. If the original claim was for personal injuries, the evidence available and the law applicable at the notional trial date would determine the recoverable amount. The nominal sum the client would have recovered from the original debtor was the client's capital damages against the negligent attorney. If justice required that the client be compensated for the decrease in the buying power of money in the period between the notional trial date and the date of demand or summons against the attorney, the remedy was in s 2A(5). If s 2A(5) were invoked, the court would not necessarily apply the prescribed rate but might choose instead to adopt a rate which would neutralise the effect of inflation. A similar approach applied where — as in the present case — a second attorney allowed the claim against the first attorney to prescribe. In such a case the client's claim for damages against the second attorney was determined by the amount the client would have obtained against the first attorney, and that amount in turn had to be ascertained in the way summarised in the preceding paragraph. Since the complaint against DFO was that it under-settled the claim without proper investigation, the court a quo correctly rejected the date of settlement (21 December 1999) as the appropriate assessment date (see [41]). But the 43,69% reduction was unsound in law and unjustified by the facts (see [52]). There was no legal principle that entitled a court to reduce a claimant's damages because of delay in bringing a case to trial, and in any event the delay here was attributable to LRI, not the plaintiff (see [53] – [54]). The correct approach would have been for the plaintiff to prove the nominal value of his damages as at the notional trial date of the RAF claim, namely 1 December 2002. This would have been the value of the claim against DFO which LRI allowed to prescribe (see [68]). Section 2A(5) would then have been used to shield the plaintiff from the corroding effect of the delay by allowing interest to run from the day his claim against DFO prescribed (21 December 2002). Since the court a quo's assessment of damages as at December 2015 was, however, correct as at that date, it could be used as a fair guide to the damages the plaintiff would have been awarded in December 2002 by adjusting for the time value of money. This meant that the damages claims — valued as at December 2015 — had to be reduced while the settlement — of December 1999 — had to be grossed up (see [69] – [71], [78]). Since the plaintiff succeeded in defending the full amount awarded by the court a quo prior to the unwarranted reduction of 43,69%, his cross-appeal had to succeed (see [82]). And since the court's 2015 assessment did not exceed the capital value of the plaintiff's claim as at the notional trial date, plus fair interest under s 2A(5), the appeal had to fail.

MINISTER OF HOME AFFAIRS AND ANOTHER v PUBLIC PROTECTOR 2018 (3) SA 380 (SCA) Constitutional law — Chapter 9 institutions — Public Protector — Decisions of — Whether administrative action. Mr Marimi, an employee of the Department of Home Affairs, was first secretary at the South African embassy in Cuba. There, he came to the attention of the Cuban government, which complained to the ambassador about his behaviour. This caused the Department to recall him; to warn it would institute disciplinary proceedings; and to stop his cost of living allowance. Ultimately, Marimi complained to the Public Protector about the recall, the non-institution of the proceedings, and the withdrawal of the allowance. The Public Protector investigated, found maladministration in each instance, and recommended remedial action, including payment of the allowance. Dissatisfied, the Minister and Director-General sought review in the High Court. It dismissed the application, but granted leave to appeal to the Supreme Court of Appeal. It considered: • Whether decisions of the Public Protector were administrative action. Held, that they were not, and so not subject to review under the Promotion of Administrative Justice Act 3 of 2000. But they could be reviewed under the principle of legality (see [37]). • Whether the investigation could be reviewed, owing to the Public Protector's not receiving the complaint on oath. Held, that she had the discretion not to. (See [39] and [42], and s 6(1)(b) of the Public Protector Act 23 of 1994.) • Whether it could be reviewed for absence of jurisdiction: the Minister asserted the Protector had no jurisdiction in labour matters. Held, that the Protector had such jurisdiction (see [44]). • Whether the remedial action was based on an error of law or fact or was unreasonable. Held, that it was not. (See [48] and [51] – [54].) Appeal dismissed. MOBILE TELEPHONE NETWORKS (PTY) LTD AND ANOTHER v SPILHAUS PROPERTY HOLDINGS (PTY) LTD AND OTHERS 2018 (3) SA 396 (SCA) Locus standi-Sectional title — Common property — Unit owner — Whether having standing to apply for removal of base station from common property — Sectional Titles Act 95 of 1986, s 41. In this case, owners of units in a sectional title scheme obtained an order that a cellular communications base station be removed from the common property. (See [8] and [10].) On appeal, the Supreme Court of Appeal held that the matter fell within s 41 of the Act, and that the owners ought to have followed the procedure in that section. That is, they ought to have given the body corporate notice to institute the proceedings; and failing it doing so, have applied to the High Court for the appointment of a curator ad litem to institute the proceedings on its behalf. Appeal upheld; the order of the High Court set aside; and substituted with an order dismissing the owners' application.

OCEAN ECHO PROPERTIES 327 CC AND ANOTHER v OLD MUTUAL LIFE ASSURANCE COMPANY (SOUTH AFRICA) LTD 2018 (3) SA 405 (SCA) Exception — If upheld, then ordinarily leave to be granted to amend pleading. Old Mutual issued summons for rental; Ocean (the tenant) and Mr Giannaros (Ocean's surety) pleaded; and Old Mutual excepted to the plea. The High Court upheld the exception, struck out the plea, and granted judgment. Ocean and Giannaros appealed to the full court; it dismissed the appeal; and they appealed to the Supreme Court of Appeal. It upheld the appeal: • When an exception to a pleading was upheld, ordinarily, a court ought to grant leave to amend the pleading. This, unless there was good reason why it was unamendable. Here, there was none. (See [8].) • The plea disclosed a defence: a tacit agreement terminating the written lease sued on. The tacit agreement was evidenced, inter alia, by Ocean vacating the premises; and the rental sued for was from after that time. The full court's order set aside, and substituted with an order: setting aside the High Court's order, and replacing it with an order dismissing Old Mutual's exception. UNIVERSITY OF THE FREE STATE v AFRIFORUM AND ANOTHER 2018 (3) SA 428 (SCA) Appeal — Execution — Application to execute pending appeal — Test — Requirements more onerous than those of common law — Higher threshold set, namely, in addition to presence of exceptional circumstances, proof on balance of probabilities that applicant will suffer irreparable harm if order not granted, and conversely that respondent will not, if the order granted — Extraordinary deviation requiring 'truly exceptional' circumstances — Whether exceptional circumstances present depending on facts of case — Prospects of success also a relevant consideration — Superior Courts Act 10 of 2013, s 18. Section 18(1) of the Superior Courts Act 10 of 2013 provides that, 'subject to[ss (3)], and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal'. Subsection (3) provides that a court 'may only order otherwise [as contemplated above], if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders'. Section 18 replaced Uniform Rule of Court 49(11), promulgated under the previous Supreme Court Act 59 of 1959. That rule — effectively adopting the common-law position — provided: 'Where an appeal has been noted or an application for leave to appeal against . . . an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal . . . , unless the court which gave such order, on the application of a party, otherwise directs.' Such court possessed a wide general discretion whether to grant leave to execute. That decision required a consideration of the prospects of success on appeal; a weighing-up of the potentiality of irreparable harm or prejudice being

sustained by the respective parties; and, where there was a potentiality of harm or prejudice to both of the parties, a weighing-up of the balance of hardship or convenience, as the case may be, was required. Comparing the present position with the previous one, what is immediately discernible is that the legislature has proceeded from the well-established premise of the common law that the granting of relief of this nature constitutes an extraordinary deviation from the norm that, pending an appeal, a judgment and its attendant orders are suspended. (See [9].) It is further apparent that the requirements introduced by ss 18(1) and (3) are more onerous than those of the common law. Apart from the requirement of 'exceptional circumstances' in s 18(1), s 18(3) requires the applicant 'in addition' to prove on a balance of probabilities that he or she 'will' suffer irreparable harm if the order is not made, and that the other party 'will not' suffer irreparable harm if the order is made. Compared to the position in common law, s 18(3) has hence introduced a higher threshold, namely proof on a balance of probabilities that the applicant will suffer irreparable harm if the order is not granted, and conversely that the respondent will not if the order is granted. (See [10].) Whether or not 'exceptional circumstances' for the purposes of s 18(1) are present must necessarily depend on the peculiar facts of each case. In evaluating the circumstances, a court should bear in mind that what is sought is an extraordinary deviation from the norm, which, in turn, requires the existence of truly exceptional circumstances to justify the deviation. (See [13].) Finally, prospects of success in the appeal remain a relevant consideration in deciding whether or not to grant the exceptional relief. TRUWORTHS LTD AND OTHERS v MINISTER OF TRADE AND INDUSTRY AND ANOTHER 2018 (3) SA 558 (WCC) Constitutional law — Legislation — Validity — National Credit Act 34 of 2005, reg 23A(4) of National Credit Regulations, 2006 — Affordability assessment — Self-employed and informally employed consumers — Required to provide three months' bank statements or latest financial statements — Self- employed and informally employed consumers without bank accounts likely poor, and not in position to provide financial statements — Effectively excluded from credit — Unfair discrimination against — Subregulation reviewed and set aside. National Credit Act 34 of 2005, reg 23A(4) of National Credit Regulations, 2006 — Affordability assessment — Self-employed and informally employed consumers — Required to provide three months' bank statements or latest financial statements National Credit Act-Credit agreement — Consumer credit agreement — Reckless credit — Affordability assessment — Self-employed and informally employed consumers — Regulation 23A(4) requiring them to provide three months' bank statements or latest financial statements — Self-employed and informally employed consumers without bank accounts likely poor, and not in position to provide financial statements — Effectively excluded from credit — Unfair discrimination against — Subregulation reviewed and set aside.

In terms of s 81 of the National Credit Act 34 of 2005 (the NCA), a credit provider may not enter into a credit agreement without first assessing the proposed consumer's existing financial means, prospects and obligations. Regulation 23A (recently introduced by GN R202 of 13 March 2015) of the National Credit Regulations, 2006, sets out the criteria for this 'affordability assessment' a credit provider must conduct. In particular, subreg (4) (see full regulation quoted at [36]) requires a credit provider to validate the consumer's gross income by obtaining various formal documents from them, and in this regard distinguishes between three categories of consumer: (a) those that receive a salary from an employer; (b) those that do not receive a salary as contemplated in (a); and (c) those that are self-employed, informally employed or employed in a way through which they do not receive a payslip or proof of income as contemplated in (a) or(b). In respect of this third category of persons, the regulation requires the provision of three months' bank statements or the latest financial statements. The High Court * determined that, in so requiring, reg 23A(4) was reviewable and had to be set aside. Held, that reg 23A(4) unfairly discriminated (in breach of s 14(2) and (3) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000) against those persons contemplated in category (c) — the informally and self-employed — who were not in possession of a bank account. Such persons were most likely poor and less privileged, and would not be able to provide financial statements to a credit provider. They were therefore effectively excluded from obtaining credit. (See [45] – [48] and [53].) Held, further, that reg 23A(4) frustrated the NCA's aim of promoting the development of a credit market that was accessible to all South Africans, and in particular to those who had historically been unable to access credit under sustainable market conditions. As such, it was neither reasonable nor rationally connected to the purpose which it was intended to serve. (See [52].) Held, further, that the fact that the wording of reg 23A(4) was taken virtually verbatim from one of the many comments received from the public prior to the regulation's promulgation, suggested that it was arbitrarily inserted into the National Credit Regulations, 2006. (See [54].) Held, accordingly, that reg 23A(4) fell to be set aside on the basis that it failed the test of legality. TS v TS 2018 (3) SA 572 (GJ) Rule 43 proceedings-Divorce — Maintenance — Pendente lite — Inadequate financial disclosure in rule 43 proceedings — Court's power to case-manage and order production of information and documents — Uniform Rules of Court, rule 43(5). The parties were in divorce proceedings in which rule 35 discovery had occurred. Here, the wife brought an application under rule 43. She sought, in respect of the children: an order that they reside with her; contributions to their accommodation and transport costs; and maintenance. (See [48] and [68] – [70].) For herself, she sought maintenance, and a contribution to her legal costs. Both she, and her husband, alleged financial non-disclosure on the other's part, and that the

rule 35 discovery had been inadequate. This where both her, and in particular her husband's financial affairs, were of some complexity. (See [77] and [90].) The court considered inter alia: • The impact of insufficient information disclosure in rule 43 proceedings (see [12], [15], [18] – [19], [22], [25]); • possible solutions (see [34], [37] – [38], [42] – [44] (England), [46] (Australia)); and • the bearing of the Children's Act 38 of 2005 on the issue (see [60] – [62], [65] – [66]). Held, that rule 43(5) gave a court the power to manage and order disclosure of information and documents. (See [37], [66] and [89].) Here, given unresolved questions as to the parties' incomes and assets, an order of such disclosure was justified. (See [87] – [88].) Ordered, accordingly, that each party disclose in an affidavit specified financial information; and provide specified financial documents (see [90]). Export Development Canada and another v Westdawn Investments (Pty) Ltd and others [2018] 2 All SA 783 (GJ) Interdict– Interim interdict – Requirements – Requirements for an interim interdict are a prima facie right on the part of an applicant; a well-grounded apprehension of irreparable harm if interim relief is not granted; the balance of convenience favouring the granting of interim relief; and the absence of any other ordinary remedy to give adequate redress to the applicant. Jurisdiction – Section 21(1) of the Superior Courts Act 10 of 2013 provides that the court has jurisdiction over all persons residing or being in its area of jurisdiction – Court’s jurisdiction not decided by doctrine of forum conveniens which does not reflect our law and may not be excluded by agreement. Urgent application – Requirements for urgency – Question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. An aircraft owned by the second respondent (“Stoneriver”) was leased to the first respondent (“Westdawn”) in terms of an aircraft lease agreement. Westdawn was part of a group of companies (“the Gupta group of companies”). The first applicant (“EDC”) provided Stoneriver with the funding to purchase the aircraft. The funding arrangements were regulated by a facility agreement concluded between EDC, Stoneriver and the second respondent (“Oakbay”), which was also part of the Gupta group of companies. Stoneriver was required, under the facility agreement, to make quarterly repayments of the loan amount to EDC using the rental it received from Westdawn. Oakbay was the corporate guarantor for the repayment of the loan under the facility agreement and the third and fourth respondents were the personal guarantors. Oakbay was one of the main operating companies in the Gupta group, and controlled Westdawn, which was controlled by the third and fourth respondents (Mr Atul Gupta and Mrs Chetali Gupta).

To manage and secure the applicants’ rights arising from the transaction, the facility and lease agreements contained numerous rights of security and triggers which would constitute events of default, entitling the applicants to terminate the leasing arrangement and take possession of the aircraft. The applicants alleged that more than a dozen events of default had come to their attention between October 2017 and

December 2017, as a result of which Westdawn, Oakbay and the third and fourth respondents were in breach of the lease agreement and the facility agreement. The applicants accordingly accepted the repudiation, terminated the lease agreement and instructed Westdawn to redeliver the aircraft to Stoneriver. Instead of complying, Westdawn launched an action in the English courts challenging the lawfulness of the cancellation of the two agreements. Pending the final determination of the English proceedings, the applicants sought an interim interdict to have the aircraft grounded and returned to a safe location to be stored. Held – Together with the merits, the Court had to address the issue of urgency, as the applicants had brought the application as an urgent one. The purpose of urgent proceedings is to enable a court to come to the assistance of a litigant in circumstances where the litigant will be unable to obtain relief in the ordinary course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The third and fourth respondents relied on that omission, contending that the applicants’ failure to make such allegation in their founding papers indicated that they could get substantial redress in another court. However, the Court was satisfied that unless the application was enrolled for hearing in the urgent court, the applicants would be unable to obtain substantial redress in an application in due course in a court either in the country or outside. In arriving at that conclusion, the Court took into account the risk of damage to the aircraft; a risk of forfeiture of the aircraft under the Prevention of Organised Crime Act 121 of 1998 (a suspicion existing that the aircraft could be used for unlawful purposes); and reputational harm likely to be suffered by the applicants by virtue of being associated with the third and fourth respondents through their continued use of the aircraft. The Court also rejected a submission that the urgency was self-created.

The jurisdiction of the court was also placed in dispute. The third and fourth respondents did not submit to the jurisdiction of the court, contending that their entitlement not to do so arose from both the facility and the lease agreements which accorded exclusive jurisdiction to the Court of England and Wales. That contention was rejected by the court as section 21(1) of the Superior Courts Act 10 of 2013 provides that the present Court has jurisdiction over “all persons residing or being in . . . its area of jurisdiction.” Westdawn and Oakbay were companies incorporated in South Africa, and the aircraft was registered in South Africa. The Court therefore had jurisdiction in the application. A request by the third and fourth respondents for the court to decline to exercise jurisdiction as it was not the forum conveniens was unsuccessful as the doctrine of forum conveniens does not reflect our law. Furthermore, the facility and lease agreements did not exclude the court’s jurisdiction as contended by the third and fourth respondents. In any event, the Court would not be bound by a contractual provision that purported to exclude its jurisdiction as parties to a contract cannot exclude the jurisdiction of a court by agreement.

The requirements for an interim interdict are a prima facie right on the part of an applicant; a well-grounded apprehension of irreparable harm if interim relief is not granted; the balance of convenience favouring the granting of interim relief; and the absence of any other ordinary remedy to give adequate redress to the applicant. The applicants were found to have comfortably met the test for those requirements. An order granting the interim relief sought was thus granted.

Law Society of South Africa and others v President of the Republic of South Africa and others (Southern African Litigation Centre and another as amici curiae) [2018] 2 All SA 806 (GP) Constitutional law – Government of South Africa – International law obligations – Southern African Development Community Tribunal – Lawfulness of South Africa’s participation in suspending the Southern African Development Community Tribunal – Court finding decision of South African President to be unlawful, irrational and unconstitutional.

In May 2011, the President of South Africa took a decision to support a resolution suspending the operation of the Southern African Development Community (“SADC”) Tribunal and to sign the subsequent Protocol in 2014. On 18 August 2014, the President signed the relevant Protocol which limited the Tribunal’s jurisdiction to inter-State disputes to the exclusion, henceforth, of private parties.

Application was made in the present proceedings, for declaratory relief relating to the above two decisions.

The purpose for the establishment of SADC in terms of the Southern African Development Community (“Treaty”) was to achieve certain regional developmental goals. Member States bound themselves to act in accordance with the human rights, democratic and rule of law principles. The Tribunal was established to ensure adherence to and the proper interpretation of the Treaty as well as the adjudication of such disputes as may be referred to it. The composition, powers, functions, procedures and other related matters were subsequently provided for in a Protocol pertaining to the Tribunal (“Tribunal Protocol”), the coming into effect of which depended on its ratification by two-thirds of the Member States. When the requisite number of ratifications was not obtained, the Treaty was amended so that the ratification requirement was removed. Having approved the Treaty in 1995, South Africa was bound by the amended version of the Treaty which incorporated the Tribunal Protocol (“Amended Treaty”).

In terms of the Protocol (the “First Protocol”) passed by the SADC in 2000, the ability of individuals to have access to the Tribunal was not restricted. In the meeting of Heads of State and government in August 2010, the subject of Zimbabwe’s failure to comply with the decisions of the Tribunal was discussed. A controversial decision was subsequently taken to suspend the appointment of members of the Tribunal. The effect was that the Tribunal could not function and was in effect suspended. The South African government sought no parliamentary approval prior to its participation and endorsement of the decision – despite knowing that the appointment of members to the Tribunal was mandatory.

The review by SADC of the functioning of the Tribunal resulted in the conclusion of a new Protocol on the Tribunal, which was signed on 18 August 2014. The first respondent was signatory to that Protocol on behalf of South Africa. The Second Protocol was a significant departure from the First Protocol. Only member States and not individuals could thenceforth lodge disputes before the Tribunal. The first applicant contended that it was unlawful for the South African government to sign the Protocol as it infringed against our Constitution.

Seeking a declaration that the respondent’s participation in suspending the SADC Tribunal and his subsequent signing of the 2014 Protocol on the SADC Tribunal was unconstitutional, the first applicant argued that the President’s impugned conduct violated section 34 of the Constitution for failing to facilitate any prior consultation, and refusing to furnish any information or reasons despite repeated requests; and was inconsistent with the duties of SADC member states under the SADC Treaty itself. The remaining applicants (“the Tembani applicants”) submitted that the South African President’s signature was contrary to the SADC Treaty and was irrational, arbitrary and mala fide in that it could not rationally be related to a legitimate government purpose authorised by section 231(1) of the Constitution and the Treaty.

The respondents contended that the challenge to the President’s signature of the 2014 Protocol was premature, as the signature did not bind South Africa, as it was required that the Protocol be placed before Parliament for approval, and no decision had been taken to do that. It was also said that the decision was neither unlawful, irrational nor taken in bad faith. Held – There is an international law obligation on South Africa to ensure that its citizens have access to the Tribunal and that its decisions are enforced. Any act which detracted from the SADC’s Tribunal’s exercise of its human rights jurisdiction, at the instance of individuals, was inconsistent with the SADC Treaty itself, and violated the rule of law. The President’s signature of the 2014 Protocol was such an act. The Tembani applicants had vested interests in SADC Tribunal awards and the enforcement of those awards was specifically provided for in the Treaty itself and the 2000 Protocol. All those vested rights had been interfered with retrospectively with the participation of the President.

The first applicant contended that the President’s actions relating to the 2011 suspension and the 2014 Protocol were in clear conflict with the terms of the Treaty itself, the terms of the First Protocol and the provisions of section 231(4) and (5) of the South African Constitution as the actions were taken without approval of Parliament. The Court found that submission to be cogent and held the President’s signature to the 2014 Protocol to be unlawful in the sense of being unconstitutional and therefore liable to be set aside.

If the President’s signature to the 2014 Protocol cannot rationally be related to a legitimate Government purpose authorised by section 231(1) of the Constitution, then it followed that the President acted irrationally. Amending the Treaty without terminating the First Protocol was unlawful. The Executive has no authority to participate in a decision in conflict with South Africa’s binding obligations. If it was the intention to withdraw from South Africa’s obligations under both the Treaty and the Protocol, consent of Parliament had to be obtained first. Failure to do so, in the present context, was unlawful and irrational.

Granting the declarator that the President’s participation in suspending the SADC Tribunal and his subsequent signing of the 2014 Protocol on the SADC Tribunal was unlawful, irrational and thus, unconstitutional, the Court referred the order to the Constitutional Court for confirmation.

Macia and others v Road Accident Fund [2018] 2 All SA 862 (MCC, Mbombela)

Courts – Litigation – Norms and standards regulating litigation – Court critical of practice of allowing litigation to drag on to the benefit of practitioners and the detriment of their clients – Discouragement of trend of seeking to settle and asking for stand-downs or postponements on the date or week of trial – Court issuing punitive costs orders. Seventeen cases were dealt with by the court in this judgment, in which the court highlighted the norms and standards in litigation in our courts. Held – Such norms and standards are to be strived for by judicial officers in charge of proceedings as well as practitioners and litigants. The practice of allowing litigation to drag on to the benefit of practitioners and the detriment of their clients had to be stopped.

In terms of section 165(6) of the Constitution and section 8(2) of the Superior Courts Act 10 of 2013, the Chief Justice exercises responsibility for the establishment and monitoring of norms and standards for the exercise of judicial functions of all courts. To that end the norms and standards was issued by the Chief Justice under circular 1 of 2014.

Section 34 of the Constitution guarantees the right to have any dispute that can be decided by the application of the law decided in a fair public hearing. Therefore, any delay in finalisation of cases, resulting in unnecessary litigation costs violates that right. Section 173 of the Constitution gives the power to the higher courts to protect and regulate their own processes. One way of doing that is to ensure that matters enrolled for the resolution of disputes in our courts do not take months and years to be finalised. The norms and standards require judicial officers in any High Court to finalise civil cases within one year from the date of issue of summons, and within nine months in the magistracy. Judicial officers must take steps to manage cases against that backdrop as set out by the court in its judgment.

In each of the seventeen cases dealt with in this judgment, it was directed that in the event of settlement, draft orders be filed by a certain date and that the case be moved from the trial roll to the settlement roll. The aim was to avoid unnecessary court days or appearances. The Court turned to consider each case, hoping in doing so, to discourage the trend of seeking to settle and asking for stand-downs or postponements on the date or week of trial. Highlighting how directives issued at pre-trial conferences were not adhered to and last-minute requests for stand-downs or postponements were regularly sought, the Court showed its displeasure by making punitive costs orders against the practitioners in each case. The court made the following orders : “Consequently, I hereby make an order in all the 18 matters as follows: In Marcia Ercilia case 122.1Costs occasioned by the postponement to be by the defendant on an attorney and client scale.122.2 The defendant’s attorneys are hereby ordered to forfeit any day fee or disbursement chargeable against the defendant insofar as such a fee or disbursement was directly related to and occasioned by the postponement herein. In Cassandra Butler case 122.3 No order as to costs occasioned by the postponement is made against any of the litigating parties. 122.4 It is hereby ordered that the parties’ legal representatives including Counsel if any, shall not be entitled to recover any appearance day fee, cost and or disbursements from any of their respective clients

(litigating parties) insofar as such a fee, costs and or disbursement is directly related to and or occasioned by the postponement. In Zelda Carlamarie Eberson case 122.5 I hereby hand down the reasons for the order in terms of which the costs occasioned by the postponement was not to be recovered from the litigating parties by their respective legal representatives. In HH Selowe case 122.6 The defendant to pay costs of the action on a party and party, except those costs occasioned by the late settlement which costs shall be on an attorney and client scale. 122.7 The defendant’s attorney is hereby disentitled to levy or debit any fee against the defendant (client) insofar as such a fee is connected to and occasioned by the late settlement including forfeiture of day’s fee for 27 November 2017. In GH Mabunda case 122.8 The defendant to pay costs of action on a party and party scale. 122.9 The defendant’s attorneys are hereby ordered to forfeit entitlement to charge any fee, costs and or disbursement against the defendant (client) including appearance day fee on date of trial insofar as such a fee, costs and or disbursement is connected to and or was occasioned by the late settlement. In NS Maphalu obo minor 122.10 No order as to costs occasioned by the postponement is made against any of the litigating parties and the parties, legal representatives are hereby ordered not to recover any fee, costs and or disbursement including appearance day fee on the date of trial, insofar as such fee, costs and or disbursement is connected to or was occasioned by the postponement herein. [These are just a few examples]

Mondi Shanduka Newsprint (Pty) Ltd v Murphy (1419/2006) [2018] ZAKZDHC 24 (4 June 2018)

Trial-judge passed away-parties agree on way forward-court says no! Must start de novo

The plaintiff, Mondi Shanduka Newsprint (Pty) Ltd (‘Mondi’) issued a summons against the defendant, Clive Paul Murphy on the 13th April 2006. Mondi’s cause of action was that on the 18th September 2004 a fire had started on the property of Mr Murphy, which eventually spread to, and destroyed, a forest on the nearby Linwood Estate. Mondi owned the Linwood Estate and conducted a commercial forestry enterprise from those premises. Mondi’s claim was founded in delict, read with the provisions of the National Veld and Forest Fire Act, 1998, and relying on allegations that Mr Murphy had not prevented the spread of the fire as he should have done.

(b) The trial started before Ndlovu J, and was heard on the following dates:

(i) 7th March 2011 to the 18th March 2011;

(ii) 30th April 2012 to the 11th May 2012;

(iii) 23rd September 2013 to the 27th September 2013; and

(iv) 10th November 2014 to the 15th of November 2014.

(c) On the 15th November 2014 the matter was adjourned for the hearing of argument.

(d) For various reasons argument was only heard on the 13th August 2015. The record ran to some 1691 pages, and Mr Murphy’s heads of argument to 290 pages.

(e) On the 19th April 2017 Ndlovu J passed away. He had not yet delivered judgment. The parties then concluded an agreement on the 30th August 2017, purporting to regulate to the future conduct of the matter. The agreement provided that:

(i) The parties would not conduct a trial de novo;

(ii) The Judge President of this division was to be requested to allocate a Judge, who would consider and decide the matter by reading all the available written information including the pleadings, transcripts of the evidence, expert reports, heads of argument and any notes which may have been made by Ndlovu J;

(iii) Legal argument would be presented to the allocated judge prior to his deliberations.

[25] Were I merely to override those considerations, albeit with the consent of parties, I have serious doubts as to whether I would be fulfilling my oath of office by allowing the parties to a civil action to restrict the ordinary performance of my duties.

[26] The conclusion to which I have come is no doubt most unfortunate for the parties, and one which will not be welcomed by them. In the circumstances I make the following order:

(a) The application that I recognise and follow the agreement concluded between the parties with regard to the future conduct of this action is refused;

(b) Should the parties wish to continue with the trial in the High Court, they are required to start the proceedings de novo.

Northern Cape Society of Advocates v Mziako (1637/17) [2018] ZANCHC 28 (1 June 2018)

Advocate-admission-failure to disclose previous convictions-admitted as advocate-application to remove him-succeeds

This is an application by the Northern Cape Society of Advocates to have the name of the respondent, Mr Moses Sipho Mziako, struck off the roll of advocates held by the Director General of Justice in terms of s 8 of the Admission of Advocates Act (the Act) and that he be ordered to pay the costs of this application on the scale of attorney and own client. It would appear that the respondent commenced practice as an advocate in the Pretoria area and was not affiliated to any Bar or an Association affiliated to the General Council of the Bar of South Africa. What triggered the process that led to the current proceedings is a complaint by Mr J R Jantjies, a Senior Magistrate in Ga-Rankuwa, Gauteng Province. The Senior Magistrate had some concerns regarding the respondent’s admission as an advocate. He wrote to the former Judge President of this Division on 30 May 2017 stating, inter alia, that the respondent failed to disclose in his supporting affidavit for admission as an advocate of this Court that he had been convicted of a number of counts of fraud, theft and corruption in the

Regional Court, Pretoria; that he was sentenced to 25 years imprisonment which was on appeal to the then Transvaal Provincial Division reduced to 18 years and that he served the reduced sentence. My predecessor referred the Senior Magistrate’s complaint to the applicant for investigation and to take whatever steps they deem necessary under the circumstances.

The respondent is opposing the application to strike his name off the roll of advocates on three grounds. Firstly, that an advocate can only be struck off the roll of advocates upon misconduct or criminal offences committed post admission. He contends that since his admission as an advocate there has never been any complaints of misconduct or criminal convictions against him and as such there is no basis for his name to be struck off the roll of advocates. Secondly, he contends that a criminal record is not per se a bar to admission as an advocate. Thirdly, the respondent contends that the applicant was negligent in not opposing his application for admission as an advocate and cannot now approach this Court seeking an order that his name be struck off the roll of advocates.

At this stage it is not only the fact that the criminal convictions exist, but that the respondent deliberately failed to disclose them. It matters not whether they might be 20 years old or have been expunged. They remain relevant to an inquiry whether an applicant in his position is a fit and proper person to continue to practise as an advocate. Although the respondent contends that there has never been a complaint against him since his admission as an advocate and that he is also a lay preacher, I still have doubts about his reformation. The least that he could have done to show that he is reformed would have been to disclose his previous convictions to the courts and not engage in a well calculated forum shopping until he was admitted by this Court. His applications to Gauteng, KwaZulu-Natal and this Court also raise doubt as to whether he indeed resided in these places within such a short period.

[42] The respondent, even at this late stage, had an opportunity to demonstrate that despite his convictions, he has genuinely, completely and permanently reformed himself of his criminal character and that is he is a fit and proper person to continue to practise as an advocate. He has failed to do so. I have doubts whether the respondent’s conduct would ever change. His actions are so serious that they rule out any thought of having him suspended from practise. Suspending him from practising will expose the public to serious risk. The integrity of the legal profession which should be guarded will be dealt a serious blow.

[43] There is no reason in law why the respondent should not be ordered to pay the costs of this application on the scale of attorney and own client. Such an order should include the costs of the interim relief that was granted against the respondent. Such costs are justified because the applicant has a public duty to approach the Court in circumstances of a respondent who has been admitted to practise as an advocate through dishonesty and who persists that he should be allowed to practise as an advocate despite his unethical conduct. The respondent’s conduct on the facts of this case justifies such an order.

[44] Had it not been for the bravery of Mr J R Jantjies to conduct his investigations and bring the respondent’s circumstances to the attention of the Judges President,

the respondent’s misdemeanour would have taken longer to detect. The learned Senior Magistrate deserves to be commended for his wise initiative.

[45] In conclusion I am satisfied that a case has been made to demonstrate that the respondent is not a fit and proper person to continue to practise as an advocate. His name should therefore be struck off the roll of advocates kept by the Director General of the Department of Justice.

[46] In the result it is ordered as follows-:

a) The rule nisi issued on 21 July 2017 is confirmed.

b) The name of the respondent, Moses Sipho Mziako is struck off the roll of advocates which is kept by the Director General: Department of Justice, in terms of section 8 of the Admission of Advocates Act 74 of 1964.

c) The respondent is to pay the costs of this application including the costs in respect of Part A of the application on a scale as between attorney and own client.

Botha t/a Johnny's Construction and another v Kabelo Investments (Pty) Ltd t/a Central Timer & Truss [2018] JOL 39923 (FB)

Appeal-leave to appeal- Order declaring property specifically executable – Leave to appeal

After having obtained summary judgment against the applicants, the respondents obtained a writ of execution against movables. Movable assets to the value of R16 100 were attached and the respondents successfully brought an application to have the property concerned declared executable. The present application was for leave to appeal against the order granted in the latter application.

Held that the applicants relied on their constitutional right to adequate housing, and further alleged that they had obtained judgment against an entity which judgment was in excess of the amount claimed by the respondent and could liquidate the debt to the respondent on receiving such funds in five months’ time. The court granting the application to have the property concerned declared executable did so on the basis that it did not believe that the applicants were going to receive the funds as anticipated. The present Court held that in matters where a person's primary residence is at stake, such a person should be allowed the benefit of the doubt.

Finding a reasonable possibility that another court might draw a conclusion different from that of the court a quo, the Court granted leave to appeal.

St Andrews School v Roses United Football Club (Pty) Ltd and another [2018] JOL 39931 (FB)

Appeal-Absolution of instance-appeal- Lease agreement – Alleged breach – Cancellation of agreement-appeal upheld

The respondent was a football club which utilised sport grounds owned by a municipality. The appellant was a school whose property was situated adjacent to the sport grounds. It wished to extend its sporting facilities and negotiated with the municipality to lease the municipal sport grounds referred to above. The municipality was agreeable to leasing the property to the appellant on condition that the latter accommodated the respondent’s utilising of the sport grounds as well.

Before an agreement reached between appellant and respondent, the respondent was responsible in terms of its understanding with the municipality, to maintain the sport grounds and was responsible for the payment of water consumption and electricity. The respondent utilised the sport fields exclusively for soccer training and soccer games. Although the sport facilities and sport grounds in the past also contained a cricket pitch, at the time the respondent started utilising these sport facilities, the playing of cricket was not continued with and the pitch fell into disrepair.

After the appellant and respondent entered into their agreement, the appellant took the view that the respondent was in breach of the said agreement by failing to keep and maintain the field and more specifically the cricket pitch. The appellant cancelled the agreement and instituted action against the respondent. The respondent denied that it bore the responsibility alleged by the appellant, denied that it was in breach of the agreement, and disputed the appellant’s entitlement to cancel the agreement.

The court below found for the respondent and granted absolution from the instance, leading to the present appeal.

Held that the trial court erred in its interpretation of the agreement regulating the parties’ relationship. There was sufficient evidence regarding the alleged breach in failing to maintain the leased property, allowing of access thereto and the respondent’s failure to pay the electricity account. The order of absolution from the instance could therefore not be sustained.

The appeal was upheld and the matter was remitted to the High Court for the trial to be heard de novo.

Supreme Poultry (Pty) Ltd v Matthee and others [2018] JOL 39937 (FB)

Review- Bill of costs – Taxation – Application for review

In terms of Rule 48, the plaintiff sought review of a taxation after the dispute between the parties had been formally settled by an order of court. In terms of the order, the plaintiff was held liable for payment of the agreed or taxed party and party costs of the defendants for a certain period of time in the litigation process. When the defendants produced the bill of costs for taxation, the plaintiff filed a Notice to Oppose and the taxation thereafter proceeded on an opposed basis.

Held that having regard to the items in the taxed bill in respect of which review was sought, the court found no clear indication that the taxing master had made a mistake or had failed to apply her mind properly in allowing costs for the items concerned.

Referring to the taxing master’s discretion, the court found such discretion to have been properly exercised. The application for review was dismissed and the taxation was confirmed.

Harilall v Standard Bank of South Africa [2018] JOL 37946 (KZP)

National Credit Act-Debt review – Debt restructuring order – Termination by creditor – Lawfulness- not lawful-bank cannot do it if creditor not in arrears

In 2008, the appellant entered into an instalment sale agreement in respect of a motor vehicle. In terms of the agreement, the appellant was required to pay the purchase price of the vehicle to the respondent bank in monthly instalments. However, by 2009, she became over-indebted and applied for debt review. The application was successful, and a debt restructuring order was handed down. About nine months later, at a time when the appellant was complying with her obligations in terms of the debt restructuring order, the bank applied for termination of the instalment sale agreement and return of the vehicle. Two weeks before the trial, the bank withdrew the action and tendered to pay appellant’s costs of defending the action, on a party and party scale. However, it instituted action again on two further occasions. In the third action, the court granted judgment in the bank’s favour, finding that the appellant had breached the debt restructuring agreement and the bank was therefore entitled to enforce the debt under review.

Held that the main issues for determination were whether the bank was entitled to act in terms of section 88(3) of the National Credit Act 34 of 2005; and whether it was entitled to seek judgment at a time when the appellant was not in arrears and had remedied the alleged default.

In terms of section 88(3), a creditor may not enforce by litigation, any right under a credit agreement if the consumer is not in default. Therefore, the bank’s conduct in repudiating the agreement at a time when the appellant complying with her obligations in terms of the debt restructuring order was unlawful.

The Court expressed its displeasure at the bank’s conduct in the matter, and would have made a punitive costs order against the bank had the appellant made any submissions in that regard.

Stoffberg on behalf of Xaba v Road Accident Fund (and other related matters) [2018] JOL 39946 (GP)

Rule 57 – Appointment of a curator ad litem in matters against the Road Accident Fund where plaintiff suffers mental impairment as a result of brain injury – Rule 57, Uniform Rules of Court – Requirements of rule are peremptory and failure to comply results in application being defective

Three applications dealt with simultaneously by the court sought the same relief, viz the appointment of a curator ad litem in actions already instituted against the Road Accident Fund (RAF). The appointments were sought so that the curator could pursue and fulfil the actions instituted and ratify the actions already taken on behalf of the plaintiffs.

One of the three matters (the Xaba case) was set down for trial and settlement offers had been made in the other two (the Matshidi and Mlambo matters). In the latter two

cases, an order was sought that the curator ad litem report to the court on the ability of the plaintiff to manage his or her own affairs, and that costs be reserved for determination by the court seized with the action.

In all three applications, the respective attorneys were the applicants and deponents to the application.

Held that the manner in which the attorneys approached the court led the court to believe that it was expected to act as a mere rubber stamp – ignoring the relevant judgment of the division, Rule 57 and the practice directives. The court referred to the case of JM Modiba obo Sibusisiwe Ruca, in which the issue of non-adherence to Rule 57 in RAF matters was addressed. Despite the comprehensive judgment in that case, practitioners continued to attempt to circumvent the court’s rules. the present court therefore felt bound to remind attorneys of the requirements in such applications.

Whether a client has the legal capacity to litigate is a basic preliminary question an attorney should consider before continuing with the legal process. No explanation was provided in any of the matters before the court why, in the face of indications early on that the plaintiffs’ might be mentally impaired due to the seriousness of their head or brain injuries, the attorneys did not consider Rule 57 and approach the court earlier.

Settlement offers were made and/ or accepted in the Matshidi and Mlambo matters and it was important for the court to be placed in a position where it could establish that the said plaintiffs were able to make rational decisions in the conducting of the litigation and the considering of the settlement offers. Attorneys appeared to be approaching the court for the appointment of a curator ad litem towards the end of the litigation, and the curator was then expected to rubber stamp all steps taken by the attorney.

Rule 57 specifically requires the application to be supported by affidavits from at least one person to whom the patient is well-known and from two medical practitioners who have conducted recent examinations of the patient. A clear case must be made out for the appointment of the curator ad litem. In the three applications before the court, the medical reports were inadequate and did not address whether the plaintiffs could manage their own affairs. None of the applications fully complied with Rule 57 – the provisions of which are peremptory. Failure to comply with all the provisions of the Rule render the application defective.

The court also emphasised the need for the curator to be appointed as early as possible. The court was unable to establish in the three cases at hand, whether the plaintiffs were capable of giving instructions in their litigation. A finding that the plaintiffs were unable to understand the process would affect the validity of the instructions given by them and the acceptance of the settlement offers. The court also emphasised the need for the curator to be impartial and independent. The applications before the court did not comply with the practice directive referred to by the court or with the Ruca judgment.

Ruling the application to be procedurally flawed, the court laid the blame squarely at the feet of the attorneys. It held that the plaintiffs could not be held responsible therefor, and proceeded to consider the plaintiffs’ cases.

In the Xaba and Matshidi cases, the court ordered the appointment of a curator ad litem, other than that sought to be appointed in the applications. Adverse costs orders

were made against the attorneys. In the Mlambo case, the plaintiff was a minor, and no case was made why the child’s natural parent was not fit and proper to protect her interests. The application was dismissed and the attorney was not permitted to charge any fees for the application. Hayman NO v Minister of Home Affairs NO and others [2018] JOL 39974 (ECP)

Court order – Non-compliance – Contempt of court – Personal service – Effect of failure – Rescission application

Two minors who had been orphaned in 2016 were at the centre of the present case. Their mother (D) was a citizen of the Democratic Republic of the Congo, and had arrived in South Africa with her daughter (EN) in April 2004. Upon her arrival in South Africa, D applied for asylum at the Port Elizabeth Refugee Reception Office in terms of the Refugees Act 130 of 1998, and was issued with a section 22 temporary asylum seeker permit which was extended from time to time.

While living in South Africa, D had a relationship with a Zimbabwean and a son (GN) was born of that relationship. GN’s father died in 2013, and D died in 2016. The children were placed in a youth centre by order of the Children’s Court. The Department of Social Development formed the view that the two children should remain together and that they should remain in South Africa.

In order to find a lasting solution for the children, an organisation, referred to in the judgment as the Refugee Rights Centre, made an application in terms of section 31(2)(b) of the Immigration Act 13 of 2002 on behalf of the children. That section entitles the Minister to grant rights of permanent residence to a foreigner when special circumstances exist which would justify such a decision. No response was received and the present application was brought by the social worker appointed in the case. The ensuing order, inter alia, directed the Minister to consider EN’s application for exemption as contemplated in section 31(2)(b) of the Immigration Act and to register GN as a South African citizen. The third respondent was the acting office manager of the Port Elizabeth office of the Department and was the official required to give effect to the order.

Three applications now served before the present court flowing from the above. The first was for an order in terms of which the respondents would be committed for contempt of the order referred to above. The second was an interlocutory application in which the applicant sought to have the Director of Legal Services in the Department of Home Affairs (Erasmus) joined as a fourth respondent in the contempt proceedings. Finally, the respondents sought rescission of the order made against them.

By the time that the applications were argued before court, the first respondent had granted an exemption in terms of section 31(2)(b) of the Immigration Act to EN.

Held that the third respondent deposed to and filed an affidavit explaining why the order had not been complied with. The reasons related to the fact that the order was not capable of implementation without being varied. That was why the rescission application had been made. The affidavit also set out the steps taken to address the matter throughout.

The respondents and Erasmus opposed the joinder application on the basis that the applicant had not made out a case that it was impossible to serve the order personally on the first and second respondent and on the basis that Erasmus was not the appropriate official to attend to service of the order upon the first and second respondents. Rule 23(n) of the Eastern Cape Rules of Practice provided that except in matters in which substituted service has been authorised, personal service of process will be required in divorce actions, applications for sequestration and contempt of court proceedings. In seeking joinder instead of substituted service, the applicant had adopted the wrong procedure. It was thus concluded that the application for contempt against the first and second respondents was not only defective for want of adequate proof of service (which the joinder sought to remedy), but was fatally defective for want of joinder of the first and second respondents in their personal capacities.

No grounds were found for granting the rescission application either. The reasons advanced for seeking rescission were based on an incorrect interpretation of the order. The application was dismissed.

Nedbank Limited v Denny [2018] JOL 39976 (ECG)

Summary judgment – Opposition of – Requirements – Bona fide defence- Prescription Act, claim in this case was not a debt-reckless credit also not defence

National Credit Act-Consumer – Over-indebtedness – Restructuring of debts – Breach – Summary judgment application-reckless credit not valid defence

The plaintiff and the defendant entered into a credit agreement on 25 May 2013, in terms of which the plaintiff sold a vehicle to the defendant.

The defendant defaulted on her payment obligations as provided for in the agreement. She applied for debt review and, pursuant to such debt review, an application was made to declare her to be over-indebted. An order was granted in which the defendant was declared to be over-indebted, and her debt obligations, which included that in respect of the credit agreement entered into with the plaintiff, were restructured.

In instituting action against the defendant, the plaintiff alleged that she had defaulted in her obligations and that it accordingly became entitled to enforce the agreement in terms of section 88(3) of the National Credit Act 34 of 2005. The present application was for summary judgment.

The defendant raised two principal defences to the application. The first was that the plaintiff’s claim has prescribed; and the second was that the applicant was precluded from pursuing its claim by reason of section 130 of the Act since there was a matter pending before the National Consumer Tribunal regarding the alleged provision of reckless credit by the plaintiff.

Held that to resist summary judgment, the defendant had to establish a bona fide defence to the plaintiff’s claim.

The prescription defence was based on the date of the last acknowledgement of indebtedness, which occurred more than three years before summons was served. That assertion lost sight of the fact that the claim was for confirmation of cancellation

of the agreement and the return of goods in which ownership vested in the plaintiff. The plaintiff’s claim was vindicatory in nature. It asserted its ownership of the vehicle and its entitlement to be placed in possession thereof upon cancellation of the agreement. Such claim did not constitute a debt within the meaning of the Prescription Act 68 of 1969. In any event, summons was issued long before the three-year period, had lapsed.

Referring to case law, the Court held with regard to the defence based on section 130, that an allegation that the agreement constitutes reckless credit does not constitute a defence to a claim for the return of goods in which ownership vests in the credit provider.

The defendant being unable to show that she had a bona fide defence to the plaintiff’s claim, judgment was granted against her.

Medical Nutritional Institute (Pty) Limited v Advertising Standards Authority Private Club Registration number 1995/00781/08 [2018] JOL 40025 (GJ)

Interdict-Interim interdict – Requirements- Advertising Standards Authority (“the ASA”)-interim interdict to prohibit advert granted

The applicant (“MNP”) manufactured and sold complementary medicines, including a product (AntaGolin) which it contended combated insulin resistance and assisted in weight loss. the sale of AntaGolin represented 70% of the applicant’s income.

The respondent, the Advertising Standards Authority (“the ASA”), was an independent industry-funded body established to promote and enforce standards in the advertising industry. It was common cause that MNP was not a member of the respondent. complaints were laid with the ASA, that the advertising assertions made about AntaGolin were unsubstantiated. The ASA upheld the complaints and issued a series of rulings, effectively directing that the advertisements in their current form be withdrawn and ultimately directing that sanctions would imminently be imposed on MNP in terms of the respondent’s advertising code (“the code”) for breaching its rulings.

That led to the MNP launching the present proceedings for interim relief on an urgent basis. Pending the final determination of an action to be instituted by MNP against the ASA an interim order was sought interdicting the ASA from imposing any form of sanctions in respect of advertisements of AntaGolin, and ancillary relief.

At the centre of the dispute between the parties lay an attack on the legitimacy of the ASA’s adjudication of complaints in respect of the advertising of non--members; whether MNP had any lawful basis to exercise jurisdiction over such entities and the extent to which the ASA (in exercising jurisdiction over its members) was entitled to interfere in the contractual arrangements of non-members.

Held that the issues raised were wide-ranging and complicated and encompassed issues of private, public and constitutional law. MNP’s case was that the ASA had no lawful basis to exercise jurisdiction over it, as it was not a member of the ASA and was not obliged to adhere to the code. It contended that the ASA was acting unlawfully in purporting to be the regulator of the advertising industry and that it had no enabling legislation to execute a public function as regulator.

The Court was of the view that the circumstances warranted treating the application as urgent.

The requirements for granting of an interim interdict are the establishment of a prima facie right; a well-grounded apprehension of irreparable harm to the applicant if the interdict is not granted and the applicant ultimately succeeds in establishing the right; no other satisfactory remedy; and the balance of convenience favouring the granting of interim relief. Finding the said requirements to have been satisfied, the court granted the interim interdict.

Van Wyk v Daberas Adventures CC [2018] JOL 40030 (NCK)

Locus standi – Authorisation Application by trustee – must be challenged through rule 7(1)

As a trustee of a trust, which owned immovable property occupied by the respondent, the appellant applied for the eviction of the respondent from the property and ancillary relief. One of three in limine objections raised by the respondent, namely that the appellant lacked locus standi, was upheld by the court below and the application was dismissed with costs. The court found that the authorisation of the appellant to bring the application was not effected in compliance with the trust deed.

On appeal, the appellant argued that the authorisation of the other trustees had not been required for the appellant to have deposed to the founding affidavit; that the respondent could only have challenged the appellant’s authorisation through the mechanism of Uniform Rule 7(1) and that, as each of the trustees had been properly identified and had supported the application, the trust should not have been non-suited merely because they had not been joined and cited as co-applicants.

Held that the findings of the court a quo were not that the lack of locus standi resulted from the appellant not having been authorised to depose to the founding affidavit, or that the mechanism of Uniform Rule 7(1) should have been utilised by the respondent. The court found that none of the challenges to the appellant’s locus standi had any merit. The findings of the court a quo on that point were therefore set aside on appeal, and the matter was remitted to the court below for further hearing.

2 Rawson Street Body Corporate and another v Knysna Municipality and another [2017] JOL 37655 (WCC)

Review-Property development – Approval by municipality – Application for review-dismissed

Application for oral evidence-proper way is not in Heads of Argument but on application-but robust, common-sense approach to a dispute on motion-application dismissed

Evidence-motion-application- proper way is not in Heads of Argument but on application-but robust, common-sense approach to a dispute on motion-application dismissed

The council of the first respondent (“the municipality”) granted planning approvals to the second respondent (“the KMC”) which allow for the future development of an Islamic Centre (including a mosque) on certain property. The provisions of the since repealed Land Use Planning Ordinance 15 of 1985 remained applicable to the development of the land by the KMC. In order to develop the proposed Islamic Centre, the KMC would still have to comply with various conditions attached to the approvals – and in particular, would have to obtain approval for building plans in terms of the National Building Regulations and Building Standards Act 103 of 1977.

The applicants were a body corporate of a residential development on a neighbouring property (“the Body Corporate”) and a non-resident owner of an apartment in that very development. The main thrust of their objections to the development of the centre related to traffic and parking issues in the relevant road, which was described as a narrow residential road and a major thoroughfare through Knysna’s central business district (CBD).

The applicants contended that the matter raised factual disputes of such magnitude that the court should refer it for oral evidence.

Held that an application to refer disputes of fact to oral evidence should be made in limine (prior to argument on the merits). The applicants did not bring an application to refer to oral evidence before the hearing on the merits, but requested a referral in their heads of argument. That was not acceptable. The court, in discharging its duty, is duty bound to make a robust, common-sense approach to a dispute on motion. It must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so.

Setting out everything the municipality was required to do in order to comply with its procedural fairness requirements in sections 15 and 17 of the Land Use Planning Ordinance, the Court found that all such steps had in fact been taken. None of the applicants’ grounds of review found favour with the court, and the court questioned the applicants’ motives in objecting to the development.

The application for review was dismissed.

Groenewald v Irvin & Johnson Limited and others [2017] JOL 37984 (WCC)

Amendment of claim- Delictual action – Claim for damages – Vicarious liability – Application for leave to amend to include vicarious liability-refused-new cause of action

The first defendant (“I & J”) owned a mariculture facility at which it cultivated abalone for commercial purposes. The second defendant (“Millennium”) supplied security services to it at that facility.

The plaintiff sued the defendants for damages arising from injuries sustained by him in a shooting incident. He alleged that he had been innocently swimming in the sea in the immediate vicinity of I & J’s abalone facility, he was wrongfully and unlawfully assaulted by the third defendant (“Ehlers”) who fired a number of live rounds at him with a firearm. The plaintiff claims that one such bullet struck him and that as a consequence thereof he suffered severe injuries to the head, and in particular the brain, which have left him permanently disabled with a number of serious sequelae.

The first and second defendants were sought to be held vicariously liable for such damages.

In the present application, the plaintiff sought to amend his particulars of claim to clarify the basis on which the first and second defendants were sought to be held vicariously liable. The said defendants objected to the amendment on the ground that it introduced a new cause of action.

Held that the principal issue for determination was whether the proposed amendment purported only to amplify the existing allegation of vicarious liability already made by the plaintiff in terms of which he sought to hold I & J liable for the delict said to have been committed by Ehlers while acting in the course and scope of his employment with Millenium, or whether it introduced a new ground of liability on the part of I & J which relied on a delict allegedly committed by I & J itself.

Vicarious liability refers to the application of strict liability of one person for the delict of another. The former is thus indirectly or vicariously liable for the damage caused by the latter. Such liability applies where there is a particular relationship between two persons such as that of employer-employee, principal-agent.

On the basis of the case as pleaded, I & J’s liability towards the plaintiff was predicated, not on its own negligence in relation to the plaintiff but, in terms of the principles of vicarious liability, that it was liable for the delicts of its employee’s employee. The case which the plaintiff now wished to advance at trial was that there was a legal duty on I & J generally and a failure to comply with that duty. To hold I & J negligent on the basis of a breach of its own duty of care owed towards the plaintiff was the language of personal negligence on the part of I & J and not the language of vicarious liability. The suggestion that the amendment was only intended to amplify the case for vicarious liability demonstrated a failure to distinguish personal liability grounded in negligence for breach of a duty of care from liability based on the delict of a third party standing in a particular relationship to the party sought to be held liable.

On the basis that the proposed amendment was not just an amplification of the case already pleaded, the Court dismissed the application for amendment.

Comair Limited v Neluheni NO [2018] JOL 39492 (GP)

Review-error of law – Air Services authority- acted in terms of discretionary power conferred upon it by section 20(1)(a) of the Air Services Licensing Act- the applicant was non-complaint with the Act was an objective jurisdictional fact on which the exercise of the respondent’s power was conditional- suspension set aside

The present application was for the review and setting aside of the applicant’s air service licence.

In January 2014, a competitor of the applicant lodged complaints with the respondent, alleging inter alia that applicant’s shareholding did not comply with section 16(4)(c) of the Air Services Licensing Act 115 of 1996 which requires that 75% of the voting rights in Comair be held by residents of South Africa. The complaints were made after the applicant had complained about an application for a licence by the complainant (“SAFOPS”) and after the court had found that SAFOPS should be interdicted from operating because it did not comply with the Act.

Held that it was common cause that the present proceedings were review proceedings governed by the provisions of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) and the Promotion of Administrative Justice Act 3 of 2000. An action will fall to be reviewable under the latter Act if it is administrative action. For action to qualify as an administrative action and reviewable under the Promotion of Administrative Justice Act it must meet three requisites, namely, action taken by an organ of State exercising power , the action must adversely affect the rights of another person, and must have a direct and external legal effect.

Administrative action requires finality.

In casu, the respondent averred that it had not yet taken a decision to suspend the applicant’s licence, and that it had only acted in terms of discretionary power conferred upon it by section 20(1)(a) of the Air Services Licensing Act. The requirement of reasonable grounds to suspect that the applicant was non-complaint with the Act was an objective jurisdictional fact on which the exercise of the respondent’s power was conditional. The court found that on the relevant date, that jurisdictional fact was absent. Consequently, the respondent acted ultra vires which rendered its decisions unlawful.

The court has the power to review administrative action if it was materially influenced by an error of law. An error is material where it affects the outcome of decision.

The respondent’s decisions to suspend applicant’s licence were reviewed and set aside.

Northern Cape Society of Advocates v Mziako [2018] JOL 39954 (NCK)

Advocate-Admission as advocate – Criminal record – Duty to disclose –admitted as advocate-did not disclose-struck from roll

The Northern Cape Society of Advocates sought to have the respondent’s name struck off the roll of advocates. The application was brought after a senior magistrate raised some concerns regarding the respondent’s admission as an advocate. Those concerns related to the fact that the respondent had failed to disclose in his supporting affidavit for admission as an advocate that he had been convicted of a number of counts of fraud, theft and corruption.

Held that two points in limine raised by the respondent regarding the applicant’s locus standi to launch the present application and contending that the present court lacked jurisdiction to entertain the application were without merit and had to fail.

On the merits, the application was opposed on the grounds that an advocate can only be struck off the roll of advocates upon misconduct or criminal offences committed post admission; that a criminal record is not per se a bar to admission as an advocate; and that the applicant was negligent in not opposing the respondent’s application for admission as an advocate and could not now approach the court seeking an order that his name be struck off the roll of advocates. The Court held that section 7(1)(d) of the Admission of Advocates Act 74 of 1964 empowers a court of any division upon application to suspend any person from practice as an advocate or order that the name of any person be struck of the roll of advocates if the court is satisfied that he is not a fit and proper person to continue to practise as an advocate. It was common cause

that the respondent had a record of serious criminal convictions involving dishonesty. There is an onus on an applicant for admission as an advocate or attorney to make a full disclosure of both positive and negative information about him that is necessary for a court to make an objective finding on whether he is a fit and proper person to be admitted as an advocate or an attorney. Not only did the respondent fail to make proper disclosure, but he persisted during the application, to challenge the applicant’s allegations against him. The Court conclusion was that he was not a fit and proper person to continue to practise as an advocate, and the application therefore succeeded.

Fichardt v Potgieter and others [2018] JOL 40056 (FB)

Interdict-Facebook slander-defamation – defence – onus of proof-interdict granted

In an interim order issued by the court, the respondents were required to show cause why they should be interdicted and restrained from posting any information pertaining to the applicant and/or the applicant’s immediate family on Facebook, or any other social media or website.

The respondents had published derogatory comments about the applicant after he had failed to repay a debt owed to them. While not disputing their actions, the respondents contended that the present court had no jurisdiction to hear the matter and that the posting were in any event the truth and in the public interest.

Held that in defamation cases, a Court has jurisdiction if the words complained of were published within the court’s area of jurisdiction. That was found to be the case despite the respondents’ contentions to the contrary, and the Court’s jurisdiction was confirmed.

Turning to the comments published, the Court that the words used were reasonably capable of conveying to the reasonable reader a meaning which defamed the applicant. The only remaining question was whether the respondents had succeeded in dispelling the wrongfulness of their defamatory statements. The respondents bore a full onus in that regard, and were required to prove, for instance, the truth of their statements or the public interest pertaining thereto. Neither of those elements were satisfied in this case. The Court therefore found that the applicant was entitled to confirmation of the interim order made.

Freedom Property Fund Limited and another v Stavridis and others [2018] JOL 30034 (ECG)

Joinder-Misjoinder – Where a third party has an interest in the subject matter of the action which is less than direct or substantial, or the extent of the party’s interest is unclear, the party may be joined as a matter of convenience – A joinder of convenience does not give rise to a misjoinder

Particulars of claim – Exception to – Averment that allegation in particulars of claim was vague and embarrassing – Approach to an exception that a pleading is vague and embarrassing is that it ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged – Onus is on the

excipient to show both vagueness amounting to embarrassment and embarrassment amounting to serious prejudice –

Although twelve defendants were involved in the litigation in this matter, only seven of them were relevant to the present exception hearing. Those were the first, third to sixth and eighth to fourteenth defendants, and reference to the “the defendants” in the judgment was a reference to them.

The first plaintiff (“Freedom”) was a listed company, referred to as a “closed listing” as the property owners (vendors) who transferred immovable property to Freedom would initially be shareholders of the company. The immovable property would ordinarily not be transferred directly to Freedom but to a special purpose vehicle which would be a subsidiary of Freedom. Thereafter, shares in Freedom would be issued to the special purpose vehicle. In turn, the special purpose vehicle would transfer Freedom shares to the vendor a payment in respect of the immovable property.

The second plaintiff (“Platsak”) owned immovable property which it sold to the twelfth defendant (“Sunrise High”) allegedly on the false misrepresentation that Sunrise High was a special purpose vehicle of Freedom.

The first and third defendants (Stavridis and Pretorius respectively) were alleged to have been some of the promoters of Freedom prior to and at the date of listing. Both were alleged to have been part of Freedom’s executive management team. The fourth defendant (“Cawood”) was alleged to have been a business associate of Stavridis. The fifth and sixth defendants were trusts in which Stavridis was alleged to have a beneficial interest. The eighth (“Leucadia”), ninth (“Bond Connect”), eleventh (“Halcyware”), twelfth (Sunrise High) and thirteenth (“All Wide”) defendants were companies alleged to have been recipients of corporate opportunities diverted from Freedom. In its action, Freedom claimed from them delivery of the alleged corporate opportunities - alternatively damages.

In July 2016, the plaintiffs issued a summons together with particulars of claim. The particulars of claim comprised seven claims, six by Freedom and one by Platsak. Freedom’s claims were grouped into Claim A described as “the Allendale Property Transaction” and Claim B related to the alleged diversion from it of five corporate opportunities. The cause of action in each of Freedom’s six claims was an alleged breach of fiduciary duties as recognised in terms of the common law and partially regulated in terms of Companies Act 71 of 2008. Platsak claimed delictual damages arising from alleged misrepresentation inducing a contract.

The defendants raised eighteen exceptions to the particulars of claim. The first sixteen exceptions related to the claims by Freedom, and the seventeenth related to the claim by Platsak. The exceptions were all taken on the basis that the particulars of claim did not disclose a cause of action alternatively that they were vague and embarrassing.

Held that each of the exceptions would be considered individually.

The first exception was predicated on the contention that there had been misjoinder of Cawood, the two trusts and the tenth defendant (“Bilko”) as the particulars of claim did not disclose a cause of action against them. However, the court agreed with the plaintiffs that where a third party has an interest in the subject matter of the action which is less than direct or substantial, or the extent of the party’s interest is unclear,

the party may be joined as a matter of convenience. A joinder of convenience does not give rise to a misjoinder. The exception was not sustained.

The second exception related to the allegation that Stavridis was an unrehabilitated insolvent, and that despite his sequestration, he was reflected in the records of the Master as being a trustee of the two trusts. The exception was based on the averment that the allegation was vague and embarrassing as it was not asserted that Stavridis was a trustee but simply that he was recorded as being one. The approach to an exception that a pleading is vague and embarrassing is that it ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to serious prejudice. Facts stated in public documents are prima facie proved upon mere production of the public document. The other point to the exception was that Stavridis was alleged in the particulars to be a director of companies, it being contended that as a matter of law, an unrehabilitated insolvent can neither be a director of a company nor a trustee of a trust. The court pointed to section 69(8)(b)(i) of the Companies Act 71 of 2008, and stated that disqualification does not automatically result in the invalidity of the appointment of an insolvent director, or in a person ceasing to be a director upon sequestration.

In the third exception, defendants asserted that the allegation in the particulars of claim that Stavridis had a beneficial interest in the two trusts was vague and embarrassing. It was submitted there was no allegation in the particulars that Stavridis was a beneficiary of the trusts despite the assertion that he had a beneficial interest in each trust. The court agreed that the plaintiffs needed to aver that Stavridis was a beneficiary of the trusts to enable them to allege a beneficial interest. The exception was therefore upheld.

The remaining exceptions were all dismissed, based as they were on incorrect meanings attributed to the particulars of claim, or on incorrect averments regarding the plaintiffs’ claims.

Insofar as the third exception was sustained, the plaintiffs were given leave to amend their particulars of claim.

De Villiers and others v Trustees for the Time Being of the GJN Trust and others [2018] JOL 39958 (SCA)

Joinder-dissolution of company – Liquidation-dissolution of company after liquidation-Companies Act-order avoiding the dissolution of a company in terms of s 420 of the Companies Act 61 of 1973 – order granted in the absence of the appellants – whether the appellants were affected parties within the meaning of rule 42(1)(a) – ambit of s 420 and effect of order thereunder – appellants not affected parties and had no locus standi to challenge section 420 order

Locus standi –Liquidators- purpose of the section 420 application was to enable the liquidators to claim from the appellants, the subject matter of that application was the restoration of the dissolved company to a company

The third appellant was a trust, which was the holder of all the shares in the second respondent (“the company”). At the instance of the first appellant, acting as a creditor of the company, the High Court issued an order of liquidation of the company. However, the first respondent, the trustees of another trust (the GJN Trust), successfully brought an application for an order declaring the dissolution of the company to have been void in terms of section 420 of the Companies Act 61 of 1973. The granting of the order sought led to the appellants applying for its rescission on the ground that it had erroneously been granted in their absence. The present appeal was against the dismissal of the rescission application.

Held that the central issue on appeal was whether any of the appellants should have been joined in the section 420 application.

The effect of an order under section 420 is to revive the company and to restore the position that existed immediately prior to its dissolution. Thus the company is recreated as a company in liquidation, with the rights and obligations that existed upon its dissolution. Property of the company that passed to the state as bona vacantia is automatically re-vested in the company by operation of law. The court below wrongly found that the aim of section 420 is to set aside the entire liquidation process of a corporation for purposes of commencing the liquidation anew.

In the rescission application, the appellants averred that the section 420 order adversely affected their interests in that they were not afforded the opportunity to respond to the serious allegations of impropriety that had been made in the section 420 application. The court disagreed. Although the purpose of the section 420 application was to enable the liquidators to claim from the appellants, the subject matter of that application was the restoration of the dissolved company to a company in liquidation and not the enforceability of the alleged claims against the appellants. The prosecution of those claims would take place by due process, during which the appellants would be afforded the full opportunity to protect their rights.

Concluding that the appellants had no direct and substantial interest in the subject matter of the section 420 application and therefore had no standing to challenge the section 420 order, the court dismissed the appeal.

Quispiam CC and others v Johannesburg Stock Exchange Ltd [2018] JOL 40052 (GJ)

Particulars of Claim-Cause of action – Nature of claim – Whether delictual or contractual

The respondent’s claim against the appellants arose from a consultancy agreement entered into between the first appellant (“Quispiam”) and the respondent (“the JSE”). On the basis of an alleged fraud committed during the conclusion and execution of the consultancy contract between the parties, the JSE instituted action against the appellants. It stated that because it was still investigating the extent of the scheme, the particulars of claim were purposely framed very broadly with various causes of action, of which fraudulent conduct was one.

The court a quo found was that the second and third appellants, who had known each other for some time, colluded to defraud the JSE and the contract concluded was not at arm’s length.

At the centre of the dispute between the parties was whether the claim in question was a delictual or a contractual one. The appellants’ case was that although the JSE had pleaded a contractual case, the court a quo upheld a claim in delict and awarded delictual damages.

Held that the court a quo found that the second and third appellants, having colluded to defraud the JSE, the latter would be entitled to repayments of all amounts paid to it, save to the extent that it benefited therefrom, namely the negative interesse payable in delictual claims. How damages are computed is an important indicator in establishing whether a claim is contractual or delictual in nature. Delictual damage amounts to the negative difference caused by a delict, namely to place the party in the position it would have been absent the delict. In a contractual context there can be both positive and negative interesse. The positive interesse usually refers to the total interest which a contractual party has in the other fulfilling his contractual obligations, namely the damage already suffered and likely to be suffered in future as a result of the breach. Negative interesse is usually determined with reference to the position of a party immediately before the conclusion of a contract, or in the case of delict, before the breach was committed. In the present matter, if the pleadings sustained it, a delictual claim for fraud lay independently of any contractual claim. The real issue then was whether a case of fraud had been pleaded.

The pleadings showed that the JSE had pleaded not only breach of contract but also fraud. While the court a quo might have erred in characterising it solely as a delictual claim, the delictual claim for fraudulent misrepresentation was pleaded. As concurrent claims are permissible, the finding of delictual liability was not incorrect. The appellants were always aware that at least one of the causes of action they came to meet, was a delictual claim for fraudulent misconduct. They therefore were afforded a fair trial. Senekal v Law Society of the Free State [2018] JOL 40058 (FB)

Interdict-Interim interdict – Requirements-applicant succeeds-rule of law not adhered to

Attorney-resolution by law society-rule of law applicable

The applicant was an attorney, seeking interim relief against the respondent law society pending the outcome of review proceedings.

Held that the requisites for an interim interdict are a prima facie right, although 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 balance of convenience favours the granting of an interim interdict and the applicant having no other satisfactory remedy.

At the heart of the present application lay the constitutional right to just administrative action as enshrined in section 33 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”).

The Court held that the crux of the matter was that if there was a reasonable possibility that the applicant might succeed on review, on the basis that the resolution passed by the respondent resolving to proceed with an application to have the applicant’s name removed from the roll of attorneys was reviewed and set aside, the applicant should succeed in the present application. On the basis that the applicant should have had an opportunity to state his case before the decision was made to strike his name from the roll, the Court found that a prima facie right to an interim interdict had been established. The Court went on to find that the remaining requirements for the interdictory relied had also been proven. The relief sought was therefore granted. Member of Executive Council for Department of Health, Eastern Cape v Jantjies [2018] JOL 40065 (ECB)

Discovery-Late filing of document – Condonation- granting of the application had the potential to bring certainty, and to, advance the jurisprudence of the new constitutional dispensation in the determination of the liability of State organs.

Seeking to amend her heads of argument and file a document, the applicant applied for condonation for the late filing of the discovered document as envisaged in Rule 28 of the Uniform Rules of Court. She alleged that the existence of the document only came to her attention after the filing of heads of argument.

Held that condonation would be granted after an extensive analysis to establish whether a good cause was shown for the delay in the submission of the document. The determination should involve an assessment of the reasonableness of the application within the broader framework of considering the length of the delay; the explanation for, or cause of, the delay; the prospects of success of the party seeking condonation; the importance of the issues that the matter raised; prejudice to the other party or parties; and the effect of the delay on the administration of justice.

Despite the unsatisfactory nature of the explanation presented by the applicant, the present case raised an important aspect of the point of law relating to the retrospective application of liability. The question was whether it was in the interest of justice to grant the condonation, considering the lacuna to be addressed in the main application. The granting of the application had the potential to bring certainty, and to, advance the jurisprudence of the new constitutional dispensation in the determination of the liability of State organs. The prejudice to be suffered by the respondent if condonation was granted was insignificant. The application accordingly succeeded. Coetzer v Vermaak & Dennis and others (Opperman and others as Third Parties) [2018] JOL 40088 (FB)

Discovery of documents – Application to compel-could not be said that the respondent was in control of the requested documents at the time the application was launched-dismissed

Seeking to compel the discovery of documents, the applicant brought an application to compel the respondent to comply with a notice in terms of Rule 35(14) of the Uniform Rules of Court.

Held that Rule 35 of the Uniform Rules governs discovery procedure in High Court actions which allows a party after appearance to defend and for purposes of pleading, to require the other party to produce a specific document or recording in its possession that is relevant to an anticipated issue in the action.

The respondent’s explanation for the failure to comply with the notice was that it was not in possession of the documents in question, having handed them to the second plaintiff’s attorney. The second plaintiff was a party in the action and therefore Rule 35(14) was applicable to him as a party who might be required to produce documents. The respondent’s attorney was aware, prior to the launch of the application, that the documents were not in the possession of the respondent’s attorney but with another party in the main action. It therefore could not be said that the respondent was in control of the requested documents at the time the application was launched.

The application was dismissed with costs. Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] JOL 39902 GP

Attorney- Conveyancing – Performance by entity other than conveyancer, of administrative and related services pertaining to property transfers – Contravention of Deeds Registries Act 47 of 1937 – section 83(8)(a)(i) of the Attorneys Act 53 of 1979 intending that a conveyancer or his subordinates will obtain the information required to be contained in the reserved documents, check and verify the information contained therein and do everything involved in causing them to be drawn up or prepared as contemplated in the section –

Civil procedure – Competence of relief sought – Court orders must be framed in unambiguous terms and must be practical and enforceable

Civil procedure – Declaratory relief – Requirements – An applicant for declaratory relief must have a legally recognised interest in an existing, future or contingent right or obligation

The applicant (“Proxi Smart”) was a newly established company seeking declaratory relief in respect of the lawfulness of its business model for performing administrative and related services pertaining to property transfers. Specifically, an order was sought declaring that the performance of the steps involved in the property transfer process in accordance with the model described in the founding affidavit did not contravene the relevant provisions of the Attorneys Act 53 of 1979, Legal Practice Act 28 of 2014 and Deeds Registries Act 47 of 1937.

In opposing the application, the respondents contended that all work, of whatever nature associated with immovable property transfers formed part of conveyancing practice, which was, and should continue to be, performed exclusively by conveyancers.

Held that section 20 of the Deeds Registries Act provides that deeds of transfer shall be prepared in the forms prescribed by law or by regulation, and, must be executed in the presence of the registrar by the owner of the property, or by a conveyancer authorised by power of attorney to act on behalf of the owner, and shall be attested by

the registrar. In terms of section 15 of the Deeds Registries Act no deed of transfer, mortgage bond or certificate of title or any certificate of registration shall be attested, executed or registered by a registrar unless it has been prepared by a conveyancer. Section 83(8)(a)(i) of the Attorneys Act prescribes documents that must be prepared by an attorney. Only practising practitioners may prepare and draw up reserved documents. Proxi Smart stated that it would not draw up or prepare any document envisaged in section 83(8)(a)(i), and its proposed model was based on supporting documents that might be required to be lodged in a typical transfer of immovable property. The court pointed out that every property transaction is unique and is not typical. Supporting documents that are required to be lodged with a deed of transfer requires the exercise of professional discretion and legal knowledge. In terms of the Proxi Smart’s proposed business model, it would have staff to prepare for all prescribed documents to be populated with relevant data collated and captured by them. Proxi Smart would then use its panel of conveyancers to insert such data into the relevant documents with a simple push of a button. The fact that the largest part conveyancing process that started with the signing of a deed of sale would be done by Proxi Smart’s staff fell foul of the legislature’s intention in prohibiting persons other than employees of the practitioner from preparing or causing to be drawn or prepared any documents on behalf of a practitioner. On a proper construction of section 83(8)(a)(i), the legislature intended that a conveyancer or his subordinates will obtain the information required to be contained in the reserved documents, check and verify the information contained therein and do everything involved in causing them to be drawn up or prepared as contemplated in the section. Therefore, Proxi Smart's model would contravene section 83(8)(a)(i) of the Attorneys Act.

Two technical points were then addressed by the court – both of which were fatal to the application.

The first related to the competence of the relief sought. Court orders must be framed in unambiguous terms and must be practical and enforceable. The declaration sought by Proxi Smart was vague, unenforceable and would not bring finality to what conduct the court would be sanctioning. The terms and the purpose of the order sought were not clear. On that ground alone, the application fell to be dismissed.

The second technical issue related to whether the declaratory relief was permissible in this case. Section 21(1)(c) of the Superior Courts Act 10 of 2013 provides that the High Court may grant a declaratory order in its discretion, and at the instance of any interested person, to inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination. An applicant for declaratory relief must have a legally recognised interest in an existing, future or contingent right or obligation. As Proxi Smart was not subject to the disciplinary powers of any of the law societies cited amongst the respondents, implementation of its model would not create a dispute between Proxi Smart and the respondents that would be resolved by the declaratory order.

The application was consequently dismissed with costs. Mostert and others v Nash and another [2018] 3 All SA 1 (SCA) Attorney – Curatorship of pension fund – Appointment of attorney as curator in terms of section 5(2) of Financial Institutions (Protection of Funds) Act 28 of 2001 –

Remuneration of curator – Curatorship order providing that remuneration be agreed with Financial Services Board in accordance with norms of attorneys’ profession – Whether curatorship fee as a percentage of amounts recovered on behalf of fund in accordance with those norms – Agreement to recover fees on a contingency basis as a percentage of amounts recovered for fund at variance with norms of attorneys’ profession and therefore not in accordance with curatorship order. Attorney- Agreement to recover fees on a contingency basis as a percentage of amounts recovered for fund at variance with norms of attorneys’ profession and therefore not in accordance with curatorship order. Pursuant to an application by the fifth appellant (the “Executive Officer of the Financial Services Board”), the third appellant pension fund (“Sable”) was placed under provisional curatorship in terms of section 5(2) of the Financial Institutions (Protection of Funds) Act 28 of 2001. The second appellant was appointed as provisional curator. The provisional order of curatorship was made final in June 2006. The present dispute related to his remuneration as curator.

The order appointing the second appellant as curator confirmed an agreement between him and the Financial Services Board (“FSB”) which provided for him to be paid remuneration on the basis of a percentage of the amounts recovered on behalf of Sable. The agreement between the second appellant and the FSB was challenged by the first respondent (“Nash”) and a company (“Midmacor”) controlled by him. They contended that the agreement was not in accordance with the norms of the attorneys’ profession (to which the second appellant belonged). Their challenge succeeded in the High Court, leading to the present appeal.

Upon his appointment as curator, the second appellant had investigated Sable’s financial position and transactions in which it had been involved. He reported to the FSB that the various transactions were unlawful and involved the commission of criminal offences. He believed that Sable had claims against various parties including Nash and Midmacor. His problem was that it lacked the resources to conduct the necessary investigations and then pursue actions against those parties to recover what he believed was due to Sable. That led to him concluding the disputed fee agreement with the FSB. He reasoned that the court order which appointed him anticipated that the costs of the curatorship would be paid by the fund and he expressed concern about the possibility of Sable being unable to pursue the claims it had because of lack of funds. As a potential solution to that problem, the second appellant was to continue the curatorship and undertake any legal proceedings at his risk, and at his expense on the basis of a contingency arrangement in terms of which his remuneration would only become payable against recoveries of monies on behalf of the fund. That offer was taken up by the FSB and formed the basis of the agreement challenged by the respondents.

Several preliminary points were raised by the curator. It was contended that the respondents lacked locus standi to bring the application. That argument was expanded to include a contention that the application was an abuse of the process of the court and should be dismissed on the grounds of undue delay. Held – The invalidity of the fee agreement was directed at recovering funds for Sable that would in turn form part of a surplus in the fund available for distribution in

accordance with a surplus apportionment exercise. Nash was a former member of the fund and Midmacor was the principal employer. They clearly had an interest in the surplus apportionment, and that constituted a sufficiently direct and substantial interest in the outcome of the litigation to confer standing.

The Court also rejected the contention that the application should be dismissed as an abuse of process, or as being tainted by unclean hands. The respondents clearly believed that they had good grounds for setting aside the fee agreement between the second appellant and the FSB.

A further preliminary point raised by the curator related to delay in the respondents’ bringing of their application. That point was based on the contention that the conclusion of the fee agreement constituted administrative action and the present proceedings were a review of that action. In argument a different stance was adopted. It was submitted that the conclusion of the fee agreement between the second appellant and the FSB constituted administrative action by an organ of State. A challenge to the lawfulness of the agreement had to be made in terms of section 6(2) of the Promotion of Administrative Justice Act 3 of 2000. By virtue of section 7(1) of that Act, the application had to be brought within 180 days of Nash becoming aware of the allegedly unlawful administrative action. While it was correct that the FSB is an organ of State, the Court took issue with the proposition that the fee agreement between the second appellant and the FSB was a contract for the procurement of goods or services by an organ of State. The second appellant was the curator of Sable because he was appointed as such by the High Court. His entitlement to remuneration for his services arose from the terms of that order, which the Court was empowered to make in terms of section 5(5)(c) of the Financial Institutions (Protection of Funds) Act. The only function of the FSB was to agree with him the basis for his periodic remuneration in accordance with the norms of the attorneys’ profession. That agreement was not one to procure his services on behalf of the FSB or any other organ of State. The complaint of delay was thus rejected.

The Court then turned to address the merits.

The source of the fee agreement was the requirement in the order appointing the second appellant as curator that he would be entitled to “periodic remuneration in accordance with the norms of the attorneys’ profession” as agreed between him and the FSB. The Court acknowledged that in circumstances such as those that arose in the present case, there might be good reasons for a curator to be remunerated on a basis other than the norm, including a fee calculated as a percentage of the amount recovered on behalf of the fund. The law does not rule out contingency fee arrangements in all circumstances. The critical question was whether the arrangement was one providing for periodical remuneration in accordance with the norms of the attorneys’ profession as contemplated in the court order appointing the second appellant. The Court held that an arrangement in terms of which a curator is to be remunerated on a periodical basis in accordance with the norms of the attorneys’ profession is one under which the attorney is paid a fee calculated at an hourly rate, plus an amount to cover any disbursements. As the arrangement made between the second appellant and the FSB (ie to recover fees on a contingency basis as a percentage of the amounts recovered for the fund) was at variance therewith, it was not in accordance with the court order and for that reason the agreement had to be set aside.

The appeal was therefore unsuccessful on the main point, but the order of the High Court had to be substantially altered. The respondents succeeded in preserving the order that the fee agreement was inconsistent with the curatorship order and therefore unlawful. However, they did so on a far narrower basis than in the High Court and the consequential relief that they were granted in that court had to be set aside. The second appellant had therefore obtained some substantial success on appeal. As both parties achieved substantial success, the Court ordered that they each bear their own costs of the appeal. Bafokeng Land Buyers Association and others v Royal Bafokeng Nation [2018] 3 All SA 92 (NWM) Evidence – Admission of affidavit into evidence in terms of rule 38(2) of the Uniform Rules of Court – General rule in trials is that evidence should be given viva voce – Rule 38(2) contains an exception to the general rule, and an applicant who seeks to invoke the exception must prove that “sufficient reason” exists to do so. Local government – Customary law – Whether Supreme Council of tribal community had the power under customary law to take the decision to authorise litigation – Court finding that no such power existed. Local government – Customary law – Whether Supreme Council of tribal community was required to consult broadly within the traditional community before taking decision to bring court application – Proper approach in ascertaining customary law is that courts must have regard to past and current practices and developments in communities to meet changing needs – Duty to consult on matters of public importance found to be a legally enforceable duty under Bafokeng customary law. The Royal Bafokeng Nation (“RBN”) is a tribal community of approximately 300 000 people, a universitas personarum and a traditional community recognised in terms of section 28(3) of the Traditional Leadership and Governance Framework Act 41 of 2003.

In the main application, the RBN sought an order against the Minister of Land Affairs, declaring that the Bafokeng tribe was the registered owner of land held by the Minister in trust for the tribe. The RBN sought an order directing the Registrar to take the necessary steps to endorse the title deeds to reflect the RBN as the owner of the land. As the title deeds currently stood, each of the properties was registered in the name of the Minister in trust for the RBN. The Minister’s view was that, having regard to the wording of the title deeds, he held the properties as trustee for the RBN. There was no written trust instrument in respect of any of the properties. The RBN, on the other hand, disputed that the Minister held the properties in trust for it and did not accept that there was a true trust in relation to the properties or that the Minister was in fact and in law a trustee.

The appellants were members of the RBN, and claimed that many of the properties were kept in trust for their ancestors and for them and not for the RBN. They raised a challenge to the authorisation of the bringing of the RBN’s application. The RBN alleged in the main application that the institution of the application was authorised by the Supreme Council by a resolution adopted unanimously at a meeting on 22 September 2005. The Supreme Council authorised Fasken Martineau to act on behalf of the RBN. The appellants challenged the said authority in a rule 7 application. The court finding that RBN’s attorney (Fasken Martineau) had established the necessary

authority to act on behalf of the RBN in the main application resulted in the present appeal.

A cross-appeal was also brought by the RBN against the decision of the court a quo to allow the affidavit of a Professor to be tendered into evidence.

The court a quo referred the issue of authorisation for oral evidence, which was limited to three specific questions. Those were whether the Supreme Council of the RBN took a decision to authorise the bringing of the application on 22 September 2005; whether the Supreme Council had the power to take such decision under customary law, and if so, whether it was necessary for it to consult broadly within the traditional community before taking such a decision; and whether such decision was overturned or reversed by subsequent events, and more particularly by certain meetings of the traditional community held in 2006. Held – The first question was not seriously disputed and the Court accordingly began with the question of whether the Supreme Council had the power to authorise the bringing of the main application and whether the decision was taken in accordance with the requirements of customary law. It was necessary in that regard, to consider the legislative framework governing traditional leadership, the evidence led regarding the RBN’s actual practice and in respect of the nature and function of the representative structures that existed within the RBN, namely the Supreme Council, the Kgotha Kgothe and the Kgotlas in each ward.

The court a quo found that the Supreme Council did not have the power to take the impugned decision and that the RBN failed to demonstrate that the Supreme Council had that power. It found that such power lay with the Executive Council as the statutory body having the power generally to administer the affairs of the traditional community. However, the court a quo found that because the Executive Council was one of the two bodies that made up the Supreme Council at the time, the decision of the Supreme Council could be regarded as a decision of the Executive Council. That view was rejected on appeal. The present Court held that the Executive Council does not function as the Executive Council when its members form part of a meeting of the Supreme Council. The Executive Council is a different body from the Supreme Council. Some of the members of the Supreme Council, meeting as part of the Supreme Council, cannot exercise the powers of the Executive Council.

What the Court had to consider was whether the Supreme Council had the power under customary law to take the decision to authorise specifically the litigation in the main application. It was concluded that neither the Executive Council nor the Supreme Council had the power to take the impugned decision without referring the matter to a general meeting.

The next question was whether it was necessary for the Supreme Council to consult broadly within the traditional community before taking the decision.

The proper approach in ascertaining customary law is that courts must have regard to past and current practices and developments in communities to meet changing needs. More importantly, it must be interpreted in light of the Constitution and its values. It was clear from case law that consultation and public participation in local decision-making has always been the norm. The right to be consulted is also an incident of the right to procedurally fair administration in terms of section 33 of the Constitution. The decision to institute the proceedings constituted administrative

action and was subject both to section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000. The RBN neither alleged nor proved that there was consultation before the impugned resolution was taken. Considering the evidence in relation to the issue in dispute, namely the transfer of land to the RBN and considering the custom of the RBN and interpreting that in the light of the Constitution and its values, the Court found that the duty to consult on matters of public importance, such as the present dispute, is a legally enforceable duty under Bafokeng customary law. The appeal on this ground was, accordingly, upheld.

The cross-appeal by the RBN was finally considered. The court below had granted an application in terms of rule 38(2) of the Uniform Rules of Court to admit as evidence in the trial, the contents of a report by a Professor. The rule 38(2) application was necessitated by the Professor becoming ill and being unable to travel to South Africa to attend court. The general rule in trials is that evidence should be given viva voce. Rule 38(2) contains an exception to the general rule. An applicant who seeks to invoke the exception must prove that “sufficient reason” exists to do so. The determination of “sufficient reason” necessarily involves the exercise of a discretion which discretion has to be exercised judicially having regard to the options available to the court. A court on appeal may interfere with the exercise of discretion only if there has been a wrong application of a legal principle or a misdirection of fact. The court on appeal does not have the power to substitute its own discretion, on the basis that it would have exercised the discretion differently. Finding that the court below exercised its discretion judicially when it admitted the affidavit, the present Court dismissed the cross-appeal. Tekalign v Minister of Home Affairs and others and two similar cases [2018] 3 All SA 291 (ECP) Attorney – Conducting of litigation by attorneys – Use of identical affidavits in different cases – Where same facts could not be applicable to different cases of different litigants, court finding that irregularities served to render applications defective. Applications-affidavits-– Where same facts could not be applicable to different cases of different litigants, court finding that irregularities served to render applications defective. Three cases which came before the court in which relief was sought against the first respondent and the Department of Home Affairs, led to the Court raising certain queries.

The Court’s concerns arose from the fact that the specific averments made to establish the applicants’ entitlement to refugee status were identical in each case. The founding affidavit contained not only the identical narrative, but repeated precisely the same grammatical and other errors. As the applicants were represented by two firms of attorneys and had apparently fled from different countries at different times, the Court considered that the founding affidavits could not possibly reflect the true experiences of the applicants. The suspicion that it was being misled caused the Court to request the files of all matters against the Department in the preceding two months and in which the two firms of attorneys had been involved. It discovered 5 cases involving one of the firms, in which identical founding affidavits had been used. Held – Apart from the identical averments in each application, there were several other features which the applications had in common. The Court set out those features

before turning to the explanations offered by the attorneys engaged in the matters. The explanations did nothing to allay the Court’s concerns. In addition to the concern about the misleading effect of the averments, the fact that orders were granted in matters in which identical affidavits were utilised related to the propriety of the conduct of the attorneys in raising fees for the work done by them. The attorneys were shown to have charged a substantial fee for the drafting of the founding affidavit. They also charged a fee for a consultation to confirm the correctness of the averments contained in the affidavit prior to it being deposed to before the commissioner of oaths. And they charged a substantial fee for the drafting of a supplementary affidavit. Considering that the founding affidavits were entirely in standard form, it was unlikely that any professional skill and expertise was applied at all to the production of the papers. The Court therefore referred its concerns to the relevant Law Society to consider whether an investigation ought to be initiated.

Questioning the veracity of the averments made in the affidavits in the different matters, the Court not only called into question the conduct of the attorneys, but also that of the commissioner of oaths before whom most of the founding affidavits were attested. Several disquieting aspects of the manner in which the affidavits had been attested were highlighted by the Court.

The impact of all of the irregularities was that the applications were rendered fatally defective. It was held that the only appropriate order to be made in relation to the three applications was to dismiss them.

Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others v Road Traffic Management Corporation and Others (CCT 182/17; CCT 240/17) [2018] ZACC 21 (17 July 2018)

Appeal-leave to appeal-Superior Courts Act 10 of 2013 — Section 18 — operation of order after final determination-Mootness — interests of justice — no discrete legal issue of public importance

On 17 July 2018 at 10h00, the Constitutional Court handed down a unanimous judgment in two consolidated applications for leave to appeal against decisions of the High Court of South Africa, North Gauteng, Pretoria (High Court) as per Potterill J (CCT 182/17) and Tuchten J (CCT 240/17). Both cases have their genesis in the extension of an agreement between Tasima (Pty) Limited (Tasima) and the Department of Transport (DoT) in terms of which Tasima was to operate and administer the electronic National Information System (eNaTIS system) on behalf of the DoT, and the subsequent declaration of invalidity of the extension of the agreement by this Court in Department of Transport v Tasima (Pty) Limited 2017 (2) SA 622 (CC) (Tasima I) on 9 November 2016. In Department of Transport v Tasima (CCT 182/17), the background facts were that Tasima approached the High Court after the initial hearing of this Court in Tasima I but before judgment was delivered. Tasima approached the High Court to execute the order of the Supreme Court of Appeal pending the final determination of the dispute in Tasima I. The High Court (per Basson J) ordered the DoT to approve certain purchase requisitions presented by Tasima and make payments to Tasima for its

services in operating and administering the eNaTIS system. The DoT sought to appeal this decision, but the parties later settled the matter before the application for leave to appeal was heard, and the subsequent settlement agreement was made an order of the High Court. In Tasima v Road Traffic Management Corporation (CCT 240/17), a dispute arose between Tasima and the Road Traffic Management Corporation (RTMC) as to the time-frame within which Tasima was required to handover the eNaTIS system and its accessories. The mandated hand-over was a direct result of the Constitutional Court’s order in Tasima I, however, the parties had divergent interpretations of the court order. The dispute in CCT 182/17 concerns Tasima’s successful application to the High Court in which it was awarded an order in terms of section 18(3) of the Superior Courts Act to execute the order of the Supreme Court of Appeal (which upheld the validity of the extension of the agreement) despite it being the subject of an appeal, and an order made by agreement between Tasima and DoT to regulate the interim situation pending the outcome in Tasima 1. Before the Constitutional Court, the DoT sought leave to appeal against the order of Potterill J in terms of which she held that the two previous orders by Basson J were unaffected by the Constitutional Court’s judgment in Tasima 1 and that the Constitutional Court’s order, properly construed, had no bearing on the DoT’s obligation to comply with all previous court orders issued after 23 June 2015 but before 9 November 2016. In a unanimous judgment written by Petse AJ, the Constitutional Court held that both orders had legal force and effect from the time they were granted and for so long as the declaration of invalidity – effective from 23 June 2015 – had not been made. Although the declaration of invalidity made by the High Court was confirmed by the Constitutional Court in Tasima I on 9 November 2016, this confirmation has retrospective effect from 23 June 2015. Accordingly, Tasima had no legal basis to enforce the orders by Basson J in the face of the judgment of the Constitutional Court in Tasima I.

The Constitutional Court considered the specific nature of each order. An order in terms of section 18(3) of the Superior Courts Act serves only to regulate the interim position between the litigants from the time when such an order is made until the final judgment on appeal is handed down. An order granted by agreement between the parties is still to be interpreted using the normal tools of interpretation. Where such an order expressly states its interim nature, the order will not be enforceable upon the final decision in respect of the underlying dispute between the parties by an appeal court.

The Constitutional Court therefore upheld the DoT’s appeal and set aside the decision of the High Court. The Constitutional Court also set aside the costs orders of the Supreme Court of Appeal and the High Court in the DoT’s applications for leave to appeal in those courts and granted the DoT a favourable costs order in relation to those applications.

The dispute in CCT 240/17 concerned the proper interpretation of the Constitutional Court’s order in Tasima 1 where it confirmed the invalidity of the extension agreement with effect from 23 June 2015, and ordered Tasima to hand over the eNaTIS system and related services to the RTMC within 30 days of its order. The order also provided that unless an alternative transfer management plan was agreed to by the parties within 10 days of the order, the hand over was to be conducted in terms of the migration plan set out in schedule 18 of the Turnkey Agreement.

Before the Constitutional Court, leave to appeal was sought against the order of the High Court (per Tuchten J) which directed Tasima forthwith to vacate the eNaTIS system premises and to hand over the system to the RTMC. Tasima was satisfied that the RTMC is to remain in occupation of the premises and to continue to operate the eNaTIS system. However, Tasima sought certain declarators from the Constitutional Court, which it argued would potentially avoid future litigation.

Again, in a unanimous judgment also written by Petse AJ, the Constitutional Court held that the matter was moot as the relief sought by Tasima would have no practical effect and rejected Tasima’s argument that the matter was not moot because a definitive pronouncement by the Constitutional Court would assist in eliminating or reducing further litigation. The Constitutional Court also held that given the factual matrix, it was not in the interests of justice to hear the envisaged appeal.

The Constitutional Court dismissed Tasima’s application for leave to appeal and granted a costs order against Tasima.

Jiba and Another v General Council of the Bar of South Africa and Another; Mrwebi v General Council of the Bar of South Africa (141/17; 180/17) [2018] ZASCA 103 (10 July 2018)

Advocate – misconduct – whether fit and proper person to practise as an advocate – appellants not advocates in private practice – employed by the National Prosecuting Authority – alleged to be not fit and proper persons to remain on the roll of advocates while acting as litigants – found not to have benefitted – appeal upheld.

The Supreme Court of Appeal upheld an appeal against the order of the Gauteng Local Division of the High Court, Pretoria (the High Court) and dismisses the counter-appeal, brought by the General Council of the Bar (GCB), with costs. The appeal concerns the order of the High Court in which it struck from the roll of advocates the names of Ms Nomgcobo Jiba (Jiba), Mr Lawrence Sithembiso Mrwebi (Mrwebi). The application to strike from the roll of advocates Mr Sibongile Mzinyathi (Mzinyathi) was dismissed, by the High Court, with costs, it is against the order of costs in which the GCB filed a counter-appeal.

The GCB sought to prove that Jiba and Mrwebi were not fit and proper persons to remain admitted as advocates. The guidelines to be considered by a court before an advocate can be struck from the roll were stated in Jasat v Natal Law Society 2000 (3) SA 44; (2000) 2 All SA 310 (SCA). In Jasat it was held that a court must: firstly, decide

whether the alleged offending conduct has been established; secondly, consider whether the person concerned, in the discretion of the court, is not a fit and proper person to continue to practise. Thirdly, inquire whether in all the circumstances the person in question is to be removed from the roll or whether an order of suspension from practice would suffice.

The complaints against Jiba related to the Boyseen’s case and her handling of the spy tapes case. However, the main reason, in the High Court’s view, why Jiba was not fit and proper to remain on the roll of advocates was her handling of the Mdluli case. Shongwe ADP, the majority judgment, considered the complaint against Jiba together with Jiba’s answers and explanation in the context of her position as acting NDPP and the fact that Jiba was cited as a litigant. The majority judgment found no misconduct, on the part of Jiba, was established by the GCB.

The complaints against Mrwebi were that he sought to mislead the court as to the extent of the consultation or ‘in consultation’ between himself and Mzinyathi. In that Mrwebi took the decision to withdraw the fraud and corruption charges against Mdluli before he consulted with Mzinyathi in terms of s 24(3) of the NPA Act and for this reason he was not a fit and proper person. Mrwebi provided contradictory explanations of when and why he decided to withdraw the charges against Mdluli. The majority judgment found that, in respect of Mrwebi, the GCB established the alleged offending conduct. However due to the fact that there was no personal gain from Mrwebi’s conduct and the fact that the purpose of such proceedings are to uphold the rules regulating the profession and not to punish the wrongdoer the sanction handed down by the High Court was not justified. The majority judgment further held that the High Court materially misdirected itself in striking Mrwebi from the roll, it failed to consider why suspension was not an appropriate sanction. The majority judgment held that the appropriate sanction is for Mrwebi to be suspended as an advocate for a period of 6 months from the date of 15 September 2016.

The counter-appeal against the order of costs arose from the complaint against Mzinyathi. The complaint was in respect of certain negative remarks made against Mzinyathi by Murphy J in that Mzinyathi’s confirmatory affidavit differed from the evidence he tendered at the disciplinary hearing of Breytenbach. For this reason the GCB interpreted this contradiction as misconduct and therefore Mzinyathi was not a fit and proper person. The High Court dismissed the complaint against Mzinyathi with costs. The GCB appealed the costs order. The majority judgment could find no reason showing that the High Court did not exercise its discretion honestly and judiciously and for this reason it could not interfere with the findings of the High Court. Even though the GCB acted as custos morum such cannot protect it from a costs order especially when the GCB should have at least withdrawn the application to strike Mzinyathi’s name from the roll of advocates. The Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law. The counter-appeal was dismissed on these grounds.

In a dissenting judgment written by Van der Merwe JA with Leach JA concurring. Van der Merwe JA would have found that the appeals of Jiba, Mrwebi should fail and the cross appeal of the GCB should succeed.

HELEN SUZMAN FOUNDATION v JUDICIAL SERVICE COMMISSION 2018 (4) SA 1 (CC)

Judge — Appointment — Judicial Service Commission — Selection process — Review — Record on review — Extent of record — Transcript of commission's post-interview deliberations forming part of record — Must be supplied to applicant — Uniform Rules of Court, rule 53(1)(b). Review — Procedure — Record on review — Extent of record — Applicable rule to be interpreted to advance applicant's rights of access to courts and to equality of arms before it — Judicial Service Commission's post-interview deliberations on appointment to bench forming part of record on review — Must be supplied to applicant — Uniform Rules of Court, rule 53(1)(b). Under Uniform Rule 53(1)(b) a decision-maker must make available, to a party seeking a review of its decision, the 'record of . . . proceedings'. The issue here was whether the deliberations of the Judicial Service Commission (the JSC), the body which selects judges for appointment by the President, formed part of the rule 53 record on review of its decision to select certain candidates for appointment. When the Helen Suzman Foundation (HSF) decided to challenge the JSC's decision in the Cape High Court, the JSC withheld the transcript of its deliberations from the rule 53 record on the ground that the deliberations were confidential, and their disclosure was prohibited by its rules of procedure and relevant provisions of the Promotion of Access to Information Act 2 of 2000 (PAIA). The HSF argued that there were good reasons for confidentiality: it would promote the rigour and candour of the deliberations, encourage future applications, and protect the dignity and privacy of candidates. The High Court and the Supreme Court of Appeal both agreed with the JSC, ruling that it did not have to provide a transcript of its deliberations to the HSF. In an application for leave to further appeal, the Constitutional Court delivered three judgments: one by Madlanga J for the majority and one dissenting judgment each by Jafta J and Kollapen J. The judgments disagreed, inter alia, on whether the High Court had, in its conclusion on compliance with rule 53, exercised a discretion under rule 30A(2), which allowed courts to make an appropriate order in case of non-compliance with the rules. Held by Madlanga J for the majority The issue at hand, which implicated an applicant's right of access to the courts under s 34 of the Constitution and was hence appealable, had to be considered in two stages: whether deliberations in general ought to be excluded from rule 53 records, and whether the JSC's deliberations in particular ought to be excluded (see [10], [20]). The filing of the full record furthered the applicant's right of access to the courts by ensuring that the court had the relevant information before it and that there was equality of arms between the person challenging the decision and the decision-maker (see [15]). Since the deliberations were relevant to the decision, there was no reason to exclude them, as a class of information, from a rule 53 record. They might provide evidence of reviewable irregularities in the process — such as bias, ulterior purpose, bad faith, the consideration of irrelevant factors or a failure to consider relevant factors — which would otherwise have remained hidden (see [23] – [24], [27]). The JSC's concerns regarding confidentiality were overstated and did not entitle it to refuse to disclose the recordings of its deliberations (see [38] – [42]). Nor did the exemptions on disclosure in PAIA entitle it to do so: it was inapt to transpose PAIA proscriptions on access to information to the rule 53 scenario (see [44] – [50], [53] – [54]). The JSC's internal procedures did not alter the fact that the constitutional right of access to the courts required disclosure (see [62]). Nor could its a priori

declaration that its deliberations were private ipso facto make them confidential (see [63]). The secrecy the JSC was clamouring for might, moreover, result in negative public perceptions not only of the JSC itself, but of the judiciary it appointed (see [66]). Since the JSC did not raise any fact-specific basis for non-disclosure or confidentiality, the present court could not order non-disclosure or impose a confidentiality regime. To prevent unfairness to review applicants, who would be harmed in their ability to make the best possible case if denied access to the deliberations, all relevant documentation had to be provided unless there was a legally cognisable basis — such as a public- interest privilege — for withholding something (see [52], [77]). The High Court was obliged to determine, as an objective matter of fact or law, whether there was non-compliance with the court rules, and the appeal court then had to determine whether the lower court's conclusion on compliance with rule 53 was correct. In these circumstances a discretion under rule 30A(2) did not arise. Accordingly the present court was not, in deciding whether the High Court's conclusion was correct, subject to the strictures applicable to appeals in matters concerning the exercise of a discretion in the true sense (see [79] – [80]). Hence the appeal should be upheld and the JSC ordered to deliver the full record of its proceedings to the HSF (see [83]).

Held by Jafta J, dissenting The present application was instituted under rule 30A, and the question was whether the High Court had judicially exercised the power conferred by the rule (see [87], [112]). The power of higher courts to intervene was circumscribed, and a decision on non-compliance could be set aside on appeal only on the narrowest grounds, for example where the court was influenced by wrong principles of law (see [115] – [117]). Rule 53 could not be used to achieve what was excluded by PAIA, which allowed the state to refuse access to certain information (see [137] – [138]). Since the word 'record' in rule 53 did not incorporate the JSC's deliberations, the High Court did properly exercise its discretion under rule 30A (see [136], [142], [147]). Therefore the appeal had to be dismissed (see [154]). Held by Kollapen AJ (with Zondi AJ), dissenting While, ordinarily, the deliberations of the JSC were relevant and would form part of a rule 53 record, considerations of confidentiality justified their exclusion. Concerns about litigation in the dark did not arise in the present case since a substantial record was made available to the HSF (see [188], [204]). Excluding the deliberations from the record would neither injure the applicant's right to properly prosecute its review application nor impermissibly breach the principles of openness and transparency. Disclosure, however, carried the real risk of causing substantial harm to the dignity, privacy and reputational interests of many (see [213]). Therefore the appeal had to be dismissed (see [212], [214]). MADIKIZELA-MANDELA v EXECUTORS, ESTATE LATE MANDELA AND OTHERS 2018 (4) SA 86 (SCA) Review — Application — Delay in bringing application — Whether delay unreasonable — Factors to be considered — Duty on applicant to be reasonably vigilant of rights — Applicant instituting review 17 years after decision taken — While applicant only

recently learning of decision, reasonable person vigilant of his or her rights would have acquired knowledge of decision much earlier — Delay unreasonable. Application — Delay in bringing application — Condonation — Factors to be considered — Court finding that, even assuming prospects of success on merits, not sufficient to overlook excessive delay when due regard was had to potential for severe prejudice to respondents should decision be set aside. In October 2014 the appellant, Ms Nomzamo Winifred Madikizela-Mandela, instituted review proceedings (to which the common law, not PAJA, applied) in the court a quo (Eastern Cape Local Division, Mthatha). In her application she sought an order declaring the Minister of Land Affairs' decision of November 1997 to donate certain property to the late Mr Nelson Mandela as null and void. She also sought an order declaring as invalid the legacy set out in the will of Mr Mandela bequeathing the property to a family trust. The appellant had been previously married to Mr Mandela, but they had divorced each other in March 1996. She claimed that she was the rightful owner of a portion of the property by virtue of its allocation to her in around 1989 or 1990 by the tribal chiefs having authority over the land in question, and the continued existence of the customary marriage between herself and Mr Mandela (that, she claimed, survived the parties' divorce in civil law). The court a quo dismissed the review application mainly on the basis that there was unreasonable delay on the part of the appellant which resulted in severe prejudice to Mr Mandela's heirs and his estate. This is the appeal to the SCA brought by the appellant. The Minister and the executors in the estate of the late Mr Mandela appeared as respondents, amongst others. The appellant explained that the significant delay in bringing the review was due to her only finding out about the donation decision when she obtained a copy of Mr Mandela's will in August 2014; until then, she insisted, she had been unaware that Mr Mandela was the registered owner of the property or that he thought himself entitled to dispose of it. In common-law review proceedings, a court has the power to refuse a review application if the aggrieved party has been guilty of unreasonable delay in bringing its application (see [9]). The application of the rule required the consideration of two questions (see [9]): (a) Was there an unreasonable delay? The answer depended on a consideration of all relevant circumstances, including any explanation offered for the delay (see [10]). (b) If the delay was unreasonable, should it in the circumstances be condoned? The consideration of such question took place relative to the challenged decision, and particularly to the potential for prejudice should it be set aside (see [18]). Questions (a) and (b) formed the focus of the SCA's attention. The other issue, (c), was whether the principles established in Biowatch operated to excuse the appellant from paying costs, should she be unsuccessful in her claim. As to (a), held, that there was a duty on an applicant to be reasonably vigilant of her rights. Where there existed circumstances that should have alerted an applicant to the existence of a decision adverse to her rights, she was obligated to investigate. Held, that the conduct of the appellant was not consistent with that of a reasonable person. Subsequent to divorce, significant improvements were made by Mr Mandela to the property in question, which would have prompted a reasonable person in the position of the appellant to swiftly react and assert her rights to such property [in which case she would have obtained knowledge of the decision affecting her rights]. The appellant did not do so, but was supine throughout, only instituting review

proceedings after Mr Mandela's death. In the circumstances, the appellant delayed unreasonably. As to (b), held, that, even assuming that the appellant's case on the merits — that she was in law entitled to the land in question — had good prospects of success, they were not sufficient to overlook the delay. This was so when due regard was had to the potential for severe prejudice to the heirs and the estate if the decision were set aside, given the fact that, because of the unreasonable delay of the appellant, Mr Mandela was not available to present his version of events. (See [26] – [28] and [30].) As to (c), held, that in essence the appellant was challenging the legality of a decision of the Minister to donate to Mr Mandela what she alleged to be her property. The litigation thus implicated the constitutional principle of legality, as well as her right to property. The Biowatch principle was thus of application, and each party should therefore bear its own costs. (The appellant was, however, ordered to pay the late estate's costs, as they were both private parties and the Biowatch principle therefore did not apply to them.) (See [32] – [34].) Held, in conclusion, that the appeal should be dismissed, on the basis of the excessive undue delay, coupled with the potential for severe resultant prejudice to be suffered by the respondents, and the lack of an acceptable explanation for the unreasonable delay. PATMAR EXPLORATIONS (PTY) LTD AND OTHERS v LIMPOPO DEVELOPMENT TRIBUNAL AND OTHERS 2018 (4) SA 107 (SCA) Judges- departing from judgments by other judges- When a single judge may depart from a prior decision of a single judge of the same division on a point of law; and (2) When the SCA may depart from its prior decision on a matter of law. Appellants had applied to the High Court to review and set aside the Tribunal's approval of an application for development rights. Kgomo J dismissed the appellant's application, and they appealed to the Supreme Court of Appeal (SCA). The issues were: (1) When a single judge may depart from a prior decision of a single judge of the same division on a point of law; and (2) When the SCA may depart from its prior decision on a matter of law. Held, as to (1): when the judge is satisfied the earlier decision is clearly wrong. (Here, that could not have been the case.) (See [7] – [8].) As to (2): when the earlier decision is clearly wrong (see [3]). Appeal upheld (an earlier SCA judgment had found such tribunals lacking the power to approve development-rights applications at the time the Tribunal did); the High Court's order set aside, and replaced with an order setting aside the Tribunal's approval. HOSKEN CONSOLIDATED INVESTMENTS LTD AND ANOTHER v COMPETITION COMMISSION 2018 (4) SA 248 (CAC)

Jurisdiction — Competition Tribunal — To make declaratory orders — Competition Tribunal having jurisdiction to make declaratory orders — Declaratory order made that proposed transaction not constituting notifiable merger — Competition Act 89 of 1998, s 27(1). Competition — Promotion of competition — Merger control — Merger — What constitutes — Whether, after obtaining unconditional merger approval, subsequent transaction to increase controlling company's shareholding in controlled company constituting notifiable merger — Not where, as in present case, transaction not giving rise to change in post-transaction qualitative control — Determination of such change must be made when merger is approved, and could not be revisited later — Competition Act 89 of 1998, s 12. Hosken Consolidated Investments Ltd (HCI) and Tsogo Sun Holdings Ltd (Tsogo) obtained unconditional merger approval from the Competition Tribunal (the Tribunal) in 2014. The approval was granted on the basis that HCI would obtain sole control of Tsogo's gaming interests. Pursuant to the approval, HCI increased its shareholding in Tsogo to approximately 47,5%. Subsequently, HCI decided to consolidate most of their gaming interests held in other subsidiary companies, under Tsogo. Since that transaction would result in an increase of HCI's shareholding in Tsogo to over 50%, HCI approached the Competition Commission (the Commission) for an advisory opinion as to whether they were obliged to notify the proposed transaction to the competition authorities for approval. The Commission's opinion, issued in August 2017, was that the decision was notifiable prior to implementation (see [11]). HCI and Tsogo then approached the Competition Tribunal (the Tribunal) on an urgent basis for a declaratory order that the proposed transaction was not notifiable. The Commission, they contended, erred: the proposed transaction constituted the further implementation of a merger approval previously granted to HCI to acquire sole control of Tsogo, and even if the proposed transaction involved an acquisition of an additional instance of control within the meaning of s 12(1) of the Competition Act 89 of 1998 (the Act), approval for such acquisition of control had already been obtained in the form of the 2014 merger approval. The Tribunal however dismissed their application on the bases that it did not have the power to grant declaratory relief, and that absent notification of a transaction to the Commission in terms of s 13 of the Act, its jurisdiction was not triggered. In this case, HCI and Tsogo's appeal to the Competition Appeal Court against the Tribunal's decision — Held As to the Tribunal's jurisdiction to grant declaratory orders In terms of s 62 of the Act, the Tribunal and this court had exclusive jurisdiction to hear any matter that the Act defined. It followed that a party seeking declaratory relief regarding the notifiability of a transaction under the Act would not be able to approach the High Court for such relief but only the Tribunal, and on appeal, this court. Therefore, if the Tribunal's finding that it did not have the power to grant declaratory relief were to be endorsed, a party seeking such relief in respect of the notifiability of transactions under the Act would be deprived of the right to seek such relief from any forum and would be left without a remedy — depriving such party of their right to access to court enshrined in s 34 of the Constitution. The jurisdictional basis was therefore established that the Tribunal's powers included making orders for declaratory relief. (See [22] and [25] – [26].)

As to whether the Tribunal ought to have granted the declaratory order sought In this case no conditions were imposed relating to mode or timing of the acquisition or exercise of control. HCI had acquired sole control over Tsogo by virtue of its shareholding, when, following the 2014 merger approval, it increased its shareholding in Tsogo to 47,5%. HCI currently exercised sole control of Tsogo. The 2014 merger approval was for the acquisition of sole control by HCI over Tsogo: it was expressly recognised in the Tribunal's decision that HCI would acquire control of Tsogo by ultimately increasing its shareholding in Tsogo to over 50%. There was no further acquisition of establishment of control that was brought about by its acquisition of over 50% of the shares in Tsogo. This was a further implementation of an existing sole control structure which was approved by the Tribunal in 2014, and which permitted HCI to conduct the operations of Tsogo as it saw fit. The effects of an acquisition of control were to be considered and determined when the approval of the merger was sought and obtained — a forward-looking assessment of the likelihood of competition harm and the public interest — and could not be revisited once it had been determined. The important factor in assessing whether a transaction constituted a merger, was prior- and post-transaction control. The present restructuring by HCI of its assets did not give rise to a change of qualitative control. In the particular facts of this case, the proposed transaction did therefore not amount to a notifiable merger under the Act.

Liberty Group Ltd v Erasmus NO (54534/2011) [2018] ZAGPPHC 497 (11 July 2018)

Prescription- does service of a summons by a creditor on a surety of the principal debtor interrupt prescription against another surety of the principal debtor- cannot apply-special plea granted

By agreement between the plaintiff and the sixth defendant this court is called upon to determine a special plea of prescription. The question sought to be determined is the following: does service of a summons by a creditor on a surety of the principal debtor interrupt prescription against another surety of the principal debtor?

The background is briefly the following. The plaintiff, as cessionary, issued summons against the eight defendants who all separately bound themselves in writing as sureties and co-principal debtors in solidum to ECE Financial Holdings (the principal debtor) (hereinafter also "ECE") for the payment on demand to Chartered Life Insurance Company Ltd of all sums of money which the principal debtor may owe to Chartered Life Insurance Company Limited.

Chartered Life Insurance Company Ltd, later known as Liberty Active Ltd, ceded to the plaintiff all its rights, title and interest in and to any claims that may arise from the clawback of commissions arising from broking agreements concluded with Liberty Active Ltd.

The sixth and the seventh defendants were both sureties and co-principal debtors of ECE, the principal debtor, and, as mentioned, the plaintiff served the summons on the seventh defendant within the prescription period and duly obtained judgement against the seventh defendant. However, the summons was served on the sixth defendant outside the prescription period of three years and this resulted in the sixth defendant's special plea of prescription of the plaintiff's claim.

I now turn to the issue before this court, namely, whether interruption of prescription against the surety and co-principal debtor of the principal debtor (by way of service of summons), interrupts prescription against another surety and coprincipal debtor. I have mentioned above that it was inter alia submitted on behalf of the plaintiff that the main principle under1ying the extension of the decree to a surety relates to the fact that the creditor's contract with the principal debtor as well as the creditor's contract with the surety, relate to the same obligation. Consequently, so it was submitted, a consistent application of that underlying principle would require that the converse should apply, i.e., that interruption of prescription against the surety should also constitute interruption of prescription against the principal debtor. And furthermore, that such interruption of prescription against the surety, would constitute interruption of prescription against a co-surety.

27. I do not agree with the aforesaid submissions. Neither in the Roman law nor in the Roman Dutch law had it ever been suggested that the converse should apply - in other words that interruption of prescription against the surety should constitute interruption of prescription against the principal debtor. The Roman Dutch writers, who wrote extensively on the topic and debated the pros and cons thereof, were ad idem that the converse should not apply. It is consequently simply not part of our common law.

28. It was submitted on behalf of the plaintiff that it is not necessary to amend the common law in order to find for the plaintiff but that it merely requires a consistent application of a principal already accepted by the common law. I do not agree. As mentioned, our common law writers have considered the extension of Justinian's decree and had decided that it should be done to the extent mentioned and no further. To find that interruption of prescription against one surety constitutes not only interruption of prescription against the principal debtor but even against the other sureties, constitutes a substantial deviation of the common law principles on the topic.

29. Furthermore, and in any event, in my view the principles underlying the reason for the extension of Justinian's decree relating to a co-debtor in solidum to also include a surety, militate against the proposition that interruption of prescription against one surety should constitute interruption of prescription against another surety. I have mentioned above the importance of the accessory nature of the surety's obligation and the commonality with the debtor's obligation which, inter alia, underlie the extension of the decree to include the surety. The obligation of one surety to the main creditor is, however , totally independent from the obligation of another surety to the main creditor although it may relate to the same debtor and possibly the same debt. The obligation of one surety to the creditor can also be different from that of another surety. The element of commonality consequently lacks. But more importantly, the obligation of the one surety is totally separate and distinct and independant from the obligation of the other surety and the obligation of the one is in no way accessory to that of the other. They may relate to the same principal debtor and to the same debt, albeit not necessarily so, but they remain independent contracts with nothing accessory in respect of each other. The sureties' obligations are both accessory to that of the principal debtor's obligations but that does not make them accessory to each other's obligations. A surety's obligation is accessory to the obligation of the principal debtor alone.

30. Consequently, the considerations which led to the extension of Justinian's decree are absent insofar as co-sureties are concerned. I therefore find no justification in the submission that applying the same principles which led to the extension to include a surety, leads to a finding that the interruption of prescription against one surety would constitute the corruption of prescription against a co-surety, or, for that matter, the principal debtor. Then, lastly , it needs to be reiterated that there is the weight of authority against the propositions on behalf of the plaintfif. Authority which have not been deviated from for many centuries.

31. For these reasons the special plea of prescription should be upheld. It was common cause between the parties that should this special plea be upheld, the plaintiffs claim against the sixth defendant should be dismissed.

32. As far as costs are concerned, there is no reason why costs should not follow the event.

33. In the result, the following order is made:

1. The sixth defendant's special plea of prescription is upheld.

2. The plaintiffs claim against the sixth defendant is dismissed.

3. The plaintiff is ordered to pay the sixth defendant's costs of suit.

Mavuso v Mdayiand others [2018] JOL 40099 (ECG)

Interdict-Final interdict – Requirements- failed to prove that he had a reasonable apprehension of harm

The applicant was a businessman and farmer. The first respondent resided on the farm used by the applicant for his farming activities. She was the secretary of the local Communal Property Association (the CPA) registered in terms of the Communal Property Association Act 28 of 1996. The applicant obtained a rule nisi calling upon the respondents to show cause why a final order should not be issued preventing them from interfering with and/or disturbing the applicant’s possession of that portion of the farm that he currently occupied.

In support of his application for final order in that regard, the applicant referred to requests made to him to vacate the farm.

The first respondent stated that the farm had been expropriated from its white owners by the Ciskei Government in 1982. The farm was then allocated to a certain person. When that person died, the manager of the farm allocated it to the applicant’s mother without the consent of the family of the deceased. It was alleged that the applicant had left the farm many years before, and only reappeared later, and began using the farm without the consent of the CPA.

Held that an applicant seeking an order for a final interdict must show a clear right (in the sense of a right clearly established); an injury actually committed or reasonably apprehended; and the absence of any other satisfactory remedy available to the applicant. For the grant of a final order all three requisites must be present.

The interdict could be granted only if the facts as stated by the respondents, together with the facts contained in the applicant’s affidavits which were not or could not be disputed, justified the granting thereof.

The Court found that the applicant had failed to prove that he had a reasonable apprehension of harm, or that on a balance of probability his entitlement flowing from his de facto possession of the farm (ius possessionis) had been threatened and that he therefore required protection. His application for a final interdict therefore had to fail.

Bafokeng Land Buyers Association and others v Royal Bafokeng Nation and others [2018] JOL 39940 (NWM)

Evidence – Admission of affidavit into evidence in terms of Rule 38(2) of the Uniform Rules of Court – General rule in trials is that evidence should be given viva voce – Rule 38(2) contains an exception to the general rule, and an applicant who seeks to invoke the exception must prove that "sufficient reason" exists to do so

The Royal Bafokeng Nation (RBN) is a tribal community of approximately 300 000 people, a universitas personarum and a traditional community recognized in terms of section 28(3) of the Traditional Leadership and Governance Framework Act 41 of 2003.

In the main application, the RBN sought an order against the Minister of Land Affairs, declaring that the Bafokeng tribe was the registered owner of land held by the Minister in trust for the tribe. The RBN sought an order directing the Registrar to take the necessary steps to endorse the title deeds to reflect the RBN as the owner of the land. As the title deeds currently stood, each of the properties was registered in the name of the Minister in trust for the RBN. The Minister's view was that, having regard to the wording of the title deeds, he held the properties as trustee for the RBN. There was no written trust instrument in respect of any of the properties. The RBN, on the other hand, disputed that the Minister held the properties in trust for it and did not accept that there was a true trust in relation to the properties or that the Minister was in fact and in law a trustee.

The appellants were members of the RBN, and claimed that many of the properties were kept in trust for their ancestors and for them and not for the RBN. They raised a challenge to the authorisation of the bringing of the RBN’s application. The RBN alleged in the main application that the institution of the application was authorised by the Supreme Council by a resolution adopted unanimously at a meeting on 22 September 2005. The Supreme Council authorised Fasken Martineau to act on behalf of the RBN. The appellants challenged the said authority in a Rule 7 application. The court finding that RBN's attorney (Fasken Martineau) had established the necessary authority to act on behalf of the RBN in the main application resulted in the present appeal.

A cross-appeal was also brought by the RBN against the decision of the court a quo to allow the affidavit of a professor to be tendered into evidence.

The court a quo referred the issue of authorisation for oral evidence, which was limited to three specific questions. Those were whether the Supreme Council of the RBN took a decision to authorise the bringing of the application on 22 September 2005; whether the Supreme Council had the power to take such decision under customary law, and if so, whether it was necessary for it to consult broadly within the traditional community before taking such a decision; and whether such decision was overturned or reversed by subsequent events, and more particularly by certain meetings of the traditional community held in 2006.

Held that the first question was not seriously disputed and the court accordingly began with the question of whether the Superior Council had the power to authorise the bringing of the main application and whether the decision was taken in accordance with the requirements of customary law. It was necessary in that regard, to consider the legislative framework governing traditional leadership, the evidence led regarding the RBN's actual practice and in respect of the nature and function of the representative structures that existed within the RBN, namely the Supreme Council, the Kgotha Kgothe and the Kgotla's in each ward.

The court a quo found that the Supreme Council did not have the power to take the impugned decision and that the RBN failed to demonstrate that the Supreme Court had that power. It found that such power lay with the Executive Council as the statutory body having the power generally to administer the affairs of the traditional community. However, the court a quo found that because the Executive Council was one of the two bodies that made up the Supreme Council at the time, the decision of the Supreme Council could be regarded as a decision of the Executive Council. That view was rejected on appeal. The present court held that the Executive Council does not function as the Executive Council when its members form part of a meeting of the Supreme Council. The Executive Council is a different body from the Supreme Council. Some of the members of the Supreme Council, meeting as part of the Supreme Council, cannot exercise the powers of the Executive Council.

What the court had to consider was whether the Supreme Council had the power under customary law to take the decision to authorise specifically the litigation in the main application. It was concluded that neither the Executive Council nor the Supreme Council had the power to take the impugned decision without referring the matter to a general meeting.

The next question was whether it was necessary for the Supreme Council to consult broadly within the traditional community before taking the decision.

The proper approach in ascertaining customary law is that courts must have regard to past and current practices and developments in communities to meet changing needs. More importantly, ii must be interpreted in light of the Constitution of the Republic of South Africa, 1996 “(the Constitution”) and its values. It was clear from case law that consultation and public participation in local decision-making has always been the norm. The right to be consulted is also an incident of the right to procedurally fair administration in terms of section 33 of the Constitution. The decision to institute the proceedings constituted administrative action and was subject both to section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000. The RBN neither alleged nor proved that there was consultation before the impugned resolution was taken. Considering the evidence in relation to the issue in dispute, namely the transfer of land to the RBN and considering the custom of the RBN and interpreting

that in the light of the Constitution and its values, the Court found that the duty to consult on matters of public importance, such as the present dispute, is a legally enforceable duty under Bafokeng customary law. The appeal on this ground was accordingly upheld.

The cross-appeal by the RBN was finally considered. The court below had granted an application in terms of Rule 38(2) of the Uniform Rules of Court to admit as evidence in the trial, the contents of a report by a professor. The Rule 38(2) application was necessitated by the professor becoming ill and being unable to travel to South Africa to attend court. The general rule in trials is that evidence should be given viva voce. Rule 38(2) contains an exception to the general rule. An applicant who seeks to invoke the exception must prove that "sufficient reason" exists to do so. The determination of "sufficient reason" necessarily involves the exercise of a discretion which discretion has to be exercised judicially having regard to the options available to the court. A court on appeal may interfere with the exercise of discretion only if there has been a wrong application of legal principle or a misdirection of fact. The court on appeal does not have the power to substitute its own discretion, on the basis that it would have exercised the discretion differently. Finding that the court below exercised his discretion judicially when it admitted the affidavit, the present Court dismissed the cross-appeal.

Ritz Plaza (Proprietary) Limited v Ritz Hotel Management Company (Proprietary) Limited [2018] JOL 39951 (WCC)

Lis pendens – Requirements – Court’s discretion – Court must decide whether it is dealing with a situation in which the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause, and if that is found to be the case, then the court exercises a discretion as to whether to stay the proceedings before it or not

The applicant (“The Ritz”) was a company which owned the Ritz Hotel in Cape Town. In October 2016, it concluded a lease agreement with the respondent (“the management company”) in terms whereof the hotel and the property on which it was located was leased to the management company for a period of 20 years. By the end of that year, the management company began defaulting on its monthly rental and other obligations towards The Ritz and since March 2017, it had not paid a cent to the applicant. The latter consequently elected to cancel the lease. Despite that, the management company refused to vacate the hotel, necessitating the bringing of an application for its ejectment by The Ritz. In an attempt to justify its conduct, the management company averred that The Ritz’s cancellation of the lease was invalid in that the rental which would otherwise have been due and payable to it by the management company was in fact not due and payable because The Ritz was the cause of the management company’s failure to pay. In that regard, it alleged that when it stepped into the shoes of the previous tenant, the change of tenancy was facilitated by a so-called term-sheet intended to regulate the parties’ contractual relationship for an indefinite period. A loan which the management company had obtained from a bank was insufficient to cover its refurbishment of the hotel. It alleged that it was a tacit term of the term-sheet, that The Ritz would obtain an additional loan facility of R30m for the management company and make it available by a certain date. it was alleged that The Ritz breached the term sheet by failing to make the R30m bank loan available to the

management company timeously, and that such breach was causally connected to the latter’s failure to pay the rental due. It was also submitted that the application for ejectment ought to be stayed on the basis of lis pendens as there were other proceedings pending between the parties in this court based on the same facts that the underpinned the ejectment application. A final defence was that the current proceedings for ejectment constituted an abuse of process and that the application should be refused on that basis too.

Held that a tenant’s primary obligation under an agreement of lease is the timeous payment of rental in the agreed commodity to the landlord. Failure to meet that obligation constitutes a fundamental breach and after it has been given contractual notice to remedy its default, the landlord is entitled, without more, to cancel the agreement and seek the ejectment of the tenant.

The management company’s contention that the failure to pay the rental claimed was not payable due to The Ritz’s own conduct, was based on the case of Academy of Learning (Pty) Ltd v Hancock and others. The Court therein discussed the defence raised in that case, regarding the extension to breach of contract of the principle that a wrongdoer may not be allowed to profit from his own wrong. The Court rejected the wide application of the principle and advanced three discrete categories in which the approach might find application. Those are where the wrongful conduct of the creditor made performance by the debtor impossible; where the creditor’s wrongful conduct can be ascribed to a deliberate intention on his part to prevent performance by the debtor; and where the creditor’s conduct complained of by the debtor in itself constituted a breach of an express or implied term of the agreement. The latter category (hereinafter referred to as “category (c)”) was relied on by the management company in the present case. The court pointed to the provision in the term-sheet, which precluded the incorporation into the agreement of any tacit term. The management company’s reliance on the Academy of Learning case therefore fell at the first hurdle. In any event, category (c) referred to in Academy of Learning required that the wrongful conduct complained of on the part of The Ritz had to be in breach of an express or implied (or tacit) term of the lease agreement itself. It did not help the management company to complain of a breach of the term-sheet, which was a separate agreement. Finding that no tacit term had been proved, the court held that the management company was in default of its obligations to pay the rental due in terms of the lease and The Ritz was entitled to cancel on the basis that it alleged.

The special defences of lis pendens and abuse of process were dealt with jointly. In respect of a defence of lis pendens, the court must decide whether it is dealing with a situation in which the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause, and if that is found to be the case, then the court exercises a discretion as to whether to stay the proceedings before it or not. The discretion is a wide one, considering questions of convenience and fairness. Having regard to the nature of the two applications involved, the court found that the cause of action in each was different. The plea of lis pendens was thus dismissed. That plea was linked to the averment of abuse of process, and the court found that the latter plea also fell to be dismissed.

It was ordered that the management company vacate the premises, failing which the Sheriff of the court was authorised to eject it.

Four Wheel Drive Accessory Distribution CC v Rattan NO [2018] JOL 40076 (KZD)

Locus standi – Enforceability of lease agreement-plaintiff not prove its identity!

The defendant was the executrix of a deceased estate. The deceased had leased a vehicle from an entity referred to in the lease agreement as “Land Rover Experienced Rentals CC” (LRER CC). According to the plaintiff, the deceased had the use of the leased vehicle for as long as his own vehicle was undergoing repairs. The vehicle had to be returned in the same condition as when he had received it. Four days after signing the lease agreement, the deceased was shot and killed whilst driving the vehicle, which was damaged as a result. The plaintiff claimed payment of an amount of R559 817.45 as the cost of repairing a vehicle.

The defendant challenged the locus standi of the plaintiff, firstly on the grounds of its identity, and secondly its interest in the claim. In response, the plaintiff’s explanation was that there was in fact no such entity as LRER CC and that the referral to that entity in the agreement was a mistake common to both parties.

Held that the plaintiff’s averments fell short of explaining the issues in dispute. In view of the defendant’s denial in her plea, the plaintiff had a duty to prove every element of its action starting with its locus standi. It failed to discharge its onus of establishing its locus standi by proving its identity. It also failed to prove its interest in the litigation.

While the above finding was dispositive of the entire matter, the Court nevertheless considered the enforceability of the lease agreement. The main problem for the plaintiff was the issue of consensus. The deceased had been presented with an incomplete agreement which he signed without reading. The Court could not read the agreement without a magnifying glass calling into question the deceased’s understanding of the contents of the agreement. The plaintiff’s representatives also did not read the agreement to know that the condition that founded its action was not in there. Therefore, the evidence supported a finding that there was no consensus about the contents of the agreement.

The fact that the deceased died so soon after taking delivery of the vehicle meant that he could not perform the obligation to insure the vehicle or return it to the plaintiff within 72 hours. Contractual clauses that are impossible to comply with should not be enforced.

The enforceability of the agreement also had to be tested against the Consumer Protection Act 68 of 2008. The Court found the agreement to violate section 4(5) of that Act.

In the premises, the plaintiff’s claim was dismissed with costs.

Treasure Karoo Action Group and another v Department of Mineral Resources and others [2018] JOL 39903 (GP)

Application proceedings – A party must make out its case in its founding papers

The first applicant (“Treasure Karoo”) was a non-profit organisation and the second applicant (Afriforum) was a non-governmental organisation involved in the development and protection of civil rights. They launched the present application in

the public interest, seeking the review and setting aside of the Regulations for Petroleum Exploration and Production made by the second respondent (“the Minister”) in June 2015. At the centre of the application, was the question of whether or not the Minister was authorised to make the Regulations.

According to the applicants, after the amendment to the Mineral and Petroleum Resources Development Act 28 of 2002 in 2008, the Minister of Mineral Resources was deprived of the power to make the Regulations as they included extensive environmental regulations. They stated that section 107(1)(a) of the Act was the only provision authorising the Minister of Mineral Resources to make regulations regarding the management of the environmental impact of petroleum exploration and production, and that once that section was deleted by the Mineral and Petroleum Resources Development Amendment Act 49 of 2008, the Minister no longer had the power to make regulations regarding such matters. It was submitted further, that the Regulations could not have been made in terms of any other statutory provision. Finally, the applicants argued that section 50 of the National Environmental Management Act 107 of 1998 limits the power of the Minister of Mineral Resources to make such regulations.

During argument, the applicants deviated from their pleaded case and relied squarely on the principles of review under the doctrine of legality. The respondents objected to the change in stance.

Held that a party must make out its case in its founding papers, and in application proceedings, the affidavits constitute both the pleadings and the evidence. The applicants’ change in oral argument meant that a number of relevant issues raised were not fully dealt with in the papers and no evidence was presented in substantiation of the contentions made in argument.

The court first examined the substance of the Regulations before moving to consider the development and history of our environmental legislation. It was noted that a lack of integration between the processes contained in the National Environmental Management Act and the Mineral and Petroleum Resources Development Act led to the conclusion of the One Environmental System Agreement (OESA). To give effect to that agreement, various pieces of legislation had to be amended. OESA envisaged all environmental issues being regulated through a single system which would be the National Environmental Management Act, and therefore all environmental provisions would be repealed from the Mineral and Petroleum Resources Development Act. at the time of publication of the Regulations, the Department of Mineral Resources was empowered to deal with the functional area of environmental impacts relating to mining in terms of the National Environmental Management Act and no longer the Mineral and Petroleum Resources Development Act.

In line with constitutional imperatives, the National Environmental Management Act promotes cooperative governance. Thus, under section 50 of the Act, the Minister of Environmental Affairs sets the regulatory framework and norms and standards, and the Minister of Mineral Resources will implement the Act’s provisions as far as it relates to mining. No limitation is placed on the Minister in that regard, and the making of regulations in the course of such implementation is not proscribed. The applicants did not make out a case that the Regulations were in breach of OESA or were otherwise improper.

The further grounds of review also failed as the papers did not set out a basis for review on the basis of the doctrine of legality and the issue of rationality was not adequately addressed.

In the premises, the appeal was dismissed.

Musasike and another v Standard Bank of SA Limited [2018] JOL 40116 (GJ)

Default judgment – Application for rescission – Requirement under common law

The applicants were a married couple who in 2008, obtained a bond from the respondent bank for the purchase of immovable property. Between 2014 and 2017, the applicants started experiencing financial problems in respect of monthly repayments on the bond in respect of the property. They periodically negotiated with the bank, and made certain monthly payments. However, all the payments were insufficient to liquidate the arrears. Based on their default, the bank instituted action against the applicants. According to the applicants, they did not file a notice to oppose because they had believed it to be unnecessary since they were still negotiating with the bank. Default judgment was obtained against them, and the present application was for rescission thereof.

Held that the application was brought under the common law. The principles applicable to the adjudication of rescission applications based on the common law are that a judgment can be set aside on the grounds of fraud, justus error, in certain exceptional circumstances when new documents have been discovered, when judgment had been granted by default and, in the absence of a valid agreement between the parties to support the judgment, on the grounds of justus causa. there are two essential elements of sufficient cause for rescission of a judgment by default, namely that the party seeking relief must present a reasonable and acceptable explanation for his default; and that on the merits (that is of the action) such party has a bona fide defence which, prima facie, carries some prospect of success.

Applying the above legal principles to the facts of the instant application, it was evidence that the applicants had not met the requirements for the rescission of the default judgment under the common law, nor under the rules of court. The application for rescission was refused.

Hassim v Bekker and others [2018] JOL 40118 (GJ)

Heads of Argument-Delivery of heads of argument – Non-compliance – Application to compel – Striking of claim form roll – Whether automatic in terms of practice directive

In an unopposed interlocutory application, the intervening respondents sought an order compelling the applicant to deliver his heads of argument and practice note within 3 days of the order. Simultaneously, they also sought an order that should the applicant fail to comply, then the applicant’s claim in the main application be struck out and the main application be dismissed with costs.

Held that the application was based on directive 9.8.2.12 of the Practice Directives of the court. The only issue for determination was whether the sanction in directive 9.8.2.12 automatically strikes out the defaulting party’s claim or defence in its entirety in the event that the defaulting party fails to comply with the court order granted in

terms of that directive. That turned on the interpretation of directive 9.8.2.12. The prevailing approach to the interpretation of text is that 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. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document.

The Court held that the primary purpose of the directive is not to explicitly punish the defaulting party in circumstances where he is in contempt of court as contended on behalf of the intervening respondents. Rather the primary purpose of the directive is to ensure that the opposed motion court roll is relieved of matters that are not ripe for hearing. Compared to previous practice directives, directive 9.8.2.12 carries a more biting sanction against a defaulter and inadvertently against the complying party too. Should the defaulting party remain non-compliant after an order compelling him to comply with practice directive 9.2.8.12 is granted, he stands to have his cause of action or defence struck out. Should the complying party fail to bring an application to compel in terms of directive 9.8.2.12, he runs the risk of his matter being struck from the roll. By not bringing an application to compel in terms of directive 9.8.2.12, the complying party would have orchestrated his own prejudice because the terms of directive 9.8.2.12 in this regard are peremptory.

The Court concluded that the sanction in directive 9.8.2.12 does not automatically strike out the defaulting party’s claim or defence in the event that the defaulting party fails to comply with the court order granted in terms of that directive.

BEE v ROAD ACCIDENT FUND 2018 (4) SA 366 (SCA) Damages — Bodily injuries — Loss of income or earning capacity — Plaintiff and brother each owned 50% of close corporation — Plaintiff's claim permissibly quantified with reference to corporation's reduced profits. Damages — Quantification — Collateral source rule — Benevolent payments increasing plaintiff's post-injury earnings beyond market-related salary for reduced role — Correctly disregarded in calculation of plaintiff's patrimonial loss resulting from diminished earning capacity. Evidence— Expert evidence — Joint minutes — Court generally bound by — Rules for repudiation by parties. In November 2007 the appellant (B) was injured in a collision and claimed, among other things, past and future loss of earnings from the respondent (the Fund). An award made by the trial court was set aside on appeal to a full court. This is a further appeal. B and his brother, R, were 50% partners in a business (BPW), to which B returned in January 2009. Despite the sequelae of his injuries he was, as before, paid a 50% share of BPW's profits. B claimed these profits were reduced because of his diminished effectiveness and that a portion of his earnings was paid out of benevolence, and had to be disregarded when computing his loss of income. The Fund claimed that B's 50% membership in BPW meant he had a proprietary right to half its profits.

Forensic accountants from each side prepared a joint minute in which they agreed that B's injuries had affected his employability and that there was a gratuitous (benevolent) element to his pay. They disagreed, however, on its quantification and on the application of the Rudman decision * to the present claim. There the court ruled, in circumstances broadly comparable to those in the present case, that it would not measure the claimant's loss of earnings by reference to the business's loss of profits. Instructed to 'apply Rudman', the Fund's expert did not attribute some of BPW's losses to B's diminished abilities During the trial the Fund's expert testified that BPW had refused him access to documents with information contradicting assumptions made in the joint minute, but the court ordered that no such evidence could be led, and upheld B's claim in full. In an appeal the full court found that B had failed to prove that BPW's performance was affected by his injuries or that he had personally suffered any loss, and that his claim for loss of earnings should accordingly be dismissed. In the further appeal — Held, per Rogers AJA (majority judgment) The estimations made by the trial court in the calculation of B's damages should, barring misdirection, stand. Among these were the market-related salary B would command in his injured condition; how much better BPW would have performed had B not been injured; and when B would have retired in his uninjured condition and when he was likely to retire in his injured condition. (See [46] – [48].) Effective case management required parties to stick to the facts agreed in a joint minute (see [65] – [66]). If a litigant wished to depart from it, it had to give due warning to the other side, and the same went for the experts themselves (see [67] – [68]). Therefore, if the Fund's expert had wished to testify inconsistently with the agreement in the joint minute, it should have notified the other side before the start of the trial (see [75]). The Fund's conduct amounted to impermissible trial by ambush (see [79] – [80]). The trial court was entitled, if not bound, to accept the matters agreed by the experts, and its decision not to ask them to lead further evidence was entirely justified (see [73]). Given the trial court's ruling, it was not open to the full court to go behind the facts agreed to in the joint minutes. Rudman was concerned with the factual question whether the claimant had proved a patrimonial loss, which the court found he did not (see [81]). In the present case, however, the facts agreed on by the experts showed that B did suffer a loss and that it was directly related to the impaired performance of BPW (see [82]). B's situation was distinguishable from the Rudman claimant's, who had held only 2,5% of the company, so that there was no necessary correlation between the company's profitability and his income (see [83]). And his intellectual capacities were undiminished, whereas, in the present case, the factual and expert evidence was all in one direction: B's injuries had impaired his intellectual, mental and emotional functioning to the extent that he could not remotely function at his pre-injury level (see [83] – [84]). If an employer, out of benevolence, allowed an injured employee to return to work and to perform such limited tasks as he was able to do, and continued to pay him a salary, the injured employee was not obliged to deduct such salary when quantifying his loss of earnings (see [101]). The fact that this 'salary' was recorded in BPW's financial records as a salary rather than a donation, was neither here nor there (see [102]). Hence the only issue was the factual one, whether or not B's 'salary' was indeed prompted by considerations of benevolence on the part of BPW (see [103]). The Fund's argument that B had a proprietary right to half the profits was fallacious because it assumed the permanence of B's 50% membership interest in

BPW when in fact R could terminate the arrangement at any time by winding up BPW (see [104]). The trial court was, on the evidence, fully entitled to find that part of B's post-injury salary was gratuitous (see [105] – [108]). For the calculation of this portion, the method used by the Fund's expert would be preferred (see [110]). In the result the trial court's award would be upheld, save for the downward adjustment resulting from the adoption of the Fund's expert's method of calculation (see [45], [119]). The full court's decision resulted in an unjust shifting of the responsibility from the wrongdoer (represented by the Fund) to BPW and R, and the law should not compel such an unpalatable result (see [107]). Held, per Seriti JA (dissenting) Other credible evidence did not support the proposition that part of what B received after his injuries was gratuitous, and the trial court should have rejected the joint minute as unreliable (see [20] – [21], [30]). Since B failed to prove his pre- or post-accident salary, or that BPW suffered a loss of income due to his injuries and that his patrimony was therefore diminished, the appeal should fail. JOHN WALKER POOLS v CONSOLIDATED AONE TRADE & INVEST 6 (PTY) LTD (IN LIQUIDATION) AND ANOTHER 2018 (4) SA 433 (SCA)

Appeal — Power of court on appeal — Power to dismiss appeal where judgment or order sought would have no practical effect or result — To be determined without reference to costs, save under exceptional circumstances — Costs meaning costs in court a quo, not appellate court — Superior Courts Act 10 of 2013, s 16(2)(a). Appeal — Leave to appeal — Application — Costs — Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal — Liability for costs in application — Time when matter became moot relevant — Duty of litigants to make reasonable proposals inter se on costs — Prospects on merits and conduct of parties. Costs — Application for leave to appeal — Proposed appeal becoming moot during pendency of application in Supreme Court of Appeal — Liability for costs in application — Time when matter became moot relevant — Duty of litigants to make reasonable proposals inter se on costs — Prospects on merits and conduct of parties. The first respondent (CAT) obtained an order in the KwaZulu-Natal High Court, Pietermaritzburg, evicting the applicant business (JWP) from shop premises in a mall on the ground of unlawful occupation. JWP's defence was that it had a lease with the second respondent (ICT). The High Court granted the eviction order and refused leave to appeal. On 15 March 2017 JWP applied for leave to appeal in the Supreme Court of Appeal. JWP's lease expired at the end of September 2017. After the filing of answering and replying papers, the SCA heard the application on 23 February 2018. Given the termination of JWP's lease, questions of mootness and liability for costs arose. Counsel for JWP conceded that the only practical effect which an appeal order would have was in relation to costs. Section 16(2)(a) of the Superior Courts Act 10 of 2013 provides that an appeal should be dismissed if it would have no practical effect or result, which must — save in exceptional circumstances — be determined without reference to costs. * Counsel for JWP conceded before the SCA that the only practical effect an appeal order would have was in relation to costs. Held

It was clear that a decision on appeal would have no practical result: at best for JWP, an appeal court could find that it was entitled to occupy the premises until the end of September 2017, a matter that had become academic (see [7]). The costs referred to in s 16(2)(a)(ii) were the costs in the court below, and, if these were substantial, it might constitute an exceptional circumstance leading to the conclusion that a reversal of that court's decision would have practical effect (see [8]). Since there were no exceptional circumstances which required reassessment of the costs order in the court a quo, leave to appeal had to be refused (see [9]). The remaining question was what to do about the costs of the application in the Supreme Court of Appeal. This would generally depend on when the matter became moot. If it was already moot when leave to appeal was first sought, it would generally be appropriate to order the appellant to pay costs, since the proposed appeal was stillborn from the outset. Different considerations applied where mootness supervened at a later stage. Parties to proceedings that became moot during the pendency of appellate proceedings had a duty to make sensible proposals inter se to avoid the need for intervention by the appellate court. Proposals had to be informed by a realistic view on prospects of success, and take into account the costs already incurred; additional costs that would be incurred if the appellate proceedings were not promptly terminated; the size of the appeal record; and how long it might take an appellate court to form a view on the merits of the moot appeal. (See [10].) Costs in the present application were already substantial by the time the matter became moot. The record was short and it was not difficult to form a view on the merits, which favoured CAT. Given JWP's bleak prospects on the merits and its failure to pay rent while pursuing an unmeritorious application, it should be ordered to pay the costs of the application (see [11] – [16]). Application accordingly dismissed with costs (see [17]).

MOSTERT AND OTHERS v FIRSTRAND BANK LTD t/a RMB PRIVATE BANK AND ANOTHER 2018 (4) SA 443 (SCA) Credit agreement — Consumer credit agreement — Remedying of default in agreement — Payment can only be made by or on behalf of consumer — National Credit Act 34 of 2005, s 129(3). Applications-replying affidavit-new issue-discretion to allow the new matter-the merits fully argued-no prejudice. The primary issue in this matter was whether a default in a credit agreement may be remedied, in terms of s 129(3) of the National Credit Act 34 of 2005 (the Act), by payment that was not made by, or on behalf of, the consumer in respect of that credit agreement. The appellant, as borrower, had entered into a loan agreement with the first respondent — FirstRand Bank Ltd (RMB) — as lender. The loan was secured by suretyships — entered into by a Trust (one of whose trustees was the appellant) and the companies New Port and TPC Marketing — and a mortgage bond over a certain property ('the property') owned by the Trust. Non-payment in terms of the loan ultimately led to RMB's obtaining judgment in 2011 against the appellant in terms of which the property was declared specially executable. Subsequent attempts by RMB to have the property sold prompted the appellant to firstly institute an action in the Western Cape High Court to claim an order declaring that RMB was not entitled to

sell the property in execution, and to then bring an application to the same court to claim an interim interdict prohibiting the sale pending the final determination of the action. This is an appeal against the decision of the High Court to refuse the appellant's relief in the interim interdict proceedings. In the SCA the appellant argued that in 2015 all amounts still owing in terms of the loan agreement were paid. Thus, insisted the appellant, the agreement was remedied in terms of s 129(3) of the Act and RMB was no longer entitled to execute the judgment in respect of the property. RMB disagreed. It stated that an agreement could only be remedied in terms of s 129(3) where the payment had been made by the consumer. That, however, was not the case here, where payment had been made by the surety New Port in its own name. (A further issue in the SCA was whether, as was argued by RMB, no reliance could be placed on the reinstatement argument because it had only been raised in the replying affidavit by the appellant. The SCA, as it was entitled to do in exceptional circumstances, exercised its discretion to allow the new matter. In this regard the court considered the following: no new facts were raised in the replying affidavit; the merits of the matter were fully argued in the court a quo; there was no indication of prejudice; and the litigation proceedings had been protracted. (See [15].)) Held Given the clear meaning of s 129(3) of the Act, and the context thereof, default in a credit agreement could only be remedied by payment by the consumer to such agreement, or by payment on behalf of such consumer. When payment was not thus made, it fell outside the scope of s 129(3). When payment of arrears did not emanate from the consumer's bona fide effort to resolve the default, but from the credit provider having had to enforce rights against a third party, the consumer was not deserving of the protection of s 129(3). (See [25] – [26].) The payments in 2015 by New Port (who did not qualify as a consumer in respect of the loan agreement (see [28])) were only made because of RMB's conduct in following up its security. They were not made on behalf of or in the name of the appellant (or even pursuant to New Port's obligation as surety). It followed that the 2015 payments did not remedy the appellant's default in the loan agreement. (See [30].) Appeal dismissed with costs.

DUMA v ABSA BANK LTD 2018 (4) SA 463 (GP)

Execution — Attachment of immovable property — Declaration of executability — Judicial oversight — Duty of court, in its order declaring bonded property specially executable, to inform lay-litigant debtors that, should they pay arrears before sale in execution, original agreement would be reinstated — National Credit Act 34 of 2005, st129(3). In this matter the applicant, Duma, applied for the rescission of a judgment ordering her to pay an amount outstanding on a mortgage bond over her residential property, and declaring such property specially executable. The court found no reason to grant such rescission. However, in its judgment the court noted that those subject to orders for the recovery of outstanding bond payments, and declaring bonded property specially executable, were often lay people without legal assistance and who might be unaware of their rights (see [21] and [25]). Such rights included, in light of s 129(3) of the National Credit Act 34 of 2005, the right to reinstate the original

credit agreement by paying all outstanding arrears before the bonded property was sold in execution (see [18]). The court concluded that a court would be paying lip service to the Constitution should it not, in its orders declaring bonded property specially executable, inform the debtor that, should they pay the arrears before the sale in execution, the original agreement would be reinstated (see [24] – [25]). EX PARTE MDYESHA 2018 (4) SA 468 (GP)

Attorney — Admission and enrolment — Admission — Requirements — Attendance at practical training course — May take place before registration of articles — Strict compliance with s 15(1)(b)(ivA) of Attorneys Act 53 of 1979, which insists on prior registration or service of articles, not required. Attorney— Articles of clerkship — Probation — Attorneys' firms' practice of making potential candidate attorneys sign pre-articles contracts containing probationary periods — Court remarking that practice still rife despite Supreme Court of Appeal's disapproval. Strict compliance with s 15(1)(b)(ivA) of the Attorneys Act 53 of 1979, which requires that prospective candidate attorneys register or serve their articles before attending a practical training course, is not required (see [12]). Prospective candidate attorneys may therefore attend a practical training course before they register for or serve their articles of clerkship (see [15]). The judgment remarked in passing that the Law Society has apparently not yet taken steps to discourage the potentially abusive practice by attorneys' firms of requiring potential candidate attorneys to sign pre-articles contracts with probationary periods before entering into articles of clerkship (see [13]).

NTOMBELA v ROAD ACCIDENT FUND 2018 (4) SA 486 (GJ)

Evidence — Expert evidence — Joint minutes — Failure to comply with requirements in court's Practice Manual — Appropriate order and costs order. Attorneys- dereliction of duty-joint minutes-prohibited from charging clients Mr Ntombela sued the Road Accident Fund (RAF) in the High Court for damages arising from injuries sustained — a mild head injury, a bruised sternum and broken left clavicle — in a motor vehicle accident. The RAF having conceded liability, the only issue in dispute at the trial was whether Mr Ntombela — who at the time of the accident was employed by Virgin Active as a maintenance operator in one of its gyms and in his spare time undertook work as a mechanic at his home — had lost earnings and the capacity to earn in the future. The court found that the evidence had failed to establish that the effects of the injuries would have any material impact on the plaintiff's capacity to fulfil his job, or that they had harmed his promotion prospects. As to the plaintiff's part-time work as mechanic, the court found it impossible to quantify any damages on the basis of the evidence presented. Ultimately, the court only awarded damages representing loss of overtime during the plaintiff's initial convalescence and loss of future earnings during convalescence after necessary remedial surgery.

The court concluded its judgment by addressing in detail what it termed 'the scandal of unprofessionalism' exhibited by the expert witnesses (excluding the neurosurgeons) involved in the matter. In this regard the court held the following. The opposing pairs of expert witnesses (excluding the neurosurgeons) had failed to meet the requirements of the Gauteng Local Division Practice Manual in preparing their joint minutes: they had not met together to prepare the minutes; the minutes failed to identify exactly what was agreed; and they failed to state exactly what was disagreed along with whether such disagreement related to facts clinically observed or an interpretation of facts. They were instead padded with jargon; demonstrated a failure on the part of the experts to engage on the critical issues; and merely stated in circumlocutory terms a difference of view — ignoring the counterpart, and never interrogating it. The purpose of joint minutes was to capture the intellectual input of two experts who interrogated each other's views and laid out for a court what the issues were that had to decided. To fudge, hedge and generally obfuscate was counter-productive. (See [41] – [47].) Consequently, all costs for joint minutes were disallowed (except in respect of the neurosurgeons). Further, the attorneys, owing to their own dereliction of their duty to prepare court documents in the appropriate form, were prohibited from charging their clients any fees or disbursements relating to the joint minutes. In future, a failure to comply ought to be met with a refusal to hear the matter at all, on the grounds that the documents would not be in order. Professionals had to behave professionally and treat the task of seeking agreement seriously. If delinquency persisted, punitive measures would have to be taken. Attorneys had to see to it that there was proper compliance. OCTAGON CHARTERED ACCOUNTANTS v ADDITIONAL MAGISTRATE, JOHANNESBURG, AND OTHERS 2018 (4) SA 498 (GJ)

Magistrates' court — Civil proceedings — Jurisdiction — Removal of actions to High Court — Section 50(1) of Magistrates' Courts Act allowing for removal of both claim in convention and claim in reconvention to High Court — Magistrates' Courts Act 32 of 1944, s 50(1). Appeal— Powers of court of appeal — To refuse appeal, yet vary order of court a quo in absence of cross-appeal — In light of common-law principle that appeal court may not alter an order to detriment of appellant in absence of cross-appeal — Court of appeal empowered to vary procedural order, if failure to do so would give rise to impractical and untenable situation — Wide powers granted to court of appeal in terms of s 19(d) of Superior Courts Act — Superior Courts Act 10 of 2013, s 19(d). Appeal — Powers of court of appeal — Exercise of under s 19(d) of Superior Courts Act — Where exercising such powers against or potentially against wishes of party, it should give notice to party affected thereby — Superior Courts Act 10 of 2013, s 19(d).

Appeal — Powers of court of appeal — Exercise of under s 19(d) of Superior Courts Act — Power to render 'any decision which the circumstances may require' — Did not have to relate to decision which was subject-matter of appeal — Superior Courts Act 10 of 2013, s 19(d). The plaintiff brought individual actions against five defendants in the Magistrates' Court, Johannesburg, for the recovery of accounting and auditing fees,

each amount claimed falling within the monetary jurisdiction of the magistrates' court, but above R3000. In response, the defendants each delivered a counterclaim for damages in an amount in excess of the aforementioned monetary jurisdiction. Upon subsequent application by each of the defendants, the magistrates' court, acting in terms of s 50 of the Magistrates' Courts Act 32 of 1944 (see section quoted at [6]), ordered in respect of each action — after declaring that the counterclaim exceeded the jurisdiction of the magistrates' court — the removal of both claim and counterclaim to the South Gauteng High Court. Later, before a single judge of the High Court, the plaintiff challenged the validity of the decision of the magistrate to remove proceedings to the High Court, and sought its setting aside. Judge Francis found that the magistrate did not have the power to order that the action be removed, on the ground, inter alia, that the claim did not exceed the jurisdiction of the magistrates' court. It ordered that the action be stayed, but that only the counterclaim be removed to the High Court. Despite its partial success, the plaintiff appealed to the full bench of the South Gauteng High Court against the decision of Judge Francis to allow the removal of the counterclaim to the High Court. Competency of removal A key issue on appeal was the following. (a) Did s 50 of the Magistrates' Courts Act — which allowed the removal of 'any action' in which 'the claim' exceeded R3000 provided certain conditions were met — permit the removal of a counterclaim. The plaintiff argued that it did not. Held, that, properly interpreted, s 50 allowed for the removal of both the claim in convention and the counterclaim, where the claim in convention exceeded R3000. The word 'action' as it appeared in the provision encompassed both the claim in convention and the counterclaim. (See [9].) Held, that Judge Francis was incorrect in finding that the magistrate did not have the power to order that the action be removed to the High Court on the basis that the claim did not exceed the jurisdiction of the magistrates' court. Section 50 instead permitted a defendant to bring an application in terms of s 50 where the plaintiff's 'claim' — in context a reference to a claim in convention — exceeded R3000; that was the case here. (See [10].) Variation of order of court a quo in absence of cross-appeal Accordingly, Judge Francis ought to have found that the magistrate had the powers to make the order he did, and ought not to have set aside his order. But the plaintiff only appealed the one part of the High Court order that was correct, ie the part ordering the removal of the counterclaim. So, the appeal could not succeed, given its narrow attack. (See [11].) The failure of the defendants to cross-appeal to restore the magistrate's full order left the parties in an impractical and untenable position where only the counterclaims were before the High Court in a vacuum, without claims to which they were counterclaims (see [19]). The question then was whether the court could make an appropriate variation to the judgment of the court a quo. This was in question in the light of the common-law principle that a court of appeal may not alter the judgment or order of the court a quo to the detriment of an appellant in the absence of a cross-appeal. (See [20.) Held, that the court was empowered to vary the order of the court a quo, and that it would do so by ordering that both the claims and the counterclaims be removed from the magistrates' court to the High Court, thereby reinstating the magistrate's order (see [32]). An appeal court could not ignore, much less condone, a legally untenable outcome for the litigants, such as the one here arising from the non-removal of the claim in convention (see [28]). Further, s 19(d)of the Superior Courts Act 10 of 2013

granted an appeal court wide powers, allowing it to 'render any decision which the circumstances may require' (see [21]). Finally, the common-law principle did not prevent the court from making the proposed order: the principle operated where there was prejudice against the appellant, and none was present here; the case law recognised that orders of a court a quo might be varied as necessary for particular procedural reasons notwithstanding any detriment to the appellant, in the absence of cross-appeal; and the case law appeared to deal for the most part with variations to the quantum of damages — there was no authority to say that a court of appeal may not, absent a cross-appeal, vary procedural orders or provide for effective management of a case. (See [23] – [27].) Held, further, that before a court exercised its power on appeal in terms of s 19(d) of the Superior Courts Act, against or potentially against the wishes of a party, it should give notice to the party affected thereby (see [33]). Held, further, that the words 'any decision which the circumstances may require' in s 19(d) of the Superior Courts Act did not have to relate to the decision which was the subject-matter of the appeal (see [33.1]). Appeal accordingly dismissed, and the order of the court a quo varied as set out below (see [35]). Moyo and another v Minister of Justice and Constitutional Development and others; Sonti and another v Minister of Justice and Correctional Services and others [2018] 3 All SA 342 (SCA) Civil procedure – Pre-trial challenge to constitutional validity of statutory provisions – Court confirming that it is permissible to challenge the constitutional validity of a statutory offence before trial. Constitutional and Administrative Law – Section 1(1)(b) of the Intimidation Act 72 of 1982 – Majority of court finding that section 1(1)(b) requires proof of both mens rea and unlawfulness; is only concerned with intimidating conduct that induces or would induce fear properly in a so-called reasonable person; does not criminalise conduct that is otherwise lawful in terms of the Constitution and other legislation – Section 1(2) presumes that accused’s actions or utterances are without lawful reason if such reason is not advanced prior to close of prosecution case – Contravention of provisions of section 35(3)(h) of the Constitution found insofar as section 1(2) placed improper pressure on an accused to forego their constitutional right to silence and not to give self-incriminating evidence. Criminal Law and Procedure – When dealing with the interpretation of criminal statutes, a provision that creates a criminal offence must be construed in favour of the liberty of the subject, and it is presumed that the commission of statutory offences requires intention (mens rea) – Court rejecting submission, explaining that a proper interpretation of the section requires that the fear that is induced is fear that would be induced in a reasonable person by the actions in question. Two appeals in which the constitutionality of section 1(1)(b) and 1(2) of the Intimidation Act 72 of 1982 was raised served before the Court.

The High Court in dismissing the appellants’ applications for declarations of invalidity and unconstitutionality of the provisions, found that section 1(1)(b) did not infringe the right to freedom of expression, and that the provision only criminalised expressive acts which are reasonably construed to be threats of violence. With regard to section

1(2) of the Act, the court a quo accepted that this provision infringed the right to be presumed innocent, the right to remain silent and the right against self-incrimination. However, it found that the infringements were justified on two bases. First, it was not possible for the State to disprove the existence of a lawful reason as required by section 1(1)(a) of the Act. Secondly, the reverse onus created by section 1(2) served the purpose of combating intimidation, the incidence of which, the court a quo found, was rife in the country.

The first appellant in each of the appeals (respectively Mr Moyo and Ms Sonti) had been charged in terms of the impugned provisions. Their trials were still pending, having been adjourned pending the outcome of the present proceedings.

In Mr Moyo’s case, the constitutionality of section 1(1)(b) was challenged on the ground that its provisions violated the right to freedom of expression as guaranteed in section 16(1) of the Constitution. It was contended that the section criminalised any speech or conduct which created a subjective state of fear in any person regardless of whether the conduct or speech in question was intended to create fear. An offence was also committed, it was contended, where no fear was in fact created and only speech or conduct which reasonably apprehended might have created fear was established. It was averred that sec-tion 1(1)(b) was overbroad as it criminalised many forms of expression which fell within the protection of section 16(1) of the Constitution. It was further submitted that the breadth of the interference with section 16(1) of the Constitution created by section 1(1)(b) of the Act, could not be justified in terms of the limitation clause in section 36 of the Constitution and consequently fell to be declared unconstitutional and invalid. The charge against Mr Moyo concerned a speech and related conduct attributed to him during a meeting at a police station, where he had gone to organise a peaceful and lawful march to demonstrate against what he saw as ineffective and biased policing practices in an informal settlement.

In Ms Sonti’s appeal, the constitutionality of section 1(2) of the Act was challenged on the basis that the section created a reverse onus in all proceedings brought under section 1(1)(a) of the Act – because unless the accused makes a statement clearly indicating the existence of a lawful reason for issuing the threat before the prosecution closes its case, the threat was presumed to have been unlawful. It was thus contended that section 1(2) of the Act breached the fair trial rights entrenched in section 35(3)(h) and (j) of the Constitution, namely the rights to be presumed innocent, to remain silent and not to be compelled to give self-incriminating evidence. Ms Sonti also averred that section 1(2) constituted an unjustifiable limitation on the right to freedom of expression, enshrined in section 16 of the Constitution.

In a preliminary point raised by the Minister of Justice, it was submitted that the appellants should first go through their trials before raising their constitutional challenge. Held – While the ordinary procedure would be to challenge the constitutionality of sections 1(1)(b) and 1(2) of the Act at trial or in post-conviction proceedings, the appellants had been charged in the regional courts, which lack jurisdiction to strike down unconstitutional statutes. As a result, the appellants ran the risk of conviction and imprisonment, before having an opportunity to raise the constitutional validity of the provisions they challenged. The Court confirmed that it is permissible to challenge the constitutional validity of a statutory offence before trial. The point in limine raised by the Minister accordingly failed.

On the constitutionality of section 1(1)(b), the Court found in its majority ruling, that the section was capable of being construed in a way that was compatible with the Constitution and served the valuable purpose of providing the protection of the criminal law against intimidating conduct. It was held that properly interpreted, section 1(1)(b) requires proof of both mens rea and unlawfulness; is only concerned with intimidating conduct that induces or would induce fear properly so called in a reasonable person; and does not criminalise conduct that is otherwise lawful in terms of the Constitution and other legislation. In undertaking a proper interpretation of section 1(1)(b), the Court was cognisant of the injunction in section 39(2) of the Constitution when construing legislation to promote the spirit, purport and objects of the Bill of Rights. In terms of the proper approach to interpretation, the words of the section are the starting point, but they are to be considered in the light of their context, the apparent purpose of the provision and any relevant background material. A sensible meaning is to be preferred to one that leads to impractical results. When dealing with the interpretation of criminal statutes, a provision that creates a criminal offence must be construed in favour of the liberty of the subject, and it is presumed that the commission of statutory offences requires intention (mens rea). Clear wording is required to exclude the need for intention. Finally, internal inconsistency in a statute is to be avoided. The need for internal consistency assumes particular importance when dealing with a crime such as intimidation that can manifest itself in slightly different ways involving the same central concepts.

Explaining the nature of the offence of intimidation, the majority held that it is committed by acts or conduct, or through the spoken or published word. The numerous ways in which intimidating conduct can manifest were explored in the Court’s analysis.

In respect of the ground of appeal relating to subjective fear, the majority rejected the appellants’ contention that where fear is induced in an individual, all that is required for a conviction is subjective fear on the part of the complainant. It held that the section requires either that fear be induced, or that it might reasonably be expected to be induced as the natural and probable consequence of the intimidating act. The section contemplates an objective test of reasonableness as reasonableness is the yardstick by which to measure the existence of genuine fear. The proper interpretation of the section requires that the fear that is induced is fear that would be induced in a reasonable person by the actions in question.

The submission that the section catches expressive acts that are not intended to create fear, was also not sustainable. The correct approach is that mens rea is presumed to be required in the absence of clear and convincing indications to the contrary in the enactment in question. The Court found nothing in the section to suggest that mens rea is not required. It confirmed that the offence is not one of strict liability. Intention, either in the form of dolus or culpa, is a requirement for conviction.

In guaranteeing the right to freedom of expression, section 16 of the Constitution imposes a qualification in section 16(2), that the right does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. The question was whether the provisions of section 1(1)(b) infringed that right. The Court rejected the submission that section 1(1)(b) encompasses cases of conventional and protected freedom of expression.

The majority therefore concluded that section 1(1)(b) passed constitutional muster. It proceeded to dismiss Mr Moyo’s appeal.

Ms Sonti’s appeal focused on section 1(2) of the Intimidation Act. The section provides that: “In any prosecution for an offence under subsection (1), the onus of proving the existence of a lawful reason as contemplated in that subsection shall be upon the accused, unless a statement clearly indicating the existence of such a lawful reason has been made by or on behalf of the accused before the close of the case for the prosecution”. The question was whether there was a reverse onus provision placing the onus of proof of lawfulness on the accused – which was constitutionally impermissible. A reverse onus is constitutionally objectionable because it infringes the presumption of innocence. The Court found that section 1(2) is a provision addressing an evidential issue. If a lawful reason is disclosed before the end of the prosecution case, the prosecution will have to lead evidence to disprove it before closing its case. If that evidence is unsatisfactory the accused may then obtain a discharge at the close of the prosecution case without being put on their defence and without having to decide whether to give evidence. The effect of the presumption is that, if no lawful reason is disclosed prior to the close of the prosecution case, the accused will not be able to seek and obtain a discharge on the basis that the prosecution has failed to show that they acted without a lawful reason. The evidential burden will then be imposed upon them to produce evidence of the lawful reason. An evidential burden does not impose a reverse onus, nor is it a per se case of a constitutional infringement. However, the majority of the Court did find that there was a constitutional problem with the section. It contravened the provisions of section 35(3)(h) of the Constitution, not because it infringed the presumption of innocence, but because it placed improper pressure on an accused to forego their constitutional right to silence and not to give self-incriminating evidence. That was inconsistent with the broader right to a fair trial, because it relieved the prosecution in the first instance from the need to lead evidence to show that the actions of the accused are without lawful reason and, after the close of the prosecution case, it constrained the accused to give evidence himself or to lead evidence from others.

No basis was found upon which the constitutional infringement could be justified as a permissible limitation of rights under section 36 of the Constitution and the Court found that no purpose would be served by suspending the order of invalidity. The declaration of invalidity was to be retrospective to the extent that the conviction in any pending trial or appeal would be dependent upon the invocation of the provisions of section 1(2), but not otherwise. Cases where the appeal process had been exhausted would not be affected by the order of invalidity.

The Sonti appeal was upheld and section 1(2) of the Intimidation Act was declared unconstitutional and invalid.

In a minority judgment it was held that the presumption in section 1(2) reverses the onus of proof requiring the accused to prove the existence of a lawful reason for their acts or utterances, with the result that the accused can be convicted even though there is no proof of guilt beyond reasonable doubt – infringing the right to be presumed innocent and the right to remain silent. The minority was therefore of the opinion that section 1(2) was unconstitutional and invalid. It was also stated that section 1(1)(b) was overly broad and contravened section 16(1) of the Constitution. ST v CT [2018] 3 All SA 408 (SCA)

Civil Procedure – Credibility findings by trial court – Adverse credibility findings against appellant – An appellate court has very limited powers to interfere with factual findings made by a trial court, particularly if it depended on credibility findings – While there was no basis on which to interfere with the High Court’s credibility findings, that in itself did not, without more, warrant a summary rejection of all of the appellant’s evidence. Family Law and Persons – Marriage – Termination of – Divorce – Accrual – Onus of proof – Value of accrual must be determined as at date of dissolution of marriage – Parties required to make disclosure of assets in terms of section 7 of Matrimonial Property Act 88 of 1984 – Maintenance – Waiver of right to claim maintenance upon dissolution of marriage in antenuptial agreement invalid and unenforceable. Having married in Germany in 1992, the parties in this divorce action had signed an antenuptial contract which regulated their marriage. The marriage was out of community of property and the accrual system was included. After discovering that she was pregnant with the appellant’s child in 1991, the respondent broke off the relationship, but the appellant travelled to Germany armed with a comprehensive antenuptial contract prepared by his Johannesburg attorney. He proposed marriage to the respondent and made it clear to her that the contract was an absolute prerequisite for marriage. The contract was in English, and it was common cause that neither the respondent nor her advisors had a thorough knowledge of South African matrimonial law. The appellant insisted in the marriage occurring immediately, and the parties got married.

The marriage relationship broke down in early 2010. A divorce action was instituted by the respondent in the High Court during November 2010. She claimed, inter alia, spousal maintenance, full particulars of the appellant’s current assets and liabilities in terms of section 7 of the Matrimonial Property Act 88 of 1984 and half of the accrual. The appellant counterclaimed for payment, under the actio communi dividundo, of property related expenditure on jointly owned properties and for the return of certain movables. The High Court granted the respondent’s claims and dismissed the appellant’s counterclaims. The respondent’s claim for spousal maintenance is contrary to a clause in the contract in terms of which the respondent had waived her claim for maintenance after the dissolution of the marriage (the “waiver clause”). The High Court held that the clause was per se invalid and unenforceable. Held – On appeal, the Court was unanimous that the waiver clause was not enforceable in the present case. The issue was fully addressed in a separate concurring judgment in which the issues of public policy and sanctity of contract were discussed.

That left for consideration, the respondent’s maintenance claim and the appellant’s claim for restitution of the donations. It was however, convenient to deal first with the question of the claim for accrual, since that determination would directly affect the question whether any maintenance should be paid to the respondent and, if so, in what amount. The adverse credibility findings made against the appellant, in turn, could have an effect on the question of accrual. Next the Court discussed the adverse credibility findings, together with the favourable credibility findings in respect of the respondent’s testimony.

The High Court made several adverse credibility findings against the appellant. Many of those findings related to his lack of forthrightness and his failure to disclose fully his financial position. An appellate court has very limited powers to interfere with

factual findings made by a trial court, particularly if it depended on credibility findings. The record bore out the High Court’s credibility findings against the appellant. While there is no basis on which to interfere with the High Court’s credibility findings, that in itself did not, without more, warrant a summary rejection of all of the appellant’s evidence.

In order to calculate accrual, the value of the appellant’s net estate had to be determined. That value would exclude the assets stipulated as excluded assets in the contract and the current assets acquired from the proceeds of excluded assets. Since the respondent’s net estate had shown no accrual at all, the final computation would only take into account the accrual in the appellant’s estate, if any. The value of the accrual had to be determined at the dissolution of the marriage – ie the date of divorce.

Section 7 of the Matrimonial Property Act sets out the duty which a spouse has to make full disclosure of relevant information when requested to do so by the other spouse. A failure by a party to make full disclosure, as required by section 7 may warrant the drawing of an adverse inference where it is reasonable in all the circumstances to do so, that a party has hidden assets.

On the issue of onus of proof, the Court agreed with the High Court that the burden of proof was on the appellant with regard to the question of whether an asset he owned was an excluded asset. A party who claims must prove. The respondent had to prove the appellant’s assets and their value. The appellant, in turn, had to prove that some or all of the assets were excluded. The facts regarding his general financial situation and, in particular, his assets and whether they qualified to be excluded or not, fell within the appellant’s personal knowledge and he had a statutory duty to make full disclosure. All those factors led to the inescapable conclusion that the burden of proof with regard to exclusion fell upon the appellant.

The High Court included a living annuity as part of the appellant’s assets for purposes of calculating the accrual. Having regard to the nature of the annuity contract, the Court formed the view that its supposed capital value could not be included as part of the appellant’s accrual, as the capital belonged to the insurer and not the appellant. The High Court consequently erred in including the annuity as part of the appellant’s accrual.

Another significant aspect addressed was the respondent’s maintenance claim. The assessment of the claim for maintenance had to take into account the factors mentioned in section 7(2) of the Divorce Act 70 of 1979. The parties’ respective financial positions were critical to the determination. The High Court ignored the fact that the appellant would not continue to earn a professional income indefinitely. The appellant had clearly downscaled his standard of living, and the respondent had to do the same in the circumstances. The fact that the respondent reasonably required maintenance in the amounts claimed by her did not automatically lead to the conclusion that the appellant should be ordered to pay them. An important question was whether the appellant could afford to pay maintenance in the relevant amounts. The Court made a determination in that regard and set out the amounts payable in its order.

The appeal was, accordingly, upheld in part.

Bowman Gilfillan Inc v Minister of Transport; In re: Minister of Transport v Mahlalela and others [2018] 3 All SA 484 (GP) Civil procedure – Pleadings – Particulars of claim – Exceptions to – Exceptions serve as a means of objecting to pleadings which are not sufficiently detailed, lack lucidity, or are incomplete, and are thus embarrassing affecting the ability of the other party to plead thereto. Constitutional and Administrative Law – Administrative action – Alleged unlawfulness – Challenge to – Administrative action, even if unlawful, remains valid until set aside in review. Having submitted a proposal to the Department of Transport in that regard, the second to fourth defendants were appointed as consultants to the department. The appointments were made by the first defendant in his capacity as Director-General of the department. He was currently no longer an employee at the department.

Investigations into the appointment of the second to fourth defendants were undertaken and completed in 2014. A year and a half later, the plaintiff (“the Minister”) instituted action against the defendants. The defendants raised exceptions to the particulars of claim. Essentially, the plaintiff had contended that the appointments were in violation of section 217(1) of the Constitution, sections 38 and 39 of the Public Finance Management Act 1 of 1999, and Treasury Regulations. In the first exception the defendants contended that their appointments constituted administrative action in terms of the Promotion of Administrative Justice Act and remained in force even if unlawfully made until reviewed and set aside. It was therefore contended that the assertion that the appointments were unlawful and invalid were unfounded in law and failed to disclose a cause of action. In the second exception, the defendants contended that the plaintiff’s particulars of claim were vague and lacked particularity insofar as it did not offer details of the payments made to the defendants – in respect of which repayment was claimed. Held – Exceptions serve as a means of objecting to pleadings which are not sufficiently detailed, lack lucidity, or are incomplete, and are thus embarrassing - affecting the ability of the other party to plead thereto. A pleading which is vague and embarrassing strikes at the cause of action as a whole. Vagueness amounting to embarrassment and embarrassment amounting to prejudice must therefore be shown. In terms of rule 18(4) of the Uniform Rules of Court, a cause of action or defence must be contained in the pleading.

It had to be determined whether the appointments of the second to fourth defendants constituted administrative action as contemplated in section 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000. Setting out the factors pointing thereto, the court confirmed that the appointments did constitute administrative action and as such, had to be challenged by way of judicial review. Instead, the plaintiff’s cause of action was clearly based on the common law principles of the law of contract. The plaintiff could not, as an organ of State, ignore the alleged defective administrative action which appointed the defendants and proceed by way of action proceedings to reclaim the amounts paid to the defendants without having set aside the administrative action through proper process.

Insofar as the details of the amounts allegedly repayable by the defendants had not been particularised, the plaintiff’s particulars of claim were vague as averred in the second exception.

Both exceptions were upheld and the plaintiff was given leave to amend the particulars of claim.

Thereafter applicant applied for leave to appeal the whole judgment and orders made. Applicant failed to satisfy any of the grounds/requirements set out in section 17 read with section 18(2) of the Superior Courts Act 10 of 2013. Application for leave to appeal was dismissed. Competition Commission v Wilmar Continental Edible Oils and Fats (Pty) Ltd and others [2018] 3 All SA 517 (KZP) Civil procedure – Application for reconsideration of court order – Rule 6(12)(c) of the Uniform Rules of Court – Where order was granted on urgent basis and in absence of respondents, a basis for reconsideration was established. Competition – Section 4(1)(b) of the Competition Act 89 of 1998 – Competition Commission making allegations against respondents regarding price fixing or fixing of trading conditions that substantially prevented or lessened competition in relevant market – In applying for search warrant, Commission required to demonstrate, on oath, that there were reasonable grounds to believe that anything connected with an investigation in terms of the Act was in the possession of, or under the control of, a person who was on or in the relevant premises. Following a merger notification involving the first respondent (“Wilmar”) and another entity (“Sea Lake”), the applicant (“the Commission”) initiated a complaint against the five respondents under section 4(1)(b) of the Competition Act 89 of 1998, alleging that the respondents, being competitors in the market for edible oils, had entered into an agreement and/or engaged in a concerted practice to fix prices and/or trading conditions in the supply of edible oils.

In December 2016, the Commission made two urgent ex parte applications for the issuing of a warrant in order to conduct a search and seizure process at the premises of the five companies that were the subject of the complaint. Both applications were granted, leading to the applicant conducting dawn raids at the premises of the respondents. During the search, the Commission seized documents and electronic records, which were since being kept under seal pending the determination of the present application. The applicant sought and obtained the search warrants based on the allegation that there was a reasonable belief grounded on an information on oath that prohibited practices as specified in section 4(1)(b) (ie price fixing or the fixing of trading conditions that substantially prevented or lessened competition in the market for the manufacture and distribution of refined edible oils, baking fats and margarine) were taking place at the premises of the respondents.

Each of the respondents launched an application to challenge the lawfulness of the warrants in separate applications for reconsideration in terms of rule 6(12)(c) of the Uniform Rules of Court. The first ground for reconsideration was that the Commission had failed to meet the jurisdictional threshold in section 46 of the Act, in that it failed to set out information on oath or affidavit that there were reasonable grounds to believe

that a prohibited practice was taking place on the relevant respondents’ premises or that anything connected with the Commission’s investigation was in the possession of or under the control of a person on the said premises. The second ground related to the applicant’s failure to comply with the requirements of uberrimae fides in its ex parte application and to disclose facts to the court which might have influenced the court in coming to its decision to grant the order. The Commission was accused in that regard, of having withheld relevant information from the court and mischaracterised the true facts. Held – In the reconsideration application, the Commission was not allowed to supplement its founding affidavit or attempt in its replying affidavit in the reconsideration application to introduce new evidence or facts.

In terms of rule 6(12)(c), the respondents were entitled to have the order reconsidered on the presence of two jurisdictional facts, viz that the main application was heard as a matter of urgency, and that the first order was granted in their absence. In an application for reconsideration under rule 6(12)(c), the Court considers the matter de novo. As in the original application, the Commission bore the onus of justifying the granting of the ex parte order.

The two issues for determination were whether the Commission had made out a case for the search warrant to be issued in terms of section 46 of the Act; and whether it had disclosed the material facts for it to be granted an order.

Section 46(1)(b) required the Commission demonstrate, on oath, that there were reasonable grounds to believe that anything connected with an investigation in terms of the Act was in the possession of, or under the control of, a person who was on or in the relevant premises. The Commission referred to Sea Lake as the source of the information upon which it relied for the warrant it had applied for. However, in the affidavit deposed to by the managing director of Sea Lake denied that he said that there was a collusive arrangement between Sea Lake and its competitors. Sea Lake’s complaint was about its competitors muscling in on its business and not about any collusion amongst its competitors. Persisting in challenging that submission, the Commission sought to rely on an email from Sea Lake’s attorneys, addressed to the Commission, and stating that Sea Lake was aware of the fact that there was collusion in the market which deserved investigation. That was denied by Sea Lake itself, with the result that there was no confirmatory affidavit either by Sea Lake regarding the alleged collusive conduct in the refined edible oil market. The respondents contended that the Commission’s failure to file a confirmatory affidavit in respect of the double hearsay evidence regarding the alleged prohibited practice meant that there was no information on oath which could ground a reasonable belief that there were collusive dealings in the market. The allegation relating to the prohibited practice was said to be double hearsay on the ground that it emanated from an unidentified source who was not even party to the alleged conversation. Countering the respondents’ objection, the Commission argued that the evidence fell to be admitted in terms of section 3(1) of the Law of Evidence Amendment Act 45 of 1988. Section 3(1) gives the court a discretion to decide whether or not to admit hearsay evidence. The test for the admission of hearsay under the section involves the court, after considering various specified factors, concluding that the evidence should be admitted in the interests of justice. The Court was not satisfied in that regard and ruled the evidence in question hearsay and inadmissible.

In ex parte applications, the applicant must disclose all material facts, which might influence the court to grant or refuse the relief sought. Failure to do so may result in the setting aside of the order sought. The non-disclosure or suppression of facts need not be wilful or mala fide to incur the penalty of rescission, and the court, appraised of the true facts, has a discretion to set aside the former order or to preserve it. The Commission therefore had a duty to disclose each and every fact and circumstance which might influence the court in deciding to grant or withhold the relief sought. It was clearly aware when it launched its application that Sea Lake had disputed its interpretation of the email referred to above. The Court therefore found that the ex parte application was based on a series of material factual inaccuracies that were, or should have been known to the Commission, and which should have been drawn to the attention of the Court.

It was concluded that as the Commission had failed to make out a case for the issuing of a search warrant in terms of section 46, the warrant had to be set aside.

Du Toit and others v Provincial Minister of Environmental Affairs and Development Planning: Western Cape and others [2018] 3 All SA 532 (WCC) Civil procedure – Oral evidence – Rule 6(5)(g) of the Uniform Rules of Court – Referral for cross-examination – Court has wide discretion in regard to hearing of oral evidence where an application cannot be properly decided on affidavit. Constitutional and Administrative law – Sections 21(1)(f)–(j) of the Nature Conservation Ordinance 19 of 1974 – Search and seizure provisions – Constitutionality – Entitlement to order sought dependent on whether a search had in fact taken place – Plain view doctrine – If the police are lawfully where they are permitted to be, the use of artificial light does not automatically constitute a search. During a patrol by two nature conservation officers on the night of 11 December 2014, the applicants were discovered travelling in two vehicles, one of which contained two freshly hunted kudus and the other an injured steenbok. Questioning of the applicants established that they did not possess any of the required permits to have hunted the kudus at night. The hunting of wild animals in the Western Cape, including species like kudu and steenbok, is regulated by the Nature Conservation Ordinance 19 of 1974. The applicants were taken to a police station and were thereafter summoned to appear in the local Magistrates Court. A request was made by the applicants’ Counsel to the Director of Public Prosecutions, in the Western Cape (“DPP”) for the withdrawal of all the charges against the applicants as a result of alleged constitutional difficulties with sections 21(1)(f)–(j) of the Ordinance and the fact that the applicants would be challenging the admissibility of the evidence obtained by the officials on the night in question. The request was declined which resulted in the current application being brought.

On stopping the vehicles in which the applicants had been travelling, the nature conservation officers made use of a torch light to assist illuminate the night time darkness. According to the applicants, the use of the torch light in shining it through the windows of the vehicles constituted an unreasonable search and a violation of the right to privacy. The officers had first stopped the vehicle driven by the 16-year-old third applicant (“Oehl”). The first applicant (“Du Toit”) was Oehl’s grandfather, and was in the second vehicle with the second applicant (“Mocke”). According to Du Toit, the search and inspection, which led to the discovery of the carcasses and certain lighting

equipment, took place without the permission or consent of Oehl. He contended further that that the warrantless search was conducted without their permission and as a result the two kudu carcasses, the lighting equipment, two rifles and the injured steenbok were to be used as evidence in the pending criminal trial against the applicants.

In his testimony, the nature conservation officer (“Pietersen”) who stopped Oehl’s vehicle explained that while standing close to the driver’s side of the vehicle, he observed the horns of a kudu protruding from the back of the vehicle. He then observed two kudu carcasses lying on the back of the vehicle in open and plain view. Two spotlights and a battery were also clearly visible in the back of the vehicle, and according to Pietersen there was no need to search the vehicle as the carcasses, spotlights and car batteries were in open public view. He stated that none of the vehicle’s doors were opened at any stage, and there was no need to request permission to search the vehicle as the kudus, spotlights and battery were on the back of the vehicle. In the meantime, the officer (“Jullies”) accompanying Pietersen by using a torch to illuminate the darkness, observed two hunting rifles lying in plain view in the area behind the seats of the second vehicle (driven by Du Toit). Pietersen observed a steenbok lying in plain sight on the load bed of that vehicle. He stated that there was no need to conduct a search of the vehicle as the steenbok and rifles were in plain sight.

The programme manager of the Biodiversity Crime Unit of the third respondent (the “Western Cape Nature Conservation Board”) maintained that a search warrant was not required in this case as the items found and seized were openly displayed.

An application was made by the applicants in terms of rule 6(5)(g) of the Uniform Rules of Court, for Pietersen to be subjected to cross-examination in order to test the veracity of his version of events. Held – In terms of rule 6(5)(g), a court has a wide discretion in regard to the hearing of oral evidence where an application cannot be properly decided on affidavit. Where it is apparent that good reason exists and that an injustice will otherwise occur, a court will be more lenient to exercise its discretion and allow a deponent to an affidavit to be cross-examined. In the present instance, no good reason existed to test the veracity of Pietersen’s version by cross-examination. In fact, the bulk of his version was uncontroversial and common cause. This was not a matter where the application could not properly be decided on affidavit. The application in terms of section 6(5)(g) was thus refused.

In terms of section 38 of the Constitution, two requirements exist for the enforcement of constitutional rights. Firstly, there must be an allegation that a right in the Bill of Rights has been infringed or is threatened and secondly, persons such as the applicants, who approach the court in their own interest, must have a sufficient interest in the remedy they seek. The applicants were seeking to challenge the search and seizure provisions in sections 21(1)(f)–(j) of the Ordinance. A declaration of constitutional invalidity of sections 21(1)(f)–(j) would only assist the applicants if the impugned sections in the Ordinance formed the only statutory authority upon which the nature conservation officials had acted to seize the items found. The Court held that the constitutional challenge could not be entertained. Pietersen and Jullies were entitled in terms of section 21(1)(a) and (e) of the Ordinance, the constitutional validity of which was not attacked, to be on the public road. They were further entitled to stop

the applicants and to have asked them to produce the documents necessary for the lawful possession of any items relating to fauna (wild animals) and or flora (endangered plants) under their control that were in open display or in plain view. The plain view doctrine is accepted as being, in appropriate circumstances, an exception to the requirement of a warrant. Looking at the application of the doctrine in Canadian and American jurisprudence, the Court noted that the approach adopted is that if the police are lawfully where they are permitted to be, the use of artificial light does not automatically constitute a search. If a flashlight is used to see what would be visible in daylight hours, such as objects in the back of a pick-up vehicle or the interior of a motor vehicle, the items do not cease to be in plain view when the sun goes down. The Court concluded that there was no search and therefore no violation of the applicants’ rights in terms of section 14 of the Constitution.

The application was dismissed. Freedom Property Fund Limited and another v Stavridis and others [2018] 3 All SA 550 (ECG) Civil procedure – Misjoinder –Where a third party has an interest in the subject matter of the action which is less than direct or substantial, or the extent of the party’s interest is unclear, the party may be joined as a matter of convenience – A joinder of convenience does not give rise to a misjoinder. Civil procedure – Particulars of claim – Exception to – Averment that allegation in particulars of claim was vague and embarrassing – Approach to an exception that a pleading is vague and embarrassing is that it ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged – Onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to serious prejudice. Corporate and Commercial – Director of company – Disqualification – Unrehabilitated insolvent disqualified from being a director of a company or a trustee of a trust – Section 69(8)(b)(i) of the Companies Act 71 of 2008 – Disqualification does not automatically result in the invalidity of the appointment of an insolvent director, or in a person ceasing to be a director upon sequestration. Although twelve defendants were involved in the litigation in this matter, only seven of them were relevant to the present exception hearing. Those were the first, third to sixth and eighth to fourteenth defendants, and reference to the “the defendants” in the judgment was a reference to them.

The first plaintiff (“Freedom”) was a listed company, referred to as a “closed listing” as the property owners (vendors) who transferred immovable property to Freedom would initially be shareholders of the company. The immovable property would ordinarily not be transferred directly to Freedom but to a special purpose vehicle which would be a subsidiary of Freedom. Thereafter, shares in Freedom would be issued to the special purpose vehicle. In turn, the special purpose vehicle would transfer Freedom shares to the vendor a payment in respect of the immovable property.

The second plaintiff (“Platsak”) owned immovable property which it sold to the twelfth defendant (“Sunrise High”) allegedly on the false misrepresentation that Sunrise High was a special purpose vehicle of Freedom.

The first and third defendants (Stavridis and Pretorius respectively) were alleged to have been some of the promoters of Freedom prior to and at the date of listing. Both were alleged to have been part of Freedom’s executive management team. The fourth defendant (“Cawood”) was alleged to have been a business associate of Stavridis. The fifth and sixth defendants were trusts in which Stavridis was alleged to have a beneficial interest. The eighth (“Leucadia”), ninth (“Bond Connect”), eleventh (“Halcyware”), twelfth (Sunrise High) and thirteenth (“All Wide”) defendants were companies alleged to have been recipients of corporate opportunities diverted from Freedom. In its action, Freedom claimed from them delivery of the alleged corporate opportunities – alternatively damages.

In July 2016, the plaintiffs issued a summons together with particulars of claim. The particulars of claim comprised seven claims, six by Freedom and one by Platsak. Freedom’s claims were grouped into Claim A described as “the Allendale Property Transaction” and Claim B related to the alleged diversion from it of five corporate opportunities. The cause of action in each of Freedom’s six claims was an alleged breach of fiduciary duties as recognised in terms of the common law and partially regulated in terms of Companies Act 71 of 2008. Platsak claimed delictual damages arising from alleged misrepresentation inducing a contract.

The defendants raised eighteen exceptions to the particulars of claim. The first sixteen exceptions related to the claims by Freedom, and the seventeenth related to the claim by Platsak. The exceptions were all taken on the basis that the particulars of claim did not disclose a cause of action alternatively that they were vague and embarrassing. Held – Each of the exceptions would be considered individually.

The first exception was predicated on the contention that there had been misjoinder of Cawood, the two trusts and the tenth defendant (“Bilko”) as the particulars of claim did not disclose a cause of action against them. However, the Court agreed with the plaintiffs that where a third party has an interest in the subject matter of the action which is less than direct or substantial, or the extent of the party’s interest is unclear, the party may be joined as a matter of convenience. A joinder of convenience does not give rise to a misjoinder. The exception was not sustained.

The second exception related to the allegation that Stavridis was an unrehabilitated insolvent, and that despite his sequestration, he was reflected in the records of the Master as being a trustee of the two trusts. The exception was based on the averment that the allegation was vague and embarrassing as it was not asserted that Stavridis was a trustee but simply that he was recorded as being one. The approach to an exception that a pleading is vague and embarrassing is that it ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to serious prejudice. Facts stated in public documents are prima facie proved upon mere production of the public document. The other point to the exception was that Stavridis was alleged in the particulars to be a director of companies, it being contended that as a matter of law, an unrehabilitated insolvent can neither be a director of a company nor a trustee of a trust. The Court pointed to section 69(8)(b)(i) of the Companies Act 71 of 2008, and stated that disqualification does not automatically result in the invalidity of the

appointment of an insolvent director, or in a person ceasing to be a director upon sequestration.

In the third exception, defendants asserted that the allegation in the particulars of claim that Stavridis had a beneficial interest in the two trusts was vague and embarrassing. It was submitted there was no allegation in the particulars that Stavridis was a beneficiary of the trusts despite the assertion that he had a beneficial interest in each trust. The Court agreed that the plaintiffs needed to aver that Stavridis was a beneficiary of the trusts to enable them to allege a beneficial interest. The exception was therefore upheld.

The remaining exceptions were all dismissed, based as they were on incorrect meanings attributed to the particulars of claim, or on incorrect averments regarding the plaintiffs’ claims.

Insofar as the third exception was sustained, the plaintiffs were given leave to amend their particulars of claim. Proxi Smart Services (Pty) Ltd v Law Society of South Africa and others [2018] 3 All SA 567 (GP) Civil procedure – Competence of relief sought – Court orders must be framed in unambiguous terms and must be practical and enforceable. Civil procedure – Declaratory relief – Requirements – An applicant for declaratory relief must have a legally recognised interest in an existing, future or contingent right or obligation. Legal Practice – Conveyancing – Performance by entity other than conveyancer, of administrative and related services pertaining to property transfers – Contravention of Deeds Registries Act 47 of 1937 – Section 83(8)(a)(i) of the Attorneys Act 53 of 1979 intending that a conveyancer or his subordinates will obtain the information required to be contained in the reserved documents, check and verify the information contained therein and do everything involved in causing them to be drawn up or prepared as contemplated in the section. The applicant (“Proxi Smart”) was a newly established company seeking declaratory relief in respect of the lawfulness of its business model for performing administrative and related services pertaining to property transfers. Specifically, an order was sought declaring that the performance of the steps involved in the property transfer process in accordance with the model described in the founding affidavit did not contravene the relevant provisions of the Attorneys Act 53 of 1979, Legal Practice Act 28 of 2014 and Deeds Registries Act 47 of 1937.

In opposing the application, the respondents contended that all work, of whatever nature associated with immovable property transfers formed part of conveyancing practice, which was, and should continue to be, performed exclusively by conveyancers. Held – Section 20 of the Deeds Registries Act provides that deeds of transfer shall be prepared in the forms prescribed by law or by regulation, and, must be executed in the presence of the Registrar by the owner of the property, or by a conveyancer authorised by power of attorney to act on behalf of the owner, and shall be attested by the

Registrar. In terms of section 15 of the Deeds Registries Act no deed of transfer, mortgage bond or certificate of title or any certificate of registration shall be attested, executed or registered by a registrar unless it has been prepared by a conveyancer. Section 83(8)(a)(i) of the Attorneys Act prescribes documents that must be prepared by an attorney. Only practising practitioners may prepare and draw up reserved documents. Proxi Smart stated that it would not draw up or prepare any document envisaged in section 83(8)(a)(i), and its proposed model was based on supporting documents that might be required to be lodged in a typical transfer of immovable property. The Court pointed out that every property transaction is unique and is not typical. Supporting documents that are required to be lodged with a deed of transfer requires the exercise of professional discretion and legal knowledge. In terms of the Proxi Smart’s proposed business model, it would have staff to prepare for all prescribed documents to be populated with relevant data collated and captured by them. Proxi Smart would then use its panel of conveyancers to insert such data into the relevant documents with a simple push of a button. The fact that the largest part of the conveyancing process that started with the signing of a deed of sale would be done by Proxi Smart’s staff fell foul of the Legislature’s intention in prohibiting persons other than employees of the practitioner from preparing or causing to be drawn or prepared any documents on behalf of a practitioner. On a proper construction of section 83(8)(a)(i), the Legislature intended that a conveyancer or his subordinates will obtain the information required to be contained in the reserved documents, check and verify the information contained therein and do everything involved in causing them to be drawn up or prepared as contemplated in the section. Therefore, Proxi Smart’s model would contravene section 83(8)(a)(i) of the Attorneys Act.

Two technical points were then addressed by the Court – both of which were fatal to the application.

The first related to the competence of the relief sought. Court orders must be framed in unambiguous terms and must be practical and enforceable. The declaration sought by Proxi Smart was vague, unenforceable and would not bring finality to what conduct the court would be sanctioning. The terms and the purpose of the order sought were not clear. On that ground alone, the application fell to be dismissed.

The second technical issue related to whether the declaratory relief was permissible in this case. Section 21(1)(c) of the Superior Courts Act 10 of 2013 provides that the High Court may grant a declaratory order in its discretion, and at the instance of any interested person, to inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon the determination. An applicant for declaratory relief must have a legally recognised interest in an existing, future or contingent right or obligation. As Proxi Smart was not subject to the disciplinary powers of any of the law societies cited amongst the respondents, implementation of its model would not create a dispute between Proxi Smart and the respondents that would be resolved by the declaratory order.

The application was consequently dismissed with costs.

Ritz Plaza (Pty) Limited v Ritz Hotel Management Company (Pty) Ltd [2018] 3 All SA 583 (WCC) Civil procedure – Defence of lis pendens – Requirements – Court’s discretion – Court must decide whether it is dealing with a situation in which the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause, and if that is found to be the case, then the court exercises a discretion as to whether to stay the proceedings before it or not. Corporate and Commercial – Contract – Breach of – Extension to breach of contract of the principle that a wrongdoer may not be allowed to profit from his own wrong – Principle not having wide application. Property – Lease agreement – Breach of – Failure to pay rental due – Application for ejectment – A tenant’s primary obligation under an agreement of lease is the timeous payment of rental in the agreed commodity to the landlord – Failure to meet such obligation constitutes a fundamental breach and after it has been given contractual notice to remedy its default, the landlord is entitled, without more, to cancel the agreement and seek the ejectment of the tenant. The applicant (“The Ritz”) was a company which owned the Ritz Hotel in Cape Town. In October 2016, it concluded a lease agreement with the respondent (“the management company”) in terms whereof the hotel and the property on which it was located was leased to the management company for a period of 20 years. By the end of that year, the management company began defaulting on its monthly rental and other obligations towards The Ritz and since March 2017, it had not paid a cent to the applicant. The latter consequently elected to cancel the lease. Despite that, the management company refused to vacate the hotel, necessitating the bringing of an application for its ejectment by The Ritz. In an attempt to justify its conduct, the management company averred that The Ritz’s cancellation of the lease was invalid in that the rental which would otherwise have been due and payable to it by the management company was in fact not due and payable because The Ritz was the cause of the management company’s failure to pay. In that regard, it alleged that when it stepped into the shoes of the previous tenant, the change of tenancy was facilitated by a so-called term-sheet intended to regulate the parties’ contractual relationship for an indefinite period. A loan which the management company had obtained from a bank was insufficient to cover its refurbishment of the hotel. It alleged that it was a tacit term of the term-sheet, that The Ritz would obtain an additional loan facility of R30m for the management company and make it available by a certain date. It was alleged that The Ritz breached the term sheet by failing to make the R30m bank loan available to the management company timeously, and that such breach was causally connected to the latter’s failure to pay the rental due. It was also submitted that the application for ejectment ought to be stayed on the basis of lis pendens as there were other proceedings pending between the parties in this Court based on the same facts that the underpinned the ejectment application. A final defence was that the current proceedings for ejectment constituted an abuse of process and that the application should be refused on that basis too. Held – A tenant’s primary obligation under an agreement of lease is the timeous payment of rental in the agreed commodity to the landlord. Failure to meet that obligation constitutes a fundamental breach and after it has been given contractual

notice to remedy its default, the landlord is entitled, without more, to cancel the agreement and seek the ejectment of the tenant.

The management company’s contention that the failure to pay the rental claimed was not payable due to The Ritz’s own conduct, was based on the case of Academy of Learning (Pty) Ltd v Hancock and others [2000] JOL 6142 (2001 (1) SA 941) (C). The court therein discussed the defence raised in that case, regarding the extension to breach of contract of the principle that a wrongdoer may not be allowed to profit from his own wrong. The court rejected the wide application of the principle and advanced three discrete categories in which the approach might find application. Those are where the wrongful conduct of the creditor made performance by the debtor impossible; where the creditor’s wrongful conduct can be ascribed to a deliberate intention on his part to prevent performance by the debtor; and where the creditor’s conduct complained of by the debtor in itself constituted a breach of an express or implied term of the agreement. The latter category (hereinafter referred to as “category (c)”) was relied on by the management company in the present case. The court pointed to the provision in the term-sheet, which precluded the incorporation into the agreement of any tacit term. The management company’s reliance on the Academy of Learning case therefore fell at the first hurdle. In any event, category (c) referred to in Academy of Learning required that the wrongful conduct complained of on the part of The Ritz had to be in breach of an express or implied (or tacit) term of the lease agreement itself. It did not help the management company to complain of a breach of the term-sheet, which was a separate agreement. Finding that no tacit term had been proved, the Court held that the management company was in default of its obligations to pay the rental due in terms of the lease and The Ritz was entitled to cancel on the basis that it alleged.

The special defences of lis pendens and abuse of process were dealt with jointly. In respect of a defence of lis pendens, the court must decide whether it is dealing with a situation in which the same plaintiff has instituted action against the same defendant for the same thing arising out of the same cause, and if that is found to be the case, then the court exercises a discretion as to whether to stay the proceedings before it or not. The discretion is a wide one, considering questions of convenience and fairness. Having regard to the nature of the two applications involved, the Court found that the cause of action in each was different. The plea of lis pendens was thus dismissed. That plea was linked to the averment of abuse of process, and the Court found that the latter plea also fell to be dismissed.

It was ordered that the management company vacate the premises, failing which the Sheriff of the court was authorised to eject it.

Midvaal Local Municipality v The Meyerton Golf Club [2018] JOL 40259 (GJ)

Spoliation – Fixtures – Dispossession – person must be restored to possession- bylaws cannot deprive – must have due process

The respondent was in breach of the appellant’s by-laws by displaying several advertising signs on land which was leased to the respondent and used as a golf course. The respondent failed to heed the notice given by the appellant to remove the signs within seven calendar days and without further notice and without obtaining a

court order, the appellant removed the signs. The respondent approached the Magistrate Court and obtained an order to be placed in possession of its advertising signs as they were prior to their removal.

Held; On review, (1) the nature of a mandament van spoile is such that a possessor, even if he be a fraud, robber or thief, is entitled to possession prior to issues arising from such possession being determined by the court. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport or objects of the Bill of Rights. (3) No one may be deprived of property except in terms of the law, of general application, and no law may permit arbitrary deprivation of property. (4) There is nothing in the by-law which empowers the appellant to avoid the law against self-help. The reference in the bye-law to a notice is irrelevant to the question of self-help. The appellant acted unlawfully by removing the advertisements without having resorted to legal process.

Trollip v Taxing Mistress of the High Court and another (Eastern Cape Society of Advocates and another as amici curiae) [2018] JOL 40139 (ECG)

Taxation – Disallowing of senior counsel’s fee – Review of taxation

The defamation action between the applicant and the defendant was set down for trial on 13 February 2017. One court day before, the defendant filed an application for a postponement. On the day of trial, the matter was postponed by agreement, and the defendant tendered the costs of his application for the postponement and the plaintiff’s wasted costs. An order was granted at approximately 10h45. Senior counsel briefed by the plaintiff subsequently charged a full first day trial fee. The respondent (as Taxing Mistress) decided to tax off half of that fee.

In terms of rule 48 of the Uniform Rules of Court, the applicant sought the review of that taxation. As the matter raised issues of importance about the taxation of counsel’s fees, it was referred for hearing by a full court.

Held that the taxation of costs is an integral part of the judicial process and the rights and obligations of parties to litigation are not finally determined until the costs ordered by the court have been taxed. The discretion vested in the taxing master is to allow all costs, charges and expenses as appear to him to have been necessary or proper, not those which may objectively attain such qualities. His opinion must relate to all costs reasonably incurred by the litigant, which imports a value judgment as to what is reasonable. The taxing master has a discretion to allow, reduce or reject items in a bill of costs. This discretion must be exercised judicially in the sense that he or she must act reasonably, justly and on the basis of sound principles with due regard to all the circumstances of the case. Where the discretion is not so exercised, the decision will be subject to review. Even where the discretion has been exercised properly, a court on review will be entitled to interfere where the decision is based on a misinterpretation of the law or on a misconception as to the facts and circumstances, or as to the practice of the court. While the taxing Master’s discretion is wide, it is not unfettered. In exercising it, the taxing master must properly consider and assess all the relevant facts and circumstances relating to the particular item concerned. The discretion is not properly exercised if such facts or circumstances are ignored or misconstrued. While a taxing master may not ignore evidence that may show that work that has been

charged for has, in fact, not been done, that does not mean that there is a duty upon practitioners to prove their claims.

The reasonableness of the fees charged is always the fundamental consideration. The court referred to the distinction between a trial fee which an advocate may charge when a trial is settled or postponed on or shortly before the trial date, and that which an attorney may charge. The settlement or postponement of a trial prejudices counsel if he is not properly compensated for having reserved that day for trial.

At the heart of the respondent’s reasoning lay a finding that senior counsel did other work on the day in question. There was no evidence to suggest that. The respondent’s decision was found to be wrong, and the review application succeeded.

Komani School and Office Suppliers CC t/a Komani Stationers v Member of the Executive Council Department of Education Eastern Cape and others [2018] JOL 40263 (ECG)

Prescription – When debt becomes due by a school- Schools Act -Member of the Executive Council is the defendant- period of prescription was governed by the Prescription Act

The applicant obtained judgment by default against the second and third defendants for stationery sold and delivered to a school represented by them. A warrant of execution was issued and executed against the assets of the second respondent (the school governing body). After goods were attached by the sheriff, the director of the relevant district in the department of education initiated inter-pleader proceedings wherein he contended that an attachment was expressly prohibited by the provisions of section 58(A)(4) of the South African Schools Act 84 of 1996. The attached goods were released, and the applicant subsequently launched the present application. it averred that the first respondent (“the MEC”) was liable for payment of the judgment debt as it was a loss that was incurred as a result of an act in connection with an educational activity as provided in section 60(1) of the Schools Act. the MEC submitted that section 60(1) was not applicable as the judgment was not against the school but only against the school governing body and the principal (the second and third respondents).

Held that the issues for determination were whether or not the MEC was liable for the loss when the judgment was obtained against the second and third respondents, and whether or not the claim against the MEC had prescribed as alleged by him.

Section 58(A)(4) of the Schools Act expressly prohibits the attachment of the assets of a public school as a result of legal action taken against a public school. In terms of section 60(3) of the Schools Act any claim for damage or loss contemplated in sub-section 1 must be instituted against the Member of the Executive Council concerned. However, the court disagreed. It accepted the applicant’s contention that the loss as envisaged in section 61 of the Schools Act arises on failure of the school to render specific performance and the inability of the applicant to execute on the magistrates court’s judgment due to the prohibition contained in s58(A)(4). The MEC’s obligation imposed by section 60 is a guarantee obligation as he stands in for the liability of the school.

The period of prescription was governed by the Prescription Act 68 of 1969. Section 11 of the Prescription Act provides that the period of prescription in respect of a judgment debt is thirty years and in respect of any other debt it is three years. Section 12(1) states that prescription commences to run as soon as the debt is due, and section 12(3) provides that 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. In the circumstances of this matter, prescription only began to run on the date on which the district director deposed to an affidavit initiating the interpleader summons. It was on that date that it became clear the school was not in a position to satisfy its contractual obligations to the applicant. The applicant’s claim had therefore not prescribed.

The MEC was ordered to pay the amount due to the applicant.

Iemas Financial Services (Co-operative) Ltd v Ntokane (48941/15) [2018] ZAGPPHC 622 (10 August 2018)

Jurisdiction- “Of all the jurisdictional options that the plaintiff was convinced it had, it chose to issue summons from the court that would be the most difficult for the defendant to have access to. I, therefore, decline to allow the plaintiff to supplement” The relevant facts of this matter as they emanate from the particulars of claim and the credit agreement attached thereto, are as follows: plaintiff is lemas Financial Services (Co-Operative) Limited [hereafter referred to as lemas ], a duly registered credit provider, with its registered address situated as lemas Park, Corner of Embankment Road and Kwikkie Street, Centurion, Gauteng. It appears however from the case law referred to below, that the plaintiff conducts business throughout the Republic. In this particular matter, the physical address of the plaintiff is stated in the credit agreement as Two-on-Whyte, Whyte Street, Newcastle, 2940 and the postal address as PO Box 7335, Newcastle, 2940. No reference is made in the credit agreement to the plaintiffs registered address or its principal place of business. The defendant is Tole Godfrey Ntokane, a major adult male, 'residing at [….], Eastern Cape.' On 2 June 2014, and at or near Pietermaritzburg the plaintiff, duly represented by an authorised representative. and the defendant entered into a written loan agreement.

In terms of this agreement the plaintiff advanced credit in the amount of R15 750.52 to the defendant. Interest for the period of the agreement is calculated at a variable interest rate of 29.50%per annum and amounts to RB 725.63. Monthly service charges amounted to R 51.30 per month and the credit life insurance premiums amounted to R151.20 per month. [3.5] The defendant breached the agreement in that he failed to pay the instalments in terms of the agreement, and the plaintiff terminated the agreement. No account details are provided in the credit agreement pertaining to the bank account where the plaintiff would receive payment. The credit agreement as it is before the court does not enable the defendant to take positive steps to pay money into any bank

account but obliges him to ensure that there are funds available from which the plaintiff could make the necessary withdrawals.

[4] Plaintiff contends in its particulars of claim in paragraph [13] 'The Honourable Court is vested with jurisdiction to entertain this action by virtue of the fact that performance by the Defendant had to take place at the address of the Plaintiff which is situated within the Honourable Court's area of jurisdiction'.

[5] The only address relating to the plaintiff that is identified in the credit agreement is the plaintiffs business address in Newcastle referred to in paragraph 3.1 above. Since there is no doubt that Newcastle is not situated within this court's area of jurisdiction, the only inference that can be drawn from paragraph [13] of the particulars of claim is that the phrase 'the address of the Plaintiff refers to the plaintiffs registered address in Centurion, Pretoria, as identified in paragraph 1 of the particulars of claim.

[6] It is indeed evident from the written heads of argument filed on behalf of the plaintiff that it is the plaintiffs case that this court has jurisdiction 'by virtue of the fact that performance by the defendant had to take place at the address of the plaintiff which is situated at Centurion and within the Honourable Court's area of jurisdiction'.

[8] The matter before this court is distinguishable from the above in the sense that Kubushi J states in paragraph [9] of her judgment 'Payment was to be effected in Centurion which falls within the area of jurisdiction of this court'. It can only be deduced that the necessary evidence was placed before Kubushi J that proved that the respective debtors were obliged to pay the amounts they were obliged to pay, into a bank account held at the Centurion branch of a specific bank.

[9] In the current matter there are no such facts before the court. The credit agreement as attached to the summons does not support a finding that payment was to be effected in Centurion. No mention is made in the credit agreement of the plaintiff's bank account

[10] This is also the aspect on which the matter before the court can be distinguished from Bush and Others v BJ Kruger Incorporated and Another (2009/36699) [2013] ZAGPJHC 386 (8 February 2013), a case referred to in the plaintiffs written heads of argument. In this case, that was decided by Wepener J, there was evidence before that court that clearly indicated that payment had to occur in Johannesburg.

[11] The court cannot merely deduce that because· an institution's registered address is situated in a specific area, the bank account where the parties agree that payment must be made is necessarily in the same area, and therefore find that performance had to take place at the institution's registered address.

[12] A decision that also needs to be considered when deciding this case is lemas Financial Services (Co-op) Ltd v Ntsedwana (79599/2015) [2017] ZAGPPHC 335 (31 May 2017). In this case, the plaintiff also contended that 'because payment was made by an electronic funds transfer, and the applicant's principal place of business is within this Division, this meant that the cause of action arose in this Division and there is sufficient nexus for this court to assume jurisdiction.'

[13] In this matter before, Yacoob AJ, there was also no obligation on the respondent to take active steps to make payments into any nominated bank Similar to the matter before this court, the only bank account details provided in the agreement was that of the applicant/plaintiff. '(In this regard see also Plasket J's judgment in Jan Hamer v Bruyns (2287/2015) [2015] ZAECGHC 97 (4 September 2015)) .

[14] Yacoob AJ found that 'the breach in this case, therefore, would have occurred when the nominated bank account did not cover the attempted debit. To the extent to which it is necessary to determine where this notionally occurred it would have been, in my view, in East London.'

[15] On the facts before me, I cannot find that the plaintiff has made out a proper case that this court has the necessary jurisdiction to adjudicate the matter. The facts necessary to establish jurisdiction are absent.

[16] In the written heads of argument, counsel requests that in the event that the court is of the opinion that the necessary jurisdiction is not established, that the matter is removed from the roll and that the plaintiff is given leave to supplement its papers in relation to the aspect of jurisdiction.

[17] Although a creditor is always justified in pursuing the collection of debts owed, and although it is undoubtedly in the public interest that debtors timeously repay their debts, it is alarming that a plaintiff elects to issue summons for the meagre amount of R15 619.87 in the High Court of South Africa. From the judgments of Kubushi J and Yacoob AJ, referred to above, it is evident that the plaintiff advances credit to plaintiffs through its branch offices situated in other jurisdictions and then issue summons from the High Court of South Africa Gauteng Division. As Yacoob AJ stated, the 'credit provider had chosen to do business in the place where the purchaser was domiciled, rather than the other way around. The credit provider, which drafted the agreement that governed the relationship between the parties, made no mention of the jurisdiction in which the purchaser may be sued.' He also stated that an 'ordinary consumer cannot be expected to make enquiries about where that company's principal place of business is, or where that company is likely to sue them in the event of default, before entering into an agreement.'

[18] In the case before me, as in the cases before Kubushi J, the plaintiff entered into a small unsecured written credit agreement with the defendant. Of all the jurisdictional options that the plaintiff was convinced it had, it chose to issue summons from the court that would be the most difficult for the defendant to have access to. I, therefore, decline to allow the plaintiff to supplement.

The application for default judgment is dismissed.

Minister of Police and Another v Molatleghi (60217/2013) [2018] ZAGPPHC 633 (23 August 2018)

Rescission of judgments-mala fides in opposing-punitive cost orders

This is an application for rescission of judgments granted by default on 17 May 2017 and 11 January 2018, per Louw J and Maumela J respectively, (as well as other ancillary relief) pursuant to applications made to this Court. The application is brought in terms of Rule 42(1)(a) of the Uniform Rules of Court. Initially, the application served before my sister, Teffo J, on 1 February 2018 by way of urgency as contemplated in Rule 6(12) of the uniform Rules of Court. On that occasion, the trial set down for 6 February 2018, was postponed sine die pending the determination of this application with the question of costs reserved. The background to this application being that, the respondent on or about September 2013 issued summons against the applicants in this Court in which he sought, inter a/la, to be compensated for alleged unlawful arrest and detention as well as malicious prosecution. On 19 April 2016, the trial was postponed to secure the required police docket with CAS number 186/03/2010, regarding the matter. Subsequently, the respondent caused for a Rule 35(3) notice to be issued and served on the state attorney, the legal representatives of the applicants.

The applicants aver in the founding affidavit that this matter was previously dealt with by Mr Khosa whose reference number is "241" in. the state attorney's office. The matter was subsequently transferred to Ms Masi of the same office, whose reference number is "243". In a letter (FA 2) dated 12 April 2016 which was received and read by the respondent's attorney of record, Ms Masia advised the respondent's attorneys that she only received the notice in terms of Rule 37(2)(a), served on 19 January 2016, on that day (12 April 2016). She further advised that the applicants could not attend the pre-trial conference as they were unaware that it was taking place on 15 March 2016. Significantly, she also advised the respondent's attorneys to quote the reference:6988/2013/Z 41 (243) and direct all inquiries to her (Ms MMB Masia) in all subsequent correspondence.

The applicants aver that the office of the state attorney is one of the biggest, if not the biggest law firm in Pretoria, which employs a vast number of attorneys that deal with thousands of matters. The use of a correct reference number ensures that pleadings and correspondence addressed to the state attorney, reach the correct attorney for the necessary attention. On 27 January 2017, a similar request was made to the respondent's attorneys as per another letter ("FA 3"). It is not in dispute that this letter was received and read by the respondent's attorneys. Subsequently, on 25 April 201 the respondent served a Rule 35(3) notice (the notice to compel) with an incorrect reference number on the applicants' attorneys. The applicants aver that, Ms Masia never received the Rule 35(3) notice.

In opposing this application, the respondent's attorney of record, Mr Van Wyk, deposed to an affidavit in which he avers that the Rules of Court place no obligation on the respondent to refer to any reference number. Of importance is that the office of the state attorney has been the applicants' attorneys of record throughout these proceedings. Of further relevance is the fact that Mr Khoza is still an employee of the state attorneys' office. According to the respondent, in this case, service was at all

times proper. Due to none of the applications brought by the respondent being opposed by the applicants, despite proper service, the respondent was entitled to the judgments. Importantly, the applicants failed to provide the "stock theft case docket whereas their attorneys were aware of the pending application to strike and dismiss their defence.

In this matter however, the applicants timeously brought to the respondent's attention that the matter was being dealt with by a different attorney in their attorneys' offices which required that all processes must bear the relevant reference number. It is not an issue in this matter that the respondent failed to adhere to this request in numerous instances. Whereas the relevant Rule is silent with regard to the reference number, and one might add, proper names of the parties involved, to my mind it goes without saying that if an incorrect name or reference is made on the notice, the recipient of such notice can be highly inconvenienced with regard to timeous response and attendance to pleadings and notices. Whether service of a process is proper and effective will depend on the facts of each case. In this case however, I do not find that service of processes was proper and effective, given the fact that the reference number to the processes was incorrect, in spite of an objection by the applicant's attorneys to such improper service.

[16] In argument before me counsel for the respondent was at pains in conceding that the rescission application may be granted as an equitable decision given the circumstances, provided that the respondent is not mulcted with costs. Accordingly, I find that the judgments were erroneously granted within the meaning of Rule 42(1)(a). As both judgments were granted in the absence of the applicants under circumstances where they had demonstrated and have such a direct and substantial interest, on this basis applicants are entitled to rescission of the judgments granted against them. The applicants were forced at great inconvenience and costs to approach this Court on an urgent basis whereas they had warned the respondent upfront of the irregular conduct. To my mind the applicants have established mala tides on the part of the respondent's attorneys. It is certainly not a bona fide error. The general rule is that the unsuccessful party is mulcted in costs. There is no reason to depart from the general rule in this instance. A punitive costs order is under the circumstances also justified.

[17] I accordingly make the following order:

1. The judgment granted by default on 17 May 2017, in this case, is hereby rescinded.

2. The judgment granted by default on 11 January 2018, in this case, is hereby rescinded.

3. The respondent Is ordered to pay the costs of the application on the attorney and client scale, including the reserved costs.

Tlou v Ralebipi and others [2018] JOL 40284 (GP)

Res judicata –test for-parties not the same-anti-dissipation order

The applicant sought an urgent order that pending an appeal, the first respondent be interdicted against dissipating any of the assets forming part of the joint estate

between the applicant and first respondent. The application stemmed from a divorce action which the applicant instituted against the first respondent.

Before the divorce action was finalised, a forfeiture order was granted against the applicant. The applicant lodged an appeal, and in the meantime, the first respondent put one of the properties in the joint estate on the market. That prompted the applicant’s bringing of an application for an anti-dissipation order. The application was dismissed but leave to appeal was granted by another court, against the forfeiture order. In response to the present application, the first respondent pleaded that the substantive relief sought was identical to that sought in the application which was dismissed as referred to above. The exceptio rei judicata was therefore raised as an absolute defence.

Held that the applicant had established grounds for treating the application as urgent.

To successfully raise a defence of res judicata, three requirements must be satisfied. The judgment must be final and definitive of the issues; it must be in respect of the same parties; and it must be on the same issues or cause of action. The Court pointed out that the parties in the two applications were not the same, and that the applicant did not have locus standi in the previous application, whereas she did in the present one. It was found that the applicant had made out a case for the relief sought and that the defence of res judicata could not be successfully raised in this application.

COURTS OF LAW AMENDMENT ACT NO. 7 OF 2017 COMMENCEMENT 1 AUGUST 2018 GAZETTED 27 JULY 2018

Magistrates’ Courts Act, 1944 AMENDMENTS, so as to insert definitions; to regulate the rescission of judgments where the judgment debt has been paid; to further regulate jurisdiction by consent of parties; to regulate the factors a court must take into consideration to make a just and equitable order; to further regulate the payment of debts in instalments or otherwise; to further regulate consent to judgments and orders for the payment of judgment debts in instalments; to further regulate offers by judgment debtors after judgment; to further regulate the issuing of emoluments attachment orders; to further regulate debt collection proceedings pursuant to judgments granted by a court for a regional division; to further regulate the suspension of execution of a debt; to further regulate the abandonment of judgments; and to provide for certain offences and penalties relating to judgments, emoluments attachment orders and instalment orders; to amend the Superior Courts Act, 2013, so as to provide for the rescission of judgments by consent and the rescission of judgments where the judgment debt has been paid; and to provide for matters connected therewith.

SEE APPENDIX “A’ hereto attached

APPENDIX “A’

COURTS OF LAW AMENDMENT ACT NO. 7 OF 2017 COMMENCEMENT 1 AUGUST 2018 GAZETTED 27 JULY 2018

1. Amendment of section 1 of Act 32 of 1944, as substituted by section 1 of Act 53 of 1970 and amended by section 23 of Act 94 of 1974, section 1 of Act 105 of 1982, section 2 of Act 34 of 1986, section 1 of Act 4 of 1991, section 1 of Act 66 of 1998 and section 1 of Act 31 of 2008.—Section 1 of the Magistrates’ Courts Act, 1944, is hereby amended—

(a) by the insertion after the definition of ‘‘court’’ of the following definition:

“ ‘court day’ means any day other than a Saturday, Sunday or public holiday, and only court days shall be included in the computation of any time expressed in days prescribed by this Act or fixed by any order of court;”; and

(b) by the insertion after the definition of ‘‘Minister’’ of the following definition:

“ ‘National Credit Act’ means the National Credit Act, 2005 (Act No. 34 of 2005);”.

2. Amendment of section 36 of Act 32 of 1944, as substituted by section 1 of Act 55 of 2002.—Section 36 of the Magistrates’ Courts Act, 1944, is hereby amended—

(a) by the substitution for subsection (2) of the following subsection:

“(2) If a plaintiff in whose favour a default judgment has been granted has consented in writing that the judgment be rescinded or varied, a court may rescind or vary such judgment on application by any person affected by it.”; and

(b) by the addition of the following subsections:

“(3) (a) Where a judgment debt, the interest thereon at the rate granted in the judgment and the costs have been paid in full, whether the consent of the judgment creditor for the rescission of the judgment has been obtained or not, a court may, on application by the judgment debtor or any other person affected by the judgment rescind that judgment.

(b) The application contemplated in paragraph (a)— (i)

must be made on a form which corresponds substantially with the form prescribed in the rules;

(ii)

must be accompanied by reasonable proof that the judgment debt, the interest and the costs have been paid;

(iii) must be accompanied by proof that the application has been served on the judgment creditor, at least 10 court days prior to the hearing of the intended application;

(iv) may be set down for hearing on any day, not less than 10 court days, after service thereof; and

(v) may be heard by a magistrate in chambers.

(4) A court may make any cost order it deems fit with regard to an application contemplated in paragraph (a).”.

3. Amendment of section 45 of Act 32 of 1944.—Section 45 of the Magistrates’ Courts Act, 1944, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

“(1) Subject to the provisions of section 46, the parties may consent in writing to the jurisdiction of either the court for the district or the court for the regional division to determine any action or proceedings otherwise beyond its jurisdiction in terms of section 29 (1).”; and

(b) by the addition of the following subsection:

“(3) Any consent given in proceedings instituted in terms of section 57, 58, 65 or 65J by a defendant or a judgment debtor to the jurisdiction of a court which does not have jurisdiction over that defendant or judgment debtor in terms of section 28, is of no force and effect.”.

4. Insertion of section 55A in Act 32 of 1944.—The following section is hereby inserted in the Magistrates’ Courts Act, 1944, after section 55:

“Factors to be taken into account when considering an order which is just and equitable

55A. For purposes of Chapters VIII and IX of this Act, the factors a court must take into account when considering whether an order is just and equitable, include, but are not limited to—

(a) the size of the debt;

(b) the circumstances in which the debt arose;

(c) the availability of alternatives to recover the debt;

(d) the interests of the plaintiff or judgment creditor;

(e) the rights and needs of the elderly, children, persons with disabilities and households headed by women;

(f) social values and implications;

(g) the amount and nature of the defendant’s or judgment debtor’s income;

(h) the amounts needed by the defendant or judgment debtor for necessary expenses and those of the persons dependent on him or her and for the making of periodical payments which he or she is obliged to make in terms of an order of court, agreement or otherwise in respect of his or her other commitments; and

(i) whether the order would, in the circumstances of the case, be grossly disproportionate.

5. Substitution of section 57 of Act 32 of 1944, as substituted by section 1 of Act 63 of 1976 and amended by section 2 of Act 81 of 1997.—The following section is hereby substituted for section 57 of the Magistrates’ Courts Act, 1944:

“Admission of liability and undertaking to pay debt in instalments or otherwise

57. (1) If any person (in this section called the defendant) has received a letter of demand or has been served with a summons demanding payment of any debt, the defendant may in writing—

(a) admit liability to the plaintiff for the amount of the debt and costs claimed in the letter of demand or summons or for any other amount;

(b) offer to pay the amount of the debt and costs for which he or she admits liability, in instalments or otherwise;

(c) undertake on payment of any instalment in terms of his or her offer to pay the collection fees for which the plaintiff is liable in respect of the recovery of such instalment; and

(d) agree that, in the event of his or her failure to carry out the terms of his or her offer, the plaintiff shall, without notice to the defendant, be entitled to apply for judgment for the amount of the outstanding

balance of the debt for which he or she admits liability, with costs, and for an order of the court for payment of the judgment debt and costs in instalments or otherwise in accordance with his or her offer,

and if the plaintiff or his or her attorney accepts the said offer, he or she shall advise the defendant of such acceptance in writing by registered letter.

(1A) The offer referred to in subsection (1) (b) must— (a)

set out full particulars of the defendant’s— (i)

monthly or weekly income and expenditure supported where reasonably possible by the most recent proof in the possession of the defendant;

(ii) other court orders or agreements, if any, with other creditors for payment of a debt and costs in instalments; and

(b) indicate the amount of the offered instalment.

(2) If, after having been advised by the plaintiff or his or her attorney in writing that his or her offer has been accepted, the defendant fails to carry out the terms of his or her offer, the court may, upon the written request of the plaintiff or his or her attorney and subject to subsection (2A)—

(a) enter judgment in favour of the plaintiff for the amount or the outstanding balance of the amount of the debt for which the defendant has admitted liability, with costs; and

(b) order the defendant to pay the judgment debt and costs in specified instalments or otherwise in accordance with his or her offer, and such order shall be deemed to be an order of the court mentioned in section 65A (1).

(2A) The written request referred to in subsection (2) must be accompanied by—

(a) the summons or if no summons has been issued, a copy of the letter of demand;

(b) the defendant’s written acknowledgment of liability and offer;

(c) all the particulars and documentary evidence referred to in subsection (1A), in order for the court to be apprised of the defendant’s financial position at the time the offer was made and accepted;

(d) a copy of the plaintiff’s or his or her attorney’s written acceptance of the offer and proof of postage thereof to the defendant; and

(e)

an affidavit or affirmation by the plaintiff or a certificate by his or her attorney stating in which respects the defendant has failed to carry out the terms of his or her offer and, if the defendant has made any payments since the date of the letter of demand or summons, showing how the balance claimed is arrived at.

(2B) The court may— (a)

may request any relevant information from the plaintiff or his or her attorney in order for the court to be apprised of the defendant’s financial position at the time judgment is requested;

(b) must act in terms of the provisions of the National Credit Act and the regulations thereunder dealing with over-indebtedness, reckless credit and affordability assessment, when considering a request for judgment in terms of this section, based on a credit agreement under the National Credit Act;

(c) may, if the defendant is employed, and after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, authorise an emoluments attachment order referred to in section 65J; and

(d) may, notwithstanding the defendant’s consent to pay any scale of costs, make a costs order as it deems fit.

(3) When the judgment referred to in subsection (2) has been entered and an order made, and if the judgment debtor was not present or represented when the judgment was entered and the order made, the judgment creditor or his or her attorney must, within 10 days after it has received knowledge that judgment has been entered and an order made, advise the judgment debtor by registered letter of the terms of the judgment and order.

(4) Any judgment entered in favour of the plaintiff under subsection (2) has the effect of a judgment by default.

(5) The provisions of this section apply subject to the relevant provisions of the National Credit Act where the request for judgment is based on a credit agreement under the National Credit Act.”.

6. Substitution of section 58 of Act 32 of 1944, as substituted by section 1 of Act 63 of 1976.—The following section is hereby substituted for section 58 of the Magistrates’ Courts Act, 1944:

“Consent to judgment or to judgment and an order for payment of judgment debt in instalments

58. (1) If any person (in this section called the defendant), upon receipt of a letter of demand or service upon him or her of a summons demanding payment of debt, consents in writing to judgment in favour of the creditor (in this section called

the plaintiff) for the amount of the debt and the costs claimed in the letter of demand or summons, or for any other amount, the court may, on the written request of the plaintiff or his or her attorney and subject to subsection (1B)—

(a) enter judgment in favour of the plaintiff for the amount of the debt and the costs for which the defendant has consented to judgment; and

(b) if it appears from the defendant’s written consent to judgment that he or she has also consented to an order of court for payment in specified instalments or otherwise of the amount of the debt and costs in respect of which he or she has consented to judgment, order the defendant to pay the judgment debt and costs in specified instalments or otherwise in accordance with this consent, and such order shall be deemed to be an order of the court mentioned in section 65A (1).

(1A) If the defendant consents to an order of court for payment in specified instalments referred to in subsection (1) (b), the consent must—

(a) set out full particulars of his or her—

(i) monthly or weekly income and expenditure, supported where reasonably possible by the most recent proof in the possession of the defendant;

(ii) other court orders or agreements, if any, with other creditors for payment of a debt and costs in instalments; and

(b) indicate the amount of the offered instalment;

(1B) The written request referred to in subsection (1) must be accompanied by—

(a) the summons or if no summons has been issued, a copy of the letter of demand;

(b) the defendant’s written consent to judgment; and

(c) if the defendant consents to an order of court for payment in specified instalments referred to in subsection (1) (b)—

(i) the written consent; and

(ii) the full particulars and documentary evidence referred to in subsection (1A) in order for the court to be apprised of the defendant’s financial position at the time the defendant consented to judgment.

(1C) The court— (a)

may request any relevant information from the plaintiff or his or her attorney in order for the court to be apprised of the defendant’s financial position at the time the judgment is requested;

(b) must act in terms of the provisions of the National Credit Act and the regulations thereunder dealing with over-indebtedness, reckless credit and affordability assessment, when considering a request for judgment in terms of this section, based on a credit agreement under the National Credit Act;

(c) may, if the defendant is employed, and after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, authorise an emoluments attachment order referred to in section 65J; and

(2) The provisions of section 57 (3) and (4) apply in respect of the judgment and court order referred to in subsection (1) of this section.

(3) The provisions of this section apply, subject to the relevant provisions of the National Credit Act, where the application for judgment is based on a credit agreement under the National Credit Act.”.

7. Substitution of section 65 of Act 32 of 1944, as substituted by section 2 of Act 63 of 1976.—The following section is hereby substituted for section 65 of the Magistrates’ Courts Act, 1944:

“Offer by judgment debtor after judgment 65. (1) If at any time after a court has given judgment for the payment of a

sum of money and before the issue of a notice under section 65A (1), the judgment debtor makes a written offer to the judgment creditor to pay the judgment debt in specified instalments or otherwise and such offer is accepted by the judgment creditor or his or her attorney, the court may, subject to subsection (2), at the written request of the judgment creditor or his or her attorney, accompanied by the offer order the judgment debtor to pay the judgment debt in specified instalments or otherwise in accordance with his or her offer

(2) The offer referred to in subsection (1) must be supported, where reasonably possible, by the most recent proof in the possession of the debtor relating to his or her income and expenditure, other court orders or agreements with other creditors for payment of a debt in instalments and assets and liabilities as prescribed by the rules.

(3) The court— (a)

may request any relevant information from the judgment creditor or his or her attorney in order for the court to be apprised of the judgment debtor’s financial position at the time the written request, for an order

to pay the judgment debt in specified instalments or otherwise, is made;

(b) must act in terms of the provisions of the National Credit Act and the regulations thereunder dealing with over-indebtedness, reckless credit and affordability assessment when considering a request for an order in terms of this section, if the judgment is based on a credit agreement under the National Credit Act; and

(c) may, if the debtor is employed, and after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, authorise an emoluments attachment order referred to in section 65J.

(4) An order made under subsection (1) is deemed to be an order of the court mentioned in section 65A (1).”.

8. Amendment of section 65E of Act 32 of 1944, as inserted by section 2 of Act 63 of 1976 and amended by section 7 of Act 81 of 1997.—Section 65E of the Magistrates’ Courts Act, 1944, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) If at the hearing of the proceedings in terms of a notice under section 65A (1) the court is satisfied—

(a) that the judgment debtor has movable or immovable property which may be attached and sold in order to satisfy the judgment debt or any part thereof, the court may—

(i) authorise the issue of a warrant of execution against such movable or immovable property or such part thereof as the court may deem fit; or

(ii) authorise the issue of such a warrant together with an order in terms of section 73; or

(b) that there is a debt due to the judgment debtor which may be attached in terms of section 72 to satisfy the judgment debt and costs or part thereof, the court may authorise the attachment of that debt in terms of that section; or

(c) that the judgment debtor or, if the judgment debtor is a juristic person, the director or officer summoned as representative of the juristic person, at any time after receipt of a notice referred to in section 65A (1), has made an offer in writing to the judgment creditor or his or her attorney to pay the judgment debt and costs in specified instalments or otherwise or, if such an offer has not been made, that the judgment debtor is able to pay the judgment debt and costs in

reasonable instalments, the court may order the judgment debtor to pay the judgment debt and costs in specified instalments and, where the judgment debtor is a natural person and is employed and after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, in addition authorise the issue of an emoluments attachment order by virtue of section 65J (1) for the payment of the judgment debt and costs by the employer of the judgment debtor,

and postpone any further hearings of the proceedings.”.

9. Substitution of section 65J of Act 32 of 1944, as inserted by section 2 of Act 63 of 1976 and amended by section 2 of Act 53 of 1983 and section 11 of Act 81 of 1997.—The following section is hereby substituted for section 65J of the Magistrates’ Courts Act, 1944:

“Emoluments attachment orders 65J. (1) (a) Subject to the provisions of subsection (2), a judgment creditor

may cause an order (hereinafter referred to as an emoluments attachment order) to be issued from the court of the district in which the judgment debtor resides, carries on business or is employed.

(b) An emoluments attachment order— (i)

must attach the emoluments at present or in future owing or accruing to the judgment debtor by or from his or her employer (in this section called the garnishee), to the amount necessary to cover the judgment and the costs of the attachment, whether that judgment was obtained in the court concerned or in any other court; and

(ii) must oblige the garnishee to pay from time to time to the judgment creditor or his or her attorney specific amounts out of the emoluments of the judgment debtor in accordance with the order of court laying down the specific instalments payable by the judgment debtor, until the relevant judgment debt and costs have been paid in full.

(1A) (a) The amount of the instalment payable or the total amount of instalments payable where there is more than one emoluments attachment order payable by the judgment debtor, may not exceed 25 per cent of the judgment debtor’s basic salary.

(b) For purposes of this section, ‘‘basic salary’’ means the annual gross salary a judgment debtor is employed on divided by 12 and excludes additional remuneration for overtime or other allowances.

(c) (i) When a court considers— (aa)

the authorisation of an emoluments attachment order; or (bb)

any other order contemplated in this section,

and after having considered all submissions before the court and after having called for and considered all further available documents, the court is satisfied that other emoluments attachment orders exist against the judgment debtor, the court must postpone the further consideration of the authorisation or other order and set the matter down for hearing.

(ii) The party applying for the authorisation of an emoluments attachment order or other order contemplated in this section, must serve notice of the date of the hearing referred to in subparagraph (i) on the other creditors or their attorneys, and on the judgment debtor, if he or she was not present or represented when the consideration of the authorisation of an emoluments attachment order or other order was postponed.

(iii) The court may after hearing all parties at the ensuing hearing, make an order regarding the division of the amount available to be committed to each of the emoluments attachment orders, after satisfying itself that each order is just and equitable and the sum of the total amount of the emoluments attachment orders is appropriate and does not exceed 25 per cent of the judgment debtor’s basic salary.

(2) An emoluments attachment order may only be issued if the court has so authorised, after satisfying itself that it is just and equitable that an emoluments attachment order be issued and that the amount is appropriate, whether on application to the court or otherwise, and such authorisation has not been suspended.

(2A) A judgment creditor or his or her attorney must serve, on the judgment debtor and on his or her employer, a notice, which corresponds substantially with the form prescribed in the rules, of the intention to have an emoluments attachment order issued against the judgment debtor in accordance with the authorisation of the court referred to in subsection (2).

(2B) The notice referred to in subsection (2A) must inform the judgment debtor and his or her employer—

(a) of the judgment creditor’s intention to have an emoluments attachment order issued against the judgment debtor in accordance with the authorisation of the court referred to in subsection (2);

(b) of the full amount of the capital debt, interest and costs outstanding, substantiated by a statement of account; and

(c) that, unless the judgment debtor or his or her employer files a notice of intention to oppose the issuing of the emoluments attachment order within 10 days after service of the notice on them, an emoluments attachment order will be sought.

(2C) (a) The notice of intention to oppose contemplated in subsection (2B) (c) must state the grounds upon which the judgment debtor or employer wishes to oppose the issuing of the emoluments attachment order.

(b) The grounds which may be used to oppose the issuing of the emoluments attachment order include, but are not limited to, the following:

(i)

That the amounts claimed are erroneous or not in accordance with the law; or

(ii) that 25 per cent of the judgment debtor’s basic salary is already committed to other emoluments attachment orders and that the debtor will not have sufficient means left for his or her own maintenance or that of his or her dependants.

(c) The notice of intention to oppose must be accompanied by— (i)

a certificate by the employer of the judgment debtor setting out particulars of—

(aa) all existing court orders against the judgment debtor or agreements with other creditors for payment of a debt and costs in instalments; and

(bb) when reasonably attainable, the amounts needed by the debtor for necessary expenses and those of the persons dependent on him or her and for the making of periodical payments which he or she is obliged to make in terms of an agreement or otherwise in respect of his or her other commitments.

(ii) the contact details of all the relevant judgment creditors or their attorneys; and

(iii) the latest salary advice of the judgment debtor.

(2D) If a notice of intention to oppose is filed and the judgment creditor or his or her attorney does not accept the reasons for the opposition, he or she or his or her attorney may set the matter down for hearing in court with notice to the judgment debtor and employer and if the opposition is based on overcommitment of the judgment debtor’s salary to existing court orders or agreements with other creditors for payment of a debt and costs in instalments, notice must be given to the other judgment creditors or their attorneys.

(2E) The court may, after hearing all parties and after satisfying itself that the order is just and equitable—

(a) rescind the emoluments attachment order or amend it in such a way that it will affect only the balance of the emoluments of the judgment debtor over and above the sufficient means necessary for his or her maintenance and that of his or her dependants; or

(b) make any order, including an order regarding the division of the amount available to be committed to all the emoluments attachment orders, after satisfying itself that the amount is appropriate and does not exceed 25 per cent of the judgment debtor’s basic salary and an order as to costs.

(3) (a) Any emoluments attachment order must be prepared and signed by the judgment creditor or his or her attorney.

(b) The clerk of the court must ensure that the court— (i)

has authorised the emoluments attachment order; and (ii)

has jurisdiction as provided for in subsection (1) (a), before issuing an emoluments attachment order authorised in terms of subsection (2) by signing it and may either ask the judgment creditor or his or her attorney for more information or refer the order to the court in the case of any uncertainty.

(c) The emoluments attachment order must be served on the employer of the judgment debtor, (hereinafter called the garnishee) and if the judgment debtor was not present or represented when the emoluments attachment order was authorised, also on the judgment debtor, by the sheriff in the manner prescribed by the rules for the service of process.

(4) (a) Deductions in terms of an emoluments attachment order shall be made, if the emoluments of the judgment debtor are paid monthly, at the end of the month following the month in which it is served on the garnishee, or, if the emoluments of the judgment debtor are paid weekly, at the end of the second week of the month following the month in which it is so served on the garnishee, and all payments thereunder to the judgment creditor or his or her attorney shall be made monthly with effect from the end of the month following the month in which the said order is served on the garnishee.

(b) The judgment creditor or his or her attorney must furnish the garnishee and the judgment debtor, free of charge with a quarterly statement containing particulars of the payments received up to the date concerned and the balance owing.

(5) An emoluments attachment order may be executed against the garnishee as if it were a court judgment, subject to the right of the judgment debtor, the garnishee or any other interested party to dispute the existence or validity of the order or the correctness of the balance claimed.

(6) (a) If, after the service of such an emoluments attachment order on the garnishee, the garnishee believes or becomes aware or it is otherwise shown that the—

(i) judgment debtor, after satisfaction of the emoluments attachment order, will not have sufficient means for his or her own maintenance or that of his or her dependants; or

(ii) amounts claimed are erroneous or not in accordance with the law,

the garnishee, judgment debtor or any other interested party must without delay and in writing notify the judgment creditor or his or her attorney accordingly.

(b) The written notification referred to in paragraph (a) must set out the reasons for believing or knowing that the judgment debtor will not have sufficient means for his or her own maintenance or that of his or her dependants or that the amounts claimed are erroneous or not in accordance with the law.

(c) The judgment creditor or his or her attorney must, after receiving the notice contemplated in paragraph (a), without delay indicate whether he or she accepts the reasons given in that notification and if not, set the matter down for hearing in court with notice to the garnishee, judgment debtor or any other interested party referred to in paragraph (a).

(d) The court may, after hearing all parties and after satisfying itself that the order is just and equitable—

(i) rescind the emoluments attachment order or amend it in such a way that it will affect only the balance of the emoluments of the judgment debtor over and above the sufficient means necessary for his or her maintenance and that of his or her dependants; or

(ii) make any order including an order regarding the division of the amount available to be committed to all the emoluments attachment orders, after satisfying itself that the amount is appropriate and does not exceed 25 per cent of the judgment debtor’s basic salary and an order as to costs.

(7) Any emoluments attachment order may at any time on good cause shown be suspended, amended or rescinded by the court, and when suspending any such order the court may impose such conditions as it may deem just and reasonable.

(8) (a) Whenever any judgment debtor to whom an emoluments attachment order relates leaves the service of a garnishee before the judgment debt has been paid in full, such judgment debtor must forthwith advise the judgment creditor or his or her attorney in writing of the name and address of his or her new employer, and the judgment creditor or his or her attorney may cause a certified copy of such emoluments attachment order to be served on the said new employer, together with an affidavit or affirmation by him or her or a certificate by his or her attorney specifying the payments received by him or her since such order was issued, the costs, if any, incurred since the date on which that order was issued and the balance outstanding.

(b) An employer on whom a certified copy referred to in paragraph (a) has been so served, is thereupon bound thereby and is deemed to have been substituted for the original garnishee, subject to the right of the judgment debtor, the garnishee or any other interested party to dispute the existence or validity of the order and the correctness of the balance claimed.

(9) Whenever any judgment debtor to whom an emoluments attachment order relates, leaves the service of the garnishee before the judgment debt has been paid in full and becomes self-employed or is employed by someone else, he or she is, or is pending the service of the emoluments attachment order on his or her new employer, again obliged to comply with the relevant order referred to in subsection (1) (b).

(10) (a) Any garnishee may, in respect of the services rendered by him or her in terms of an emoluments attachment order, recover from the judgment creditor a commission of up to 5 per cent of all amounts deducted by him or her from the judgment debtor’s emoluments by deducting such commission from the amount payable to the judgment creditor.

(b) A garnishee who— (i)

unreasonably fails to timeously deduct the amount of the emoluments attachment order provided for in subsection (4) (a); or

(ii) unreasonably fails to timeously stop the deductions when the judgment debt and costs have been paid in full,

is liable to repay to the judgment debtor any additional costs and interest which have accrued or any amount deducted from the salary of the judgment debtor after the judgment debt and costs have been paid in full as a result of such failure.

(c) The Rules Board for Courts of Law must make a reference to the provisions of paragraph (b) on Form 38 of Annexure 1 to the rules, containing the emoluments attachment order.”.

10. Substitution of section 65M of Act 32 of 1944, as inserted by section 2 of Act 63 of 1976.—The following section is hereby substituted for section 65M of the Magistrates’ Courts Act, 1944:

“Enforcement of certain judgments of division of High Court or court for regional division

65M. If a judgment for the payment of any amount of money has been given by a division of the High Court of South Africa or a court for a regional division, the judgment creditor may file with the clerk of the court from which the judgment creditor is required to issue a notice in terms of section 65A (1), a certified copy of such judgment and an affidavit or affirmation by the judgment creditor or a certificate by his or her attorney specifying the amount still owing under the judgment and how such amount is arrived at, and thereupon such judgment, whether or not the amount of such judgment would otherwise have exceeded the jurisdiction of the court, shall have all the effects of a judgment of such court and any proceedings may be taken thereon as if it were a judgment lawfully given in such court in favour of the judgment creditor for the amount mentioned in the affidavit or affirmation or the certificate as still owing under such judgment, subject however to the right of the judgment debtor to dispute the correctness of the amount specified in the said affidavit or affirmation or certificate.”.

11. Amendment of section 73 of Act 32 of 1944 as amended by section 18 of Act 40 of 1952 and section 5 of Act 63 of 1976.—Section 73 of the Magistrates’ Courts Act, 1944, is hereby amended by—

(a) the substitution for the heading of the following heading: “Suspension of execution of debt”; and

(b) the substitution for subsection (1) of the following subsection:

“(1) The court may, on the application of any judgment debtor or under section 65E (1) (a) (ii) or 65E (1) (c) and if it appears to the court that the judgment debtor is unable to satisfy the judgment debt in full at once, but is able to pay reasonable periodical instalments towards satisfaction thereof or if the judgment debtor consents to a garnishee order being made against him or her, suspend execution against that debtor either wholly or in part on such conditions as to security or otherwise as the court may determine.”.

12. Amendment of section 86 of Act 32 of 1944.—Section 86 of the Magistrates’ Courts Act, 1944, is hereby amended by the addition of the following subsection:

“(5) If a party abandons a judgment given in his or her favour because the judgment debt, the interest thereon at the rate granted in the judgment and the costs have been paid, no judgment referred to in subsection (2) or (3) shall be entered in favour of the other party.”.

13. Insertion of section 106C in Act 32 of 1944.—The following section is hereby inserted in the Magistrates’ Courts Act, 1944, after section 106B:

“Offences relating to judgments, emoluments attachment orders and instalment orders

106C. (1) Any person who requires the applicant to consent to a judgment or any instalment order or emoluments attachment order prior to the granting of the loan, is guilty of an offence and on conviction liable to a fine or to imprisonment not exceeding three years.

(2) Any person who fraudulently obtains or issues a judgment, or any instalment order or emoluments attachment order in terms of this Act, is guilty of an offence and on conviction liable to a fine or to imprisonment not exceeding three years.”.

14. Insertion of section 23A in Act 10 of 2013.—The Superior Courts Act, 2013, is hereby amended by the insertion of the following section after section 23:

“Rescission of judgment with consent of plaintiff or where judgment debt has been paid

23A. (1) If a plaintiff in whose favour a default judgment has been granted has consented in writing that the judgment be rescinded, a court may rescind such judgment on application by any person affected by it.

(2) (a) Where a judgment debt, the interest thereon at the rate granted in the judgment and the costs have been paid, whether the consent of the judgment creditor for the rescission of the judgment has been obtained or not, a court may, on application by the judgment debtor or any other person affected by the judgment, rescind that judgment.

(b) The application contemplated in paragraph (a)— (i)

must be made on a form which corresponds substantially with the form prescribed in the rules;

(ii) must be accompanied by reasonable proof that the judgment debt, the interest thereon and the costs have been paid;

(iii) must be accompanied by proof that the application has been served on the judgment creditor, at least 10 business days prior to the hearing of the intended application;

(iv) may be set down for hearing on any day, not less than 10 business days after service thereof; and

(v) may be heard by a judge in chambers.

(c) A court may make any cost order it deems fit with regard to an application contemplated in paragraph (a).”.

(Date of commencement of s. 14 to be proclaimed.)

15. Transitional provisions.—(1) All legal proceedings in terms of sections 36, 45, 57, 58, 65, 65E, 65J, 65M, 73 or 86 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), which were instituted prior to the commencement of this Act and which are not concluded before the commencement of this Act, must be continued and concluded in all respects as if this Act had not been passed: Provided that, where applicable, the original judgment, instalment order or emoluments attachment order, upon which the proceedings in question are based, was obtained and granted in accordance with the law

(2) (a) A judgment creditor in whose favour a default judgment has been granted and a subsequent instalment order or emoluments attachment order (hereinafter referred to as a subsequent order) made, based on that default judgment, or a judgment debtor or any other person affected by that default judgment or subsequent order based on that default judgment, who has reason to believe that that default judgment or subsequent order was not obtained and granted in accordance with the law, may apply for the review of that default judgment or subsequent order.

(b) This subsection applies only to default judgments and subsequent orders in terms of the Magistrates’ Courts Act, 1944.

(c) The application contemplated in paragraph (a)—

(i) must be made on a form which corresponds substantially with the form prescribed in the Schedule to this Act;

(ii) must be accompanied by a supporting affidavit;

(iii)

must be accompanied by proof that the application has been served on the other party, at least 10 court days prior to the hearing of the intended application;

(iv) may be set down for hearing on any day, being not less than 10 court days after service thereof; and

(v) may be heard by a magistrate in chambers.

(d) The court must rescind a default judgment or subsequent order contemplated in paragraph (a), if it is proved that the default judgment or subsequent order was not obtained and granted in accordance with the law or may give any other order it deems fit in the circumstances.

(e) No cost order shall be made with regard to an application contemplated in paragraph (a): Provided that the judgment debtor or affected person who applies for the review contemplated in paragraph (a) acted reasonably in bringing the application.

(f) The clerk or registrar of the court must render reasonable assistance to a party wishing to bring an application contemplated in paragraph (a): Provided that the State or that clerk or registrar shall not be liable for any damage or loss resulting from assistance given in good faith by that clerk or registrar to such party in the compilation or preparation of any process or document.

(g) The operation of this subsection shall cease after a period of three years after the date on which this Act, or the date on which the last provisions of this Act, has come into operation.

(3) Despite the amendment of any provision of the Magistrates’ Courts Act, 1944, by this Act, such provision, for purposes of the disposal of any legal proceedings referred to in subsection (1), remains in force as if such provision had not been amended.

(4) An investigation or prosecution or other legal proceedings in respect of conduct which would have constituted an offence referred to in section 106C of the Magistrates’ Courts Act, 1944, which was initiated before the commencement of this Act must be concluded, instituted and continued as if this Act had not been passed.

16. Short title and commencement.—(1) This Act is called the Courts of Law Amendment Act, 2017, and comes into operation on a date fixed by the President by proclamation in the Gazette.

(2) Different dates may be fixed in respect of different provisions of this Act.

COMMENCEMENT OF THIS ACT

Date of commencement

The whole Act/

Sections

Proclamation No.

Government Gazette

Date of Government

Gazette

1 August, 2018

Whole Act, except s. 14

R.22 41801 27 July, 2018

This Act was published in Government Gazette 41017 dated 2 August, 2017.

SCHEDULE APPLICATION TO REVIEW DEFAULT JUDGMENT AND SUBSEQUENT ORDER

(Section 15 (2)) IN THE MAGISTRATE’S COURT FOR THE DISTRICT/REGION HELD AT

CASE NO In the matter between

Applicant and

Respondent Take notice that application will be made on behalf of the above-mentioned applicant for the review of the default judgment and subsequent order/s granted in this case, on at

(time) on the basis that the judgment and subsequent order/s have not been obtained and granted in accordance with the law. The affidavit of

, annexed hereto, will be used in support of the application. DATED AT

on (Applicant/applicant’s attorney)

Address

TO: (1) (Respondent or respondent’s attorney)

Address:

(2) The clerk/registrar of the court Address:

Lion Match Company (Pty) Limited v Commissioner for the South African Revenue Service [2018] JOL 40199 (SCA)

Appeal of Income Tax – Ruling by Tax Court – Whether appealable

During the 2008 year of assessment the appellant the taxpayer) disposed of its entire shareholding in the Kimberly Clark Group. The market value ascribed by the taxpayer to the shares as at 1 October 2001 was adopted as the base cost in determining its taxable capital gain. However, in assessing the taxpayer to tax by way of an additional assessment on 30 April 2013, the respondent (SARS) adjusted the base cost of the value of the shares, which resulted in an increase in the taxpayer's taxable capital gain.

The taxpayer’s objection to the adjustment was disallowed by SARS, and the taxpayer then noted an appeal against the disallowance of its objection to the Tax Court. In opposing the taxpayer’s appeal to the Tax Court, SARS filed its statement of grounds of appeal in terms of Rule 31 of the Rules of the Tax Court. The taxpayer then applied to the Tax Court to set aside SARS’ Rule 31 statement. The Tax Court dismissed the application, but granted leave to the taxpayer to appeal to the present court.

SARS contended that the appeal should be dismissed on the ground that the order of the Tax Court was not appealable.

Held that the question was whether the particular decision could be placed before a court of appeal in isolation, and before the proceedings had run their full course.

In determining whether the decision of the Tax Court was appealable under section 129 of the Tax Administration Act 28 of 2011, the question was whether the decision was one contemplated by section 104(2) of the Act. Three decisions are referred to in section 104(2), namely: a decision not to extend the period for lodging an objection; a decision not to extend the period for lodging an appeal and any other decision that may be objected to or appealed against under a tax Act. the decision in this case therefore did not fall within the section.

The taxpayer also submitted that the application which served before the Tax Court had to be likened to an exception rather than an application to strike out in terms of Rule 6(15) of the Uniform Rules of Court. A dismissal of an exception (save an exception to the jurisdiction of the court), presented and argued as nothing other than an exception, is not appealable. According to the taxpayer, the Tax Court in dismissing the application had spoken the final word on the issue of its jurisdiction and the order was for that reason appealable. The court rejected that submission. Jurisdictional challenges should be raised either by exception or special plea depending on the grounds upon which the challenge arises. The want of jurisdiction on the part of the Tax Court was not raised by way of exception or special plea. Therefore, it was neither

presented nor argued as an exception to jurisdiction, and the Tax Court did not pronounce on the issue.

It was concluded that the decision of the Tax Court was not appealable and the appeal was struck from the roll with costs. Hacker v Hartmann and others [2018] JOL 40147 (ECP)

Applications – Supplementary answering affidavit – Application to strike out

In an interlocutory application brought in terms of Rule 30(1) of the Uniform Rules of Court, the applicant sought to have the respondents’ filing of a supplementary answering affidavit and its attachments struck out on the grounds that such filing was an irregular step.

In the main application, the applicant sought orders declaring the first respondent a delinquent director in terms of section 162 of the Companies Act 71 of 2008; directing his removal as a director of the second and third respondents; and authorising the applicant to bring proceedings on behalf of and in the name of the second respondent for repayment of the financial assistance provided to the first respondent in contravention of section 45 of the Act.

Held that Rule 6(5)(e) of the Uniform Rules of Court requires that the filing of further affidavits is only permitted with the indulgence of the court, and the court will only exercise its discretion if good reasons to do so were furnished by the party seeking to introduce a further affidavit. That requirement was not complied with. the applicant also demonstrated, with reference to correspondence, that there was no agreement between the parties regarding the filing of a supplementary affidavit, as alleged by the respondents. Furthermore, the supplementary affidavit was a prolix, confusing document which did not comply with the requirements for an affidavit.

However, the seriousness of the allegations of unlawful conduct made against the first respondent meant that he stood to lose a lot if his case was not properly before court. it was therefore premature to consider an application to strike out certain portions of the supplementary affidavit. On that basis, the Court declined to grant the relief sought by the applicant.

Motloung and Another v The Sheriff Pretoria East and Others (13249/2014) [2018] ZAGPPHC 664 (5 September 2018)

Summons – Registrar must sign-failure to serve by sheriff resulting in prescription of action against Road Accident Fund - whether sheriff liable for damages - Special plea-- nullity of summons raised - due to lack of signature by Registrar.

The plaintiffs alleged that on 9 December a Combined Summons under case number 70807/2011 was handed to the defendant for service. The defendant was required in terms of the Sheriff's Act 90 of 1986 to serve such summonses so as to ensure that prescription would not arise. The defendant did not serve the summons on the basis that it had not been signed by the Registrar as required by Rule 17(3) of the Uniform Rules of Court. Upon being sued by the plaintiffs for negligence which resulted in the plaintiffs' claim against the Road Accident Fund prescribing, the defendant raised a special plea that the Particulars of Claim did not disclose a cause of action because the Combined summons which was handed to him for service had not been signed

by the Registrar in compliance with Uniform Rule of Court 17(3) and that it is only once a summons is signed by the Registrar. that it constitutes a direction to the Sheriff to serve same, and that the absence of the Registrar's signature on the summons results therein that the summons is a nullity.

Held, that the defendant's special plea be upheld.

Held, the plaintiffs' action be dismissed with costs.

Jay Incorporated v T and Another (45403/14) [2018] ZAGPJHC 486 (10 September 2018)

Cost orders – Rule 42(1)(b) - rescission or variation of an order ‘erroneously sought or erroneously granted in the absence of any party effected thereby’ - setting aside of costs order de bonis propriis granted

Practice - Superior Courts – Uniform Rules of Court – Rule 42(1)(b) - rescission or variation of an order ‘erroneously sought or erroneously granted in the absence of any party effected thereby’ - setting aside of costs order de bonis propriis granted against firm of attorneys in its absence – attorneys no longer represented a party in the proceedings, were not a party to the proceedings and they were not participants at the hearing - they should, at the very least, have been invited to make submissions regarding an adverse costs order against them - consequently, they were not heard - therefore, an irregularity in the proceedings - r 42(1)(a) finds application.

A person against whom an order was granted in his or her absence in an urgent application may, in any event, in terms of r 6(12)(c), set the matter down for reconsideration of the order. Mjokovana v Road Accident Fund [2018] JOL 40150 (ECM)

Prescription – Motor vehicle accidents – Claim for compensation – Special plea – Prescription – Interruption by acknowledgment of liability

In a claim for compensation arising from a motor vehicle accident, the defendant (“the fund”) raised a special plea of prescription. It was averred that the plaintiff was a passenger in a motor vehicle when the collision occurred, and that in terms of section 23(3) of the Road Accident Fund Act 56 of 1996, she was obliged to serve summons within 5 years of the date on which the accident occurred. As summons was served beyond that time, the fund contended that the claim had prescribed.

The matter came before the present court as a stated case for determination of the special plea.

Held that the relevant provisions of the Prescription Act 68 of 1969 to the extent that they are not otherwise incompatible with the Road Accident Fund Act, apply to claims processed under the latter Act. The court had to determine whether the Prescription Act was applicable. The fact that an acknowledgment of liability, and an actual payment had been made, provided a factual basis for its applicability. Section 14(1) of the Prescription Act provides that the running of prescription shall be interrupted by an express or tacit acknowledgment of liability by the debtor. The 5-year prescription was

accordingly interrupted on the of the acknowledgment of liability and the claim accordingly had not prescribed.

The special plea was dismissed. Rafoneke and another v Free State Law Society and another [2018] JOL 40217 (FB)

Admission as attorneys – Foreign nationals – Requirements for admission

The applicants were Lesotho nationals residing in South Africa, and seeking to be admitted as attorneys of the High Court of South Africa.

Held that the admission and enrolment of attorneys is regulated in terms of section 15 of the Attorneys Act 53 of 1979. Upon a proper interpretation of this section, the court shall admit and enrol any person as an attorney if such person, in the discretion of the court, is a fit and proper person to be so admitted and enrolled, and if the court is satisfied that such person has satisfied certain requirements, one of which is that the applicant is a South African citizen or “has been lawfully admitted to the Republic for permanent residence therein” and is ordinarily resident in the Republic.

Sections 26 and 27 of the Immigration Act 13 of 2002, provide for the issuing of permanent residence permits to, inter alia, foreign persons. Having regard to those provisions, the Court found that neither of the applicants qualified for a permanent residence permit. The Court moved to consider whether the applicants might, in the particular circumstances of their cases, still be admitted as attorneys despite the fact that they had not been “lawfully admitted to the Republic for permanent residence therein”. Neither of the applicants alleged any facts in their applications as to the steps, if any, they had taken to secure a permanent residence permit from the Department of Home Affairs. It was therefore not clear to the Court whether they had exhausted all their remedies in terms of the Immigration Act. In the circumstances, the applications were premature and were dismissed. Firstrand Bank Ltd t/a Wesbank t/a GMSA Financial Services v Caga [2018] JOL 40297 (ECG)

National Credit Act-Credit agreement – Cancellation – Summary judgment – Delivery of notice

In an application for summary judgment, the applicant sought cancellation of a credit agreement, return of a motor vehicle, and costs. The respondent opposed the application on the sole ground that the statutory notice of default was inadequate and ineffective.

According to the particulars of claim and the attachments thereto, the notice in terms of section 129 of the National Credit Act 34 of 2005 ("the Act") was sent twice to the respondent: once to the indicated domicilium address at "Gaga Location, Alice, ****" and once to "PO Box ****, Alice, ****". Despite the respondent’s contention that the domicilium address was too vague, and that no connection was shown between the respondent and the post office box, the applicant contended that it had complied

with the Act as it had sent the notice to the address chosen by the respondent and that the respondent had to stand or fall by the address he had chosen.

Held that the delivery of the notice to the post office box did not assist the applicant as there was no evidence of a connection between the respondent and that particular post office box.

The Court then turned to consider the notice sent to the domicilium address. Section 129(1)(b)(i) of the Act provides that the applicant may not commence any legal proceedings to enforce the credit agreement before first providing notice to the respondent of his default and seeking to resolve the matter out of court. Section 130(1)(a) provides that the notice must be "delivered" to the respondent, while section 129 goes on to provide for exactly how such delivery should be effected. In terms thereof, the notice must be delivered to the consumer by registered mail; or to an adult person at the location designated by the consumer. Proof of delivery is satisfied by written confirmation by the postal service or its authorised agent, of delivery to the relevant post office or postal agency; or the signature or identifying mark of the recipient. As respondent selected his domicilium address, he bore the risk of the notices going astray.

Finding that nothing more could be expected of the applicant, the Court granted the relief sought. MTOKONYA v MINISTER OF POLICE 2018 (5) SA 22 (CC)

Prescription — Extinctive prescription — Commencement — Knowledge of debt — Whether, before prescription could start running, it was required that creditor have knowledge that conduct of debtor giving rise to debt was both wrongful and actionable — Prescription Act 68 of 1969, s 12(3). Rules of Court, rule 33(1)-Special cases and adjudication upon points of law — In terms of special case, there must be a question of law that parties require court to decide on agreed facts and in light of their contentions which to be set forth in agreed statement — Court to decide question of law presented to it and having no right to travel outside four corners of agreed statement and decide a different question — Uniform Rules of Court, rule 33(1). Section 12(3) of the Prescription Act 68 of 1969 provides that '(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 present matter in the Constitutional Court concerned the interpretation of this provision and, in particular, whether it meant that, before prescription could start running, it was required that a creditor have knowledge that the conduct of the debtor giving rise to the debt was wrongful and actionable. The applicant sued the respondent, the Minister of Police, in the High Court (Mthatha) for damages arising from wrongful arrest and detention by the South African Police Service. More specifically, the applicant claimed that he had been detained for more than 48 hours without appearing before a court. The Minister

raised a special plea, in which he submitted that the applicant's claim had prescribed because, by the time summons was served on it — in April 2014 — more than three years had passed since when the debt had become due — ie on the applicants' release from detention in September 2010 (when he knew that he was arrested and the identity of the debtor). The matter did not proceed to trial; rather, in terms of rule 33(1) of the Uniform Rules of Court, the parties agreed to submit a special case on prescription for adjudication by way of a statement of agreed facts. In it the Minister reiterated his view that the claim had prescribed; the applicant stated that it had not, and referred to the fact that he had learnt only in July 2013, after a discussion with an attorney, that the conduct of the police was wrongful and actionable. The High Court understood the applicant's case, given the contents of the statement and certain submissions of counsel, to be the following: At the time he was released from detention in September 2010, the applicant did have knowledge of the identity of the debtor and the material facts giving rise to the debt. However, he did not know at that time that he had a legal remedy against the Minister, only acquiring such knowledge much later. And knowledge of a legal remedy was required for prescription to run. In which case, his claim had not prescribed. But the High Court disagreed. It held that whether or not the conduct of the debtor giving rise to the debt was wrongful and actionable was a conclusion of law and not of fact, whereas s 12(3) of the Prescription Act required the creditor to have knowledge of 'the facts from which the debt arises'. Prescription therefore started running in September 2010, in which case the Minister's special plea of prescription had to be upheld. The High Court dismissed the applicant's application for leave to appeal; so too did the SCA. The Constitutional Court, however, granted the applicant leave to appeal to it. In setting out the issues to be decided, the Constitutional Court (CC) noted that this was an appeal in the context of a special case in terms of rule 33. It stated that in a special case there had to be a question of law that the parties required the court to decide on the agreed facts and in light of their contentions which had to be set forth in the agreed statement. The CC stressed that, when it was called upon to decide such a special case, it was required to decide the question of law presented to it and had no right to travel outside the four corners of the agreed statement and decide a different question that, for example, it might have wished the parties to present for consideration. Here, continued the CC, having regard to the submitted rule 33 statement (set out at [3]), and the agreed facts and contentions contained within, the only legal question to be decided was, as correctly articulated by the High Court, whether a creditor was required to have knowledge that the conduct of the debtor giving rise to the debt was wrongful and actionable before prescription could start running. What was not in issue, and which the High Court and the CC were not called upon to decide, was whether the applicant knew of the identity of the Minister as debtor in September 2010; the applicant's counsel had conceded in argument before the High Court that he had such knowledge. Held, that s 12(3), on the face of it, required, before a debt could be deemed to be due and prescription could start running, knowledge of the facts from which the debt arose. It did not require the creditor to have any knowledge of any right to sue the

debtor nor did it require him or her to have knowledge of legal conclusions that might be drawn from the facts from which the debt arose. Held, further, that knowledge that the conduct of the debtor was wrongful and actionable was knowledge of a legal conclusion, not one of a fact. Such knowledge therefore fell outside the scope of s 12(3). Held, further, to say that the meaning of the phrase 'the knowledge of . . . the facts from which the debt arises' included knowledge that the conduct of the debtor giving rise to the debt was wrongful and actionable in law would render our law of prescription so ineffective that it might as well be abolished. This was so in the sense that prescription would, for all intents and purposes, not run against people without any legal training. As for those with legal training, it would only run against those familiar with the field of law within which the claim happened to fall. The percentage of people in the South African population against whom prescription would not run when they had claims to pursue in the courts would be unacceptably high. Held, accordingly, that the appeal fell to be dismissed. Minority judgment Jafta J (with Nkabinde ADCJ and Mojapelo AJ concurring) disagreed, holding that prescription could only have started running against the applicant from the time of his first gaining knowledge that he had a claim against the Minister of Police, ie only in July 2013. Jafta J pointed out that the Minister, as the party raising the special plea of prescription, bore the onus of establishing that the claim had prescribed in terms of s 12(3). This entailed proving that, before the institution of the action, over three years had elapsed since the claimant had acquired knowledge of both the identity of the debtor and the material facts from which the debt arose. The parties had opted to approach the court in terms of the special procedure allowed for in rule 33. Such procedure obliged the court to make findings based only on the agreed facts in the written statement. (See [102] and [167].) Here, there were no facts in the statement presented to court which supported a finding that before July 2013 the applicant knew that the Minister was the debtor (see [103]). Rather, the agreed facts refuted the presence of such knowledge: these made it clear that before July 2013 the applicant did not know of the existence of a debt; it was logically impossible for a person who did not know that he had a claim to, at the same time, know the identity of the debtor. The finding of the High Court — which the majority of the Constitutional Court accepted — that the applicant had such knowledge was based on an inference it drew from a submission from the applicant's counsel, in argument before the High Court. The High Court erred in so inferring from the words of counsel (which were to the effect, simply, that the plaintiff was not aware of his right to sue the defendant for damages). Further, a submission by counsel could not be a basis for a factual finding. (See [104] – [105].) Accordingly, the Minister failed to discharge the onus on him to prove its special plea (see [173]). Jafta J further held that both the High Court and the Constitutional Court had erred in formulating the legal question to be whether prescription could only start running once a creditor knew that the actions of the debtor were actionable and wrongful. Rather, the legal question posed in the agreed statement, and the one to be answered, was, simply, whether the applicant's claim had prescribed. GROEPBURGER-PERWALD v VOSLOO AND OTHERS 2018 (5) SA 206 (WCC)

National Credit Act— Consumer credit agreement — Debt rearrangement — Order — Powers of magistrates' court — To rearrange over-indebted consumer's repayment obligations by varying interest rate in credit agreement — Magistrates' court having such power, where parties having agreed to such amended interest rate — National Credit Act 34 of 2005, ss 87(1) and 86(7)(c)(ii). There was a line of case authority to the effect that a magistrates' court, when rearranging an over-indebted consumer's credit obligations under a credit agreement, was not permitted to amend the interest rate set out in the credit agreement, as there was nothing in the National Credit Act 34 of 2005 which empowered it to do so. (See s 87(1) read with s 86(7)(c)(ii) and [3] – [5]). However, a purposive interpretation of the NCA — which encouraged the consensual resolution of disputes — led one to the conclusion that, in circumstances where the debt counsellor and credit provider had agreed to an amended interest rate, a magistrates' court had the jurisdiction to make an order rearranging the consumer's obligations based upon such amended interest rate. GROEP v WJ DA GRASS ATTORNEYS AND ANOTHER 2018 (5) SA 248 (WCC)

Evidence — Privilege — Legal professional privilege — Scope — Without prejudice rule — Rule protecting admissions made during settlement negotiations from subsequent disclosure, except for limited purpose of interrupting prescription — Party, in communication made in settlement negotiations, waiving its right to rely on prescription — Interruption of prescription not arising — Communication inadmissible against party — May rely on prescription. Evidence — Privilege — Legal professional privilege — Scope — Without prejudice rule — Courts should be reluctant to classify matter as disconnected from settlement negotiations and hence not covered by rule. Prescription — Extinctive prescription — Defence of — Waiver during settlement negotiations — Protected from disclosure at subsequent trial, except for limited purpose of interrupting prescription. The question in the present case was whether the without prejudice rule — which states that communications exchanged by litigants in an attempt to settle their differences are protected from subsequent disclosure at trial and from admission into evidence — was applicable in the context of the facts. These were that Mr Groep had instituted a professional negligence claim against Mr Da Grass because Da Grass had allowed his earlier delictual claim against Golden Arrow Bus Services to prescribe. The court consolidated the two actions for separate determination of the question whether Golden Arrow (second defendant in the consolidated action) had, in a letter written by its attorneys during pre-trial negotiations in the earlier case, waived reliance on prescription. Golden Arrow argued that since the concession was made in an attempt to reach a settlement, it was excluded by the without prejudice rule. Counsel for Da Grass argued that the KLDcase * — in which the Supreme Court of Appeal ruled that an acknowledgement of liability made in settlement negotiations was admissible for the limited purpose of interrupting prescription — meant that Golden Arrow's concession was not excluded. He further argued that even if KLD was not applicable, the concession was admissible because it was not connected or relevant to the settlement negotiations. Held

The disclosure permitted in KLD was in the context of the interruption of prescription, and did not constitute a general rule permitting a court to go behind the protective shield provided by the without prejudice rule. Since the present case did not involve the interruption of prescription, KLD was distinguishable on the facts. (See [35].) Counsel for Da Grass' argument regarding the purported disconnection of Golden Arrow's concession from the settlement negotiations went against the entrenched view that courts should be cautious to lift the protection offered by the without prejudice shield (see [37] – [39]). Golden Arrow's undertaking not to rely on prescription was the bedrock of its offer to settle, and not an irrelevancy unconnected to the negotiations. (See [40].) Since Golden Arrow's concession was therefore inadmissible against it, the separated issue had to be determined in its favour, and the special plea upheld (see [41]). FIRSTRAND BANK LTD v CLEAR CREEK TRADING 12 (PTY) LTD AND ANOTHER 2018 (5) SA 300 (SCA) Rule 33-Separation of issues — Procedural failures in applying rule 33(4) — Whether rendering separation order incompetent — To be decided on case-by-case basis — In present case, formulation of issue and order leading to anomalies, rendering separation order incompetent — In addition, insufficient factual basis laid for separated issue to be properly determined — Court a quo's order on separated issue set aside on appeal — Uniform Rules of Court, rule 33(4). At the commencement of the trial, the parties agreed to deal with whether the National Credit Act 34 of 2005 (the Act) was applicable to their credit agreement as a separate issue in terms of rule 33(4). This appeared to have been an informal agreement because the only indication in the record to this effect was in the judgment of the court below. No order was made separating the issues, and the issue to be determined was not stated at all nor raised in the pleadings. After the court a quo dealt with the issue, an order was granted to the effect that the Act did apply. In an appeal to the Supreme Court of Appeal against this order: Held Rule 33(4) referred to a 'question of fact or a question of law' in a pending action; this meant an issue arising on the pleadings. Apart from being a requirement in the rule, the fashioning of an order sharpened the focus of the enquiry as to whether the issue specified could conveniently be decided separately, and also assisted in defining the precise ambit of the enquiry to be undertaken. (At [10] – [11].) While it would not always have this result, the procedural failures of the court a quo in applying rule 33(4) combined to render its approach incompetent in the circumstances of this case. The formulation of the issue as to whether the Act applied to the agreement, and the simple order that it did, led to anomalies such as passing over sections excluding its application to juristic persons. This gave no clarity on the question whether the respondents were entitled to rely on the defence that the agreement constituted reckless credit as contemplated in s 81 of the Act. (At [12] – [13].) Also, the failure to address the matter properly under rule 33(4) led to a more substantial difficulty, which impacted on the ability of the court to arrive at a proper conclusion on the issue. This was that the parties failed to place agreed facts before the court (by way of rule 33(1)) or to lead any evidence, which meant that no facts were placed before the court which bore on the issue. Here evidence of 'relevant and

admissible context, including the circumstances in which the document came into being', was crucial. (At [14] – [15] and [17].) Therefore, the issue could not have been properly decided on the basis on which it was dealt with in the court a quo. In the result the appeal would be upheld. Jiba and another v General Council of the Bar of SA; Mrwebi v General Council of the Bar of SA [2018] 3 All SA 426 (SCA) Advocates – Admission of Advocates Act 74 of 1964 – Appeal against striking from roll of advocates – Whether fit and proper persons to remain on the roll of advocates – Court finding allegations of misconduct made by General Council of the Bar not to have been established in respect of one of the advocates and not to warrant striking from roll in respect of another – Only a court has the authority to strike a name from the roll of advocates or attorneys. On application by the General Council of the Bar (“GCB”), the High Court granted an order striking from the roll of advocates, the names of two officials of the National Prosecuting Authority (“NPA”). They were the Deputy National Director of Public Prosecutions (“Jiba”) and the Special Director of Public Prosecutions and head of the Specialised Commercial Crime Unit (“Mrwebi”). That led to the present appeal against the striking-off order. Held – The National Prosecuting Authority Act 32 of 1998 provides for members of the NPA to be appropriately qualified and to possess legal qualifications that would entitle him or her to practise in all courts in the country. The GCB has the authority to apply to court for suspension of its members as advocates from practice and the removal of their names from the roll of advocates in terms of section 7(1)(d) of the Admission of Advocates Act 74 of 1964. Only a court has the authority to strike a name from the roll of advocates or attorneys.

In this case, the GCB had collected information which raised questions about the appellants’ fitness to remain admitted as advocates. Section 7(1) of the Admission of Advocates Act provides that a court may, upon application, suspend any person from practice as an advocate or order that the name of any person be struck off the roll of advocates, if it is satisfied that he is not a fit and proper person to continue to practise as an advocate. The guidelines laid down in case law require a court to first decide whether the alleged offending conduct has been established. It must then consider whether the person concerned, in the discretion of the court, is not a fit and proper person to continue to practise. Finally, it must be determined whether in all the circumstances, the person in question is to be removed from the roll or whether an order of suspension from practice would suffice.

The GCB, as custos morum of the profession acts in the interest of the profession, the court and the general public. Its role is to present evidence of the alleged misconduct to court, for the court to exercise its disciplinary powers. On the other hand the practitioner is expected to proffer an acceptable explanation to counter the allegations. The nature of the proceedings is not subject to the strict rules that govern ordinary civil proceedings. The court examined the complaints levelled against Jiba and Mrwebi. The main reason, in the court a quo’s view, why Jiba and Mrwebi were found to be not fit and proper persons to remain on the roll of advocates was their handling of the criminal case against the head of Crime Intelligence within the South African Police Service

(the “Mdluli case”). the specific complaints against Jiba were that she had failed to file a full complete rule 53 record even after a court order to that effect; that she failed to file an answering affidavit after directed to do so and that she did not file her heads of argument timeously; that her reason for the delays were sparse and unconvincing; that her conduct as a person of high rank in the public service was unbecoming; that she failed to disclose that she had received a memorandum in the case and had deliberately attempted to mislead the court with reference to the memorandum; that the present court had criticised her conduct in the handling of the Mdluli matter; and that she failed to make a full and frank disclosure to refute, explain or ameliorate the serious allegations against her. However, the court found the explanations advanced by Jiba in respect of the accusations to be acceptable, and held that the GCB had failed to establish any misconduct against her. That meant that the very first jurisdictional requirement for her removal from the roll of advocates was lacking, and in the opinion of the majority of the court, her appeal had to succeed.

The main complaint against Mrwebi was that he sought to mislead the court on the extent of the consultation between himself and the Director of Public Prosecutions in North Gauteng (“Mzinyathi”), and took a decision to withdraw the fraud and corruption charges against Mdluli before such consultation. Mrwebi’s explanations in response to the allegations against him were unsatisfactory, but established at the worst that he had been confused about what was expected of him. Although unable to classify his explanations as dishonest, the court was prepared to find that the GCB succeeded in establishing the alleged offending conduct on a preponderance of probabilities. As there was no personal gain from Mrwebi’s conduct, the sanction against him was found to be justified. While acknowledging that a court of appeal’s interference with the trial court’s discretion is permissible only on restricted grounds, the Court found interference to be justified as the court below did not bring its unbiased judgment to bear on the question before it, and materially misdirected itself. Considering all the facts and circumstances, it was decided by the majority of the court that suspension of Mrwebi as an advocate was the appropriate sanction.

In the court below, the GCB’s application was also brought against Mzinyathi, but the court dismissed the complaint against Mzinyathi with costs, up to the stage when the GCB indicated that it would not persist against Mzinyathi. In the present court, the GCB brought a cross-appeal against that costs order. Counsel for Mzinyathi contended that the general principle with regard to costs is that the court exercises its discretion and that the successful party should, as a general rule, have his costs. It could not be found that the court below had exercised its discretion in that regard improperly, and the present Court therefore was not empowered to interfere with the findings of the court a quo. The counter-appeal was dismissed with costs.

In a dissenting judgment, it was considered that the appeals of Jiba and Mrwebi should fail and the cross-appeal of the GCB should succeed.

African Development Bank v Nseera; In re: Nseera v Nseera [2018] 3 All SA 450 (GP) Court orders – Emoluments attachment order – Role of employer – Interests of the employer relate to the practicability and enforceability of the emoluments attachment order, and an employer may not purport to enter the principal dispute between the parties.

Civil procedure – Emoluments attachment order – Section 26 of the Maintenance Act 99 of 1998 – Section does not render it peremptory to give an employer notice in advance. In October 2016, the court granted an order declaring the respondent’s husband to be in contempt of a maintenance order granted pending the finalisation of the divorce action between the respondent and her husband. In January 2017, the respondent deposed to an affidavit in which she averred that her husband has not complied with the maintenance order. The affidavit was presented to the Clerk of the Maintenance Court and an order for the attachment of emoluments was made against the respondent’s husband, who was employed by the appellant. The order was brought to the attention of the appellant who brought an application in terms of section 28 of the Maintenance Act 99 of 1998, to have it rescinded and set aside.

The rescission application was based on three grounds. Firstly, the appellant took issue with discrepancies in the dates of the emoluments order as compared with the letter and notice accompanying the order, contending that it rendered the process irregular. Secondly, the appellant claimed to have been prejudiced in not being given notice of the application that the respondent had made before the maintenance court and which resulted in the emoluments order. it contended, thirdly, that the prejudice it faced was that it was not afforded the opportunity to oppose the emoluments order and if it had the opportunity, it would have raised the immunity it alleged it enjoyed. The dismissal of the rescission application led to the present appeal. Held – Section 26 of the Maintenance Act provides for the enforcement of maintenance orders and subsection (1)(ii) authorises the attachment of emoluments. The section does not render it peremptory to give the employer notice in advance. The requirements of audi alteram can be satisfied in different ways depending on the context and the particular factual matrix. The Court emphasised that the employer is not a party to the dispute between the original parties who have a direct interest in the maintenance order.

In other grounds relied on by the appellant, it attempted to call into question whether the respondent’s reference to her “ex-husband” should not be seen as an indication that the divorce had been finalised and that the respondent had no entitlement to maintenance pendente lite, and whether the arrear maintenance claimed by the respondent had been properly established. The Court questioned the appellant’s right to raise such issues, which concerned the dispute between the respondent and her husband. The rescission application which was grounded in section 28(2), could not become an avenue through which the employer sought to litigate on behalf of a party who was not before the court. The interests of the employer relate to the practicability and enforceability of the emoluments attachment order. It would be undesirable for an employer to purport to enter the principal dispute between the parties as the appellant sought to do.

The respondent’s explanation for the difference in the dates of the order and those that appeared on the accompanying letter and notice were acceptable to the court. In that regard, the court warned against elevating formalism and allowing it to become an obstruction of the course of justice and of the attempts by a court to establish and determine the real dispute between the parties.

In its claim to immunity, the appellant stated that it had been established as a result of an agreement (the “main agreement”) signed in 1963 by the representatives of

various African governments. It alleged that the main agreement afforded it immunity which effectively precluded the court making the order it made in terms of section 28(1). The Court found the fact that the agreement clothed the appellant with immunity from every form of legal process to be of no assistance in the present matter. The maintenance dispute between the respondent and her husband was hardly a matter that fell within the general business of the appellant or the scope of its operations. In addition, how that dispute finally got resolved was of no concern to the appellant and did not impact on its operations, efficacy or its ability to discharge its mandate. The immunities that might attach to the employees of the appellant were not intended to operate for the personal benefit of such employees.

The appeal was dismissed with costs. Treasure Karoo Action Group and another v Department of Mineral Resources and others [2018] 3 All SA 700 (GP) Application proceedings –A party must make out its case in its founding papers. Environment – Mining, Minerals and Energy – Regulations for Petroleum Exploration and Production – Application for review and setting aside on ground that Minister of Mineral Resources was not authorised to make such regulations – Court rejecting submission that a 2008 amendment to the Mineral and Petroleum Resources Development Act 28 of 2002 resulted in the Minister of Mineral Resources no longer having the power to make regulations regarding the management of the environmental impact of petroleum exploration and production. The first applicant (“Treasure Karoo”) was a non-profit organisation and the second applicant (“Afriforum”) was a non-governmental organisation involved in the development and protection of civil rights. They launched the present application in the public interest, seeking the review and setting aside of the Regulations for Petroleum Exploration and Production made by the second respondent (the “Minister”) in June 2015. At the centre of the application, was the question of whether or not the Minister was authorised to make the Regulations.

According to the applicants, after the amendment to the Mineral and Petroleum Resources Development Act 28 of 2002 in 2008, the Minister of Mineral Resources was deprived of the power to make the Regulations as they included extensive environmental regulations. They stated that section 107(1)(a) of the Act was the only provision authorising the Minister of Mineral Resources to make regulations regarding the management of the environmental impact of petroleum exploration and production, and that once that section was deleted by the Mineral and Petroleum Resources Development Amendment Act 49 of 2008, the Minister no longer had the power to make regulations regarding such matters. It was submitted further, that the Regulations could not have been made in terms of any other statutory provision. Finally, the applicants argued that section 50 of the National Environmental Management Act 107 of 1998 limits the power of the Minister of Mineral Resources to make such regulations.

During argument, the applicants deviated from their pleaded case and relied squarely on the principles of review under the doctrine of legality. The respondents objected to the change in stance.

Held – A party must make out its case in its founding papers, and in application proceedings, the affidavits constitute both the pleadings and the evidence. The applicants’ change in oral argument meant that a number of relevant issues raised were not fully dealt with in the papers and no evidence was presented in substantiation of the contentions made in argument.

The Court first examined the substance of the Regulations before moving to consider the development and history of our environmental legislation. It was noted that a lack of integration between the processes contained in the National Environmental Management Act and the Mineral and Petroleum Resources Development Act led to the conclusion of the One Environmental System Agreement (“OESA”). To give effect to that agreement, various pieces of legislation had to be amended. OESA envisaged all environmental issues being regulated through a single system which would be the National Environmental Management Act, and therefore all environmental provisions would be repealed from the Mineral and Petroleum Resources Development Act. at the time of publication of the Regulations, the Department of Mineral Resources was empowered to deal with the functional area of environmental impacts relating to mining in terms of the National Environmental Management Act and no longer the Mineral and Petroleum Resources Development Act.

In line with constitutional imperatives, the National Environmental Management Act promotes cooperative governance. Thus, under section 50 of the Act, the Minister of Environmental Affairs sets the regulatory framework and norms and standards, and the Minister of Mineral Resources will implement the Act’s provisions as far as it relates to mining. No limitation is placed on the Minister in that regard, and the making of regulations in the course of such implementation is not proscribed. The applicants did not make out a case that the Regulations were in breach of OESA or were otherwise improper.

The further grounds of review also failed as the papers did not set out a basis for review on the basis of the doctrine of legality and the issue of rationality was not adequately addressed.

In the premises, the appeal was dismissed.

Morudi and Others v NC Housing Services and Development Co Limited and Others (CCT270/17) [2018] ZACC 32 (25 September 2018)

Appeal-leave to appeal-order of SCA-to Constitutional court

This is an application for leave to appeal against an order of the Supreme Court of Appeal that upheld a refusal of rescission and dismissal of an application for leave to intervene by the High Court of South Africa, Northern Cape Division, Kimberley (High Court). The question before us is whether rescission and leave to intervene should have been granted.

The Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Supreme Court of Appeal that dismissed an appeal from the High Court of South Africa, Northern Cape Division, Kimberley (High Court). The

High Court had dismissed an application for rescission of an earlier court order made by the High Court against the applicants.

In 1997 a group of individuals in the Northern Cape acquired NC Housing Services and Development Co Limited (company), to use it as a vehicle to exploit commercial opportunities in the Northern Cape for the benefit of black people. The applicants, Mr Mosalasuping Morudi and 70 others, are some of the many people who are shareholders of this company. A dispute arose between the applicants and the second and third respondents, Mr Scholtz Babuseng and Mr Seodi Mongwaketsi, regarding the proportion of shares owned by the various shareholders.

Mr Babuseng and Mr Mongwaketsi launched an application in the High Court against the company, Mr Morudi and three other shareholders (the first four applicants before the Constitutional Court) in their capacities as directors of the company, seeking a determination of who was entitled to shareholding in the company and in what proportion. The High Court referred the matter to trial. A shareholders’ meeting was held on 19 April 2013 at which a resolution was taken to withdraw the company’s opposition to the court application launched by Mr Babuseng and Mr Mongwaketsi (April resolution).

When the application came to trial before the High Court for the determination of the company’s shareholding, the Court held that the shareholders (who were the first four applicants before the Constitutional Court) did not have standing to participate in the trial in their personal capacities as they had been cited in representative capacities as directors of the company. The High Court also held that, since the company had withdrawn its opposition to the trial, there was no other basis on which these applicants could have standing in the proceedings. The High Court refused to give them an audience, immediately granting an order in accordance with a draft order agreed to between Mr Babuseng and Mr Mongwaketsi, on the one hand, and the company, on the other.

All 71 applicants applied to the High Court for a rescission of the order, but their application was denied partly on the basis that they had been present in Court when the order was made and were therefore not entitled to have the order rescinded as it was not granted in their absence.

The applicants took the matter on appeal to the Supreme Court of Appeal. A majority judgment of the Supreme Court of Appeal upheld the order of the High Court. Additionally, the Supreme Court of Appeal held that although the applicants had been participating in the proceedings both as directors and as shareholders, the April resolution barred them from participating any further in the litigation because they failed to have the resolution set aside by the High Court.

In a unanimous judgment written by Madlanga J, the Constitutional Court held that when an individual shareholder is cited as “shareholder” in proceedings, she or he is a party to the litigation in her or his personal capacity.

The Court held that the trial was intended to determine who the shareholders in the company were. That meant every potential shareholder – the 71 applicants, Mr Babuseng and Mr Mongwaketsi included – had a direct and substantial interest in the outcome of the trial. That was so because that outcome would have had a direct impact on the rights of each potential shareholder. The High Court was therefore obligated to ensure that anyone directly affected by its order was joined to the proceedings. In refusing to grant an audience to the first four applicants before the Constitutional Court, the High Court denied them their right of access to courts which is guaranteed by section 34 of the Constitution. The order was therefore erroneously granted. Moreover, although the Uniform Rules of Court require that a party must have been absent when the order was granted, the Constitutional Court held that the first four applicants may have been physically present in the courtroom, but the High Court’s refusal to grant them an audience meant that they might as well have been absent.

On these grounds, the Constitutional Court granted the first four applicants rescission in terms of the Uniform Rules of Court and granted the further applicants leave to intervene in the trial resuscitated by the rescission.

Airports Company South Africa v Big Five Duty Free (Pty) Limited and Others (CCT257/17) [2018] ZACC 33 (27 September 2018)

Settlement agreements-Interpretation of contracts — Judgments in rem — When can settlement agreements be made an order of court

Agreements between private parties — setting aside a court order — Section 217 of the Constitution The Constitutional Court handed down its judgment in an application for leave to appeal against the whole judgment and order of the Supreme Court of Appeal (SCA). The dispute revolved around the meaning and effect of a settlement agreement and consequences of it being made an order of court.

The applicant in this matter was Airports Company South Africa (ACSA) and the respondents (Big Five, Flemingo and Tourvest) were bidders for a tender issued by ACSA for the operation of duty-free stores at airports in the country.

In May 2009 ACSA issued in an invitation to bid for a tender. The successful bidder was to operate duty-free stores at OR Tambo, Cape Town and King Shaka International Airports. Big Five, Flemingo and Tourvest submitted bids. On 26 August 2009, Big Five was told that it was the successful bidder. Big Five then

entered into a lease agreement on 25 September 2009 with ACSA on terms set out in a pro forma lease agreement.

Flemingo thereafter brought an application to review and set aside the award of the tender to Big Five. It also sought an urgent interim interdict to stop the implementation of the award until the review had been determined. ACSA and Big Five opposed the review, arguing that the tender was lawful. Tourvest did not participate. The High Court of South Africa, Gauteng Division, Pretoria (High Court) granted the interim interdict, and in the subsequent review application found the tender to be unlawful and proceeded to set it aside (Phatudi J judgment).

Big Five appealed the review judgment to the Full Court of the High Court. After the hearing of the appeal, but before judgment was handed down by the Full Court, Big Five and Flemingo agreed to resolve the dispute through a settlement agreement. ACSA could not agree to the settlement agreement without the approval of its board of directors. Big Five and Flemingo went ahead with the settlement agreement without ACSA being party to it. The Full Court made the settlement agreement an order of court.

ACSA took the view that since it was not party to the agreement, it was not bound by it and decided to start a new tender process. Big Five sought an order from the High Court that ACSA was bound by the award it had made in 2009 and that it was obliged to conclude the written lease agreements anticipated. ACSA and Tourvest opposed the application. The High Court refused the application, holding that the judgment of Phatudi J was a “public remedy” or judgment “in rem” in that it had a public character that transcends the interests of the litigating parties and could not be set aside by agreement of private parties; and that even though the Full Court had made the agreement between Big Five and Flemingo an order of court, it was not bound by that order because it was “at odds with the Constitution, the law and public policy”.

Big Five appealed to the SCA against the order. The SCA addressed the question of whether the tender awarded in Big Five’s favour stands and is binding on ACSA, or whether ACSA was free to start a new tender process. The Court concluded that the effect of the settlement agreement, made an order of court, was that the review proceedings were withdrawn as if they had never happened and that ACSA was bound by the 2009 tender decision.

ACSA seeks leave to appeal that decision to this Court.

The majority in this Court, in a judgment written by Froneman J (Dlodlo AJ, Goliath AJ, Khampepe J, Madlanga J, Petse AJ and Theron J concurring) upheld the appeal and made it clear that a judgment in rem cannot be set aside by mere settlement agreement between the litigating parties. For a judgment in rem to be set aside by settlement agreement the court hearing the appeal must make the settlement agreement an order of court after considering the merits of the appeal and it should give reasons for doing so.

Froneman J discussed whether the matter could be determined on a purely interpretational basis, considering the obvious problem that ACSA and Flemingo’s attempt to set aside Phatudi J judgment was accepted by the Full Court without any reasons proffered as to why it chose to do so. Froneman J considered whether in light of that discussion, remittal to the Full Court was appropriate. He concluded that ordinarily it would be appropriate to do so but that various practical problems in the present matter precluded such an option.

The majority in interpreting the settlement agreement held that a court, in an interpretation exercise should first have regard to the words of the agreement. The majority held that the language of the agreement was so poor that in order for Big Five to succeed the Constitutional Court would have to give the words a meaning that the words would not be capable of bearing. At best, the majority held, the settlement agreement resulted in Flemingo withdrawing its opposition to the appeal and abandoning the Phatudi J judgment with the effect that the relevant proceedings were never instituted. But the majority held that ACSA and Flemingo were labouring under a mistaken view about the consequences of abandonment. Abandonment alone could not have nullified the Phatudi J judgment. Furthermore even if abandonment could have the effect of setting aside the Phatudi J judgment, it suffers from the defect that in the absence of reasons by the appellate court, private parties cannot set aside judgments in rem.

In a separate concurring judgment Jafta J found it unnecessary to engage in an interpretation exercise. Jafta J held that the antecedent question must be whether it was competent for the Full Court to make the settlement agreement an order of court in the present circumstances. Jafta J reasoned that if the parties had intended to set aside the order of Phatudi J, they would have expressly said so in their settlement agreement and they would have asked the Full Court to make that agreement an order of court which they failed to do. As the award of the tender was in breach of section 217 of the Constitution, it could not be implemented. The reversal of the Phatudi J order could not cure the inconsistency and the invalidity. Moreover, Jafta J was of the view that before the parties’ agreement is made an order of court, the court must be satisfied that the order it is about to make is “competent and proper” and that it is consistent with the Constitution and the law. Jafta J concluded that litigants cannot overturn a court order by private agreement.

In a dissenting judgment Cachalia AJ found the criticism levelled by the majority at the Supreme Court of Appeal’s approach to interpreting the settlement agreement to be unfounded. Cachalia AJ held that the Supreme Court of Appeal’s reasoning was sound. He reasoned that the point of departure in an interpretive process is always the language of the agreement. This is only the starting point in an exercise to establish the contractual intention of the parties. Important in this analysis is the context within which the language is used in the light of the document as a whole, the circumstances around its coming into existence, the apparent purpose to which it is directed and the material known towards those responsible for its production. A sensible meaning is to be preferred to one that leads to “unbusinesslike” results or undermines the apparent purpose of the document. Cachalia AJ found that ACSA’s contentions did not bear scrutiny. He would have dismissed the appeal.

Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) (CCT48/17) [2018] ZACC 36 (27 September 2018)

Cost orders-de boniis propriis-Costs of suit-Personal liability-Minister liable for costs — Gross negligence

On 27 September 2018 at 11h30 the Constitutional Court handed down a judgment which dealt with the issue of costs left open in Black Sash 1. Costs were reserved and the former Minister of Social Development (Minister Dlamini) was called upon to provide reasons on affidavit why she should not be made party to the proceedings in her personal capacity and why she should not pay the costs of the application out her own pocket.

Affidavits were filled in the Constitutional Court that raised conflicts of facts in relation to an alleged parallel process of responsibility initiated by Minister Dlamini. The parties agreed on a referee and retired Judge President Ngoepe (Ngoepe JP) was appointed to conduct the fact finding inquiry. A full investigation took place and the Inquiry Report by Ngoepe JP was delivered to the Constitutional Court. Ngoepe JP found, among other things, that: (i) Minister Dlamini did appoint individuals to lead parallel work streams; (ii) those individuals reported directly to Minister Dlamini, through Ms Mvulane, who was the project manager; and (iii) the reason Minister Dlamini did not disclose this information was that she was afraid that she would be blamed for the crisis and that a personal cost order would be awarded against her. The Inquiry Report was released to the public and the parties were invited to make submissions to the Constitutional Court on whether, in light of the Inquiry Report, Minister Dlamini ought to be liable for costs out of her pocket.

Minister Dlamini argued that holding her personally liable to pay the costs of the proceedings would constitute a breach of the separation of powers principle, namely that the Constitutional Court lacks the authority to hold a Minister to account by ordering her or him to pay costs out of her or his pocket.

Freedom Under Law was granted leave to intervene, and like Black Sash Trust, argued that Minister Dlamini’s actions amounted to bad faith. Their argument was based on Minister Dlamini’s failure to disclose the truth about her interference with the governance of the work streams, despite filing affidavits under oath with the Constitutional Court.

The Constitutional Court in a unanimous judgment written by Froneman J (Mogoeng CJ, Zondo DCJ, Basson AJ, Cameron J, Dlodlo AJ, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring) held that Minister Dlamini’s argument on separation of powers was ill-conceived. Froneman J reasoned that when courts make personal orders they do not make judgments on the political accountability of public officials but rather on how the rights of people are affected by public official conduct that is not open, transparent and accountable and its impact on the responsibility to the Court by those involved in the litigation.

Froneman J found that Minister Dlamini’s role in creating the parallel work streams and the subsequent withholding of that information from this Court demonstrates bad faith behaviour and at best reckless and grossly negligent conduct, both of which warrant a personal costs order against her.

In determining the amount that Minister Dlamini was to be mulct with Froneman J said that the Court had to weigh up the Minister’s personal role arising from the parallel process she set in motion and her shielding this truth from the Court against

the fact that in normal situations state officials do not bear personal responsibility for the good faith performance of their official functions. Froneman J held that it is novel to hold cabinet members personally responsible for costs and that 20 percent of the costs would be appropriate. The remaining 80 percent to be paid by the first, second and third respondents.

The judgment also found that the Inquiry Report suggested strongly that Minister Dlamini lied under oath. This Court directed the Registrar to forward a copy of the Inquiry Report to the National Director of Public Prosecutions to determine whether to prosecute the Minister for perjury.

Bullion Farming Enterprises (Pty) Ltd v Van Tonder (10711/2018) [2018] ZAGPPHC 683 (14 September 2018)

Security for costs

Applicant is sued in the main action by Respondent in respect of a written sale concluded on 10 June 2014. Applicant maintains that such claim is vexatious or unsustainable and therefore seeks security of R350 000.00 before the action proceeds.

From the authorities quoted at the beginning of the judgment, it is evident that not only does Applicant carry the onus as far as security is concerned, but it is also an onus that is not easily discharged. Although Respondent was certainly not very forthcoming in explaining why he signed the two documents in question, Applicant ought to have gone further in showing Respondent's claim to be vexatious by providing sufficient background facts. The court should not be left guessing as to what exactly transpired between the parties and why the various documents were drafted. In the premises I make the following order:Applicant's application in terms of Rule 47(3) - dated 22nd March 2018 - is dismissed with costs. NEDBANK LTD v THOAJANE AND 12 RELATED MATTERS ZAGPPHC Execution-foreclosure-why not to magistrates courts-jurisdiction-Human Rights Commission for distressed debtors-how should access to justice be retained-abuse of process to bring matters before the High Court and not magistrates court or local division-concurrent jurisdiction-choice by litigant-High Court not obliged to entertain the matters!-orders given: High Court must give leave to hear the matter where monetary value gives magistrates courts jurisdiction, High Court may refer matters to magistrates courts or local divisions Bench:Judges Tolmay, Ledwaba and Mothle. Judgment: 26 September 2018

Absa Bank Limited v Mokebe; Absa Bank Limited v Kobe; Absa Bank Limited v Vokwani; Standard Bank of South Africa Limited v Colombick and Another (2018/00612; 2017/48091; 2018/1459; 2017/35579) [2018] ZAGPJHC 485 (12 September 2018)

Execution-Foreclosure - The monetary judgment is part of the cause of action when execution against immovable property is concerned – the issues are intrinsically

connected and must be brought in one proceeding and not piecemeal. All the facts should be placed before the court to sustain the relief sought. A failure to do so, disentitles a party to relief. When a court is appraised of all the facts, a decision whether to place a reserve price on the sale of a house that may be sold in execution, can be properly taken. Each matter will depend on its own facts.

National Credit Act-interpretation of section 129(3) and (4)-balancing rights-difficult as the rights of the credit providers are driven by profit, while that of consumers are driven by the ability to access the credit market Execution-Foreclosure - The monetary judgment is part of the cause of action when execution against immovable property is concerned – the issues are intrinsically connected and must be brought in one proceeding and not piecemeal. All the facts should be placed before the court to sustain the relief sought. A failure to do so, disentitles a party to relief. When a court is appraised of all the facts, a decision whether to place a reserve price on the sale of a house that may be sold in execution, can be properly taken. Each matter will depend on its own facts.

M and Others v Wim Krynauw Incorporated and Others (41450/2017) [2018] ZAGPJHC 489 (19 September 2018)

Fees-contingency fee agreement-declared to be invalid

Costs-de boniis against attorney

This is an application to declare a contingency fee agreement invalid and ordering the first respondent to account for fees charged in respect of professional services rendered to the applicants, by serving and taxing an attorney and own client bill of cost.

The applicants bring this application in their representative capacities as biological parents and legal guardians of their minor children. The minor children suffered profound brain injuries as a result of birth complications in consequence of which the applicants instructed the first respondent, Wim Krynauw Attorneys ("Krynauw Attorneys"), to institute actions for damages against the eighth respondent, the MEC of Health and Social Development of the Gauteng Provincial Department ("the MEC"). The actions against the MEC were finalised successfully.

The second respondent is Wim Krynauw, an attorney practising as the sole director of Krynauw Attorneys at its Krugersdorp branch. The third and fourth respondents are attorneys employed at Krynauw Attorneys. The third respondent, Mr. Coetzer, mainly dealt with the case of K, the first and second applicant's minor child, and the fourth respondent, Mr. Nortje, mainly dealt with the case of Z ("Z"), the third applicant's minor child.

The contingency fee agreement signed by the third applicant on 29 March 2012 is identical to the contingency fee agreement signed by the first applicant on 28 March 2012. On 31 October 2016 Moshidi J declared the contingency fee agreement between the first applicant and Krynauw Attorneys invalid and ordered Krynauw Attorneys to serve an attorney and own client bill of costs in respect of all work done in respect of K and to make payment of the difference, if any, between the taxed fees

and disbursements and the actual fees and disbursements deducted by Krynauw Attorneys in respect of work done in the case of K into the KR Monnye Trust.

[42] I agree with counsel for the applicants that since the two fee agreements are identical, logic dictates that, if the one agreement is invalid, that the other agreement is also invalid. Once the first applicant's contingency fee agreement was declared invalid, the respondents should have realized that this would affect all other matters in which contingency fee agreements were concluded and that the same directive, to have their fees taxed, would apply to all those matters. The respondents must have been aware of the invalidity of their contingency fee agreement before the hearing of the application and as they rely on this agreement as the basis upon which the applicants were billed, they could have raised the defence of severability in the answering affidavit.

[43] The respondents concede that the contingency fee agreement is not in compliance with the Act and is therefore invalid. This court has a duty under the Act to ensure that invalid contingency fee agreements are not enforced. To permit the application to strike out the replying affidavit, I would be failing in that duty. The application to strike out is refused.

I agree with counsel for the applicants that it is unlikely that the respondents calculated its fee based on the amount of R 17 039 393.60 as Krynauw Attorneys rendered a distribution statement to the applicants on 8 June 2016 reflecting the fee of R3 999 999.98, which was four months prior to the judgment handed down on 20 October 2016. At that stage the respondents could not have known what the amount of the final award would have been.

[49] I find it unnecessary to determine this issue, given that the contingency fee agreement has been declared invalid and the respondents will have to present a new attorney and own client bill of costs which must be taxed. The respondents have tendered that the attorney-and-own client account in respect of all work done to date hereof be referred to the Law Society for an assessment of their files and fees as set out in their bills of cost. I intend to keep them to that tender.

[50] Counsel for the applicants contends that the conduct of the first respondent has fallen short of the standard expected of senior and expert attorneys in representing their client's interests. It is submitted that the first respondent should be ordered to pay the costs of this application on the scale as between attorney and own client.

[51] The respondents submit that they were never given an opportunity of explaining the applicants' perceived misgivings prior to the application being launched. It is submitted that had Berger approached Krynauw Attorneys with a simple request for whatever explanations were required, Krynauw Attorneys would not only have been in a position to provide same, but would have done so without delay. It is submitted that the failure by Berger to have followed this course of action was unreasonable and irresponsible.

[52] It is further submitted that the applicants have brought this application relying on a litany of untruths in the founding affidavit for which they have not given any explanation and is not even addressed in the heads of argument. In the

circumstances it is submitted that this matter warrants a punitive cost order and an order including that the costs be paid by the attorney of record de bonis propriis jointly and severally with the applicants.

[54] In the result the following order is made:

[54.1] The contingency fee agreement entered into between the third applicant and the first respondent is declared invalid.

[54.2] The first respondent is ordered to serve an attorney and own client Bill of Costs in respect of all work done in respect of Z and to make payment of the difference, if any, between the taxed fees and disbursements and the actual fees and disbursements deducted by Krynauw Attorneys in respect of work done in the case of Z into the Z K Trust.

[NOTE:see judgment for all the orders]

Four Wheel Drive Accessory Distributors CC v Rattan NO (1048/17) [2018] ZASCA 124 (26 September 2018)

Locus standi in judicio – appellant claimed that it bore the risk of damage to a courtesy vehicle damaged when user fatally shot by assailants – locus standi to sue for cost of repairs not established – alleged lease between appellant and user not proved – appeal dismissed – judgment must be confined to issues raised by the parties – court should not decide issues irrelevant to outcome of the case. The SCA dismissed an appeal with costs upholding a judgment of the KwaZulu-Natal Local Division of the High Court, Durban. The appellant sued the respondent, the executrix of the estate of the late Mr Ivin Rattan in the court a quo for an amount of R559 817.45 being the cost of repairs to a courtesy vehicle owned by Land Rover South Africa, which was provided to Mr Rattan. The appellant claimed that it leased the vehicle to Mr Rattan who undertook to return it in the same condition that he received it. He did not comply with this obligation. He was shot and fatally wounded by unknown persons whilst travelling in the vehicle, which was riddled with bullet holes.

The SCA held that the appellant failed to establish that it bore the risk of damage to the vehicle and consequently did not have an interest that entitled it to sue for damages. Further, that it did not prove that Mr Rattan had concluded the lease agreement.

The court a quo of its own accord raised the questions, and then concluded, that the alleged lease agreement was against public policy and violated the Consumer Protection Act 68 of 2008. The SCA held the court a quo erred: the agreement was not against public policy and the Consumer Protection Act did not apply because the agreement was not a ‘transaction’ as defined in that Act.

The SCA reiterated the principle that a judgment must be confined to the issues before the court. It is for the parties to define the dispute and for the court to determine only

that dispute. This ensured that judicial officers remained independent and impartial and were seen to be so, which was a cornerstone of any fair and just legal system.

The Attorneys' Fidelity Fund v Prevance Capital (Pty) Ltd (917/17) [2018] ZASCA 135 (28 September 2018)

Attorney – theft of money from trust account – whether monies ‘entrusted’ to an attorney as contemplated in terms of s 26(a) of the Attorneys Act 53 of 1979 - Whether instruction simply to invest monies – whether liability of Attorneys Fidelity Fund Control Board excluded by the provisions of s 47(1)(g) of the Attorneys Act.

The Supreme Court of Appeal (SCA) unanimously upheld an appeal against a judgment of the Gauteng Division of the High Court, Pretoria (the high court), in the matter between The Attorneys’ Fidelity Fund Board (the Board) v Prevance Capital (Pty) Ltd (Prevance).

The issue at the centre of this appeal concerned the question as to whether the Board, which owes its existence to s 25 read with s 27 of the Attorneys’ Act 53 of 1979 (the Act), holds liability for the loss of monies deposited by Prevance, into the trust account of Mr Robert Victor Weide, an attorney and conveyancer (Mr Weide).

Prevance is in the business of advancing finance to prospective sellers of immovable property for purposes of assisting them to cover fees associated with the transfer of immovable property to prospective buyers. Once the transfer process is concluded and the purchasers of the immovable property have paid the purchase price to the seller, the sellers repay Prevance back for the monies it has advanced to them. Such repayment is inclusive of an added fee as remuneration for Prevance. Mr Weide, falsely presented himself to Prevance, falsely claiming that he was legally acting on behalf of what later transpired to be non-existent prospective sellers of immovable property. Prevance advanced monies to the non-existent sellers by depositing such advanced monies into the trust account of Mr Weide. Mr Weide misappropriated the money and Prevance suffered pecuniary loss.

While the Board would typically reimburse a client who may suffer pecuniary loss as result of theft committed by a practising attorney of any money entrusted to such practicing attorney on behalf of the client in terms of s 26(a) of the Act. A number of exceptions to the general liability of the Board to reimburse a client who has suffered pecuniary loss are set out in the Act. Section 47(1)(g) of the Act is particular, excludes the Boards general liability in instances where a client money was not merely entrusted to a practicing attorney but where there was also an instruction from the client for such monies to be invested on their behalf.

As such, the question that arose in this matter was whether the monies advanced and then deposited by Prevance to the trust account to Mr Weide were indeed entrusted to Mr Weide or whether such monies constituted investments. The Board argued that since the monies advanced by Prevance were deposited with Mr Weide in terms of a finance scheme conducted by Prevance, the monies had been invested and the liability of the Board was excluded in terms of s 47(1)(g). The Board contended that

the monies deposited were as such not ‘entrusted’ to Mr Weide as envisaged in s 26(a) of the Act.

The high court rejected the Board’s argument entirely and found that that the monies were indeed entrusted to Mr Weide and were not invested with him. The Board contends that the high court erred in finding that it was liable - hence the appeal to this Court.

On an analysis of the facts and the law, the SCA found that when objectively observed, there was never any question of an investment being made by Prevance. The Court held that Mr Weide, in soliciting the funds from Prevance and receiving them into his trust account had only the objective of theft, and as such the funds were not received as an investment or for any other legitimate purpose. As such it was the Court’s view that the exception provided for in s 47(1)(g) the Act on which the Board relied on was not applicable in this matter. The court accordingly dismissed the appeal with cost.

Du Bruyn NO and Others v Karsten (929/2017) [2018] ZASCA 143 (28 September 2018)

National Credit Act 34 of 2005 - under what circumstances is a credit provider obliged to register – where the credit agreement exceeds the threshold set out in s 42(1) - irrespective of whether it is a single transaction - irrespective of whether the credit provider is a regular participant in the credit industry

The Supreme Court of Appeal (SCA) handed down judgment in which it upheld an appeal against the order of the Gauteng Division of the High Court, Pretoria (the High Court). The appeal concerned the question as to when registration as a credit provider in terms of National Credit Act 34 of 2005 (the NCA) is obligatory.

The appellants, Mr and Mrs Du Bruyn, made an offer to purchase the respondent, Mr Karsten’s, interest in three business entities for the sum of R2 000 000 to be paid in instalments. Three separate sale agreements, in respect of the three entities were drawn up. The amount payable for the shares in the different entities differed but in total amounted to R2 000 000. The terms of payment were that a deposit of R500 000 was to be paid and thereafter monthly instalments of R30 000 for a period of 5 years. Interest was to be levied on the deferred amount. Mr and Mrs Du Bruyn bound themselves as sureties and co-principal debtors for all three agreements and undertook to register a covering bond over their immoveable property, within 60 days, which they guaranteed to be unencumbered.

It was common cause that Mr Karsten was not registered as a credit provider in terms of s 40 of the NCA at the date of conclusion of the sale agreements. Mr Karsten accepted that he had to be registered as a credit provider in order to facilitate the registration of the covering bond.

The Du Bruyns’ subsequently defaulted on their instalment payments. In November 2014, Mr Karsten instituted proceedings for the balance of the purchase price, in the sum of R1 133 169.39. Mr Karsten alleged a breach of the sale agreements. The Du Bruyns contended that the sale agreements were null and void due to non-compliance with the NCA: the sale agreements constituted agreements as contemplated by s 8 of the NCA and therefore Mr Karsten was obliged to have been registered as a credit provider at the time the agreements were concluded on 26 April

2013. Mr Karsten’s subsequent registration, on 27 November, was insufficient. The non-compliance with ss 40(3) and 40(4) of the NCA rendered the agreements, the mortgage bond registration and the suretyship undertakings unlawful and void, so contended the Du Bruyns.

The High Court found in favour of Mr Karsten. Before the SCA, Mr Karsten submitted that; (a) the sales agreements were not arms-length transactions; and (b) the requirement to register as a credit provider was directed at participants in the credit market, not once-off transactions. The SCA looked at s 4 of the NCA in determining whether the agreements of sale were arms-length transactions or not. After examining the evidence of the parties the SCA found that the sale agreements were arms-length transactions.

The SCA found that the real issue before it was whether Friend v Sendal 2015 (1) SA 395 (GP) (Friend), by which decision the High Court was bound, was correct in law - namely whether the NCA was directed only at those in the credit industry and did not apply to single transactions where credit was provided, irrespective of the amount involved. In Friend it was held that the NCA was meant to regulate those participating in the credit industry and persons who frequently provide credit, and was not applicable to once-off transactions.

The SCA found that although the aforementioned approach in Friend was sensible and pragmatic, it was difficult to marry such an approach with s 40 of the NCA which is clear and unambiguous. Section 40 it makes obligatory for a person to register as a credit provider if the total debt exceeds the prescribed threshold. At the time of concluding the sale agreement it is common cause that the applicable threshold was R500 000.

The SCA found that it is the threshold which triggers the obligation to register, irrespective of whether it is a single transaction or not. To hold that registration as a credit provider in terms of the NCA does not apply to once-off transactions or to those who are not regular participants in the credit market was to not being true to the text and the context of the NCA.

The SCA found in favour of the Du Bruyns and set aside the order of the High Court.

Jiyana and another v ABSA Bank Limited and others [2018] JOL 40318 (WCC)

Res judicata -Application for declaratory relief – Dismissal of application – Appeal

The appellants had brought an application before the court a quo seeking declaratory orders that the credit agreement between them and the first respondent bank was lawfully reinstated in terms of section 129 (3) of the National Credit Act 34 of 2005; that the default judgment granted on 14 April 2014 in the appellants’ absence, and the subsequent execution against their had no legal force and should be set aside; and home and primary residence had no legal force and should be set aside; and that the public auction of the property, as well as its transfer to the third and fourth respondents, had no legal effect and should also be set aside. The Court found in favour of the first respondent on the basis that the issue brought before the court by the appellants could not succeed due to the applicability of the doctrine of res judicata.

A mortgage bond had been registered over appellants’ property, in the bank’s favour. On 6 November 2006, the bank instituted action for payment of an amount of R491 292.32 and for an order declaring the property executable. On 24 June 2008, the Registrar granted default judgment and a warrant of execution was issued. Pursuant thereto, the appellants applied for a stay of execution and rescission of the default judgment under different case numbers. On 13 October 2008 the parties took an order by agreement , in terms of which they agreed that the default judgment could be rescinded unopposed. The parties also agreed that the appellants would be allowed to settle the arrears by instalments, upon certain conditions. That, according to the appellants, had to have resulted in the reinstatement of the credit agreement. According to the bank, the appellants failed to make further payments as agreed, resulting in them falling into arrears again. In March 2014, the bank proceeded with an application for payment in the amount of R391 797.06 together with an order to declare the property specially executable. Default judgment was obtained and a subsequent application for rescission by the appellants was dismissed. In August 2015, the parties once again entered into another deed of settlement. The appellants allegedly failed to comply with this settlement agreement, which led to the bank arranging a further sale in execution of the property on 5 April 2016. That led to the application in the court a quo, as referred to above. The appellants’ case was that the court in violation of section 130 (3) of the National Credit Act 34 of 2005, determined the bank’s application and granted an order enforcing a credit agreement between the appellants and the bank, without satisfying himself that the requirements of section 129(1) had been complied with.

Held that while section 130(3) enjoined the court to be satisfied that section 129(1) was complied with before granting an order, its failure to do so amounted to no more than an irregularity, which irregularity did not nullify a judgment. It was an irregular step that could be set aside by a court of same standing in rescission proceedings. Thus, rescission proceedings were the appropriate proceedings for determination of the failure to comply with sections 129 and 130. The Court went on to find that the ruling of the court below in the issue of res judicata was unassailable.

The appeal was dismissed with costs.

Absa Bank Limited v Mokebe and related matters (Investec Bank Limited and others as amici curiae) [2018] JOL 40390 (GJ)

Execution against immovable property – Mortgage bond foreclosure – Procedural requirements

How a mortgage bond, registered over immovable property, affects rights of ownership lay at the heart of the present case. When a mortgagor (home owner) defaults on repayment of the loan secured by the mortgage bond, the mortgagee invariably exercises its rights in terms of the agreement of loan, and forecloses by seeking to execute against the property. Generally, the rights include the right to call up the loan, accelerate payment and claim execution against the property.

In April 2018, a number of foreclosure matters served in the motion court, which invoked section 14(1)(b) of the Superior Courts Act 10 of 2013. Subsequent thereto, the Judge President of the Division issued a directive in terms of section 14(1)(a), setting out the issues requiring determination.

Held that the critical issue was whether a court faced with an application by the mortgagee for an immediate money judgment has a discretion to postpone an application for executability to afford the mortgagor an opportunity to remedy its default.

Prior to the amendment of Uniform Rule 46 and the promulgation of Rule 46A, the execution procedure that lenders followed did not per se require the intervention of a court. The amended rule introduced specific and detailed provisions applicable to court oversight. That, in turn, requires full disclosure of all relevant facts to the court when judgment is sought as any monetary judgment may impact on the discretion which a court is required to exercise when execution is sought.

The money judgment is an intrinsic part of the cause of action and inextricably linked to in the in rem claim for an order for execution. The default of the debtor and the money judgment is a pre-condition for the entitlement of the mortgagee to foreclose. It is obligatory for a mortgagee seeking execution to find a cause of action based on execution to allege and prove its entitlement to the money judgment which, in turn, is a necessary averment in order to sustain the action to obtain an order for execution. The court rejected the submission that Rule 46(1)(a)(i) presupposes that a money judgment may be obtained separately from and prior to, an order of executability. The fact that both the money judgment and the order for executability must be given at the same time, is not in conflict with the Rule which requires certain steps against movables prior to execution against the immovable property. It is purely a prior procedural step before a writ against the immovable property is issued – and is separate from the monetary judgment and the order declaring the immovable property executable. It was concluded that a duty rests on banks to bring their entire case including the money judgment, based on a mortgage bond, in one proceeding simultaneously. Piecemeal hearing of applications for foreclosure are undesirable and not cost effective.

The Court held further that execution against moveable and immovable property is not a bar to the revival of the agreement until the proceeds of the execution have been realised. Any document initiating proceedings where a mortgaged property may be declared executable must draw the attention of the defendant to section 129(3) of the National Credit Act 34 of 2005 allowing him to pay the credit grantor all amounts overdue together with the credit provider’s permitted default charges and reasonable taxed or agreed costs of enforcing the agreement prior to the sale and transfer of the property and so revive the credit agreement. Finally, it was held that save in exceptional circumstances, a reserve price should be set by a court in all matters where execution is granted against immovable property, which is the primary residence of a debtor, where the facts disclosed justify such an order.

Church of God and Saints of Christ and another v Church of God and Saints of Christ – Stone of Truth (Cradock / Bishop Seyibhokhwe Group) and another [2018] JOL 40291 (ECG)

Locus standi – Onus of proof- the person instituting motion proceedings on behalf of a church (either the church itself or a natural person) has to establish his authority to do so.

The first applicant was a church to which all the parties once belonged. During 2006, and consequent upon dissatisfaction by certain congregants of the first applicant with the appointment of the second applicant as a bishop, the church split into two groups. The one group remained known, after the split, as the first applicant, with the second applicant as its bishop. The second group ended up with the first respondent being formed with the second respondent as its bishop.

Disputes arose regarding who the lawful holders of the churches’ various properties were.

The applicants sought the return of possession of certain immovable property, as well as certain interdictory and consequential relief against the respondents. The respondents resisted the application on the basis of three special pleas and on the merits. In their special pleas the respondents averred that the applicants lacked locus standi, that the resorting to litigation was expressly excluded by the constitution of the first applicant, and that there had been material non-joinder of an interested party.

Held that the Court began with the issue of locus standi because, if the respondents’ contentions were correct, that would end the matter without having to investigate the cogency of the other defences raised.

It is for the party instituting proceedings to allege and prove that he has standing, and the onus to establish that issue rests upon that party throughout the proceedings. Therefore, the person instituting motion proceedings on behalf of a church (either the church itself or a natural person) has to establish his authority to do so. Having regard to the church’s constitution, the only methods by which the applicants could institute legal proceedings would be either through the general synod or through the bishop-in-council. contrary thereto, the second applicant unilaterally sought to bring the application both in the name of the first applicant and in his personal capacity.

Concluding that the applicants had not shown that they possessed the necessary locus standi to bring the application, the court dismissed the application with costs.

Nandipha NO v Irfani Traders CC trading as Jabulani Hardware and another [2018] JOL 40293 (ECM)

Locus standi of applicant-Erection of unlawful structure – Interim interdict – Confirmation proceedings – certificate holder passed on-executor replaces

In a representative capacity, the applicant brought an application for an interdict preventing the respondents from continuing with the construction of a cement block wall structure on certain vacant property which had been owned by her father during his lifetime, and an order requiring the respondents to demolish the structure. An interim order was granted, and after an application for reconsideration was dismissed, the matter came before the present Court for confirmation of that order.

Opposing the application, the respondents stated that they had obtained consent to build from a third party through a lease agreement, and that the applicant had no legal standing by virtue of Section 9 of Proclamation 26 of 1936 (“the Proclamation”).

Held that the third party referred to by the respondents was not the executor of the deceased estate of the applicant’s father nor was there any indication that he was

authorised to conclude a lease agreement on behalf of the applicant. Further, the lease agreement had lapsed on 30 September 2017.

The issue of the applicant’s locus standi had been dealt with by the court which dealt with the respondent’s reconsideration application. That court dismissed the point of law raised by the respondents. The dismissal of the point was final in effect and could not be revisited by the same court. The appropriate forum would be an appeal. in terms of the principle of res judicata, where a final judgment has been given in a matter by a competent court, then subsequent litigation between the same parties, or their privies, in regard to the same subject-matter and based upon the same cause of action is not permissible. The issue of locus standi was res judicata and had to be dismissed.

The applicant’s standing was confirmed by the court on the following basis. The farm in question was allocated to the deceased on 2 January 1969 in terms of section 4(1) of the Proclamation. The respondents contended that since the certificate holder had passed on, the estate representative did not have locus standi over the property.

Section 25(1), 25(5), 25(6) and 25(9) of the Constitution of the Republic of South Africa, 1996 (“the Constitution”) regulate land rights. The Interim Protection of Informal Land Rights Act 31 of 1996 was enacted in order to respond to the dictates of the Constitution. In terms thereof, the applicant had informal rights over the land in question. The court held that the applicant’s legal standing in these proceedings was sourced from sections 25 (1), (5) and (6) of the Constitution read together with section 2(1) of the Interim Protection of Informal Land Rights Act. The interim order was confirmed as set out in the present Court’s order.

Johannesburg Society of Advocates v Tiry [2018] JOL 40383 (GJ)

Advocate – Unprofessional conduct – Double briefing – Over-reaching – Suspension from practice

The respondent was a practising advocate who was a member of the applicant, a voluntary association of advocates who practice as such in the court’s division. The applicant sought a striking off from the roll, alternatively the suspension from practice, of the respondent. the application was based on the allegation that the respondent had conducted herself improperly over an extended period by double briefing and overreaching in connection with certain litigation in which a statutory body, the Road Accident Fund (RAF) was the defendant. The applicant submitted that the conduct of the respondent was unprofessional and demonstrated that she lacked both honesty and integrity, and that therefore, she was no longer a fit and proper person to continue to practice as an advocate..

Held that an advocate is entitled to charge according to the skill and time which he is required to apply to the work. The nature of the work to be done will appear from the trial brief. Notwithstanding the description of the work which appears from the trial brief, an advocate is not entitled to charge for work which he knows will not be done or is not required to achieve the result.

It was common cause that the respondent on numerous occasions held multiple briefs for trials to be heard on the same day. It was found that she was double briefed and

was charging multiple trial fees for the same day. She had not decided that one matter was not to proceed and then accepted another. Such conduct constituted double briefing.

The respondent was suspended from practising as an advocate for three years. Two years of that period were suspended for three years on certain conditions listed in the court’s order.

Rampersadh and another v Commissioner for the South African Revenue Service and others [2018] JOL 40394 (KZP)

Review– Income Tax – Assessments for tax – Objection – Application for reduction of assessments – Section 93(1)(d) of the Tax Administration Act 28 of 2011 – Refusal of request for reduction – Application for review

The applicants were members of a close corporation. The close corporation was audited for tax purposes for the tax periods 2011 to 2013. The second and third respondents, employees of the first respondent (SARS), dealt with the matter. Due to the loan accounts which the applicants had in the close corporation, the audit was extended to the applicants. After they had made representations and furnished revised loan accounts, revised assessments for income tax were issued. The applicants objected to the revised assessment and SARS requested further information arising from the loan accounts. That provoked further revised loan accounts. Another objection, dated 20 July 2015, was lodged. In all, no less than three different versions of the loan accounts were submitted by the applicants. Eventually, SARS disallowed some of the objections.

Instead of appealing timeously, the applicants made three requests under section 93(1)(d) of the Tax Administration Act 28 of 2011 for reduction of the revised assessments. SARS refused all three requests, leading to the present application, brought in terms of the Promotion of Administrative Justice Act 3 of 2000 to review some of the decisions of SARS. Before the court, the only relief sought was against the decision of SARS on 10 March 2017 to refuse the third request.

Apart from dealing with the merits, SARS raised a number of initial points. One was to the effect that, under the Promotion of Administrative Justice Act, a party seeking judicial review is obliged to exhaust any available internal remedies. Another related to whether the present court had jurisdiction to deal with a review of matters arising under the Tax Administration Act. A third was whether the application was brought within the 180-day period of the impugned decision as required by section 7(1) of the Promotion of Administrative Justice Act.

Held that section 7(2)(a) of Promotion of Administrative Justice Act would apply only if an objection or appeal under the Tax Administration Act was available to the applicants. Interpreting the provisions of that Act, the court found that the internal remedies in that Act were not available to the applicants and they could, therefore, bring the review application as they had.

On the issue of jurisdiction, the Court found that the specialist machinery set up under the Tax Administration Act did not apply. The jurisdiction of the High Court to deal with such an application was not ousted by section 105 of that Act. Section 6(1) of the Promotion of Administrative Justice Act allows any person to institute proceedings in

a court for the judicial review of administrative action. It was not disputed that the decision in question amounted to administrative action. The High Court therefore had jurisdiction to deal with this application.

Finally, on the merits of the review application, the Court that found that the applicants had been unable to support their claims that SARS had made apparent and undisputed errors. They also failed to show that SARS took into account irrelevant considerations or failed to consider relevant ones; that the actions of SARS were arbitrary or capricious; or that the refusal of the third request by SARS was so unreasonable that no reasonable person could have refused it.

The review application was thus dismissed.

Commercial Court practice Directive 3 October 2018

Makes provision for cases of commercial nature; provision for two case management conferences; urgent applications; applicable to all GAUTENG high courts

It provides for a commercial court for the Gauteng High Courts which "aims to promote efficient conduct of litigation in the High Court and resolve disputes quickly, cheaply, fairly and with legal acuity". The "list of examples, which might depending on their particular facts or legal aspects, qualify as commercial court cases: any claim arising out of the transaction of trade and commerce and includes any claim relating to" amongst others "commercial matters arising out of business rescue and insolvency cases", "all commercial matters affecting companies arising out of the Companies Act 71 of 2008 and its interpretation"; and "generally, appropriate contractual matters".

Nedbank Limited and others v Thobejane and others [2018] JOL 40451 (GP)

Jurisdiction-Courts – Access to – High Courts and Magistrate’s Courts – preferring high court wrong

Dealing with several applications before it, the court raised the issue of parties enrolling in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates' Courts; and of litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involved parties located within the jurisdiction of the Gauteng Local Division, Johannesburg.

In all the matters being addressed by the court, the applicants were financial institutions (the banks). They offered various reasons why they chose to institute actions in the High Court. They also conceded that in foreclosure matters and even in credit agreement matters, where vehicles were involved, they as a matter of course, instituted actions in the High Court. Those matters not only fell within the Magistrates' Courts jurisdiction, but were often for paltry amounts.

Held that the course taken by the banks affected the right of access to justice of impecunious litigants, and raised the issue of the sustainability of burdening the present division of the High Court with matters that could have been instituted in other courts. The approach followed by the banks could potentially result in an abuse of

process, because if impecunious litigants were denied proper access to justice, or the High Court was incapable of dealing properly and effectively with its workload, due to the practice, it would constitute abuse.

The constitutional right of access to justice is inherent to the rule of law. Because of the issues of poverty and social economic inequality in our country, there is an even bigger obligation on our courts to ensure access to justice to everyone.

The question to be answered was how the court should ensure that access to justice was attained having regard to the issues before it. It was held that it was appropriate for the court to regulate its own procedures in order to ensure access to justice. The solution pertaining to matters that fall within the jurisdiction of the Magistrates' Courts was that such matters should be issued in the Magistrates' Courts. If a party is of the view that a matter that falls within the jurisdiction of the Magistrates' Courts should more appropriately be heard in the present Division, an application must be brought setting out reasonable grounds why the matter should be heard in the present Division. Inefficiency of the other court, real or perceived, and the convenience of the plaintiff alone will not constitute such reasonable grounds. Only after leave has been granted may the summons be issued in the High Court. The High Court is not obliged to entertain matters that fall within the jurisdiction of the Magistrates' Courts purely on the basis that the High Court may have concurrent jurisdiction. The court confirmed that both the Local and Provincial Division can mero motu transfer a matter to the other court, if it is in the interest of justice to do so.

Mathimba and others v Nonxuba and other [2018] JOL 40420 (ECG)

Advocates – Contingency fee agreements – Validity

The present dispute arose from two actions for damages by the first applicant (Mathimba) against two entities. The second respondent (“Nonxuba Inc”) represented by the first respondent (Nonxuba) acted as attorney of record for Mathimba in both actions. The third respondent (Dutton) was the first applicant’s counsel in one of the matters.

After receipt of the amounts awarded to Mathimba in both matters, Nonxuba Inc deducted the fees and disbursements that it considered due to it. Mathimba disputed that the fees and disbursements deducted were reasonable. He alleged further that it came to his knowledge that first and second respondents were claiming fees based on a contingency agreement. He contended that the alleged contingency agreement concluded with Nonxuba Inc was invalid for want of compliance with the Contingency Fees Agreements Act 66 of 1997.

Held that the first issue for determination by the court was whether a settlement agreement was concluded between the applicants and first and second respondents concerning all disputes between them. The settlement agreement was disputed by the applicants, who claimed that interest should have been included therein. The evidence suggested that interest was never discussed during the negotiations preceding the agreement. The applicants attempted to rely on iustus error in that regard, but the court found that the facts did not support that contention as it could not be found that the inclusion of interest had been contemplated but erroneously omitted.

In challenging the validity of the contingency fee agreement, the applicants relied on a number of grounds. Essentially, Mathimba sought an order that the agreement be declared invalid, void and of no force and effect. In the event that such relief were granted, he sought an order that the total fees of first and second respondent together with the fee of third respondent should not exceed 25% of the capital amount awarded in the action. The court found that there were two contingency fee agreements in the matter. One was for the attorney’s fees and the other for counsel’s fees. That was impermissible. The Act makes no provision for an advocate to sign a contingency fee agreement separately from the attorney; and it is not proper for an advocate to conclude a contingency agreement directly with a client. Section 2 of the Act contemplates a single contingency agreement for a single matter to which all the relevant legal practitioners (attorneys and advocates) are party, and not separate agreements for each practitioner. Matters with both an attorney and counsel on contingency the globular fee must be assessed to see whether the agreement complies with the statutory 25% cap.

The agreement in this case did not comply with the Act in various respects, and was set aside.

MOSTERT AND OTHERS v NASH AND ANOTHER 2018 (5) SA 409 (SCA)

Attorney — Fees — Contingency fees — Contingency fee agreement — In respect of non-litigious matters — Common law — Court a quo making blanket statement that such agreements unlawful on basis that they were against public policy, thereby extending reach of common-law prohibition against contingency fee agreements, which previously only covering contingency fee agreements in respect of litigious work — SCA finding that court a quo was wrong to do so, and that if the common-law prohibition was to be extended to other situations, that should be done on case-by-case basis after careful analysis of all interests involved. The Sable Industries Pension Fund (the Sable Fund), after an investigation into its affairs by the Financial Services Board (FSB) — the allegations were that the assets of the Fund had been 'stripped' as a result of a fraudulent scheme encompassing a number of transactional devices — was placed under curatorship, in terms of a High Court order obtained at the instance of the executive officer of the FSB. The curatorship order appointed the attorney Mr Mostert as provisional curator. He aimed to recover those assets which he believed rightfully belonged to the Fund. It was a term of the order that Mr Mostert would 'be entitled to periodical remuneration in accordance with the norms of the attorneys' profession, as agreed with [the executive officer of the FSB], such remuneration to be paid from the assets owned, administered or held by or on behalf of the Fund, on a preferential basis, after consultation with [the executive officer of the FSB]'. The agreement ultimately reached between Mr Mostert and the FSB — in effect, a contingency fee agreement — provided that 'recovery of assets . . . shall be subject to the curators' remuneration of 16,66% (exclusive of VAT) of such assets recovered'. Mr Nash and Midmacor (henceforth collectively referred to as the respondents) — the former a member of the Fund, and the latter a company controlled by him and being the principal employer of the Fund — approached the Pretoria High Court to challenge the lawfulness of this remuneration agreement and to seek its setting-aside, inter alia, on the grounds that it was not in accordance with the norms of the attorneys' profession.

Mr Mostert appealed to the Supreme Court of Appeal (the SCA) against the decision of the High Court to grant the application. Merits The High Court had upheld the respondents' claim, setting aside the remuneration agreement, on the grounds that, at common law, contingency fee agreements in respect of non-litigious work were prohibited, because they were against public policy. In so holding it extended the reach of the common-law prohibition against contingency fee agreements, which had previously only applied in respect of contingency fee agreements between an attorney and client in respect of litigious work. The SCA, however, held that the High Court was wrong to do so. It had not been asked by the applicants to extend public policy in such a dramatic manner, and there was no material before the court to justify it. The SCA added that, if the common-law prohibition on financial arrangements between attorney and client that involved the attorney being remunerated with a share of the proceeds of litigation was to be extended to other situations, that should be done on a case-by-case basis after a careful analysis of all the interests involved, the likelihood of this conducing to conduct on the part of the attorney that was unacceptable and the impact of constitutional values on transactions of the type under consideration. Counsel for the respondents did not try to support the High Court's approach. It argued rather that the remuneration agreement was illegal because it was not in accordance with the 'norms of the attorneys' profession', as the curatorship order required it to be. (See [53] and [58].) It was initially argued that the remuneration agreement's illegality stemmed from its non-compliance with the terms of the Contingency Fees Act 66 of 1997, which set out the conditions in which contingency fee agreements were permitted (see [53] – [55]). The SCA rejected such a line of reasoning, highlighting the fact that the CFA was specific in providing for contingency fees for legal representatives in the performance of their professional obligations; Mr Mostert was not acting as a legal practitioner and was not engaged in proceedings as defined in the CFA. (See [56] – [57].) It was then argued that such a remuneration agreement was prohibited in terms of the broad guidelines provided by the terms of the attorneys' profession (see [58] – [59] and [64]). On this, the SCA agreed, holding that evidence presented to court demonstrated that the remuneration of an attorney in accordance with the norms of the attorneys' profession was to be understood as a fee calculated on a time basis at an hourly rate, and that was the meaning to be attached to the curatorship order (see [73] and [75]). The arrangement in fact made was not in accordance with such a requirement, and it followed that Mr Nash was entitled to an order declaring it to be inconsistent with the curatorship order and therefore unlawful, and setting it aside (see [75] and [77]). The SCA added, however, that an agreement in terms of which Mr Mostert received a fee determined as a percentage of the amounts recovered for the benefit of the Sable Fund was not in itself unlawful; it would, however, be a departure from the curatorship order, and would require the sanction of the court (see [78] and [80]). The SCA, in conclusion, dismissed the appeal on the main point (but see [80]). Preliminary defences raised by Mr Mostert, and rejected by the SCA Mr Mostert argued that the conclusion of the fee agreement between himself and the FSB constituted administrative action by an organ of state, and hence any challenge

to its lawfulness had to be made in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). As such, it was submitted, the present application had to fail because it was brought considerably outside of the 180-day period prescribed by PAJA, which delay could not be condoned. In the alternative, it was submitted that, even if the proceedings constituted a review outside of PAJA, under the principle of legality the broad common-law delay rule applied and there was no reason to overlook the delay. (See [27] – [28].) However, the SCA held that the agreement was not administrative action. It reasoned as follows: It could be accepted that the FSB was an organ of state. It could also be accepted that, in general, the conclusion of a contract for the procurement of goods or services by an organ of state constituted administrative action. However, the agreement under consideration was not such a contract. Mr Mostert's appointment and his entitlement to remuneration for his services arose from the terms of the order of the High Court; the only function of the FSB was to agree with him the basis for his periodic remuneration in accordance with the 'norms of the attorneys' profession'. The agreement was not one to procure his services on behalf of any organ of state. He was to render services as curator of the Sable Fund because the High Court appointed him to that position, not in terms of a contract with the FSB. (See [30], [33] and [34].) (The SCA added that, even if it could be accepted that these proceedings were properly a review under PAJA or the principle of legality, it would have, without hesitation, extended the period of 180 days or overlooked the delay, as the case might be. Dissenting judgment Willis JA, dissenting, held that the remuneration agreement constituted administrative action to which PAJA applied (see [83]). By way of reasoning, he added that the fact that an act may derive from an order of court did not, without further ado, necessarily deprive it of its administrative character and quality. An administrative act authorised or prohibited by an order of court was not thereby removed from scrutiny according to the law of review. (See [119].) The judge noted that the respondents were out of the 180-day time period provided in PAJA (see [83] and [117]), and ruled that in the circumstances such failure could not be condoned (see [149]). He concluded that the appeal should be upheld, the order of the court a quo set aside, and replaced with an order dismissing the application with costs (see [150]). In reaching this conclusion Willis JA considered the merits of the application, and held that the law did not prohibit agreements for contingency fee agreements in respect of non-litigious matters and that, in particular, there was nothing wrong with the agreement under consideration: the pension fund had been stripped of its assets, so, without such an agreement, it would not, realistically, have been possible for the fund to recover any of its previously held assets, never mind pay fees in the ordinary course for this purpose. ABM MOTORS v MINISTER OF MINERALS AND ENERGY AND OTHERS 2018 (5) SA 540 (KZP) Applications and motions — Application proceedings — Service of documents initiating proceedings — On attorney of record of respondent — Attorney of record meaning attorney formally representing party in proceedings already instituted — Uniform Rules, rule 4(1)(aA). The applicant company intended opening a filling station on a site it owned in Newcastle, KwaZulu-Natal, but its application for site and retail licences under s 2B

the Petroleum Products Act 120 of 1977 (the PPA) was refused by the second respondent, the Controller of Petroleum Products, on the ground that there were already 15 other filling stations in the Newcastle area and that another one was not needed. The first respondent, the Minister of Minerals and Energy, then dismissed the applicant's internal appeal under s 12A of the PPA. In the present application the applicant sought the review, under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), of the Minister's decision to dismiss the appeal. The review application was, like the appeal itself, opposed by existing filling stations in the Newcastle area (the filling stations). They argued that the application had lapsed because the papers were served on them well after the expiry of the 180-day period provided for in s 7(1) of PAJA. The applicant in turn argued that timeous service on the actual decision-makers, the Minister and the Controller, was sufficient to constitute good service and that the papers were in any event also properly served on the filling stations' 'attorneys of record', namely the attorneys who had represented them in the internal appeal. It argued that service on them was therefore effective in terms of rule 4(1)(aA) of the Uniform Rules of Court. Two questions arose: (i) whether service of the review papers on the Minister and Controller — the decision makers — sufficed, with the result that the review proceedings were timeously instituted; and (ii) whether service on the attorneys who had represented the filling stations in the appeal constituted good service under rule 4(1)(aA). Held As to (i): It made no sense to hold that service of review papers on the decision maker, but not on the other affected parties, sufficed for review proceedings to be instituted: in many cases, as in the present one, it was not the decision-maker who opposed the review, but a third party who was involved, who had a direct and substantial interest in the outcome of the review. While all affected parties had to be served, courts could, in order to avoid imposing an undue burden on applicants where the review papers were issued and served timeously on most but not all such parties, extend the period of 180 days in the interests of justice. (See [18] – [19].) As to (ii): The applicant's reliance on rule 4(1)(aA) was misplaced because there was nothing in the papers to indicate that after the Minister dismissed the appeal, the respondents' attorney remained 'on record' to deal with any review that may be instituted. An attorney of record was one who had formally placed himself on record as representing a party in legal proceedings already instituted. The delivery on the filling stations' former attorney was therefore of no effect, and it followed that the review proceedings were not instituted within the period of 180 days referred to in s 7(1)(b) of PAJA. (See [26] – [27].) Application dismissed (see [32]). The court pointed out that it would in any event have dismissed the application on the merits. The Minister and Controller were in terms of s 2B(2) of the PPA entitled to take into account the viability of the existing filling stations and the need for another one. There was also no evidence that the Minister had overemphasised the status quo.

ABSA BANK LTD v NJOLOMBA AND ANOTHER, AND OTHER CASES 2018 (5) SA 548 (GJ)

Judgment — Foreclosure — Application for judgment on accelerated debt, where all legal and contractual requirements for such judgment met, and mortgaged property primary residence — Court not having discretion to postpone matter until judicial consideration of executability — Practice directive requiring such postponement not capable of displacing substantive law entitling credit provider to judgment. National Credit Act— Reinstatement of agreement in default — Mortgage agreement — Sale in execution — Of movable property 'after execution of any other court order enforcing that agreement' as contemplated in s 129(4)(b) of NCA — Not affecting debtor's right to reinstate mortgage agreement under s 129(3) of NCA — National Credit Act 34 of 2005, ss 129(3) and 129(4)(b). In these cases, a number of separate applications heard together, each applicant credit provider sought judgment for the accelerated debt in respect of mortgage loan agreements that each of the respondents were in default of. None of the agreements had been cancelled, and no orders were sought declaring the mortgaged properties — primary residences in each case — executable. The repondents relied on case law which held courts to have a discretion to postpone such applications until consideration of executability, and also on a High Court practice directive that expressly precluded the granting of a default judgment where it was necessary to postpone the claim for a declaration of executability. The central reasoning behind this practice directive is that s 129(4)(b) — which provides that a consumer loses the right in terms of s 129(3) to revive or reinstate a credit agreement, 'after the execution of any other court order enforcing that agreement' — will preclude the debtor from reinstating the credit agreement by paying the arrears. This because, if the money judgment were given and the judgment debtor's movables executed against, it would constitute 'any other court order enforcing the agreement' as contemplated in s 129(4)(b), and so the right to reinstate a mortgage agreement, afforded by s 129(3), would no longer be available. Held The interpretation of s 129(4)(b) posited by the practice directive was irreconcilable with rules 46 and 46A (which ensured judicial oversight to protect debtors when declaring immovable property executable) in that the rules envisaged a procedure where judgment was already taken; and also with the common-law principle that debtors were entitled to enforce their contractual rights. Properly interpreted, s 129(4)(b) did not apply to all credit agreements (and thus also mortgage agreements); it related exclusively to the type of credit agreement singled out for debt enforcement by the sale of the movable property, and found no application in the case of mortgage agreements. There was, in the absence of cogent circumstances that could translate into the rendering of a debtor homeless, no reason to delay giving judgment in relation to an indebtedness to which a judgment creditor was entitled in terms of substantive law. Such an approach could not, with respect, serve the stated aims of the NCA or the rule of law. Attaching the right to enforce contractual terms to the discretionary question of whether the mortgaged property should be declared executable, created uncertainty as to when or even if judgment could ever be granted for contractual indebtedness. In effect, it sought to create a discretion in relation to the application of substantive law where none existed, and substantive law could not be displaced by a practice directive. Accordingly, the applicants were entitled to the orders they sought.

EDCON HOLDINGS LTD v NATIONAL CONSUMER TRIBUNAL AND ANOTHER 2018 (5) SA 609 (GP)

National Credit Act— 'Club fee' — Whether cost of credit — Whether agreement 'requires' payment thereof — National Credit Act 34 of 2005, s 101(1). The National Credit Regulator initiated a complaint that Edcon Holdings Ltd was charging its customers a 'Club fee' in its credit agreements; that the fee was a cost of credit; but that it was not a cost of credit that s 101 of the National Credit Act 34 of 2005 allows a credit provider to charge in a credit agreement. (See [1] and [3].) The Regulator brought the complaint to the National Consumer Tribunal, and asked it for an order, inter alia, that Edcon had repeatedly contravened s 101(1)(a)of the Act (see [1]). Edcon's evidence was that it sold a 'Club Membership' to customers; that the membership was a product comprising services and benefits; and that when a customer applied for credit, it gave the customer the option to apply for the membership. It also said that the customer could cancel the membership at any time, and that the Club fee was payable monthly in arrears (see [4]). Before the Tribunal, both the Regulator and Edcon considered that the issue was whether the Club fee was a cost of credit (see [5]). The Tribunal identified the issue to be whether the Act allowed a fee other than those it listed (see [5]). The Tribunal reasoned that Parliament's intention was that consumers should know the fees in their credit agreements; that supportive of this was that only the fees listed were permitted; that neither s 101 nor any other section allowed a Club fee; and so Edcon's inclusion of the fee was a contravention of s 101. The Tribunal found that Edcon had repeatedly engaged in prohibited conduct, and that there should be a hearing on sanction (see [2]). Edcon appealed the finding to the High Court (see [2]). The High Court held that the Tribunal considered the wrong issue, and that the correct issue was whether the agreement 'requires' payment of the Club fee. (See [6] – [7].) It concluded that the agreement did not 'require' payment of the fee: 'require' could only mean 'to demand' or 'impose an obligation'; and the agreement neither demanded nor imposed an obligation that the consumer pay the fee — the consumer was given a choice to apply for a Club membership or not. The court also held that the Club fee was not a cost of credit: a cost of credit was a cost to lend money, while the Club fee was a fee to buy a product; and that the membership (and hence fee) could be cancelled at any time was inconsistent with the fee being such a cost (see [7]). The court concluded the Tribunal was wrong in finding Edcon engaged in prohibited conduct (see [8]). It upheld the appeal; set the Tribunal's order aside; and replaced it with an order dismissing the Regulator's complaint. PROXI SMART SERVICES (PTY) LTD v LAW SOCIETY OF SOUTH AFRICA AND OTHERS 2018 (5) SA 644 (GP)

Attorney-Conveyancer — Relationship between conveyancer and parties to transaction — Scope of work reserved for conveyancer — Commercial enterprise dividing transfer work between 'reserved work' and 'non-reserved work' and purporting to perform only latter — Whether such scheme contravening statutory and regulatory framework — Attorneys Act 53 of 1979, s 83(8)(a)(i)- contravened the prohibition on touting in para 49.17 of the Consolidated Rules for the Attorneys Profession The applicant (PSM), in anticipation of setting up a business offering certain 'administrative and related services' forming part of the conveyancing process, approached the court for a declaratory order that doing so would not constitute the performance of conveyancing work reserved by law to an attorney or conveyancer or otherwise contravene any legislation or regulation. The court, in considering aspects of PSM's business plan against the applicable statutory and regulatory framework, held as follows: • The subject legislation did not divide the functions performed by a conveyancer between 'reserved' and 'non-reserved' work. Insofar as its business plan was based on supplying supporting documents in a 'typical transfer', it ignored the fundamental reality that every property transaction was unique and not typical. Supporting documents that were required to be lodged with a deed of transfer required the exercise of professional discretion and legal knowledge. • PSM's proposed employment of 'suitably experienced individuals to review the deed of sale', involved more than offering 'administrative services'; it amounted to dispensing legal advice, such as whether suspensive conditions were fulfilled. As such PSM would be causing documents to be 'drawn and prepared', in contravention of s 83(8)(a)(i) of the Attorneys Act 53 of 1979 (the Act), which reserved not only 'preparing' but also 'drawing up' documents to practising practitioners and prohibited any person other than a practising practitioner from causing such a document to be 'drawn up or prepared' (see [14]). On a proper interpretation of this section, the legislature had in mind that a conveyancer or his subordinates would obtain the information required, check and verify it, and do everything involved in 'causing' the reserved documents to 'be drawn up' or 'prepared'. PSM's procuring of information to be inserted into a reserved document, and capturing that information onto a software platform from which it would be accessed by the conveyancer who would import it into a template on PSM's platform, formed an integral part of 'drawing up' or 'preparing' the document concerned. Also, s 83(12) of the Act prohibited persons other than employees of the practitioner from preparing or causing to be drawn up or prepared any documents on behalf of a practitioner; a prohibition that would be redundant if the administrative work of the type PSM proposed to perform were not included in the definition of 'causing to draw up or prepare'. • That PSM would remain in overall control of the registration process, with conveyancers on its panel agreeing to cap their fees, contravened the prohibition in rule 43(1) of the Consolidated Rules of the Attorneys Profession against attorneys entering into arrangements with non-practitioners in order to secure professional work. • That PSM would deal with all finances relevant to the transfer, contravened the prohibition in s 33(3) of the Legal Practice Act 28 of 2014 which reserved the 'preparing' and the 'drawing up' of documents to practising practitioners, and also prohibited any person other than a practising practitioner from causing such a

document to be 'drawn up or prepared' or performing acts or rendering services reserved by law for advocates, attorneys, conveyancers or notaries. • That PSM would conclude 'introduction agreements' with estate agencies under which it would remunerate agencies marketing its and its panel of conveyancers' services to home sellers and buyers, contravened the prohibition on touting in para 49.17 of the Consolidated Rules for the Attorneys Profession. The court would also not grant the relief sought because it was incompetent and impermissible, PSM having failed to show a direct and substantial interest in the subject-matter Bo-Kaap Civic and Ratepayers Association and others v City of Cape Town and others [2018] 4 All SA 93 (WCC) Review-Judicial review – Distinction between appeal and review – Court’s role on review – When the law entrusts a functionary with a discretion it gives recognition to the evaluation made by the functionary to whom the discretion is entrusted – Role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted. In terms of the National Heritage Resources Act 25 of 1999 (the “Heritage Act”), the district of Bo-Kaap in Cape Town is a provincially declared heritage site.

The fourth respondent (the “Developer”) owned two properties which, although not part of the traditional Bo-Kaap area, were located on the border of that area. It applied for approval of a proposed redevelopment of its properties, into a multi-storey, 60m mixed use building. Such approval was granted by the second respondent (the “MPT”) and thereafter confirmed on appeal by the third respondent (the “Mayor”). The first to third applicants sought the review and setting aside of the planning approvals that were granted in terms of the City of Cape Town Municipal Planning By-Law 2015 (the “MPBL”). The fourth applicant (“HWC”) intervened and joined the other three applicants in seeking the review of the approvals granted. The HWC also sought a declaratory order that the development could not take place without a necessary permit granted in terms of section 27(18) of the Heritage Act. The first applicant was an association of persons residing in Bo-Kaap, the second applicant was the body corporate of a building directly adjacent to the proposed development, and the third applicant also owned property in the Bo-Kaap which property stood to be affected by the proposed development.

The bulk of the criticisms against the proposed development were that the development proposal did not comply with the City’s policies; property values would be negatively affected; balconies and windows would overlook properties; the visual and historic connection between the Bo-Kaap and the City of Cape Town would be blocked; the development was too high with too many dwelling units; the area’s historic significance would be undermined; social cohesion would be undermined; and traffic congestion in the surrounding streets would be increased. Held – The distinction between an appeal and a review had to be highlighted. In an appeal the parties are absolutely bound by the record, whereas in a review it is competent for the parties to travel outside the record, and to bring extrinsic evidence to prove the irregularity or illegality. In that regard, the Court acknowledged the fact that experts’ reports may be filed in review matters. In the present case there were

competing views by the relevant experts regarding the heritage impact and that of a traffic impact assessment (“TIA”) relied on by the developer. The Court held that the reports could be useful and could not simply be ignored in deciding whether the decision-makers took the relevant factors into account as envisaged under the MPBL. However, when the law entrusts a functionary with a discretion it gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess such evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.

The review grounds raised by the first and third applicants were that the MPT and Mayor failed to have regard to the heritage impact of the development, and in granting the subject approvals, acted irrationally and/or unreasonably. It was contended that the City failed to properly consider all the relevant factors pertaining to the heritage impact of the development. Other grounds of review were that the City should have required the Developer to submit a Visual Impact Assessment (“VIA”); that the City failed to have proper regard to the impact of traffic; and that the Developer’s proposal did not comply with various planning policies.

Setting out the applicable legal framework, the court stated that section 99 of the MPBL applied to all the approvals sought by the Developer. In terms of section 99(1), an application must be refused if the decision-maker is satisfied that the application fails to comply with the listed minimum threshold requirements. Under section 99(2), if an application is not refused under sub-section (1), when deciding whether or not to approve the application, the decision-maker must consider all relevant considerations including, where relevant, the considerations listed under sub-section (2). The Court was not persuaded that the decision-maker’s approach to section 99 of the MBPL was flawed or improperly applied. It then turned to consider the heritage impact and the rationality and reasonableness of the decision. In considering the Developer’s application, the City was obliged to consider the effect that the development might have on the significance of the heritage place or the heritage area concerned. In that regard, the City was confronted with two contradictory reports. The applicants’ submission that the City had no regard or failed to have appropriate regard to heritage impact when it considered the Developer’s planning applications was not borne out by the facts. It was evident that heritage enjoyed a distinct degree of attention throughout the various stages of the application. Having regard to the reasons provided for the approval, the City’s decision could not be regarded as irrational and or unreasonable. The applicants raised a number of other aspects in respect of which the City was alleged to have acted unreasonably, but the court found none of those to be sustainable. It held that the MPT’s and Mayor’s decisions were rationally connected to the purpose for which they were taken; the purpose of the empowering provision; the information before them; and the reasons given for them. No good ground existed for interfering with their decisions. It was also found that the relevant policies applicable to the matter were clearly and properly considered by the decision-makers.

Section 27(18) of the Heritage Act provides that, “No person may destroy, damage, deface excavate, alter, remove from its original position, subdivide or change the planning status of any heritage site without a permit issued by the heritage resources authority responsible for the protection of the site.” HWC argued that the proposed development triggered section 27(18), which meant that the development could not

take place without the necessary permit being issued. The nub of the dispute on that issue related to whether section 27(18) should be interpreted as, HWC contended, that a permit is required for a proposed development on a site, other than a heritage site, where such proposed development may or will cause damage or alter, a heritage site and whether the City failed to give effect to section 24(b) of the Constitution. Two questions flowed therefrom. The first was a legal one, viz whether a development on a site, other than a heritage site, can trigger section 27(18). If so, the second was a factual question viz whether heritage sites (such as Bo-Kaap) in close proximity, would as a matter of fact be damaged or altered by the proposed development. The court rejected HWC’s interpretation of section 27(18), opting instead for an interpretation to the effect that the Heritage Act does not require a permit for the development of a place that is not itself a heritage site.

The Court, accordingly, dismissed the applications.

Dias v Petropulos and another (Nik Moroff & Associates CC and others as Third Parties) [2018] 4 All SA 153 (WCC) Evidence – Expert or opinion evidence – Expert evidence is admissible when it can appreciably assist the court, and the opinions of expert witnesses are admissible only where, by reason of their special knowledge and skill they are better qualified to draw inferences than the judicial officer. In an action for payment of damages, the plaintiff alleged that the excavation of the first and second defendants’ properties resulted to damage to his own property. The plaintiff’s case was that the damage to his property was caused by the mobilisation in June 2008 of the scree mountain slope on which it was located. That slope mobilisation, the plaintiff’s case proceeded, was caused through breaches by the defendants of the duty of lateral support they owed to his property.

The first defendant disputed that she owed the plaintiff a duty of lateral support for a number of reasons, including that plaintiff’s property had previously been excavated and was no longer in its natural state and that the plaintiff had consented to the first defendant’s excavation and thereby waived any right of lateral support it might otherwise have had. Held – The issues for determination were whether a common law duty to provide lateral support to the plaintiff’s property was owed by the first and second defendant’s properties; whether the excavations carried out on each of the defendant’s property breached that duty of lateral support; and whether the slope mobilisation relied on by the plaintiff had occurred or not.

In considering the law regarding the duty of lateral support, the Court identified the differences between the parties as concerning the question of whether the right to lateral support is owed only to land in its natural state and, secondly, if that was the case, what is meant by “natural state”. Examining the two leading cases on the subject, the Court held that the principle of lateral support is a rule of neighbour law, introduced because it was regarded as just and equitable, and that it is not simply a carbon copy of the English law of lateral support. The cases referred to did not shed any light on one of the central issues in the present matter which was whether the duty of lateral support between contiguous pieces of land extends to buildings on that land or only the land in its natural state and, if the latter, the scope of any exceptions to that rule.

The Court found no authoritative or binding decision in our law that limits a land owner’s right of lateral support to the land in its natural state only, as is the case in English law. There are, furthermore, cases where it was held that the right extended to support to buildings on the land. Furthermore, our law in regard to the right of lateral support is squarely located within the law of neighbours in which one of the guiding principles is that of reasonableness. The Court decided that the duty of lateral support in relation to contiguous pieces of land is owed to buildings as well – save where such land has been unreasonably loaded so as to place a disproportionate or unreasonable burden on the neighbouring land. In the circumstances of the present case, the first and second defendants were the owners of land contiguous to the plaintiff’s property. In the light of the Court’s finding that a duty of support was owed in those circumstance both to land and buildings, both defendants were under a common law duty to provide lateral support to the plaintiff’s property.

The Court then turned to consider whether the plaintiff unreasonably loaded his property through the construction of a residential dwelling thereon. There being no basis on which to make such a finding, it could not be found that the plaintiff forfeited his right to lateral support from his neighbours by unreasonably loading his land.

Remaining issues for the Court’s determination included whether the excavations breached the duty of lateral support and, if so, whether that lead to the slope mobilisation. The overall conclusion as to whether there was failure of lateral support was one which the Court had to determine, based on the evidence in front of it, including, to the limited extent relevant, the expert evidence. Expert evidence is admissible when it can appreciably assist the court, and the opinions of expert witnesses are admissible only where, by reason of their special knowledge and skill they are better qualified to draw inferences than the judicial officer. An expert witness should not usurp the function of the court.

The evidence established that the plaintiff’s property clearly moved laterally and downwards towards the excavation on the first defendant’s property. The Court adopted the view that there is no closed list of mechanisms through which a removal of lateral support will manifest vis-à-vis a neighbouring property. It also found that the plaintiff had established the requirement of causation.

It was concluded that the defendants owed the plaintiff a duty to provide lateral support to the plaintiff’s property, and that such duty had been breached as a result of the excavations on the defendants’ properties.

Krivokapic v Transnet Ltd t/a Portnet [2018] 4 All SA 251 (KZD) Evidence – Adducing of evidence by way of video link conference – Main consideration is whether if evidence is placed before the court in such manner; justice is likely to be done – Court’s power to regulate its own processes in the interests of justice allowing it to allow evidence by way of video link conference where jurisdictional facts shown to be established. The applicant was a resident of Yugoslavia. In May 2001, her son was killed whilst being transported by an employee of the respondent when the vehicle in which he was being transported collided with a gantry crane and proceded over the edge of a wharf into the bay on the respondent’s property. The applicant instituted an action for

damages against the respondent, alleging that the deceased owed her a duty of support.

The respondent conceded liability and the action was settled to the extent of seventy percent of the applicant’s proven or agreed damages. The only outstanding issue was the determination of the quantum of damages in respect of the loss suffered by the applicant. That led to the present application in which permission was sought for the applicant to testify from premises in Montenegro in Yugoslavia, by way of a video conference link, and giving the respondent an opportunity to appoint legal representatives to monitor and be present during the process. It was envisaged that the applicant’s attorneys would arrange for the video conference link to be set up at the offices of a South African firm of attorneys or any other place agreed to by the court, in order for the presiding officer and the legal representatives of the respondent to be present during the process. The basis for the application was that due to old age, ill-health and impecunious state of the applicant, she was unable to attend a court in South Africa.

The deceased was employed aboard a ship which had docked in the respondent’s port at the time of the accident. The applicant’s Counsel contended that this was an admiralty matter and that a proper case had been made out for the relief sought. Regarding whether the court could receive hearsay evidence in the application, the applicant’s Counsel invoked the provisions of section 6(3) of the Admiralty Jurisdiction Regulation Act 105 of 1983, which provides that, “A court may in the exercise of its admiralty jurisdiction receive as evidence statements which would otherwise be inadmissible as being in the nature of hearsay evidence, subject to such directions and conditions as the court thinks fit.” Opposing the application, the respondent contended that the application was not an admiralty matter, that it did not fall within the parameters of the Uniform Rules of Court, that the applicant had not explicitly stated that the present Court had inherent power to regulate its own procedures, and that the applicant had failed to make out a case for the relief sought. Held – The applicant had to prove that her action was a maritime claim, which fell under the admiralty jurisdiction of the court and which would entitle the court to invoke the provisions of section 6(3) of the Act. Section 7(2) of the Act, which deals with proceedings before a provincial or local decision in the High Court, requires that when in any proceedings the question arises as to whether a matter pending or proceedings before that court is one relating to a maritime claim, the court should forthwith decide that question.

The Court was satisfied that the applicant’s claim was a maritime claim as defined in section 1(1) in that the applicant’s son had died as a result of an accident which occurred in connection with the employment of a ship (sec-tion (1)(f)), it involved the employment of the deceased as an officer or seaman of a ship (section 1(1)(s)) and fell within the all-embracing provisions of sec-tion (1)(1)(f), section (1)(1)(s), section 1(1)(ee) and (ff). The application could therefore be entertained in line with the provisions of section 6(3).

That left the application by the applicant to adduce oral evidence by way of video link conference for the court’s determination. Ordinarily, in civil proceedings, oral testimony is given by the plaintiff in a court of law. However, the court acknowledged that the advance of technology makes it possible for direct evidence to be taken from

a witness in another country and for cross-examination to take place whilst the witness is visible to all. The test with regard to evidence in general is that the court should consider all material which may help it reach a proper conclusion. Noting that the value of some evidence is outweighed by the problems it creates, the authorities stated that the court is required to balance the competing considerations in the exercise of its discretion.

Rule 38 of the Uniform Rules of Court provides for various procedures to produce evidence for trial. It also provides for the manner in which evidence will be adduced at trial. The granting of orders as regulated in rule 38 are within the discretion of the court, and such discretion must be exercised judicially. The main consideration is whether if evidence is placed before the court in that manner; justice is likely to be done. The applicant has to depose to an affidavit, give reasons why it is necessary for the purposes of justice to depart from the norm; explain the nature of the evidence to be given; names of witnesses and if it is convenient and necessary for the purposes of justice.

In the present matter, the Court was satisfied that the nature of the evidence to be adduced by the applicant was material to the real issues in the litigation and likely to contribute significantly to their determination. Taking into account a number of factors, including old age, serious illness, costs of travelling and other incidental costs, the Court concluded that the applicant would not be in a position to give oral testimony in court due to her advanced age and serious illness. Referring to its power to regulate its own processes in the interests of justice, the Court held that the absence of any rules that regulate the applications for hearing of evidence through video link conferences should not prevent it from considering the application. As the hearing with the aid of a video link conference would be a public hearing in a court of law, where all the parties would be appearing before a judge seized with the matter, there was no reason why such evidence could not be admissible in any court of law. Furthermore, the reference to a High Court in the Superior Courts Act 10 of 2013 was to be extended to cater for such a situation.

The application succeeded and the applicant was authorised and directed to adduce her evidence as sought. Mostert and others v Nash and others [2018] 4 All SA 267 (GJ) Applications– Ex parte applications – Requirement of full disclosure – In an ex parte application for interim relief, failure to reveal material facts and information in an application where such facts might have influenced the court in arriving at a decision to grant relief would in itself be sufficient to warrant a dismissal and setting aside of the order complained of. Civil procedure – Urgency – When courts are enjoined by rule 6(12) to deal with urgent applications in accordance with procedures that follow the rules as far as possible, the exercise of judicial discretion is involved. Personal Injury/Delict – Defamation – Law of defamation in protecting the reputation of people, limits the right to freedom of expression – Such limitation can be consistent with the Constitution only if it can be said that an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other.

The applicants (collectively referred to as “Mostert”) sought an order in Part B of their application against the first to fourth respondents prohibiting them from disseminating, directly or indirectly, false and defamatory allegations about Mostert. They also sought ancillary relief directing the respondents to close down certain websites and preventing the respondents from instituting proceedings against Mostert without first having obtained leave of the court. In Part A, Mostert had sought and obtained an order ex parte on an urgent basis preventing the respondents from publishing the present application papers.

Disputing that the statements complained of were defamatory, the first respondent (“Nash”) asserted that the order sought would constitute a severe violation of his right to freedom of expression, in that, firstly it sought to limit his right to impart information and ideas unjustifiably; and secondly, it unjustifiably limited the public’s right to receive the information about Mostert’s unlawful conduct.

As the relief was sought on an urgent basis, Nash disputed that grounds for urgency were established. Held – When courts are enjoined by rule 6(12) to deal with urgent applications in accordance with procedures that follow the rules as far as possible, the exercise of judicial discretion is involved. The Court had regard to the evidence that Nash was repeating previous defamatory statements about Mostert, and that he had addressed a letter to the Deputy Director General, National Treasury making unsubstantiated allegations regarding the falsification of inspection reports and the commission of perjury by Mostert. Nash also repeated defamatory statements that Mostert had unlawfully conducted himself and that he was involved in corrupt activities – without any facts to support such statements. In the circumstances, the matter was of sufficient urgency to justify Mostert approaching the court on the notice provided for in the notice of motion.

Alleging a failure to comply with the requirement of full disclosure in ex parte applications, Nash alleged that Mostert had concealed a commission agreement signed between himself and the CEO of the Financial Services Board (“FSB”), which agreement Nash alleged a court had found to be fraudulent. A perusal of the judgment referred to showed that insofar as contingency fee agreements in respect of non-litigious matters were against public policy, the court referred to by Nash had simply set aside the agreement. There was no finding that Mostert had committed fraud as alleged by Nash, and accordingly, Mostert could not have been obliged to disclose a fraud that did not exist. The Court set out the numerous other allegations made by Nash about facts which Mostert had allegedly concealed in his application. It held that in an ex parte application for interim relief, failure to reveal material facts and information in an application where such facts might have influenced the court in arriving at a decision to grant relief would in itself be sufficient to warrant a dismissal and setting aside of the order complained of. The alleged instances of non-disclosure were found not to be material and would not have influenced the outcome of Part A.

Regarding the main relief, the Court had to decide whether Nash had undermined the right of Mostert to the protection of his dignity and reputation or fama which personality right was protected by the law of defamation; whether freedom of expression exonerated Nash from all liability for his untruthful statements about Mostert; and whether the order sought was justified.

The law of defamation is designed to protect the reputation of people. In doing so, it limits the right to freedom of expression. Such limitation can be consistent with the Constitution only if it can be said that an appropriate balance is struck between the protection of freedom of expression on the one hand, and the value of human dignity on the other.

Section 10 of the Constitution protects the right to dignity, while section 16 entrenches freedom of expression. The Court had to first determine whether the expression was one specifically protected under section 16(1) or specifically excluded under section 16(2); and, if the expression was one which was protected by section 16(1) and not excluded by section 16(2), the Court had to then determine whether the purported limitation complied with the requirements of the general limitation clause under the section 36 limitation clause.

In defamation cases the truth of what is said and the public interest are relevant factors. Also relevant are the context in which the statements were made, their reasonableness, the tone used, the identity of the person who made the statements and the identity of the victim. Those criteria are also useful when determining whether freedom of expression justifies the violations of a person’s right to dignity. The defamatory statements by Nash were not made honestly and in good faith and were not supported by any evidence. They were retaliation against Mostert for uncovering Nash's fraud and corruption.

The relief sought by Mostert was final in effect. The applicants therefore had to establish a clear right, that injury was reasonably apprehended; and that no other suitable form of relief was available. Those requirements were satisfied, and the application succeeded. LEGAL PRACTICE ACT

AS GAZETTED ON 29 0CTOBER 2018:

THE ACT COMES INTO OPERATION:

THERE ARE TEN CHAPTERS IN THE ACT, ONLY CHAPTER 5 WILL NOT BE IN OPERATION (LEGAL OMBUD)

CERTAIN SECTIONS AND/OR SUBSECTIONS HAVE BEEN EXCLUDED, THEY ARE:

Section 35 subsections 1-3 and 7-12,see below

Section 37 (5) (e) (ii), omitting a lay person on the disciplinary board.

Section 40 (1) (b) (ii), and 7(b) both refer to section 41

Section 41, appeal against the finding of the disciplinary committee, the rules cover this.

Section 42, concerns the legal ombud.

Section 93(5), concerns the legal ombud

Section 95(2),concerns the legal ombud

Chapter 5 (legal ombud)

SECTION 35: THE CHAPTER THAT DEALS WITH FEES

The section is quoted below, the crux of the matter is that the Law reform Commission must investigate! Just as what was proposed by the NBCSA per adv Momoti.

35 Fees in respect [of] legal services (1) Until the investigation contemplated in subsection (4) has been completed and

the recommendations contained therein have been implemented by the Minister, fees in respect of litigious and non-litigious legal services rendered by legal practitioners, juristic entities, law clinics or Legal Aid South Africa referred to in section 34 must be in accordance with the tariffs made by the Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985).

(2) The Rules Board for Courts of Law must, when determining the tariffs as contemplated in subsection (1), take into account-

(a) the importance, significance, complexity and expertise of the legal services required; (b) the seniority and experience of the legal practitioner concerned, as determined in this

Act; (c) the volume of work required and time spent in respect of the legal services rendered;

and (d) the financial implications of the matter at hand.

(3) Despite any other law to the contrary, nothing in this section precludes any user of litigious or non-litigious legal services, on his or her own initiative, from agreeing with a legal practitioner in writing, to pay fees for the services in question in excess of or below any tariffs determined as contemplated in this section.

(4) The South African Law Reform Commission must, within two years after the commencement of Chapter 2 of this Act, investigate and report back to the Minister with recommendations on the following:

(a) The manner in which to address the circumstances giving rise to legal fees that are unattainable for most people;

(b) legislative and other interventions in order to improve access to justice by the members of the public;

(c) the desirability of establishing a mechanism which will be responsible for determining fees and tariffs payable to legal practitioners;

(d) the composition of the mechanism contemplated in paragraph (c) and the processes it should follow in determining fees or tariffs;

(e) the desirability of giving users of legal services the option of voluntarily agreeing to pay fees for legal services less or in excess of any amount that may be set by the mechanism contemplated in paragraph (c); and

(f) the obligation by a legal practitioner to conclude a mandatory fee arrangement with a client when that client secures that legal practitioner's services.

(5) In conducting the investigation referred to in subsection (4), the South African Law Reform Commission must take the following into consideration:

(a) Best international practices; (b) the public interest; (c) the interests of the legal profession; and (d) the use of contingency fee agreements as provided for in the Contingency Fees Act,

1997 (Act 66 of 1997). (6) The Minister may by notice in the Gazette determine maximum tariffs payable

to legal practitioners who are instructed by any State Department or Provincial or Local Government in any matter.

(7) When any attorney or an advocate referred to in section 34 (2) (b) first receives instructions from a client for the rendering of litigious or non-litigious legal services, or as soon as practically possible thereafter, that attorney or advocate must provide the client with a cost estimate notice, in writing, specifying all particulars relating to the envisaged costs of the legal services, including the following:

(a) The likely financial implications including fees, charges, disbursements and other costs;

(b) the attorney's or advocate's hourly fee rate and an explanation to the client of his or her right to negotiate the fees payable to the attorney or advocate;

(c) an outline of the work to be done in respect of each stage of the litigation process, where applicable;

(d) the likelihood of engaging an advocate, as well as an explanation of the different fees that can be charged by different advocates, depending on aspects such as seniority or expertise; and

(e) if the matter involves litigation, the legal and financial consequences of the client's withdrawal from the litigation as well as the costs recovery regime.

(8) Any attorney or an advocate referred to in section 34 (2) (b) must, in addition to providing the client with a written cost estimate notice as contemplated in subsection (7), also verbally explain to the client every aspect contained in that notice, as well as any other relevant aspect relating to the costs of the legal services to be rendered.

(9) A client must, in writing, agree to the envisaged legal services by that attorney or advocate referred to in section 34 (2) (b) and the incurring of the estimated costs as set out in the notice contemplated in subsection (7).

(10) Non-compliance by any attorney or an advocate referred to in section 34 (2) (b) with the provisions of this section constitutes misconduct.

(11) If any attorney or an advocate referred to in section 34 (2) (b) does not comply with the provisions of this section, the client is not required to pay any legal costs to that attorney or advocate until the Council has reviewed the matter and made a determination regarding amounts to be paid.

(12) The provisions of this section do not preclude the use of contingency fee agreements as provided for in the Contingency Fees Act, 1997 (Act 66 of 1997).

CASES

Van der Ross v University of Cape Town and Another (8473/2018) [2018] ZAWCHC 152 (15 November 2018)

Legal representation-university student-disciplinary hearing

The applicant, a final year student at the first respondent, seeks an order reviewing and setting aside the decision of the second respondent to refuse the applicant external legal representation at a disciplinary hearing initiated by the first respondent.

The charges relate to alleged dishonest conduct, which conduct is alleged to be in contravention of the second respondent’s rules of conduct. The applicant contends that the second respondent was to have acceded to his application for external legal representation in respect of the disciplinary process.

The respondents, on the other hand, contend that the matter does not warrant external legal representation, and thus that the second respondent had correctly exercised his discretion in disallowing the applicant’s application. This they principally base on the contentions that it is an uncomplicated matter which does not carry a sanction of expulsion upon conviction.

In mid-October 2017 a professor became suspicious of plagiarism in relation to an assignment that had been given to his final year engineering students. n 23 October 2017 the professor notified the students concerned that he would submit the evidence to the Student Tribunal, as he was obliged to do. On 25 October 2017 The professor , as he had notified the students he would, reported multiple suspected plagiarism cases to Ms Chyanne Isaac, the first respondent’s legal counsellor. Also on 25 October 2017 the professor notified the applicant, in writing, that he was suspected of having plagiarised the work of a student of a previous year.

Charges were compiled in respect of 15 students. On 25 November 2017, the applicant was advised by email that he would have to appear before the University Student Disciplinary Tribunal for a disciplinary hearing on the charges of having breached RCS2.1 and RCS2.3 of the first respondent’s Rules of Conduct.

Extracts:

[40] In Hamata and Another v Chairperson, Peninsula Technicon Internal Disciplinary Committee, and Others,[1] which concerned a student challenging the rule limiting representation at disciplinary proceedings to fellow students or members of the Pentech Staff, the SCA (reading in the discretion, although the Pentech’s rules did not provide for external legal representation) held that the law does not recognise an absolute right to legal representation.

[43] The SCA’s approach in Hamata, that there is no absolute right to legal representation in fora other than in courts of law (and that the discretion whether or not to allow external legal representation is essentially based on considerations of fairness) has been confirmed in a number of subsequent cases, which cases covered diverse contexts.

[47] From this it follows that the enquiry postulated in Hamata only becomes relevant once it appears that there is no possibility that the applicant may be expelled.

[48] In light of the abovementioned contents of the pre-hearing minutes (the correctness of which were confirmed under oath on behalf of the respondents), and the fact that the second respondent cannot bind the tribunal hearing the matter, I do not accept the respondents’ contention that there is no possibility that the applicant may not be expelled from the first respondent following a conviction on the charges he ultimately faces.

[49] From what has been stated above, it is clear that the second respondent was neither provided with the minutes of the pre-hearing of 1 December 2017 or the minutes of the pre-hearing of 5 March 2018, both of which expressly include the possibility that the applicant may be expelled from the first respondent.

[50] Since the second respondent explicitly stated (in his 30 November 2017 decision) that an application for external legal representation may not be refused where an adverse finding could lead to expulsion, I will in favour of the second respondent accept that had the second respondent been made aware thereof that the applicant faced the possibility of expulsion from the first respondent, he would have allowed the application for external legal representation.

[53] In the premises I find that the second respondent’s decision to not be rationally justifiable and one the second respondent could not reach in the circumstances of this case and that it is subject to judicial review as contemplated by section 6(2) of the Promotion of Administrative justice Act.

f. The only possible decision that the second respondent can make in the circumstances set out above is to allow the applicant external legal representation.

g. It is in the interests of justice that the disciplinary hearing proceed as soon as possible. In this regard it must be borne in mind that the applicant is a final year student who, should he be found not guilty, is overdue in respect of graduating from the first respondent.

ORDERS: The decision of the second respondent to refuse the applicant external legal representation in the disciplinary hearing, instituted by the first respondent under case number 17/0141/HC, is hereby set aside.

b. The decision of the second respondent is substituted therewith that the applicant is entitled to external legal representation in the disciplinary hearing, instituted by the first respondent under case number 17/0141/HC.

c. The first respondent is to pay the costs of this application.

AON SOUTH AFRICA (PTY) LTD v VAN DEN HEEVER NO AND OTHERS 2018 (6) SA 38 (SCA)

Res judicata — Issue estoppel — Requirements — Same party — Identity of interest between plaintiffs in two different actions sufficient to satisfy same-party requirement. The appellant (AON) acquired the business of Glenrand MIB Ltd (Glenrand), assuming liabilities for all claims against Glenrand. The liquidators of Protector Group Holdings (Pty) Ltd (Protector) brought an action against Glenrand and its wholly owned subsidiary, Glenrand MIB Financial Services (Pty) Ltd (Financial Services), on a number of grounds. The liquidators were mostly successful in the High Court but on appeal to the Supreme Court of Appeal, only one ground was upheld (enrichment) and only against Financial Services. Within a few months of of that judgment, Financial Services was liquidated. The present case concerns liquidation proceedings subsequently instituted by Financial Services' liquidators against AON (based on its aforementioned assumption of Glenrand's liabilities). Both actions were directed at recovering money from Glenrand which was paid as purchase consideration by New Protector Group Holdings (Pty) Ltd (New Protector) in its acquisition of Protector. Financial Services (which existed solely to hold the Protector shares) had a 65% stake in Protector, for which New Protector paid it (ie Financial Services) R50 million. This money found its way to Glenrand as payments discharging Financial Services' existing indebtedness to Glenrand by way of set-off. This appeal arose from the court a quo's rejection of AON's special plea, that the previous litigation against Glenrand (and therefore indirectly against AON) resolved the issues in its favour, and, to the extent that these were again being raised by Financial Services' liquidators, they were res judicata (in the form of issue estoppel). The court a quo's reason for rejecting the special plea was that it failed on all three aspects of the defence of res judicata: the parties, the causes of action and the relief claimed were all different. On appeal to the Supreme Court of Appeal — Held, although different individuals were appointed as liquidators in each action, they came from the same company and the litigation they instituted was clearly driven by the creditors of Protector. To all intents and purposes, the liquidators of Financial Services were merely surrogates for the liquidators of Protector. As for the defendants, there was a complete identity of interests between them, and it would be artificial to say that findings against or in favour of Financial Services in the previous case would not be binding upon Glenrand. The approach of the trial judge was incorrect. Too much focus was placed on the fact that the plaintiffs in the two actions were liquidators of two separate companies, and insufficiently on the fact that there was a complete identity of interests between the two sets of liquidators and a similar identity of interests between the defendants in both actions. (See [25] – [27].) The claims advanced in these proceedings by the liquidators of Financial Services involved the reconsideration of the very evidence and issues that were the subject of determination in the previous action. And insofar as the relief was concerned, both were directed at recovering from Glenrand the R50 million paid to Financial Services as the price for its 65% stake in Protector. The court below erred in holding otherwise by looking mechanically at the elements of the causes of action in the two cases, instead of examining the issues that had been determined in the previous

case and comparing them with the issues that would need to be determined if the present case went to trial. The elements of res judicata in the form of issue estoppel were accordingly satisfied and the special plea should have been upheld. In the result, the appeal would succeed.

MADIBENG LOCAL MUNICIPALITY v PUBLIC INVESTMENT CORPORATION LTD 2018 (6) SA 55 (SCA)

Practice — Trial — Witnesses — Evidence — By affidavit — Correct approach to — Uniform Rules of Court, rule 38(2). The Brits Town Council, for the purpose of repaying a number of short-term loans it had previously entered into with certain institutions, borrowed a large sum of money from the Public Investment Corporation Ltd (the PIC). It did this (in around January 1994) by issuing to the PIC three zero-coupon stock certificates, to be redeemed on their maturity at their face values. When the coupons fell due, the Madibeng Local Municipality (Madibeng), being the successor of the Brits Town Council, failed to honour them. The PIC consequently sued in the High Court for the capital amount outstanding. In defence, Madibeng raises a number of issues, one of which was the enforceability of the loans. In particular, it argued that the loans were unenforceable as they were raised without the consent of the Administrator of the (then) Transvaal Province as required by s 52 of the Local Government Ordinance 17 of 1939. Before trial, the various issues were separated, with only the question of enforceability to be decided. And it was agreed, on the suggestion of the presiding officer, that no oral evidence would be tendered, but that each party would file affidavits in which they set out their contentions. The court found in favour of the PIC, rejecting Madibeng's defence. The latter appealed to the SCA, where, in addition to disputing the enforceability of the loans, also argued that the court a quo, in allowing evidence to be adduced by affidavit in terms of rule 38(2) of the Uniform Rules of Court, committed an irregularity, and its order should therefore be set aside. Held, that the loans were duly authorised because, in terms of s 52 of the Ordinance, consent was not required when the purpose of the loan was, as here, to pay back other loans (see [23]). Held, that the approach to rule 38(2) was the following. A trial court had a discretion to depart from the position that, in a trial, oral evidence was the norm. When that discretion was exercised, two important factors would inevitably be the saving of costs and the saving of time, especially the time of the court in this era of congested court rolls and stretched judicial resources. More importantly, the exercise of the discretion would be conditional upon whether it was appropriate and suitable in the circumstances to allow a deviation from the norm. That required a consideration of the following factors: the nature of the proceedings; the nature of the evidence; whether the application for evidence to be adduced by way of affidavit was by agreement; and ultimately, whether, in all the circumstances, it was fair to allow evidence on affidavit. (See [26].) Held, that the court a quo had not exercised its discretion injudiciously. The parties agreed to place evidence on affidavit before the court on the separated issue. It was, in essence, a law point, and the facts were never in dispute. In its plea, no facts were alleged to place in dispute anything that appeared in the trial bundle. (See [27].) Accordingly, appeal dismissed (except to extent provided in [31] – [33]).

MONDI SHANDUKA NEWSPRINT (PTY) LTD v MURPHY 2018 (6) SA 230 (KZD) Judge — Death — Before giving judgment in trial — Trial completed — Parties not wanting trial de novo — Proposal that matter be determined on available documents and after legal argument. In 2004 a fire spread from Mr Murphy's land to Mondi's * land where it destroyed commercial forest. Mondi then sued Murphy for damages and the matter went to trial from 2011 – 2014 and argument was heard a year later. Then in 2017 before giving judgment the presiding judge died (see [1]). The parties had now come to court asking it to finalise the matter in a way that they had agreed, rather than their beginning the trial anew. It was now considering whether it could give effect to their agreement (see [2]). The proposed procedure was that the court read all of the documents that would have been available to the deceased judge; that it hear argument from the parties; and that it then make a decision (see [1]). Its conclusion was that it could not give effect to the proposed procedure (see [25]). This because it would be unable to resolve the many disputes of fact without resort to the credibility of the witnesses (see [21] – [23]). If it were to decide the matter on the basis agreed, it would be in breach of its oath of office (see [24]). It dismissed the application and directed that if the parties wished to continue with the matter that the trial begin de novo.

SWART AND ANOTHER v CASH CRUSADERS SOUTHERN AFRICA (PTY) LTD 2018 (6) SA 287 (GP) Execution — Application to execute pending appeal — Requirements — Applicant must allege absence of irreparable harm to all opposing parties — Leaving one out fatal to application — Superior Courts Act 10 of 2013, s 18(1) and (3). Competition — Restraint of trade agreement — Enforcement — Order — Application to execute pending appeal — Irreparable harm — New employer opposing enforcement of restraint — Applicant must allege absence of irreparable harm to new employer — Superior Courts Act 10 of 2013, s 18(1) and (3). An applicant seeking to execute pending appeal under s 18 of the Superior Courts Act 20 of 2013 (the Act) must allege absence of irreparable harm to all opposing parties. Therefore, where a former employer applies to execute an order enforcing a restraint of trade agreement pending an appeal by the affected employee, it must, if the main application was opposed by a new employer, also show absence of irreparable harm to the latter. On 17 January 2018 the Pretoria High Court granted an order enforcing a restraint of trade agreement between S and Crusaders which interdicted S from working for Converters, the second appellant, until April 2019. The High Court refused leave to appeal; S and Converters applied for leave to appeal to the Supreme Court of Appeal; and on 27 February 2018 the High Court granted an application by Crusaders, under s 18(1) of the Act, for an order directing that the interdict granted

on 17 January should operate pending the appeal. The present case was an appeal by S and Converters against the order of 27 February. S and Converters opposed the enforcement of the restraint from the beginning. Under s 18 two requirements had to be met before an order appealed against can be put into operation pending the outcome of the appeal: (i) exceptional circumstances must exist; and (ii) proof, on a balance of probabilities, that the applicant seeking execution will suffer irreparable harm if the order is not put into operation and the other party will not suffer irreparable harm if the order is put into operation. Crusaders did not, when it applied for execution, deal with the position of Converters at all, having alleged only that S would not suffer irreparable harm if the order were put into operation. Held It was clear from the affidavits before the court a quo that it did not deal with the effects his preclusion from being employed by a competitor would have on S after the period of restraint, and that the scope of its enquiry under s 18(3) was therefore limited (see [8], [12]). However, Crusaders' failure to deal, in its s 18(1) application, with the position of Converters, went to the heart of the matter. Both S and Converters brought an application for leave to appeal against the order of 27 February. Consequently Crusaders was required to make out a case of absence of irreparable harm in regard to both S and Converters. Its failure to do so was a fatal omission to its application, and it ought on that basis alone to have been dismissed with costs by the court a quo TROLLIP v TAXING MISTRESS, HIGH COURT AND OTHERS 2018 (6) SA 292 (ECG) Costs — Counsel's fees — Taxation — Wasted costs of first day of postponed trial — Correct approach — Counsel entitled to full day fee as compensation for loss of opportunity, unless briefed and appearing in another matter on same day — Absent any reason to suspect counsel charged improperly, counsel not to be required by taxing officer to show loss of opportunity. One day before the date that an action was set down for trial, the defendant filed an application for postponement. On the trial date the matter was postponed by agreement, the defendant tendering the wasted costs of his application for postponement and plaintiff's wasted costs. An order was granted at approximately 10h45. Counsel for the plaintiff subsequently charged a full first day trial fee but half of his bill was taxed off by the taxing mistress. This case concerned the review of her decision. In her rule 48 stated case, the taxing mistress stated inter alia that she took into account that 'at most, counsel was before court for one hour and engaged in the matter from 08h00 to 10h45'; that she had 'listened to the recording of the hearing and it was apparent that [counsel] was not at court when the matter was postponed', and so 'the only inference' she could draw was that 'counsel's attendance was required elsewhere and he then returned to his chambers to do other work'; and that the plaintiff's attorney could have requested counsel to 'furnish written confirmation that he in fact did not attend to any other fee generating work on the day in question, in order to persuade the Taxing Mistress to allow the full day fee' but that he did not do so. She also appeared to have relied on the Guidelines to Taxation of Bills of Costs — Eastern Cape High Courts, that counsel was not entitled to a day fee

unless engaged in the matter up to and until 14h00 'at least', and that when 'counsel have kept themselves available for the day and are unable to proceed with any fee generating work on the day reserved for trial, then they must prove in writing that they turned away work which could have been done on the day the matter was set down for hearing'. Held The required approach to the task of taxing a bill of costs was to do so with an open mind: where a dispute was raised or good reason existed to suspect that the services claimed for had not been performed, the taxing officer was under a duty to afford the affected party an opportunity to deal with any disputed questions of fact. While the taxing officer may not ignore evidence that may show that work that had been charged for was, in fact, not done, this did not mean that there was a duty upon practitioners to prove their claims. The legal profession was a distinguished and venerable profession and its members officers of the court; absolute personal integrity and scrupulous honesty were expected of them. It followed that a taxing officer was entitled to take counsel's fee list at face value as constituting a record of the work that has been done. The honesty and professional ethics of counsel ought not to be lightly questioned. The suggestion that an advocate, when rendering a fee for a full first day trial fee in respect of a matter which has been settled or postponed, must necessarily demonstrate that he or she has turned away work and had no other work, was erroneous. A taxing officer's starting point should be that, in the absence of evidence to the contrary, advocates, as members of an honourable profession, rendered fees honestly and behaved ethically. (At [18] – [20] and [29].) If a matter was settled, withdrawn or postponed, the function of the taxing officer was to determine a reasonable fee for counsel, taking into account the date when the case was settled or withdrawn or postponed. The settlement or postponement of a trial prejudiced counsel if they were not properly compensated for having reserved that day for trial. No other brief may properly be accepted for the days so reserved as this would constitute double briefing. This all constituted a loss of opportunity to earn fees from other work in consequence of the acceptance of the trial brief. Counsel's chamber work would have been performed at one time or another in any event, often after hours. If counsel performed chamber work on the day of a settled or postponed trial, this did not compensate for, and should not be taken into account, in respect of the entitlement to a full day trial fee. The only possible compensation for loss of opportunity in respect of the first day of trial would be the fortunate retention of another brief for court work accepted subsequent to it becoming apparent that the trial would not proceed. The position (as supported by case law) was therefore that an advocate was entitled to be compensated for his or her opportunity costs when a trial settled or was postponed, and that, generally speaking, would be on the basis of a full day fee. If, however, they were lucky enough to be briefed to appear on that day in another matter, they may not charge a full day fee for the matter that did not proceed. Counsel was entitled to be fairly compensated in accordance with these principles; the taxing officer must strive to give the successful party a full indemnity in respect of costs reasonably incurred. (At [24], [26] – [28] and [38] – [39].) The paragraphs of the Guidelines to Taxation of Bills of Costs — Eastern Cape High Courts that the taxing officer appeared to have relied on, were in conflict with the common law and case law, and to that extent could not be applied. She committed an irregularity in doing so. At the heart of her reasoning was her finding that counsel did other work on the day in question. There was however no evidence to suggest

that that was so; accordingly her decision to halve counsel's fees was irrational. She also erred in placing the onus on counsel to show that he did not do other work — by which she meant chamber and not appearance work. A taxing officer should work from the premise that advocates act honestly and ethically, and do not overreach, rather than from the opposite premise; in the absence of reason to believe that counsel charged improperly, it was unnecessary for counsel to present evidence to establish the loss of opportunity to justify a full first day fee. By halving counsel's fee on the assumption that he had 'returned to his chambers to do other work', she applied a wrong principle and committed a material error of law: whether counsel did chamber work on the day in question was entirely irrelevant to the respondent's decision. Her decision to reduce the counsel's fee was therefore clearly wrong. The review thereof would therefore succeed. S v SHIBURI 2018 (2) SACR 485 (SCA) Trial — Accused — Legal representation of — Withdrawal of legal representative — On day of trial on grounds of ill health — Accused electing to proceed with trial without representation when asked what wished to do — Short of compelling accused to engage legal representation, nothing more could be expected of court — No irregularity occurring. Plea — Guilty — Questioning in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977 — Not court's function to evaluate plausibility of answers at that stage, but only whether explanation disclosing possible defence in law to charge — Court should not attempt to extract concessions from accused. The appellant was charged in a regional magistrates' court with three counts of rape. Two of the rapes were allegedly committed on the same day and the third on a separate occasion. The appellant pleaded guilty to all counts, but the plea to the third count was changed to one of not guilty. The magistrate then questioned the appellant in terms of s 112(1)(b) of the Criminal Procedure Act 51 of 1977 (the CPA) in respect of the counts to which he had pleaded guilty. From his answers he appeared to claim to have raped the complainants in the first two counts on the instructions of a companion who was armed with a knife. The magistrate's questioning also appeared to be directed at establishing the veracity of the defence of compulsion that the appellant was raising. The state ultimately accepted the plea of guilty and the magistrate convicted the appellant on those two counts. Evidence was led on the third count before he was convicted on that count also. The convictions were upheld on appeal to the High Court. In a further appeal it was contended, inter alia, that the regional magistrate had failed, in the light of the seriousness of the charges he faced, to encourage the appellant to exercise his right to legal representation when his Legal Aid attorney withdrew on the trial day due to ill health. The magistrate had asked the appellant what he wished to do in the circumstances and he indicated that he wanted the trial to proceed. Further, that the explanation by the appellant during the s 112(1)(b) questioning had raised a defence of compulsion, and the court should therefore also have altered those pleas to not guilty. Held, as to the trial proceeding with the appellant unrepresented, that the application of the rule regarding legal representation was context-sensitive. In any given situation the inquiry was always whether an accused's fair-trial rights had been infringed. Short of compelling the appellant to seek further legal representation in the present matter, it was difficult to see what else the regional court could have done.

There was therefore no merit in the argument on legal representation. (See [13] – [14].) Held, as to the questioning by the magistrate in terms of s 112(1)(b), that it was not the court's function to evaluate the plausibility of the accused's answers or to determine their truthfulness at that stage of the proceedings. Instead, for the purposes of the section, the accused's explanations had to be accepted as true. On that premise, the court had to consider whether the explanation disclosed a possible defence in law to the charge that he had pleaded guilty to. The presence of doubt was a jurisdictional factor to trigger the application of the procedure laid down in s 113. (See [19].) Held, further, that it was clear that the regional magistrate had been at pains to extract a concession from the appellant that he was under no compulsion from his colleague to rape the complainants, and that was beyond the ambit of s 112(1)(b). Both the regional court and the High Court had erred in this regard and the convictions and sentences therefore had to be set aside. (See [20] – [21].) The court also upheld the appeal on the third count on the basis of the evidence as it appeared on the record. Held (per Pillay AJA, dissenting), that the convictions and sentences on the first and second counts did not need to be set aside on account of non-compliance with s 113 of the CPA, and that the state had proved the guilt of the appellant beyond a reasonable doubt on the third count. ABSA Bank Limited v Mokebe and 3 related matters [2018] 4 All SA 306 (GJ) Civil procedure – Execution against immovable property – Mortgage bond foreclosure – Procedural requirements. Civil procedure – Issue was whether a court faced with an application by the mortgagee for an immediate money judgment has a discretion to postpone an application for executability to afford the mortgagor an opportunity to remedy its default – Court held that in exceptional circumstances, a reserve price should be set by a court in all matters where execution is granted against immovable property, which is the primary residence of a debtor, where the facts disclosed justify such an order. How a mortgage bond, registered over immovable property, affects rights of ownership lay at the heart of the present case. When a mortgagor (“home owner”) defaults on repayment of the loan secured by the mortgage bond, the mortgagee invariably exercises its rights in terms of the agreement of loan, and forecloses by seeking to execute against the property. Generally, the rights include the right to call up the loan, accelerate payment and claim execution against the property.

In April 2018, a number of foreclosure matters served in the motion court, invoked section 14(1)(b) of the Superior Courts Act 10 of 2013. Subsequent thereto, the Judge President of the Division issued a directive in terms of section 14(1)(a), setting out the issues requiring determination. Held – The critical issue was whether a court faced with an application by the mortgagee for an immediate money judgment has a discretion to postpone an application for executability to afford the mortgagor an opportunity to remedy its default.

Prior to the amendment of Uniform Rule 46 and the promulgation of rule 46A, the execution procedure that lenders followed did not per se require the intervention of a

court. The amended rule introduced specific and detailed provisions applicable to court oversight. That, in turn, requires full disclosure of all relevant facts to the court when judgment is sought as any monetary judgment may impact on the discretion which a court is required to exercise when execution is sought.

The money judgment is an intrinsic part of the cause of action and inextricably linked to in the in rem claim for an order for execution. The default of the debtor and the money judgment is a pre-condition for the entitlement of the mortgagee to foreclose. It is obligatory for a mortgagee seeking execution to find a cause of action based on execution to allege and prove its entitlement to the money judgment which, in turn, is a necessary averment in order to sustain the action to obtain an order for execution. The Court rejected the submission that rule 46(1)(a)(i) presupposes that a money judgment may be obtained separately from and prior to, an order of executability. The fact that both the money judgment and the order for executability must be given at the same time, is not in conflict with the rule which requires certain steps against movables prior to execution against the immovable property. It is purely a prior procedural step before a writ against the immovable property is issued – and is separate from the monetary judgment and the order declaring the immovable property executable. It was concluded that a duty rests on banks to bring their entire case including the money judgment, based on a mortgage bond, in one proceeding simultaneously. Piecemeal hearing of applications for foreclosure are undesirable and not cost effective.

The Court held further that execution against movable and immovable property is not a bar to the revival of the agreement until the proceeds of the execution have been realised. Any document initiating proceedings where a mortgaged property may be declared executable must draw the attention of the defendant to section 129(3) of the National Credit Act 34 of 2005 allowing him to pay the credit grantor all amounts overdue together with the credit provider’s permitted default charges and reasonable taxed or agreed costs of enforcing the agreement prior to the sale and transfer of the property and so revive the credit agreement. Finally, it was held that save in exceptional circumstances, a reserve price should be set by a court in all matters where execution is granted against immovable property, which is the primary residence of a debtor, where the facts disclosed justify such an order. UMSO Construction (Pty) Ltd v City of Johannesburg and another [2018] 4 All SA 507 (GJ) Civil procedure – Interim interdict – Requirements – Applicant establishing prima facie right, irreparable harm if interim relief not granted, that the balance of convenience favoured it and that there was no suitable alternative remedy Civil procedure – Locus standi – Whether individual party to joint venture has legal standing to seek relief in respect of bid where joint venture was the bidder – Court confirming standing on ground that party to the joint venture stood to benefit from the bid, if awarded, in its own right Civil procedure – Non-joinder – Insofar as parties in new tender process would be affected by outcome of dispute, they had to be joined in the application. In an urgent application, the applicant (“Umso”) sought to interdict and restrain the first respondent (the “City”) from proceeding with a tender process for the construction of civil engineering infrastructure and low cost housing.

In an earlier tender in 2015, for the same work, a joint venture to which Umso was a party had submitted a bid. UMSO was informed that on account of problems with the tax clearance certificates of UMSO and its joint venture partner, the second respondent (“Nebavest”) and the withdrawal of Nebavest from the joint venture, the “bid validity had expired”. UMSO sought to interdict the further processing of the new tender pending a judicial review of the decision not to proceed with the initial tender. UMSO also sought an order substituting the City’s decision one confirming the award of the tender to the joint venture.

UMSO’s founding affidavit was deposed to by one of its directors (“Mr Nkosi”). Stated that after providing audited financial statements in respect of both companies in the joint venture, he and a fellow UMSO director started receiving anonymous phone calls in which the caller purported to represent the City, and demanded a bribe. When UMSO refused to negotiate, the callers stated that the tender would not be awarded to the joint venture because of UMSO’s unwillingness to cooperate. Two days after the last of the anonymous phone calls, the joint venture members received an email requesting updated tax clearance certificates, to which UMSO took the position that the tax clearance certificates already provided were sufficient for purposes of the bid. After eight months of silence from the City in response to requests for updates on the bid adjudication process, UMSO was advised that due to alleged fraud in connection with the tax clearance certificates provided, and due to Nebavest having in the meanwhile withdrawn from the joint venture, the joint venture would not be awarded the contract.

Mr Nkosi pointed out that neither the alleged fraud in relation to the tax certificates, nor the alleged collapse of the joint venture had ever been taken up with UMSO, and that it had not been afforded any opportunity to respond before the decision against it was made. That led to the bringing of the review application by UMSO. In February 2018, Mr Nkosi discovered that the City had decided to open a new tender process in respect of the works which were the subject matter of the initial tender. Notwithstanding the request for an undertaking not to proceed with the new tender, was advertised. That led to the present application interdict the processing of the new tender.

The City raised three points in limine, contending UMSO had no legal standing to seek relief because it was not the bidder in the initial tender. As the bidder was the joint venture, it was said to be the only entity that could seek relief. The second point was that the parties who submitted bids in the new tender were interested parties who ought to have been joined in the urgent application. Finally, it was contended that UMSO failed to make out any case for urgency, and that any urgency was self-created as a result of the delays in launching the application. Held – In disputing UMSO’s standing, the City that the effect of rule 14 was that an entity such as a partnership or unincorporated association must bring proceedings in the name of the partnership or the unincorporated association. Rule 14 provides that a partnership, a firm or an association may sue or be sued in its name. The use of the word “may” showed that the provision was not peremptory. UMSO therefore had a choice either to sue in the name of the joint venture or to follow the common law path and ensure that both parties to the joint venture were joined. It chose to do the latter. UMSO was a party to the joint venture and stood to benefit from the bid, if awarded, in its own right. It therefore had a direct and substantial legal interest in the dispute. The Court thus confirmed its standing to bring the urgent application.

On the issue of non-joinder, the court pointed out that UMSO sought relief that would take the form not only of reviewing the City’s decision-making in relation to the initial tender, but also of confirming the award of the initial tender to it. As such the bidders in the new tender had a direct and substantial interest in the outcome of the dispute and were potentially prejudicially affected by its outcome. They therefore needed to be joined in the application. The Court decided to issue a rule nisi rather than dismissing the application. In terms of the rule City and the bidders in the new tender were called upon to show cause why an order should not be made as sought in the notice of motion.

The Court then turned to consider whether UMSO has satisfied the requirements for the grant of an interim interdict. It was found that UMSO had established a prima facie right to such relief by establishing a reasonable prospect of showing that the decision-making process pertaining to the initial tender was flawed in a manner giving rise to several potential review grounds.

The court was also satisfied that UMSO faced irreparable financial harm if the interim relief was not granted, that the balance of convenience favoured it and that there was no suitable alternative remedy.

Despite the City’s disputing that urgency had been established, the Court found that UMSO was entitled to have brought the matter in an urgent basis in the circumstances of the matter.

Amardien and Others v Registrar of Deeds and Others (CCT212/17) [2018] ZACC 47 (28 November 2018)

National Credit Act 34 of 2005 — section 129 — notice of default — draw default to the attention of the consumer— MUST specify amount of arrears

On Wednesday, 28 November 2018 at 10h00 the Constitutional Court handed down judgment in an appeal against an order of the High Court of South Africa, Western Cape Division, Cape Town (High Court). The High Court had dismissed an application to set aside the cancellation by the Cape Town Community Housing Company (Pty) Limited (CTCHC) (and subsequently by the Registrar of Deeds) of the Instalment Sale Agreements (ISAs) concluded between each applicant and the CTCHC in relation to certain properties and the subsequent sale of those properties to the S & N Trust (Trust).

In 1998, the City of Cape Town established a government subsidised housing programme. This programme was administered by the CTCHC to indigent members of the Cape Town community. The applicants entered into the ISAs for subsidised housing with the CTCHC as the seller, between 2000 and 2001. In terms of the ISAs, CTCHC was obliged to record the ISAs. In turn, the applicants were required to make payments in monthly instalments for a period of four years. They did so irregularly for various reasons including that the instalments due were higher than expected; the building standards were of inferior quality; and that the CTCHC had failed, on numerous occasions, to respond to their complaints. The applicants contended that the CTCHC was obliged to record the ISAs before receiving any

payments under the ISAs as required by section 26 of the Alienation of Land Act 68 of 1981 (ALA), but failed to do so at the time that the ISAs were concluded. Despite this, it continued to receive payments from those applicants who continued paying.

The CTCHC only recorded the ISAs in April 2014, more than ten years after the conclusion of these agreements. Within a month after the recordal, the CTCHC issued notices in terms of section 129(1) of the National Credit Act (NCA), stating that the applicants were in arrears and that they should remedy the default within 20 days failing which the ISAs would be cancelled. The applicants failed to pay. On 23 June 2014, the CTCHC sold the applicants’ homes to the Trust. However, the ISAs were only cancelled by CTCHC on 4 May 2015 and the properties were transferred to the Trust on 5 May 2015. The Trust then instituted eviction proceedings against the second to sixth applicants in the Mitchells Plain Magistrates Court, and have expressed an intention to evict the seventh to twelfth applicants.

Subsequent to this, the applicants instituted proceedings in the High Court, challenging the lawfulness of the cancellation of the ISAs by the CTCHC and later by the Registrar of Deeds and the lawfulness of the sale of the properties to the Trust, which they sought to be declared void. The High Court held that although the instalment amounts under the ISAs only become payable upon the recording of the ISAs, this did not prevent them from becoming due at the time of the conclusion of the ISAs. Section 26 of the ALA only applied to prevent a creditor from receiving consideration until it had promptly recorded the ISAs; it did not prevent such amounts from becoming due. Therefore, the cancellation of the ISAs by the CTCHC was held to be valid as the applicants were in arrears at the time of recordal.

The High Court also held that the CTCHC had fulfilled its obligations under section 129(1) of the NCA by providing evidence of delivery of notices to the applicants, and that it was not essential for notices in terms of section 129(1) to set out the amount of the arrears. The applicants were able to determine for themselves how much they owed – and in an event of uncertainty, they could consult with CTCHC to determine the amount. The High Court thus dismissed the application with costs and refused leave to appeal, as did the Supreme Court of Appeal.

The applicants applied to this Court for leave to appeal against the High Court’s judgment and argued that this matter impacts on their right to housing. They submitted that the late recordal of the ISAs by CTCHC meant that in terms of section 26 of the ALA, they could not be in default until after recordal of the ISAs. The applicants submitted that a proper interpretation of section 129 of the NCA is that a credit provider is required to state the arrear amount owing in a notice to a consumer.

The CTCHC supported the judgment of the High Court and submitted that the payments would be due retroactively where an ISA is recorded late. Regarding the section 129(1) notices, CTCHC submitted that these contained the arrear amounts but in any event, the inclusion of the amount in the section 129(1) notice is not a legal requirement. The CTCHC submitted that the cancellation of ISAs was thus valid and the section 129(1) notice was sufficient.

The Women’s Legal Centre Trust (WLC) was admitted as amicus curiae. It submitted that section 129 of the NCA must be interpreted in line with the right to housing in section 26 of the Constitution. Furthermore, it must be viewed through a gendered and feminist lens as the cancellation of the ISAs will have an adverse impact on women and affect their right to access housing.

In a unanimous judgment by Mhlantla J, this Court held that in terms of section 20 read with section 26 of the ALA, the payments under the ISAs are not due and payable, and the seller is statutorily barred from receiving payments, until the ISAs are recorded with the Registrar of Deeds. Therefore the applicants were not in arrears as contended by the CTCHC and no fault could be imputed to them during the period when the ISAs were unrecorded.

The Court further held that section 19 of the ALA and section 129 of the NCA serve different purposes. Section 19 provides steps that a seller must take before cancelling an ISA, whereas a section 129 notice would ordinarily only be served subsequent to a section 19 notice. Thus the section 129 notice served on the applicants was premature when the CTCHC claimed cancellation as it did not satisfy the requirements of the section 19 ALA notice. Since CTCHC took more than ten years to record the ISAs, it should have advised the applicants of the recordal and given them time to pay the instalments. The Court, for clarification purposes, also decided the question of whether the arrear amount owing had to be stated in the section 129 notice. This Court held that the phrase “draw the default to the notice of” in section 129(1) meant that the amount owed must be clear and specified in the notice.

In the result, this Court granted leave to appeal and upheld the appeal. The CTCHC’s cancellation of the ISAs and cancellation of the recordal by the Registrar of Deeds, were set aside.

Plastomark (Pty) Limited v Small and others [2018] JOL 40580 (ECG)

Execution– Execution against immovable property – Primary residence – Court’s discretion

On 24 November 2016, judgment was granted in favour of the applicant (“Plastomark”) against the first respondsent (“Small”) and another. Since the judgment was granted, Small made no payment. Execution against his movable property resulted in a nulla bona return and he deposed to an affidavit to the effect that he was unable to pay the amount due and that he did not possess any disposable property to satisfy the judgment.

The present application was for an order declaring Small’s immovable property executable.

Held that the principles to be applied in deciding whether or not to authorise execution against immovable property which is a person’s home have developed considerably in the constitutional era. A primary consideration in such matters is the constitutional

right to access to adequate housing. Rule 46A(2)(a)(ii) of the Uniform Rules of Court requires a court to consider alternative means by the judgment debtor of satisfying the judgment debt, other than execution against the primary residence. Rule 46A(8)(d) provides that a court may order execution against the primary residence of a judgment debtor if there is no other satisfactory means of satisfying the judgment debt.

In the present case, the debt was a large one and the court was of the view that execution against the property was in the circumstances, not disproportionate. The relevant factors cumulatively demonstrated that there was little reason for the court to exercise its discretion in favour of Small. The disadvantage to Plastomark if execution was refused outweighed any harm to Small which might occur if the property was sold in execution.

The application accordingly succeeded.

RSC Avelo (Pty) Limited v Kenako Concrete (Pty) Limited and others [2018] JOL 40593 (ECP)

Summary judgment – Requirements – Rule 32, Uniform Rules of Court-facts in legal proceedings they must be within his personal knowledge-not so in this case

In its action against the defendants, the plaintiff sued the first defendant for payment in respect of goods sold and delivered. The claim against the second and third defendants was based on a suretyship agreement wherein they had bound themselves as surety and co-principal debtors in solidum with the first defendant.

After the defendants filed a notice of intention to defend, the plaintiff applied for summary judgment in terms of Rule 32 of the Uniform Rules of Court.

Held that Rule 32(2) provides, “The plaintiff shall within fifteen days after the date of delivery of notice of intention to defend, deliver notice of application for summary judgment, 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 and stating that in his opinion there is not bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay.”

An applicant in a summary judgment application needs to comply strictly with the different, distinct requirements set out in Rule 32(2). Generally, before a person can swear positively to facts in legal proceedings they must be within his personal knowledge. In the present matter, the court raised the question of whether the deponent to the supporting affidavit had the requisite direct knowledge of the facts. A proper consideration of the papers as a whole indicated that the deponent to the verifying affidavit did not have direct knowledge of the facts to be able to swear positively to them. Consequently the application for summary judgment was fatally defective and had to fail.

Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ)

Irregular steps-appeal-security ordered not given-appeal dismissed Appeal-security- Irregular steps-appeal-security ordered not given-appeal dismissed

in terms of Rule 30A of the Uniform Rules of Court, the applicant sought to have the various steps taken by the respondent in this matter set aside as an irregular step.

The respondents had obtained leave to appeal against the granting of summary judgment against them, in favour of the applicant. The applicant then applied for security for costs of appeal in terms of Rule 49(13). On 18 April 2018, the Registrar fixed the security for costs of the appeal at the amount of R65 000 and ordered that it be secured by way of a bank guarantee within 30 days from 18 April 2018. On 17 May 2018, the respondents delivered a notice for security for costs without providing the actual security.

Held that Rule 49(13)(a) provides that, “Unless the respondent waives his or her right to security or the court in granting leave to appeal or subsequently on application to it, has released the appellant wholly or partially from that obligation, the appellant shall, before lodging copies of the record on appeal with the registrar, enter into good and sufficient security for the respondent’s costs of appeal”. If security is not provided as stipulated in the Rule an appeal may be struck off the roll. The Court was advised during argument that the respondents were still to provide security for costs. In terms of Chapter 7 of the Practice Manual, the Registrar could not accept any appeal matter, unless the appellant or the attorney of the appellant simultaneously submitted to the Registrar, a complete record, indexed and paginated, heads of argument and practice note. The respondents’ failure to provide security timeously, precluded them from furnishing the Registrar with the appeal record, heads of argument and practice note. All the steps that they took without providing security to the Registrar in an attempt to advance the matter towards a hearing date were therefore irregular.

The application was duly granted.

Makhambi v Member of the Executive Council for Health, Eastern Cape and another [2018] JOL 40604 (ECM)

Applications- Drafting of application – Negligence of legal practitioners

The applicant alleges that after sustaining injury for which she was admitted for two days at a State hospital for treatment and care, she instructed her attorneys to lodge a request for accessing the relevant duly completed RAF1 form and her medical records pertaining to the injuries she sustained. She intended to claim compensation from the Road Accident Fund. Her request to access the records elicited no response from the second respondent.

Seeking an order declaring unlawful the respondents’ refusal and/or failure to consider and take a decision on the applicant’s request for access to her medical reports and records, the applicant based her application on section 78(2) read with section 82 of the Promotion of Access to Information Act 2 of 2000, read with the provisions of the Promotion of Administrative Justice Act 3 of 2000.

When the matter went before court, it was removed from the roll, and the applicant granted leave to deliver a supplementary affidavit. Without any supplementary affidavit having been delivered, the application was re-enrolled for hearing and served before

the present court. The Court drew the provisions of section 14 of the Promotion of Access to Information Act to the attention of the applicant’s counsel and enquired whether the request for access to records and the resulting appeal had been duly and properly served. Counsel disavowed any reliance on the said Act, and when pointed to the relevant paragraphs in the founding affidavit wherein pertinent reference was made to the Act, counsel pressed no further with the contention.

Held that noting that there were 66 similar applications enrolled for hearing before the court, the Court was concerned that a culture had developed for practitioners to remove a matter from the roll of a judge who had raised a concern and thereafter reinstate the matter so as to serve before another judge, even without any supplementary papers having been filed, in the hope that the judge hearing the matter on the subsequent occasion might not pick up the shortcoming and grant the order sought without ado.

The present application, purporting as it did to be in terms of the Promotion of Access to Information Act, did not pass muster. The Court found that the applicant’s counsel did not bother to read the papers before submitting that they were in order. The practitioner who drafted the papers either resorted to cutting and pasting or was utterly remiss as to the content of the papers that were being drawn. The lack of professionalism on the part of the applicant’s legal representatives led to the Court directing that they were not entitled to recover any fees from the applicant for handling the case.

The application was dismissed.

Good Hope Plasterers CC t/a Good Hope Construction v Aecom SA (Pty) Ltd [2018] JOL 40628 (WCC)

Security for costs – Increase of amount

The applicant (“Good Hope”) was a building contractor and the plaintiff in the main action between the parties. The respondent (“Aecom”) provided professional engineering, consulting and project management services for infrastructure projects.

In the present application, Good Hope sought an order declaring that Aecom was not entitled to approach the registrar to increase what Aecom regarded as security for costs of R25 000 in terms of an order granted by agreement on 13 January 2017.

In August 2016, Good Hope instituted the main action against Aecom for payment of various amounts allegedly owed under certain payment certificates totalling R3.9 million together with an order directing Aecom to take certain steps including the furnishing of a final payment certificate as well as payment in terms thereof. Aecom entered an appearance to defend and delivered a request for security for costs in terms of uniform rule 47 in the amount of R100 000. Good Hope responded with an offer to furnish an amount of R25 000 as security, despite disputing Aecom’s entitlement thereto. The offer was accepted by Aecom. However, after Good Hope paid the amount into its attorney’s trust account, Aecom indicated that the undertaking was unacceptable, and demanded that Good Hope to put up security for costs in the amount of R25 000 by way of an irrevocable and unconditional guarantee issued by a first class South African commercial bank. Good Hope demurred, repeating its contention that Aecom was not entitled to security.

Held that Good Hope wrongly interpreted Aecom’s defence and counterclaim as admission of liability in at least the sum of R1.4 million. However, Aecom’s pleadings showed that Good Hope’s claim was completely extinguished by set-off and that after set-off had been applied, Good Hope was nonetheless indebted to Aecom in the amount of R9 million.

Although Good Hope disputed Aecom’s entitlement to security, it nonetheless offered such security in order to avoid any unnecessary litigation in the amount of R25 000 in a form determined by the Registrar. Aecom accepted the amount of R25 000 tendered as security and the only remaining dispute was the form that the security should take. It was clear from Aecom’s application, which culminated in the order of 13 January 2017, that Aecom approached the court not only to order that security be furnished (in the agreed sum of R25 000) but also to determine the form and manner of such security. Not only did the order determine that security be furnished, and its amount, it also determined the form and manner thereof. There was therefore nothing preventing Aecom seeking to have the amount of security increased.

The application was dismissed.

Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT)

Settlement agreements-Consumer – Complaint to National Consumer Tribunal – Settlement agreement – Power to confirm as consent order

The respondent was a motor vehicle dealership from which the applicant had purchased a pre-owned vehicle. He alleged that the vehicle started to show problems a few weeks after he bought it. An extended period of engagement between the parries ensued, in which the problem with the vehicle was diagnosed and the applicant was told that the defective part would be replaced. He found however, that instead of replacing the part, the respondent had merely had it repaired.

Dissatisfied with the respondent’s failure to attend to the vehicle’s performance, the applicant filed a complaint against the respondent with the Motor Industry Ombudsman of South Africa, which issued a finding that the respondent had adhered to the provisions of section 56 of the Consumer Protection Act 68 of 2008. Unhappy with that decision, the applicant then referred the matter to the National Consumer Commission. The Commission issued a notice of non-referral, stating that the complaint did not allege any facts, which, if true, would constitute grounds for a remedy under the Consumer Protection Act. The applicant obtained leave to refer the matter directly to the Tribunal.

Before the matter could be heard, the parties settled the dispute and provided a signed settlement agreement to the Tribunal for confirmation as a consent order. However, having examined the terms of the settlement agreement, the Tribunal decided on a different conclusion.

Held that the Tribunal is entitled to vary its decision or order when it becomes aware of an error. Section 165 of the National Credit Act 34 of 2005 provides for the rescission or variation of an order granted by the Tribunal acting of its own accord or on application by a person affected by a decision or order. The Tribunal highlighted certain clauses in the agreement which were cause for concern. Two of the clauses pointed to constituted an express denial of any prohibited conduct or failed required

conduct. Tribunal can only make a settlement agreement an order of the Tribunal if the conduct relates prohibited conduct, or required conduct, and is not empowered to address agreements that fall outside of the scope of our jurisdiction. Two other clause were shown to have the effect of nullifying the Tribunal’s powers to confirm the settlement agreement post facto, and to exclude the application of section 160(1) of the National Credit Act.

The settlement agreement was held to fall outside the Tribunal’s jurisdiction to confirm an agreement as a consent order.

Mkhize NO v Premier of the Province of KwaZulu-Natal and Others (CCT285/17) [2018] ZACC 50 (6 December 2018)

Res judicata — requirements — finality — decision concerning legal standing is final- the High Court could not re-adjudicate the same issues between the same parties.

On Thursday 6 December 2018, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg (High Court). The matter concerned the High Court’s interpretation of an earlier order of the Supreme Court of Appeal whether the High Court had erred in deciding the merits of the case rather than dismissing it as a matter already decided by a court.

The applicant is Ms Sithembile Mkhize, acting in her capacity as executrix of the estate of her deceased husband, the late Zwelibhekile Mbuyazi (the deceased). The first and fourth respondents are the Premier of KwaZulu-Natal (Premier) and the Member of the Executive Council of the Department of Co-operative Governance and Traditional Affairs (MEC) in KwaZulu-Natal, respectively. The second respondent is Mr Mkhanyiseni Mbuyazi, the deceased’s younger brother.

In 2010, the MEC removed the deceased as Inkosi of the Mbuyazi Community and appointed the second respondent as the new Inkosi. The deceased launched an application in the High Court seeking to review and set aside his removal from office (review application). The deceased also sought an interim order preventing either himself or the second respondent from holding the position of Inkosi until the matter had been resolved. The interim order was granted and the matter was referred to trial for determination. However, the deceased died before the commencement of the trial.

Following the deceased’s death, the second respondent launched an application in the High Court seeking an order, amongst others, (1) rescinding the interim relief; and (2) dismissing the deceased’s application for review. Ms Mkhize brought a counter-application seeking to be substituted as the first applicant in the review application in her capacity as executrix of the deceased’s estate and also to be joined as the second applicant in her capacity as legal guardian of the deceased’s minor son, Phathokuhle. Ms Mkhize also sought an order directing the Premier to pay to the deceased’s estate the further amounts to which the deceased was entitled as salary from 2010 until his death in 2012 (salary claim). The High Court dismissed Ms Mkhize’s counter-applications to be substituted as the applicant in the deceased’s review and to join her as the second applicant. The High Court also rescinded the interim order, thereby allowing the second respondent to become Inkosi.

Ms Mkhize appealed to the Supreme Court of Appeal which granted her substitution application in the deceased’s monetary claims but dismissed her application to be substituted or joined as guardian of Phathokuhle in the review application on the basis that the deceased’s claim to be reinstated as Inkosi was a personal right and not transmissible. The second respondent’s application for rescission of the interim order was unsuccessful. The Court held that the question of the deceased’s wrongful removal should still be determined at trial in order to determine the monetary claims and the deceased’s rightful successor.

In 2015, the second respondent launched an urgent application in the High Court seeking rescission of the order referring the matter to trial. Ms Mkhize counter-applied to consolidate this application, the salary claim, and her separate action on behalf of Phathokuhle in his succession claim. Sishi J for the High Court held that: (1) the effect of the Supreme Court of Appeal’s judgment was that Ms Mkhize had no legal claim to pursue a review of the deceased’s removal and therefore the review application must fall away because there is no longer any applicant; (2) the monetary claim was separate from the review application and unrelated to whether or not the deceased was unlawfully removed; (3) Ms Mkhize and the deceased’s son’s claim was unlikely to achieve anything and so the counter-application for consolidation of the applications should be dismissed; and (4) the interim order should be rescinded.

Ms Mkhize then applied for leave to appeal to the Full Court, this was dismissed. Thereafter, she applied to the Supreme Court of Appeal for leave to appeal; that application was also dismissed.

Before the Constitutional Court, Ms Mkhize argued that Sishi J in the High Court misinterpreted and effectively overruled the judgment of the Supreme Court of Appeal, and failed to appreciate the principle of res judicata which prevents the High Court from adjudicating a matter already decided by the Supreme Court of Appeal. Ms Mkhize also submitted that the matter must go to trial because the monetary claim and the deceased son’s succession claim both depended on a finding that the deceased’s removal was unlawful. The Premier, MEC and the second respondent contended that the decision to remove the deceased from office was an administrative decision and that an administrative decision can only be set aside on review. However, because the applicant in the review application is now deceased, the review application must fall away and the deceased’s removal from office is therefore valid.

In a unanimous judgment penned by Dlodlo AJ, the Constitutional Court considered the judgment of the Supreme Court of Appeal and held that the Supreme Court of Appeal had concluded that Ms Mkhize could not be substituted in the review application only insofar as the original review application sought the reinstatement of the deceased. The right to reinstatement was a personal right of the deceased that could not be transferred. However, in terms of the Promotion of Administrative Justice Act, the right to pursue a judicial review of administrative action is not a personal right and anyone can seek such a review. The Supreme Court of Appeal could not have intended to limit the right to seek an administrative review. On this basis, the Constitutional Court held that the High Court, per Sishi J, did not give due consideration to both the binding effect of previous judgments and matters already decided. In terms of the binding effect of previous judgments, the High Court was bound by the legal principles applied by the Supreme Court of Appeal, and in terms of the matter already being decided, the High Court could not re-adjudicate the same issues between the same parties. Though it was not central to the issue at hand, the

Constitutional Court also held that courts should not consider customary law matters through a common law lens, but should adjudicate customary law matters using the customary law.

Consequently, the Constitutional Court issued an order granting leave to appeal and upholding Ms Mkhize’s appeal. The Premier and the MEC were ordered to pay the costs of the application

Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

Review-Administrative law – Applications for judicial review under the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and under the principle of legality - Decisions by the Presidency and by the State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings – Statutory authority invoked for the impugned decisions are s 3(1) or s 3(3) of the State Attorney Act 56 of 1957 and reg 12.2 of the Treasury Regulations made in terms of the Public Finance Management Act 1 of 1999.

Legal Representation-at state expense-State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings-not authorised

Impugned decisions were not authorised by the statutory provisions invoked - they amount to a breach of the principle of legality, are unconstitutional, and fall to be set aside – they also fall to be reviewed and set aside in terms of PAJA - they were not authorised and are ultra vires, and materially influenced by an error of law.

N K v K M (2018/25403) [2018] ZAGPJHC 634 (7 December 2018)

Rule 33 (4) application for separation of issues in terms of rule 33 (4) of the Rules. Applicant seeking determination of the issue of decree of divorce be separated from that of division of joint estate in the divorce proceedings. Legal principles governing separation restated. Consequences to the application in terms rule 43 of the Rules once separation is granted and decree of divorce is made. Rule 43 application cannot sustain once decree of divorce is granted.

This is an application in terms of which the applicant seeks an order in terms of rule 33(4) of the Uniform Rules of the High Court (the Rules) for a separation of the issues in the divorce proceedings between him and his wife filed under case number 2017/42930. The relief sought is to have the issue of divorce separated from that in which he seeks to have the respondent forfeit the right to share in the joint estate on divorce.

Common cause facts

2. It is common cause that both parties are in the main action seeking an order to have their marriage dissolved. They are still living together in the same matrimonial home, except that they are no longer living as husband and wife for a period in excess of one year. They have accepted that their marriage, concluded on 21 March 2015 in community of property, has irretrievably broken down. There are no children born of this marriage. The respondent has two children from her previous marriage.

3. The divorce proceedings were instituted by the applicant during November 2017. In addition to seeking a decree of divorce in the main application the applicant prays for the forfeiture of the benefit of the marriage and whether he should be ordered to pay maintenance for the respondent.

4. From the papers it is apparent that the respondent is opposing the applicant’s claim only to the extent that he is seeking forfeiture of the matrimonial benefits of the marriage. She contends that the joint estate should be divided equally between the parties and also that she be granted spousal maintenance or contribution towards her costs.

5. The main issues between the parties as matters stand now are:

a. The applicant’s claim for forfeiture of patrimonial benefits of the marriage.

b. The respondent’s claim for the division of the joint estate.

c. The respondent’s claim for maintenance.

6. The respondent has instituted proceedings in terms of rule 43 of the Rules in terms of which she is claiming maintenance pending the finalisation of the divorce. The application is opposed by the applicant.

The grounds for the separation of issues

7. The grounds for the separations of issues as set out in the applicant’s founding affidavit are as follows:

“14. As the Respondent and I are [living] together as husband and wife, share no common interest and the relationship between us is extremely strained, I wish to get on with my life and seek a decree of divorce.”

15. The trial in this matter has been set down for hearing on 18 April 2019.

16. I submit that it is convenient that the issues be separated as sought by me in the notice of motion and that the matter be set down for hearing on the unopposed roll for a divorce, subject to the remaining issues being stayed and to be determined at the hearing of the trial.

17. The Respondent will not suffer any prejudice if such separation be granted.”

15. The above includes the contention that:

i. the respondent is employable and has assets and means to be self-supporting;

ii. that he will continue to pay maintenance pendente lite as tendered in the Rule 43 application until the final determination of the divorce

action. The other reason for seeking separation is that the applicant wishes “to get on with his life.”

It is thus correct that once a decree of divorce is granted the provisions of rule 43 of the Rules will find no application. Accordingly the decisions in Gunston and Beckleymade by the Gauteng division are correct and binding on this court as opposed to KO v MO which is a decision of the Western Cape division.

40. In light of the above findings there would be no basis in law for the respondent to institute a rule 43 application once a decree of divorce is granted following the separation of the divorce from the other issues. In the premises, the applicant's application stands to fail because it would not be convenient for the respondent if the issue of divorce was to be separated from the other issues.

41. In the circumstances, the applicant's application is dismissed with costs.

The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association (106/2018) [2018] ZASCA 176 (3 December 2018)

Separation of issues in terms of Uniform rule 33(4) – separation of issues -thought should be given to a separation of issues, and that convenience and expedition should be the object, not heeded – when issues are inextricably linked a full ventilation of all the issues is more often than not the better course and might ultimately prove expeditious and provide

The Supreme Court of Appeal (the SCA) upheld the appeal with costs, the effect being that the remaining issues have to be adjudicated by the court below.

The essential issue between the parties, even before the inception of litigation, was which of a range of tariffs the appellant, the City of Tshwane Metropolitan Municipality (the City) could charge the respondent, the Blair Atholl Homeowners Association (the association), for the water it supplied to the housing estate which the latter administered. The dispute was about whether the words ‘normal rate’ in an Engineering Services Agreement (the ESA) was the ‘bulk rate for municipalities’.

At the relevant time, a major problem encountered by the developer was that, because the land was situated outside of the urban edge and beyond priority areas, the City was not yet supplying water to that area nor was it in contemplation in the immediate future. The developer entered into discussions with the City to resolve this difficulty and to attempt to persuade the City to facilitate the development of the proposed township by providing water and other municipal services to the area.

The City was only prepared to provide water to the area on the basis that the developer fund the construction of a 20 kilometre water pipeline that would enable the water to be supplied to the new development. It also required the developer to construct an internal and external reservoir and a sewage package plant. After extended

discussions and exchanges of written communications as well as several drafts of a contemplated written agreement, an ESA was concluded in February 2006.

The matter was decided on a separated issue in terms of Uniform rule 33(4), namely, an interpretation of clause 6.16 of the ESA and consequently whether the ‘bulk rate for municipalities’, as contended for by the association, applied. No order of separation was made at the commencement of proceedings and there was no order at that time that the remaining issues were to stand over.

The SCA repeated that careful thought should be given to a separation of issues, and that convenience and expedition should be the object. The court held further that when issues were inextricably linked a full ventilation of all the issues was more often than not the better course and might ultimately prove expeditious and provide finality. In the present case it did not have that effect.

The clause in question, was interpreted as dictated by prior decisions of the SCA. The courts recent experience has been that in many cases extensive inadmissible extrinsic evidence has been allowed in relation to the interpretation of written documents.

The SCA had regard to the context within which the ESA was concluded. It took into account that City supplied water services on the basis that certain infrastructural costs were met by the developer. Much was sought to be made of this fact in justifying the contention that it would only be fair and it made business sense to conclude that the ‘normal rate’ referred to in clause 6.16 was the bulk rate for municipalities. Against that, for contextual purposes, one had to take into account that the City’s insistence, at the outset, that in order for it to provide water services, the developer would have had to pay for infrastructural costs was justifiable, on the basis that the development was located beyond the urban edge and the City’s priority area. The SCA also had regard to the contention on behalf of the association that the clause being interpreted commenced by stating that the ‘normal rate’ of the municipality would apply in recognition of the infrastructure being provided and that, therefore, it implied that a reduced rate was the quid pro quo. The SCA also took into account that the City did not charge for sewage and that the legislation regulating tariffs provided for surcharges, where justifiable, and in the present case did not impose them. It also took into account that there was a range of ‘normal rates’. The SCA considered it significant that the rates did not provide for consumers that were ‘like a municipality’. In this regard it had been contended on behalf of the association that, by bearing infrastructural costs, it was ‘like a municipality’.

The SCA held in favour of the City on the basis that the normal rate provided for in the ESA was not the bulk rate for municipalities. It went on to uphold the appeal.

The SCA concluded that the remaining issues, including a constitutional statutory challenge by the association to the City’s claimed rate and the amounts claimed by the City based on the tariff it contended was applicable were to be remitted to the court below to be adjudicated. It held that this demonstrated how insufficient thought had been given to the separation of issues.

Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others (1189/17) [2018] ZASCA 189 (19 December 2018)

Anton Piller order – requirements –necessity for evidence of prima facie existence of vital documents and materials – electronic searches – need for specificity in regard to objects of search – purpose of order not to give the applicant access to documents or material or to search for evidence on which to base claim – not to be used to obtain early discovery

The Supreme Court of Appeal (SCA) dismissed an appeal brought by the appellant, Viziya Corporation (Viziya), against a judgment of the Gauteng Division of the High Court, Pretoria (the high court).

The issue at the centre of this appeal concerned the question of whether the high court exercised its discretion properly when it set aside an Anton Piller order that had been granted in favour of the appellant on appeal in the same court. The Anton Piller order was discharged following a reconsideration application brought by the respondents Collaborit Holdings (Pty) Ltd and others (Collaborit). Related to this issue is the question whether the respondents should be allowed to lead further evidence on appeal.

The appeal stemmed from the following factual background. On 25 August 2014, Viziya, a company that develops and sells computer systems and software, concluded an agreement (the agreement) with Collaborit in terms of which Collaborit was to facilitate the referral and sale of Viziya’s products and services. In return for such referrals, Collaborit would be paid fees in accordance with a formula set out in the agreement.

The agreement contained two crucial provisions that were pertinent to the litigation of this matter. The first provision required Collaborit to use all necessary precautions to ensure that disclosure of Viziya’s proprietary property would not be made available to a competitor or a suspected competitor of Viziya. While the second provision required Collaborit not to sell and develop work products that are competitive to Viziya products.

On 10 January 2016, the agreement was terminated pursuant to a notice given to Collaborit in terms of which Viziya alleged that during the period of the agreement and in breach of the provisions pf the agreement Collaborit developed its own work products which it marketed and sold in unlawful competition with Viziya. Viziya alleged that these products did not exist when the agreement was concluded and that Collaborit endeavoured to market this product in competition with them and that such action was in breach of the agreement.

Based on these allegations, Viziya brought an ex-parte application for an Anton Piller order in the high court, which was heard and granted in chambers. At a later stage,

Collaborit brought an application to set aside the order. The high court granted the application and discharged the order and subsequently refused Viziya leave to appeal. It is against the order refusing leave to appeal that Viziya appealed to this Court.

In its judgement, the high court found that Viziya had satisfied the first two requirements of an Anton Piller order namely that (1) Viziya had prima facie established a cause of action against Collaborit which it intended to pursue; (2) Viziya had in its possession documents or things which constituted vital evidence in substantiation of Viziya’s cause of action (but in respect of which Viziya could not claim a real or personal right). The high court however, held that Collaborit failed to establish that there was a real and well-founded apprehension that this evidence which was preserved by means of the Anton Piller order might be hidden or destroyed or in some manner be spirited away by the time the case came to trial or to the stage of discovery. It accordingly discharged the Anton Piller order and additionally, refused leave to appeal on the grounds that there were no reasonable prospects of success on appeal.

On appeal this court dismissed the application for leave to lead further evidence and subsequently found that Viziya had fail to identify or specify which vital information was in the possession of Collaborit that needed to be preserved. It held that a blanket search for unspecified documents or evidence which may or may not exist is not permitted. The court further held that the proposed keyword search was invasive and amounted to a trawling expedition through every aspect of Collaborit’s business. This court concluded that the high court erred in categorising the information sought by Viziya as vital and specific and thus concluded that the ex parte order was wide and expansive.

This court held that Viziya failed to show that Collaborit was untrustworthy or dishonest and that Viziya failed to show why Collaborit would destroy or conceal information whilst continuing to market its rival products.

In short, the court held that Viziya’s evidence of dishonesty on Collaborit’s part was flimsy. Without a substantiated case of significant dishonesty, there cannot be a reasonable apprehension that a party will destroy or conceal evidence. As a result the appeal was dismissed with costs.

Standard Bank of South Africa Limited v Hendricks and Another; Standard Bank of South Africa Limited v Sampson and Another; Standard Bank of South Africa Limited v Kamfer; Standard Bank of South Africa Limited v Adams and Another; Standard Bank of South Africa Limited v Botha NO; Absa Bank Limited v Louw (11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18) [2018] ZAWCHC 175 (14 December 2018)

Execution-Foreclosure –Western Cape High Court- The application for the money judgment and an order of special execution against immovable property which is mortgaged to secure the loan and which is the primary residence of the judgment debtor are intrinsically connected and must be brought in one proceeding and not in

a piecemeal manner as separate applications, where possible. The applications must be served personally on the debtor, unless ordered otherwise by the Court. The application for the money judgment may be postponed together with the application for an order of special execution against property which is the primary residence of the judgment debtor given that the two applications are intrinsically linked and therefore together engage a debtor’s s 26 constitutional right. All the facts should be placed before the court to sustain the relief sought in the combined application. A new practice direction 33A is proposed, together with the form of the affidavit which must be attached to the application for relief in such matters. A failure to adhere to this format, it is proposed would disentitle a party to relief. When a court is appraised of all the facts, a decision whether to place a reserve price on the sale of a house that may be sold in execution, can be properly taken. Each matter will depend on its own facts.

CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA) Appeal — Appealability — Generally — Restatement of test for appealability of judgment or order. Appeal— Appealability — Interim interdict — Interim interdict granted prohibiting infringement of patent — Claim that patent would have expired prior to determination of final interdict — Whether interdict final in effect, and therefore appealable — Discussion of test set out in BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) for whether application for interim interdict should be treated as final — Court concluding that interim interdict not final in effect and therefore not appealable. Cipla was the proprietor of patent 92/7457 (the 1992 patent); Merck, of patent 98/10975 (the 1998 patent). In June 2011 Cipla instituted an application (revocation application) in the Court for the Commissioner of Patents (the CCP) for the revocation of Merck's 1998 patent, based on two grounds: that the 1998 patent was anticipated by Cipla's 1992 patent (anticipation point); and that it did not involve an 'inventive step' (obviousness point). Merck, in October 2011 in the CCP, launched an action (infringement action) for an interdict against what it alleged to be Cipla's infringement of its 1998 patent. Cipla, in its plea to such action, submitted that Merck's patent was invalid, and liable to be revoked on the same grounds set out in the revocation application. When the revocation application was heard before the CCP in March 2013 (the infringement action was stayed in the meantime), Cipla, in argument, attacked the validity of Merck's patent only onthe anticipation point. The CCP granted revocation, but the SCA upheld the appeal (in which Merck again relied only on its anticipation point), heard in November 2015, finding that the 1998 patent was valid and that on such grounds the revocation application should have been dismissed. In January 2016 Merck launched an urgent application in the CCP — the court a quo for present purposes — for an interdict pending the final determination of the infringement action. Cipla now sought to rely on its 'obviousness point' to once again dispute the validity of the 1998 patent. The CCP (delivering judgment in March 2016) granted an interdict, with the proviso that it would lapse on the expiry date of the 1998 patent — 3 December 2018 — if the action was not finally determined by that date. The sole ground on which the court granted relief was that the validity of the 1998 patent was res judicata. In explanation it added that, although only the anticipation point had been argued in the CCP and before the SCA, Cipla had

been obliged to put forward, in the revocation application, all its attacks on the validity of the 1998 patent. The CCP granted leave to Cipla to appeal to the SCA. Only one issue was in issue: the appealability of the court a quo's decision to grant the interlocutory interdict. The rule, referred to by the SCA, was that, for a decision to be appealable, as a general principle, it had to have three attributes (see [18] and [37]): it had to be final in effect; it had to be definitive of the rights of the parties; and it had to have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. Cipla acknowledged the general rule that interdicts granted pending final relief were not appealable. It, however, argued that, although the interdict was interim in form, it was final in effect, because the pending infringement action was unlikely to be determined before the expiry of the patent on 3 December 2018. Since the final interdict claimed in the infringement action could itself not endure beyond 3 December 2018, the interim order in effect finally disposed of the interdictory relief. On such basis, Cipla concluded, the granting of the interim interdict was appealable. Gorven AJA and Rogers AJA wrote separate judgments. Both arrived at the same conclusion — that the court a quo's decision to grant an interim interdict was not appealable, and the appeal should hence be struck from the roll — but differed in their approach. Gorven AJA (with whose judgment Ponnan JA, Cachalia JA and Mathopo JA concurred) (judgment from [34]) provided an overview of the principles governing the appealability of decisions of a court, in particular the circumstances in which interlocutory orders might qualify as being 'final in effect', despite their being interim in form. 'Final in effect' meant that an issue in the suit had been affected by the order such that the issue could not be revisited either by the court of first instance or the court hearing the appeal (see [47]). Gorven AJA noted that the fact that the granting of an interim interdict gave rise to prejudice on the person against whom it operated did not in itself render such an order appealable; the only prejudice which might make such an order appealable was prejudice that in some way affected the final determination of an issue in the suit or stood in the way of an issue being determined at a later date. (See [39] – [40].) Cipla's argument — that the interim interdict against it was 'final in effect' because the patent would have run its course by the time the main action came to be considered — Gorven AJA held, boiled down to the argument that Cipla was prejudiced because 'time could not be recalled'. This kind of prejudice did not render the order of the court a quo appealable. The court a quo had not finally decided the res judicata issue; it would be considered by the court considering the infringement action. Gorven AJA concluded that the order was not final in effect, was in form and effect an interlocutory interdict and not appealable. (See [48] and [50].) Rogers AJA differed from Gorven AJA to the extent that he found it appropriate to consider and apply the principles established in a case relied on by Cipla — BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W). * In that case the applicant had sought to enforce a 12-month restraint of trade. Presiding Judge Marais said that, although what the applicant sought was an interim interdict, it was in substance final because the granting of an interdict would not be finally determined before the expiry of the restraint. Marais J thus considered that he should apply the test for final interdicts. (See [21].) A principle to be extracted from such case, Rogers AJA held, was that if a court granted an interim interdict in circumstances where it should, on the basis of BHT, have treated the application as one for final relief, the interdict, though interim in form, was final for purposes of appealability. This was particularly so where, as here, Cipla pertinently alleged in the

court a quo, and subsequently argued, that the matter should, in accordance with BHT, be adjudicated as a claim for a final interdict and where the court a quo's failure to do so was one of the grounds of appeal. (See [23].) (Since the correctness of the competing lines of authority was not canvassed in argument, Rogers AJA assumed, without deciding, that the BHT approach was sound in principle (see [24]).) Rogers AJA, however, held that, on the basis of BHT, the court a quo was correct in treating the interdict asked for as an interim one (see [27]). This was so because the BHT approach had to be confined to cases where it was clear, at the time the court granted the interdict, that the matter would not be able to be finally determined before the interdict in any event expired.That condition was not met here on the facts: when the court a quo heard the matter in March 2016, the probabilities were that a final decision could be achieved prior to 3 December 2018 (see [26]). Rogers AJA concluded that the interdict that was granted was interim in form and in substance, and on ordinary principles it was not appealable. ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Permissible until credit provider realises proceeds of sale in execution — Mere attachment of goods or property no bar to reinstatement — Power to reinstate resting with consumer, not credit provider — National Credit Act 34 of 2005, s 129(3) and s 129(4). Mortgage — Foreclosure — Judicial execution — Primary residence — Money judgment and execution claims inextricably linked — Must be sought and adjudicated together in one proceeding — If postponement required, then matter to be postponed in its entirety. Mortgage— Foreclosure — Judicial execution — Sale in execution — Residential property — Reserve price — Court must, except in exceptional circumstances, set reserve price — Both sides to place all relevant facts before court — Uniform Rules of Court, rule 46A(8)(e). A full bench of the High Court was tasked, under s 14(1)(a) of the Superior Courts Act 10 of 2013, with making a ruling on the procedures to be followed by banks when foreclosing mortgages on primary residences, and on the propriety of the practice of the courts of granting applications for money judgments against defaulting homeowners while postponing the associated applications for sale in execution. The court was also required to consider under what circumstances courts should set a reserve price for the property, a matter that had to be determined under the new rule 46A of the Uniform Rules (effective since 22 December 2017). The applicable statutory provisions were — • s 26 of the Constitution, which guarantees the right to adequate housing; • s 129(4) of the National Credit Act 34 of 2005 (the NCA), under which reinstatement (revival) of a credit agreement is no longer possible after — • the sale of property pursuant to an attachment (ss (4)(a)(i)); or • the execution of any other court order enforcing the agreement (ss (4)(b)); and • rule 46A(8)(e) of the Uniform Rules of Court, which allows a court hearing an application for execution against residential property to set a reserve price. Held 1. In all matters where execution was sought against a debtor's primary residence, the entire claim, including the money judgment, had to be adjudicated at the same time. The money judgment in personam was the basis of, and a necessary averment

in, the claim in rem for execution (see [17], [20]). Since the two claims were inextricably interlinked, they had to be brought at the same time in one proceeding (see [22], [29].) If the matter required postponement, it had to be postponed in its entirety. 2. Execution against movable and immovable property was no bar to the revival of the agreement, up to the point when the proceeds of the auction sale were realised. * Until then the homeowner could, despite the existence of a money judgment and order for executability, revive the mortgage agreement by paying the arrears. 'Execution' in s 129(4)(b) meant execution against security under the bond, not against movables. (See [39] – [46].) Despite the 2015 amendment to s 129(4), the right to reinstate or revive the mortgage agreement still rested with the consumer (see [49]). 3. Save in exceptional circumstances, the court was obliged to set a reserve price in all matters where execution was granted against the primary residence of the debtor. It was incumbent on both sides to set out the relevant facts for the court to properly exercise its discretion in this regard (see [59], [65]). METROPOLITAN EVANGELICAL SERVICES NPC AND ANOTHER v GOGE 2018 (6) SA 564 (GJ) Housing — Right to housing — Prohibition against eviction from home without court order — Occupant barred from returning to room in emergency shelter — Regarded room as home — Left for three months after being injured in fight with other residents — Possessions left behind and key retained — Room not interfered with in his absence — Right not to be evicted without court order violated — No indication that occupant posed threat to anyone — Order restoring possession confirmed on appeal — Constitution, s 26(3). The first appellant ran the Ekuthuleni emergency shelter on behalf of the City of Johannesburg. The respondent was a resident who had occupied a room there for four years. On 18 June 2016 he went away after an altercation with fellow residents. He left his belongings behind, locked his room and retained the keys. He returned three months later, on 25 September, and he re-entered his room using his keys, spent the night, and went out for a while the next day. But when he attempted to return to his room, he was barred from doing so by the appellants' security personnel. The appellants did not during the three months the respondent was absent open or otherwise interfere with his room. On 28 September the respondent, claiming unlawful eviction and spoliation, launched an urgent High Court application for readmission to his room. The court ruled in his favour, finding that the respondent's right, under s 26(3) of the Constitution, not to be evicted without a court order, had been infringed. The appellants appealed to a full bench, arguing that the court a quo erred because the room was not the respondent's home and because he had abandoned the room when he left it on 18 June 2016. They also justified their conduct by relying on a form of private defence. Held The undisputed facts showed that the respondent regarded the room as his home, that he intended to return, and that he was still in occupation when his access was barred (see [21] – [22]). The appellants' conduct in barring the respondent's access to his room violated his right not to be evicted without a court order under s 26(3) of the Constitution (see [23]). There was no evidence that the respondent attacked or

threatened to attack anyone after he left on 18 June, and the appellants' reliance on private defence was unsustainable (see [24]). The appellants' resort to self-help meant that an order restoring the status quo ante was appropriate (see [23], [28]). Appeal dismissed (see [29]).

Monde v Viljoen NO and others [2018] 4 All SA 665 (SCA)

Property – Land – Eviction order – Requirements – Eviction of appellant was sought on basis that his right of residence flowed solely from his employment – Evidence establishing that appellant was in fact an occupier as defined in the Extension of Security of Tenure Act 62 of 1997 – Termination of appellant’s right of residence not shown to have been just and equitable as required by section 8(1) of Extension of Security of Tenure Act. On automatic review, in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (the “Act”), the Land Claims Court (“LCC”) confirmed an eviction order by the Magistrate’s Court against the appellant. Leave to appeal having been granted by the LCC, the appellant noted an appeal against the eviction order in the present Court. The appellant was appointed as a general farm worker on 6 January 1995 and was given a house to occupy on the farm. On 4 November 2011, he concluded a written employment contract with the first respondent (a trustee of the trust which owned the farm). One of the essential terms was that the appellant would only have accommodation for as long as he was employed by the first respondent. At all times it was the policy of the farm, as well as other farms in the area, that an employee would be entitled to reside on the farm only whilst he worked on the farm. The appellant’s right of residence was thus derived exclusively from his employment.

On 25 March 2013, the appellant was dismissed from his employment after he was found guilty on charges that he had been absent from work without permission. He did not challenge his dismissal and his right of residence terminated automatically upon termination of his employment. He was informed that his right of residence on the farm came to an end upon his dismissal, and he was given notice to vacate the house on the farm within 30 days.

While admitting that his employment gave rise to his right of residence, the appellant denied that it was the only source of that right. He alleged that he had been given permission to live on the farm and enjoyed a right of residence on the basis of his family connection to his mother, who was also an occupier with a right of residence. The appellant conceded that his employment had been terminated, but denied that the dismissal was fair. He said that he had referred a dispute to the CCMA, but had heard nothing further. He alleged that his right of residence had not been lawfully terminated. Held – The central issue in the appeal was whether the first and second respondents satisfied the requirements for an eviction order in terms of section 9(2) of the Act.

The Act contains clear provisions that must be complied with before an eviction order can be granted. An applicant who seeks the eviction of an occupier under the Act is required to allege and prove all the elements of its cause of action. The respondents had to show that the termination of the appellant’s right of residence was both lawful, and just and equitable, as required by section 8.

Significant in this case was the judgment of the Constitutional Court in the case of Snyders and others v De Jager and others, where it held that an owner of land or farm manager who relies on section 8(2) to justify the termination of an occupier’s right of residence, bears the onus to prove that the occupier’s employment was terminated for a fair reason related to the occupier’s conduct as an employee and that it was effected in accordance with a fair procedure as required by the Labour Relations Act 66 of 1995. Although the termination of the appellant’s employment was both substantively and procedurally fair, and his assertion that he had attempted to challenge the dismissal was unfounded, his right of residence did not flow from the employment contract. He claimed an existing benefit, alleging that he had enjoyed a right of residence from the time that he lived with his mother on the farm, prior to the allocation of a house to him in 1995. The respondents contended that the appellant was not an occupier in his own right while he was living with his mother and that he only became such an occupier when he received express permission to live in his own house. In upholding the respondents’ contention, the magistrate disregarded the definition of an “occupier” in the Act. The Act does not describe an occupier as a person occupying land in terms of an agreement or contract, but one occupying land with the consent of its owner.

Concluding that the respondents did not establish that the appellant’s right of residence flowed exclusively from the employment contract and, with the termination of the latter, that his right to occupy a room on the farm terminated, the Court upheld the appeal.

As the respondents failed to show that the termination of the appellant’s right of residence was just and equitable as required in terms of section 8(1) of the Act, the purported termination of the appellant’s right of residence was unlawful and invalid.

A final issue addressed by the Court was the requirement of a probation officer’s report prior to granting an eviction order. The Court confirmed the approach by the LCC that a probation officer’s report in terms of section 9(3) of the Act, is compulsory. In terms of section 9(3), a court granting an eviction order must consider, inter alia, the availability of suitable alternative accommodation, the effect of an eviction order on constitutional rights including the rights of children and any hardship which an eviction would cause.

The appeal was upheld and the eviction order set aside.

In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP) Civil procedure – Courts – Access to – High Courts and Magistrate’s Courts – Jurisdiction – Commercial institutions, to enrol in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates’ Courts – Litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involves parties located within the jurisdiction of the Gauteng Local Division, Johannesburg. Constitutional law – Question to be answered was how the court should ensure that access to justice was attained having regard to the issues before it – Court held that it was appropriate for the court to regulate its own procedures in order to ensure access to justice.

Dealing with several applications before it, the Court raised the issue of parties enrolling in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates’ Courts; and of litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involved parties located within the jurisdiction of the Gauteng Local Division, Johannesburg.

In all the matters being addressed by the Court, the applicants were financial institutions (the “banks”). They offered various reasons why they chose to institute actions in the High Court. They also conceded that in foreclosure matters and even in credit agreement matters, where vehicles were involved, they as a matter of course, instituted actions in the High Court. Those matters not only fell within the Magistrates’ Courts jurisdiction, but were often for paltry amounts. Held – Course taken by the banks affected the right of access to justice of impecunious litigants, and raised the issue of the sustainability of burdening the present division of the High Court with matters that could have been instituted in other courts. The approach followed by the banks could potentially result in an abuse of process, because if impecunious litigants were denied proper access to justice, or the High Court was incapable of dealing properly and effectively with its workload, due to the practice, it would constitute abuse.

The constitutional right of access to justice is inherent to the rule of law. Because of the issues of poverty and social economic inequality in our country,there is an even bigger obligation on our courts to ensure access to justice to everyone.

The question to be answered was how the court should ensure that access to justice was attained having regard to the issues before it. It was held that it was appropriate for the court to regulate its own procedures in order to ensure access to justice. The solution pertaining to matters that fall within the jurisdiction of the Magistrates’ Courts was that such matters should be issued in the Magistrates’ Courts. If a party is of the view that a matter that falls within the jurisdiction of the Magistrates’ Courts should more appropriately be heard in the present Division, an application must be brought setting out reasonable grounds why the matter should be heard in the present Division. Inefficiency of the other court, real or perceived, and the convenience of the plaintiff alone will not constitute such reasonable grounds. Only after leave has been granted may the summons be issued in the High Court. The High Court is not obliged to entertain matters that fall within the jurisdiction of the Magistrates’ Courts purely on the basis that the High Court may have concurrent jurisdiction. The Court confirmed that both the Local and Provincial Division can mero motu transfer a matter to the other court, if it is in the interest of justice to do so. Mathimba and others v Nonxuba and others [2018] 4 All SA 719 (ECG) Legal practice – Contingency fee agreements – Validity – Contingency Fees Agreements Act 66 of 1997 – In casu, there were two contingency fee agreements, one was for the attorney’s fees and the other for Counsel’s fees, which was impermissible – Contingency Act makes no provision for an advocate to sign a contingency fee agreement separately from the attorney; and it is not proper for an advocate to conclude a contingency agreement directly with a client – Court held that section 2 of the Contingencies Act contemplates a single contingency agreement for a single matter to which all the relevant legal practitioners (attorneys and advocates) are party, and not separate agreements for each practitioner.

The present dispute arose from two actions for damages by the first applicant (“Mathimba”) against two entities. The second respondent (“Nonxuba Inc”) represented by the first respondent (“Nonxuba”) acted as attorney of record for Mathimba in both actions. The third respondent (“Dutton”) was the first applicant’s Counsel in one of the matters.

After receipt of the amounts awarded to Mathimba in both matters, Nonxuba Inc deducted the fees and disbursements that it considered due to it. Mathimba disputed that the fees and disbursements deducted were reasonable. He alleged further that it came to his knowledge that first and second respondents were claiming fees based on a contingency agreement. He contended that the alleged contingency agreement concluded with Nonxuba Inc was invalid for want of compliance with the Contingency Fees Agreements Act 66 of 1997. Held – First issue for determination by the Court was whether a settlement agreement was concluded between the applicants and first and second respondents concerning all disputes between them. The settlement agreement was disputed by the applicants, who claimed that interest should have been included therein. The evidence suggested that interest was never discussed during the negotiations preceding the agreement. The applicants attempted to rely on iustus error in that regard, but the Court found that the facts did not support that contention as it could not be found that the inclusion of interest had been contemplated but erroneously omitted.

In challenging the validity of the contingency fee agreement, the applicants relied on a number of grounds. Essentially, Mathimba sought an order that the agreement be declared invalid, void and of no force and effect. In the event that such relief were granted, he sought an order that the total fees of first and second respondent together with the fee of third respondent should not exceed 25% of the capital amount awarded in the action. The Court found that there were two contingency fee agreements in the matter. One was for the attorney’s fees and the other for Counsel’s fees. That was impermissible. The Act makes no provision for an advocate to sign a contingency fee agreement separately from the attorney; and it is not proper for an advocate to conclude a contingency agreement directly with a client. Section 2 of the Act contemplates a single contingency agreement for a single matter to which all the relevant legal practitioners (attorneys and advocates) are party, and not separate agreements for each practitioner. Matters with both an attorney and Counsel on contingency the globular fee must be assessed to see whether the agreement complies with the statutory 25% cap.

The agreement in this case did not comply with the Act in various respects, and was set aside.

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