Internal Publications | Schindlers | attorneys - conveyancers

Case:
POMA / City of Johannesburg case (15 December 2011)

Summary:
On the 15th of December 2011, the City consented to the handing down of an order in the South Gauteng High Court.

The order outlines the steps that must be taken by the City prior to it being able to lawfully terminate the supply of electricity or water to a property.

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CONVEYANCING ARTICLES:

Case:
Croxford Trading 7 v The Body Corporate of the Inyoni Rocks Cabanas Scheme no ss1/11978 (174/2010) [2011] ZASCA 27

Area of Law:
Property Law re: Sectional Titles

Summary:
This appeal concerns a developer’s ‘right of extension’ in terms of a sectional titles scheme.

Click here to read the full case summary.

Case:
Media 24 v SA Taxi Securitisation (437/2010) [2011] ZASCA 117 (5 June 2011)

Area of law:
Defamation of a corporation

Summary:
The respondent is a finance company that provides financial assistance to purchasers and lessees of taxis. An article published in the City Press (a publication of Media 24) under the title ‘Taxi owners taken for a ride by finance body’ was highly critical of the way in which the finance body referred to in the article conducts its business. The respondent’s case is that the finance body referred to would be understood by the readers as relating to it. This is denied by the appellants. The respondent contended that the article was defamatory of it and on these grounds it claimed general damages in an amount of R250 000 as well as special damages in the form of lost profits in an amount exceeding R20 million.

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Case:
Garvis and Others v SATAWU (Minister of Safety and Security as third party) 2011 2 All SA 86 (WCC)

Area of law:
The constitutional right to assemble and demonstrate peacefully

Summary:
The Plaintiff’s sued the Defendant in terms of Section 11 of the Regulation of Gatherings Act 205 of 1993. The claim arose due to damage which was caused to the Plaintiff’s property during a strike that was organised by the Defendant.

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Case:
Minister for Safety and Security v Van Der Merwe and Others [2011] ZACC 19

Area of law:
Search and Seizure Warrant Validity

Summary:
The question that was to be decided in this application for leave to appeal to the Constitutional Court was whether a search and seizure warrant was valid despite its failure to mention the offences to which the search relates to.

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Case:
FS v JJ and Another 2011 (3) SA 126 (SCA)

Area of law:
Family law – Rights of grandparents and unmarried fathers

Summary:
The case dealt with an unmarried father who, after the death of the child’s mother, applied for custody of the child. The child was in the custody and care of the deceased mother’s parents. The matter was heard by the SCA due to an appeal by the father against the decision of Kgomo JP, in the Northern Cape High Court.

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Case:
Smith v Van Den Heever and Others 2011 (3) SA 140 (SCA)

Area of law:
Contract law – Exceptio non adimpleti contractus

Summary:
The Respondents were the joint liquidators of Agrichicks (Pty) Ltd (“the company”). The Applicant (“Smith”) concluded a contract with the company in terms of which the company had to supply Smith with day-old chickens, poultry feed and medication and vaccinations as and when required.

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Case:
MSC Depots (Pty) Ltd v WK Construction (Pty) Ltd & Another (157/10) [2011] ZASCA 115 (8 June 2011)

Area of Law:
Breach of Contract / Absolution from the Instance

Summary:
Absolution from the Instance had been granted in the Court a quo, which order was challenged on appeal.

The issue revolved around an action for damages, where it was alleged that the Respondent (a construction company) had failed to complete a project, according to specification. A quo, the Court held that, because the Respondent had been denied the opportunity to remedy the alleged defects, it could not be found to have breached the ‘skill and diligence’, or ‘substantial completion’, clauses and had been entitled to cancel the contract, as it had done.

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Case:
Kumalo v Cycle Lab (Pty) Ltd (31871/2008) [2011] ZAGPJHC 56 (17 June 2011)

Area of law:
Delict-iniuria

Summary:
The plaintiff is a celebrity and a public figure and the defendant is a cycling company in Fourways. The plaintiff attended at the cycling company to purchase a bicycle and various other equipment. Whilst in the shop, a man approached her and took a photograph of her. The defendant incorporated her photograph in an advertisement for an in-store brochure and a magazine.

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Case:
Lupacchini NO and Another v The Minister of Safety and Security [2011] 2 All SA 138 (SCA)

Area of law:
The Law of Trusts

Summary:
The Appellants were trustees of a family trust. The trust deed that established the trust provided for a minimum of two trustees. In June 2003 one of the trustees noted her intention to resign and it was resolved that a third party would act as a temporary trustee. In September 2003 the remaining trustees and the temporary trustee resolved to pursue legal action against the state for damages sustained from what was said to be an illegal raid by the police at the property of a night club conducted by the trust. In November 2003 they resolved to appoint the second appellant as trustee. A letter was addressed to the Master advising him of the appointment, but the letter was not received. In August 2004 the two appellants in their capacities as trustees instituted legal proceedings against the Minister. The Minister objected to the proceedings on the grounds that the trustees had not been authorised to act in that capacity at the time the action was commenced.

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Case:
Gold Reef City Theme Park (Pty) Ltd v Electronic Media Network Ltd 2011 (3) SA 208 (GSJ)

Area of law:
Defamation (Delict)

Summary:
The plaintiffs, the operators of a theme park and a nearby casino, contended that the first defendant television channel had defamed them by broadcasting in its Carte Blanche programme that the rides at the theme park were dangerous.

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Case:
First National Bank v Stefanus Brits and 6 Others

Area of law:
Commercial/trusts

Summary:
FNB provided the Izani Trust with an overdraft facility. The co-trustees of the trust were Mr and Mrs Brits (“the Brits”) who had bound themselves as sureties and co-principal debtors of the trust in respect of the overdraft facility. The Izani Trust could not service its debt and as a result the debt became due and owing to FNB. A warrant of execution was subsequently issued against the Brits’ in both their personal capacities and in their capacities as trustees of the Izani Trust.

When the Sheriff arrived at the residence of the Brits’ he could not find sufficient assets to satisfy the debt. What he discovered, however, was that the Brits’ had donated all of their movable assets to another trust (“Trust B”), of which the Brits’ were the only trustees. In addition it was discovered that the house where the Brits’ resided was registered in the name of a third trust (“Trust C”). Trust C was also listed as the sole beneficiary of Trust B, and the Brits’ and their children were the sole beneficiaries of Trust C and had the power to appoint additional trustees.

As a result, the Sheriff was not able to attach the movable property because it did not belong to the Brits’ in their personal capacity.

FNB, in order to recover the debt, applied to the North Gauteng High Court for a court order declaring that all such assets were those of the Brits’ in their personal capacity.

In making its decision, the honourable Mabuse J took note of the principal set out in the case of Badenhorst v Badenhorst where it was said that:

“a person who alleges that assets that purportedly belong to a trust in fact belongs to a person, must prove that such person controlled the trust and but for the trust would have acquired and owned the said assets in his or her name and that such control must be de facto (in practice) and not de iure (in law).”

Mabuse J held that due to the fact that the Brits’ could appoint additional trustees, was indicative of the fact that they had the ultimate power to control the affairs of the trust.

The court therefore concluded that the assets held by Trusts B and C were in fact owned by the Brits’ and therefore were executable by FNB for the debt of the overdraft facility.

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Case:
S v Gardener and Another 2011 (4) SA 79 (SCA)

Area of law:
Companies: Duties of Directors

Brief Facts:
Two chief executive officers had failed to disclose certain financial interests to the board of a company, and had secured substantial profits from these interests as a result of transactions by the company that they were directors of.

The Supreme Court of Appeal confirmed the High Court’s convictions of fraud.

Regarding the accused’s intention to defraud, the Court held that the probabilities that influence a decision as to whether, in failing to make disclosure, the accused intended to defraud the company, could be assessed by reference to the following factors:

(1) What information had to be disclosed, not so much as a requirement of law, but rather as a matter of pragmatism;

(2) The accused’s knowledge of the duty to disclose, and observance of it in general;

(3) The opportunity to disclose;

(4) Whether the failure to disclose was isolated or repeated;

(5) The prominence and importance of the subject-matter requiring disclosure in the mind of the accused;

(6) What the effects of disclosure would have been;

(7) Whether there were reasons for withholding disclosure;

(8) Whether the accused derived a clear benefit from non-disclosure; and

(9) The conduct of the accused in relation to the performance of his duty.

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Case:
Meridian Bay Restaurant (Pty) Ltd And Others v Mitchell NO 2011 (4) SA 1 (SCA)

Area of law:
Commercial/Property

Summary:
This case concerned the sale of immovable property. The basis of the application was that fraud had been perpetrated on the sectional title scheme and the other registered owners of the units in the scheme by the developer who had secretly appropriated a large part of the common property of the scheme for the benefit of two corporate entities which he controlled.

The scheme was comprised of residential as well as commercial units, but consisted mainly of units which were equipped as hotel suites to be operated as such through a rental pool agreement. A number of units were sold before the coming into existence of the body corporate.

In terms of the agreement, each purchaser (owner) would make his unit available for the purposes of conducting the hotel business which would be managed by a management company. Each owner would in turn be entitled to a certain percentage of the rental accruing from the aforesaid business plan and the rest would accrue to the management company. It is important to note that the units had not yet been transferred into the names of the purchasers and therefore at this stage they only acquired a personal right to the units as well as to the rental accruing from same.

The body corporate was liquidated and a curator was applied for. After application but before the appointment of the curator, the developer sold certain units already sold (double sale) despite the personal rights which vested in be purchasers and the management company.

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Case:
Oosthuizen v Road Accident Fund [2011] SCA 118

Area of law:
Constitutional Law – Section 173

Summary:
This was an appeal against a judgment handed down in the North Gauteng High Court, dismissing the Appellant’s application to have his civil case transferred from the Magistrate’s Court to the High Court.

The Appellant (Oosthuizen) sustained serious bodily injuries as a result of a motor accident in March 2003. A year later the appellant issued summons against the Respondent (RAF) in the Magistrates Court. After this the appellant obtained 2 medico-legal reports which indicated that the Appellants future loss of earnings to be in excess of R100 000.00 and thus beyond the jurisdiction of the Magistrate Court.

The High Court held that there was in fact no statutory provision or a rule in the High Court or Magistrates Court which permitted a transfer at the Plaintiff’s request from the Magistrate Court to the High Court. Furthermore by the time that the Application had been made to transfer the matter it had subsequently prescribed.

The Appellant then took the matter on appeal to the Supreme Court of Appeal. The SCA held that whilst the Magistrates Court allows for a Defendant to request a transfer there is no section or rule which allows for a Plaintiff to do the same. A Plaintiff chooses the forum in which to litigate and must bear the consequences thereof.

The Appellant further attempted to rely on the inherent jurisdiction of the High Court to rescue the situation. The Appellant argued that section 173 of the Constitution was applicable in this case by contending that the High Court is entitled and indeed compelled to come to the Appellant’s assistance by exercising its inherent jurisdiction to regulate its own process.

The SCA held that Section 173 does not give any of the courts mentioned therein, including the High Court, carte blanche to meddle or interfere in the affairs of inferior Courts.

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Case:
Unitrans Automotive (Pty) Ltd v Trustees of the Rally Motors Trust 2011 (4) SA 35 (FB)

Area of law:
Law of Estoppel

Summary:
The applicant, Unitrans Automotive (a car dealer), handed over a vehicle to a customer, Kok, and provided him with the keys, registration papers and licence disk without properly confirming that the purchase price had been paid into its account. This had been negligent and contrary to the applicant’s normal practice. Kok, who was a fraudster, told the applicant that he was from New Zealand and wanted to buy the vehicle to travel to Botswana and that he planned to sell the vehicle once he returned from Botswana. Through various lies and deceptions, Kok convinced the applicant that payment had been made, but he never effected payment. Kok later used these indicia of dominium (scenic apparatus, namely the keys, registration papers and licence disk) to sell the vehicle to the respondent, which was unaware of Kok’s fraud or the fact that Kok was not the lawful owner of the vehicle.

The applicant claimed the vehicle from the respondent in terms of the rei vindicatio, but the respondent argued that the applicant was estopped from claiming the return of the vehicle. The court held that without the indicia of dominium provided by the applicant to Kok, Kok would not have been able to persuade the respondent to purchase the motor vehicle. The respondent purchased the motor vehicle and was able to register same in its own name by virtue of the indicia provided to it by Kok. Kok had in turn been provided with such indicia by the applicant in circumstances where the latter acted negligently and, in its own words, contrary to normal practice and procedure in parting with the indicia before receiving payment. The applicant was furthermore negligent in not foreseeing that Kok could deal with the vehicle as his own property.

The application was accordingly dismissed with costs.

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Case:
Harris and Others v Rees and Others 2011 (2) SA 294 (GSJ)

Area of law:
Practice: locus standi

Summary:
The First Respondent brought an Application for the discharge of an attachment order granted against him in 2009. At the time the attachment order was granted, serious allegations of fraud were levelled against the First Respondent, as a result of which the First Respondent took up residence in Switzerland and purchased a home there. He abandoned his legal practice in South Africa and resigned as director from various corporate entities in which he was involved. At the time of bringing the Application, the First Respondent had therefore effectively placed himself outside the jurisdiction of the court alternatively was a fugitive from justice.

In Mulligan v Mulligan 1925 WLD 164 it was held that a fugitive from justice, or a person who has deliberately placed himself beyond the jurisdiction of the court, had no locus standi to litigate. The Court held that while the ratio of Mulligan could not be faulted, when a court has to consider the right of a person to approach the court for relief in such circumstances, it will have to deal with each case on its own facts.

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Name:
Rule 49(11) in context of United Reflective Converters (Pty) Ltd v Levine 1988 (4) SA 460 (W).

Area of law:
Operation of Judgments and Court Orders, pending hearing of Rescission or variation application

Summary:
Rule 49(11) of the Uniform Rules of Court state: “Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary 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 or application, unless the court which gave such order, on the application of a party, otherwise directs.”

The above matter considered this Rule.

It was established that, whereas the substantive law recognises that the noting of an appeal automatically suspends the operation of the Order in question, there is no such equivalent substantive law, in relation to applications to rescind or vary an Order.

Accordingly, it was found that Rule 49(11), save where it deals with appeals, goes beyond laying down a rule for the conduct of proceedings and purports to create a substantive rule of law, which, therefore, makes it ultra vires.

Accordingly, the words “or to rescind, correct, review or vary”, as the appear in the Rule, are of no force or effect.

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Case:
Booysen v The Minister of Safety and Security and Others [2011] 1 BLLR 83 (LAC)

Area of law:
Labour Law: Jurisdiction of the Courts vis-à-vis disciplinary hearings

Summary:
Booysen, a director of the South African Police Service, was charged with fraud, corruption and perjury. Given the seriousness of the allegations, Booysen was suspended without pay.

Following numerous postponements, the disciplinary hearing was set down for hearing on 13 February 2011. Booysen then launched an urgent interdict application in the Labour Court to postpone the hearing further. This was to prevent the hearing from being heard before judgment was reached in a review application Booysen had initiated after he was deemed fit and capable by the chairperson to attend his hearing.

The Labour Court ruled that it did not have the jurisdiction to interfere in an internal disciplinary hearing and dismissed the application. Booysen then instituted proceedings in the High Court, which came to the same conclusion.

A final appeal to the Labour Appeal Court yielded a different result. The LAC held that the Labour Court does indeed have the jurisdiction to interdict unfair conduct, and that this includes unfair disciplinary action, and referred the matter back to the Labour Court to make a judgment (as the merits of the case had already been canvassed before it).

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Case:
Joubert v Nedbank Ltd [2011] JOL 27490 (ECP)

Area of law:
Delict / Malicious Prosecution

Summary:
The plaintiff sued the defendant for damages arising from an alleged malicious prosecution.

The plaintiff worked for the defendant for a period of 19 years as a teller. When money went missing from a money bag the defendant acquired the services of a forensic investigator, who concluded by a process of elimination based on circumstantial evidence, that on a balance of probabilities the plaintiff had misappropriated the funds.

The plaintiff instituted action for malicious prosecution arising out of the instigation of criminal proceedings as well as the institution of disciplinary proceedings against her.

The court held that the plaintiff had failed to prove that the prosecution was without reasonable and probable cause. In the circumstances the cause of action had to fail, regardless of the motive for instituting the prosecution.

The plaintiff‘s claim was dismissed

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Name:
Argumentum Ad Misericordiam.

Area of law:
Argument

Summary:
This is a logical fallacy, whereby someone tries to win support for an argument or idea by exploiting his or her opponent’s feelings of pity or guilt. It is an appeal to emotion and does nothing to address the underlying issue.

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Act and Section:
Section 5(2)(b) of the Consumer Protection Act 68 of 2008

Area of Law:
Consumer protection

Summary:
Section 5(2)(b) of the Consumer Protection Act stipulates –

“(5) This Act does not apply to any transaction –

(b) in terms of which the consumer is a juristic person whose asset value or annual turnover, at the time of the transaction, equals or exceeds the threshold value determined by the Minister in terms of section 6…”

The Government Gazette, sets out the monetary threshold as determined by the Minister, in respect of the monetary size of a juristic person, which is currently set at R2 000 000.00 (Two Million Rand).

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Case:
Minister of Safety and Security v F 2011 (3) SA 487 (SCA)

Area of law:
Delict: Vicarious liability for unlawful activities of an off-duty police officer

Summary:
A detective (“V”) in the South African Police Service (“SAPS”), while off duty but on ‘standby’, raped the Respondent, F, a minor of 13 (Thirteen) years. As the detective was not on duty at the time, V was not wearing a police uniform, although he was driving an unmarked police vehicle contrary to SAPS regulations.

The High Court held that the state was vicariously liable for the unlawful consequences of V’s actions. The case then went on appeal to the Supreme Court of Appeal (“SCA”).

The appeal was upheld, where Nugent JA (Snyders JA and R Pillay AJA concurring) held that the ‘standby duty’ V was doing at the time of the unlawful act was precisely what the language conveyed, namely that he was off duty until called to resume duty. V was not engaged in police business at the relevant time, with the result that his unauthorised use of his employer’s unmarked vehicle was not relevant to establish vicarious liability.

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Case:
Premier, KwaZulu-Natal v Sonny and Another 2011(SCA)

Area of law:
Medical Negligence

Summary:
Whilst pregnant, Mrs Sonny, the second respondent attended a provincial hospital under the control and administration of the appellant, the Premier of KwaZulu-Natal, for an ultrasound scan of her foetus.

Due to the awkward position of the head of the foetus, the computer-generated ultrasound report indicated that it was too difficult to assess its medical condition and suggested a scan in two weeks time.

The hospital staff then referred her to a satellite clinic to make the follow-up appointment, but when she contacted the satellite clinic, the nursing sister that she spoke to did not make the appointment, explaining that a second scan would only be necessary towards the end of the pregnancy. As the original hospital staff had not fully explained the importance of this second appointment, Mrs Sonny missed it.

The child was later born with Down’s Syndrome and as a result, Mr and Mrs Sonny instituted a claim against the appellant for the costs of caring for the child until she reached the age of 55, as had they been advised of the condition of the foetus timeously, they would have terminated the pregnancy.

The High Court held that the Premier was liable, hence the appeal to the SCA. The appeal was dismissed with costs.
Commercial/Property.

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Case:
Aveng (Africa) Ltd (formerly Grinaker-LTA Ltd) t/a Grinaker-LTA Building East v Midros Investments (Pty) Ltd 2011 (3) SA 631 (KZD)

Area of law:
Is a party who commences litigation free to abandon the proceedings so as to have the matter referred to arbitration, or must the party apply for a stay of the proceedings?

Facts/Summary:
The Applicant in the matter was Aveng, who had entered into a contract with Midos to build a shopping complex. After completion of the work, the Respondent refused to pay the Applicant the amount owing to them in terms of the contract. The Respondent alleged that the work was not properly completed. The Applicant then attended to completing further work in order to correct these defects, however the Respondent still refused to pay the Applicant. The Applicant therefore instituted an action to recover the balance. After six years the matter had still not been heard, and the parties were informed that it was to take a further three years to reach finalisation. In order to expedite the proceedings the Applicant applied for a stay of the proceedings in order to apply to have the matter referred to arbitration, as allowance was made for this in the contract. The court, however, dismissed the application for the stay of the proceedings with costs. The court held that whilst the applicant was in breach of his obligations under the arbitration agreement, he nevertheless sought to enforce the agreement against the respondent and this was held to be an unsustainable situation which was contrary to the principle.

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Act:
The Remand Detention and Correctional Matters Amendment Act of 2011

Area of law:
Criminal Law; Human Rights

Summary:
As most would, by now, be aware, an English Magistrates’ Court has ordered the extradition of Shrien Dewani to South Africa (pending Home Secretary Approval).

However, a large aspect of the case revolved around the conditions of RSA prisons and, in particular, how he may very well face a ‘death sentence’ whilst awaiting trial, even though he may still be found innocent. This is because of the poor conditions and the statistics around sexual assault and HIV/Aids in our prison system. Part of the problem, evidently, is that there is no distinction between ‘remand detainees’ and ‘sentenced offenders’, meaning that, in practice, an accused may be ‘punished’ before even having been found guilty.

Our Correctional Services Minister, Nosiviwe Mapisa-Nqakula, has announced the above piece of proposed legislation that will, inter alia, seek to provide separate holding areas for first-time offenders and ‘awaiting-trial prisoners’, provide for distinguishable uniforms and limit the periods in which those, awaiting trial, will be permitted to be kept in jail (no more than 7 days in police custody, no matter what the reason and no more than two years in prison, whilst awaiting trial).

Click here to read the full summary.

Case:
Steyn and Others NNO v Blockpave (Pty) Ltd 2011 (3) SA 528 (FB)

Area of law:
Trusts / Company Law / Civil procedure: Trustees required to act together on behalf of a trust.

Facts/summary:
The Applicants, Steyn and others, were the Trustees of the Dries Steyn Trust, which instituted proceedings against the Respondent company, Blockpave (Pty) Ltd, claiming arrear rental. The Respondent raised several points in limine, the main one being that the Trust had not properly instituted the proceedings against it. This was because only two of the three Trustees attended the meeting at which a decision to institute the proceedings was taken. The third Trustee, who was being marginalised, did not attend the meeting, nor had she been informed of it. The High Court upheld two points in limine, one to the effect that no proper resolution had been taken by the entire complement of the Trust body to launch the proceedings, while the other was to the effect that there had not been a proper Power of Attorney given to the Attorneys to act on behalf of the Trust.

The Honourable Mr Justice Rampai held that the Trust required the full and complete participation of all its Trustees to function legally. In the instant case, the Trust was suffering from incapacity on account of the frequent, albeit irregular, marginalisation of the third Trustee by her co-Trustees in the running of its affairs. The fact that she was accustomed to being excluded did not, and could not, regularise a wrong practice that was intrinsic and systematic. Internally Trustees could disagree. A matter on the agenda could be debated and put to a vote if the Trustees were not unanimous, in which case a decision of the majority would prevail. However, externally Trustees could not disagree. The internal split decision became the resolution of the Trust in its dealings with the world at large. A majority of the Trustees in office could form a quorum internally at a Trust meeting, but they could not externally bind the Trust by acting together. It was not the majority vote, but the resolution by the entire complement that bound a Trust estate.

Click here to read the full case summary.

Case:
Greenberg v De Beer & Another [2011] ZAGPJHC 66

Area of law:
Delict- Unlawful Arrest-Damages

Summary:
The plaintiff instituted action proceedings against De Beer (first defendant) and the Minister of Safety and Security (second defendant) (“defendants”) claiming damages in the sum of R450,000.00 for unlawful arrest and detention.

The plaintiff based his claim on the fact that he was wrongfully and unlawfully deprived of his freedom and liberty for 6 days by the first defendant acting at all material times within the course and scope of her employment with the second defendant. Alternatively, he was wrongfully and maliciously arrested without reasonable/probable cause. Alternatively, the first defendant was actuated by an indirect/improper motive when she arrested the plaintiff.

The plaintiff claims that he, as a result of the defendants conduct suffered damages, loss of self-respect, humiliation, degradation, loss of dignity and unusual and cruel punishment.

The defendants denied liability and raised 2 special pleas, namely that of prescription contending that the plaintiff had failed to comply with S57(1) of the South African Police Act (“SAPA”) 68 of 1995. They contended that the plaintiff’s claim had prescribed as it was instituted after the expiry of 12 calendar months after the date on which the plaintiff became aware of the alleged act or omission and further contended that the plaintiff failed to comply with S57(2) of the SAPA, which requires one month’s notice to be served on the defendants prior to institution of any legal action. The plaintiff was however awarded condonation.

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Case:
Casino Enterprises (Pty) Ltd (Swaziland) v Gauteng Gambling Board and Others [2011] 1 All SA 305 (GNP)

Area of law:
Jurisdiction- Internet

Summary:
The Plaintiff advertised its online casino in Gauteng via radio stations. The Defendant objected to these advertisements in terms of s77(1) of the Gauteng Gambling Act and the National Gambling Act which states that “no person shall gamble at any place other than a licensed premises.”

The Plaintiff argued that because the gambling took place at the Plaintiff’s online casino, it did not take place in Gauteng and therefore the Plaintiff did not need a license under the Provincial and National Acts.

Tuchten J held that the decision to play the online game is made in Gauteng and the act of communicating that decision to the Plaintiff is performed in Gauteng. Although the result of the win or loss of the game is determined in Swaziland, it is reported back to the player in Gauteng.

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Case:
Nederburg Wine Farms v Bester and Others [2011] ZAWCHC 305;A777/2010

Area of law:
Property Re: Eviction

“Occupier” (as defined by ESTA) v “Unlawful Occupier” (as defined by PIE)

Brief Facts / Summary:
This case is an appeal against the dismissal of an eviction application brought by the Appellant.

The Respondents occupied a house on the Appellant’s farm since the age of 10 by virtue of the right of occupation of their now deceased parents. After their mother’s death in 2006, the Respondents received three (3) months notice to vacate the premises.

The Respondents refused to vacate the premises and the matter was brought before a Magistrate.

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Case:
Sihlali, Mafika v SABC Ltd (LC – case number J700/08)

Area of law:
Labour Law: Valid Notice of Termination of Employment

Summary:
This case involved a former SABC employee, (“the Applicant”) who sent an SMS to his employer stating that he “quit with immediate effect“. The Applicant alleged that he sent this SMS in anger after he heard that he had been suspended. Six weeks after sending this SMS, the Applicant attempted to withdraw the resignation by asserting that his contract of employment still subsisted in that he had not given notification of his termination in writing and the employer did not accept it.

The Court confirmed that notwithstanding Section 37 of the Basic Conditions of Employment Act 75 of 1997, the test for a valid resignation is whether the employee has through his words or conduct shown a clear and unambiguous intention not to continue with his contract of employment (Council for Scientific & Industrial Research v Fijen (1996) 17 ILJ 18 (AD) and Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 795 (LAC)).

The Court held that an SMS constitutes communication in writing, in accordance with section 12 of the Electronic Communications and Transactions Act 25 of 2002. Furthermore, that the Applicant is bound to his resignation as it is a unilateral act which does not require the employer’s acceptance to be valid. Once it has come to the employer’s attention it cannot be withdrawn without the employer’s consent.

The Applicant’s SMS was clear and unequivocal. The Applicant did not allege that he was incapable of appreciating what he was doing, or the consequences of his actions. Therefore, the Applicant’s resignation by SMS constituted a valid resignation.

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Case:

Dumbe Transport CC v Alex Carriers 2011 (3) SA 664 (KZP)

Area of law:
Costs – The effect of tendering costs prior to trial and the content of an offer of settlement

Summary:

The case dealt with a motor vehicle collision that occurred between the Plaintiff and the Defendant, with both parties denying liability for causing the collision. The parties agreed that only the merits will be argued at trial as they were able to consent to the quantum of their respective damages.

The Defendant, however, tendered costs two days prior to the trial. The Defendant’s offer of settlement apportioned liability 75:25 in favour of the Plaintiff, with the taxed or agreed costs to be paid on the same proportion. The plaintiff did not accept the tender and the matter went to court.

The court held, on the merits, that the damages should be apportioned 75:25 in favour of the Plaintiff. On deciding the question of costs, the Defendant argued that, since the tender by the Defendant was the same as that which the court awarded, the Plaintiff should be liable for the costs incurred.

Although it is generally accepted that costs follow the result, the question was whether the tender by the Defendant should influence the final costs order.

The court found that, had the Plaintiff accepted the tender proposed by the Defendant, the Plaintiff would have been prejudiced by such acceptance as the Plaintiff would not have been able to recover a significant portion of its costs.

The Plaintiff was therefore under no obligation to accept the tender, and costs for the action were therefore ordered in favour of the Plaintiff.

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Case:
Jordaan v CCMA and Others (2010) 12 BLLR 1235 (LAC)

Area of law:
Labour Law: Termination or dismissal of an employee

Summary:
The appellant commenced employment with the 6^th respondent (the company) as an estate agent. She worked under the supervision of Lance Gouws. She thereafter commenced work for her Husband who was the manager of an alternative branch of Mr Gouws. Relationships between Mr Gouws and Mr Jordaan deteriorated and Mr Gouws removed Mr Jordaan from his position of Manager. During the course of the latter Mrs Jordaan was still an employee of Mr Gouws.

Mr Gouws introduced a contract of Restraint of Trade for all his employees to sign. Mrs Jordaan refused and resigned with immediate effect and joined her Husband’s company whom at this stage was a competitor of Mr Gouws.

The appellant alleged that she was constructively dismissed.

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Case:
Netshituka v Netshituka (426/2010) [2011] ZASCA 120 (20 July 2011)

Area of law:
Customary Law: whether a civil marriage contracted between a partner to a customary union and another man or woman during the subsistence of that union is valid.

Summary:
At the time of his death, the deceased was married to three different women by customary rites. He was also married to the First Respondent by civil rights which marriage was contracted on 17 January 1997. Following the death of the deceased, the Appellant and her erstwhile Co-Applicants decided to contest the validity of inter alia the deceased’s marriage to the First Respondent. In resisting the Appellant’s Application, the First Respondent contended that the customary marriages between the deceased and the Appellant’s erstwhile Co-Applicants were rendered invalid when the deceased married the First Respondent by civil rights.

One of the question before the SCA was whether the deceased was competent to contract a civil marriage with the First Respondent during the subsistence of the aforesaid customary unions.

The SCA held that a civil marriage contracted while the man was a partner in an existing customary union with another woman was a nullity.

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Legislation:
State Liability Amendment Act No. 14 of 2011 (‘new legislation’).

Area of law:
The satisfying of a final court order granted against the state sounding in money.

Reason for the Amendment:
In Nyathi v Member of the Executive Council for the Department of Health Gauteng and Another 2008 (5) SA 94 (CC), Section 3 of the State Liability Amendment Act 20 of 1957 (‘previous legislation’) was declared unconstitutional. The previous legislation prohibited the attachment of state property in order to satisfy final court orders sounding in money (‘judgment debt’).

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Case:
Blue Square Advisory Services (Pty) Ltd v Madingoane Pogiso and others Case number 01082/2011 (South Gauteng High Court Judgment per Peter AJ)

Area of Law:
Company law and Trusts (voting at general meeting and the passing of resolutions).

Summary:
In this case a Trust ( “Johan en Mercia Louw Familie Trust”) (“the Trust”) was a 100% shareholder of a Company ( Blue Square Advisory Services (Pty) Ltd) and entered into a number of (unproven) verbal agreements with the 2 Respondents in respect of which the two Respondents (prospective BEE partners) would become directors and shareholders of the Company.

The relationship between the Applicant and the 2 respondents eventually broke down to such an extent that the learned Judge described what transpired between the parties as “echoing the Western Schism that divided Europe at the end of the 14^th and the beginning of the 15^th Centuries with rival papacies of Avignon and Rome furiously denouncing and excommunicating each other”.

Thereafter the a trustee acting on behalf of the trust called a general meeting in terms of s 220 of the Companies Act (1973) in order to pass a resolution to dismiss both respondents as directors. The resolution was passed and the respondents were dismissed in terms thereof.

The crisp issue before the court was the validity of this resolution.

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Legislation:
Uniform Rules of Court in terms of the Supreme Court Act 59 of 1959

Area of Law:
Civil procedure – Difference between notification of intention to oppose and delivery of intention to defend.

Summary:
Although this is not a new development in our law, attorneys sometimes overlook the slight, but significant, difference between, on the one hand, the application procedure whereby one notifies the opposing party of his/her intention to oppose and, on the other hand, the action procedure whereby one delivers his/her intention to defend.

The Uniform Rules of Court do not define ‘notify’ (or any similar form thereof) but define ‘deliver’ to mean ‘serve copies on all parties and file the original with the registrar’.

There is, therefore, an important distinction to be drawn between notification and delivery, in terms of the rules of court. In terms of Rule 6(5)(a), a ‘respondent is required to notify the applicant, in writing, whether he intends to oppose’ an application. By comparison, Rule 19 requires a defendant to ‘deliver a notice of intention to defend’.

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Case:
Stand 242 Hendrik Potgieter Road Ruimsig (Pty) LTD v Gobel (SCA) (Unreported case, no 246/10,1-6-2011)

Area of Law:
Section 228 of the Companies Act 61 of 1973, Sections 112 and 115 of the Companies Act 71 of 2008, and the Turquand rule

Summary:

The first appellant had purchased from the seventh respondent (Bubesi) immovable property that constituted Bubesi’s sole asset. The directors of Bubesi had declared to the appellant that the asset was not the whole or greater part of Bubesi’s assets and that the sale had been approved by the shareholders. Both submissions were in fact incorrect.

For various reasons, Bubesi did not perform in terms of the contract. The appellants then applied for an interdict preventing Bubesi from dealing with the property on the basis of non-compliance with section 228 of the old Companies Act.

The appellants relied on the Turquand rule to protect their claim. The Turquand rule protects a third party that has contracted with a company in good faith in circumstances where there has not been compliance with the company’s internal procedures but where the third party assumes that there has been such compliance.

The SCA, in this case, ended years of uncertainty and ruled that the Turquand rule had no application in the context of section 228 and that the agreement concluded by the first appellant and Bubesi was invalid.

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Case Name
Casino Enterprises (Pty) Ltd (Swaziland) v Gauteng Gambling Board and Others (653/10) [2011] ZASCA 155.

Area of Law
Jurisdiction – internet; South African Gambling Laws.

Summary
The Appellant appealed against Tuchten J’s judgment (Casino Enterprises (Pty) Ltd (Swaziland) v Gauteng Gambling Board and Others [2011] 1 All SA 305 (GNP) which determined that the activities of an online casino based outside of South Africa, offering online gambling to players within South Africa and that didn’t hold a South African gambling license, contravened the Gauteng Gambling Act and the National Gambling Act.

Instead of deciding the issue based on where the gamble is electronically generated (as was dealt with in Tuchten’s judgment) the SCA looks at exactly what it means to gamble. Heher JA (Ponnan, Seriti JJA, Plasket and Petse AJJA concurring) held that gambling takes place where the wager is made therefore, in this scenario, the wager is made in South Africa. In order to make a wager in South Africa, the Casino needs to be licensed in terms of South African Gambling legislation. Due to the fact that Casino Enterprises (Piggs Peak) does not hold a license to operate a Casino in South Africa, the gambling services offered are unlicensed and thus unlawful.

Therefore the appeal is DISMISSED.

Importance/ Value
A Casino which is not based in South Africa and is not licensed in terms of South African Gambling laws, i.e. Piggs Peak, may not offer online gambling facilities to patrons located in South Africa.

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Case name:
Builders Depot CC v Testa 2011 (4) SA 486 (GSJ)

Area of law:
Mandament van Spolie: is not available to a builder if property subject to a lien is sold by the sheriff to a third party acting in good faith

Brief facts/summary:

The Appellant, Builders Depot, had a builders lien over the property of a Mr. Wu, due to the failure of Mr. Wu to pay for the building work done in respect of the property. The Appellant eventually obtained judgment against Mr. Wu and had the property attached.

The mortgagee, Absa Bank, also obtained judgment against Mr. Wu and had the property attached and thereafter sold by the sheriff in execution of judgment. The locks to the property were consequently changed and the buyer (the Respondent) was thereafter given possession. The Appellant therefore sought a spoliation order against the Respondent on the grounds that as a result of the Respondent taking possession of the property, the Appellant had been deprived of peaceful possession of the property. This application was dismissed and the Appellant appealed to the High Court.

The appeal was dismissed with costs.

Importance/value:
The court held that a spoliation order could not be granted against a spoliator who had parted with possession to a bona fide possessor. The Respondent was therefore entitled to the possession as he did not deprive the Appellant of possession unlawfully or wrongfully, and therefore performed no act of spoliation.

If the Respondent’s bona fide possession could not be disturbed via the spoliator, there was no way in which the Appellant could proceed against the third party.

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Case name:
South African Police Service Medical Scheme and Another v Lamana and Others 2011 (4) SA 456 (SCA) and Section 21A(1) of the Supreme Court Act 59 0f 1959 (“the Act”).

Area of law:
Substantive and procedural law on Appeals: Power of a court to dismiss appeal where judgment or order sought would have no practical effect or result.

Brief facts/summary:
The rules of the first appellant medical scheme, the South African Police Service Medical Scheme (Polmed), which was administered by the second respondent, Qualsa, provided that payment of amounts due to a member was to be made by means of a transfer to an acceptable bank account elected by the member. The respondents, members of the first appellant, elected a certain back account, the beneficiary being a medical practitioner who was rendering medical services to them. The appellants refused to make payment into the designated bank account, contending that the beneficiary had a history of fraud.

The High Court held that the nominated bank account was an “acceptable bank account” and accordingly ordered the appellants to make payment as claimed. Leave to appeal was refused.

While seeking leave to appeal to the SCA, which was granted, the rules of the first appellant were amended to provide that payment of amounts due to a member was to be made into the member’s personal bank account. The effect of the amendment was to make it clear that payment would not be made to a third party but to a member only. It would then be the duty of the member to make payment to the third party.

By the time the appeal was lodged with the SCA, the amendment had come into effect. However, the court was not informed of this and only became aware of it at the hearing of the appeal, which was dismissed with costs, Cloete JA (Ponnan, Cachalia, Malan JJA and Meer AJA concurring) held that the amendment rendered the issues between the parties academic. The court further held that had the judges of the SCA, when considering the application for leave to appeal, known that the amendment had come into effect, they could have refused leave in terms of section 21A of the Act.

Section 21A of the Act provides that when at the hearing of any civil appeal to the appellate division or provincial or local provision of the Supreme Court, the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground only.

The court added that if the facts relevant to the exercise of a court of appeal’s discretion under section 21A did not appear from the record, they should be placed before the court by way of affidavit by the party seeking to rely on them, and in sufficient time to enable the other party to deal therewith. The same principle applied to an application for leave to appeal in whatever court it was brought.

Importance/value:
This case provides clarity on and further develops the application of section 21A of the Supreme Court Act 59 of 1959. It is useful to keep in mind when applying for or opposing leave to appeal.

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Case Name
Wakefields Real Estate v Attree (666/10) [2011] ZASCA 160 (28 September 2011).

Area of Law
Estate Agents Commission – The effective cause of the sale when more than one estate agent involved.

Summary
This matter centred around the sale of a property.

Wakefields (along with a number of other agencies) were given an oral mandate to sell the property during which a prospective purchaser (Mrs Howard) was introduced to the property. At the time Ms Howard loved the property but was not financially in a position to purchase the property at the asking price. Notwithstanding same Ms Howard returned on a number of occasions with her husband to view the property with the Wakefields agent (who was eventually told by the Howards that they were not looking to buy any more and would renovate their existing house).

Agents from Remax eventually convinced the seller to reduce the asking price and secured a sole mandate to sell the property. The seller further communicated this reduction in asking price to Pam Golding. An agent from Pam Golding fortuitously came across the Howards in a shopping centre during the weekend before the first Remax show day and communicated the reduction in the asking price to the Howards which eventually resulted in the sale of the property to the Howards.

Because Remax at the time had the sole mandate, the commission that was paid was split between Pam Golding and Remax, and nothing was paid to Wakefields

Wakefields claim in the high court was dismissed, the Learned Judge holding that Wakefields introduction of the Howards to the property was the sine quo non of the sale but not the causa causans and thus they were not entitled to commission as to many intervening factors had occurred following Wakefields introduction of the Howards to the property.

Wakefields were successful in the appeal the Learned Justices holding that Wakefields were the effective cause of the sale and that “the fact that the sellers find themselves liable to pay more than one agent commission is of their own making, and that they have only themselves to blame for the predicament further that they should have protected themselves against such a claim.“

In making such finding the Learned Justices quoted from the case of Webranchek v L K Jacobs & Co Ltd 1948 (4) SA 671 (A) at 678 where I quote:

“Situations are conceivable in which it is impossible to distinguish between the efforts of one agent and another in terms of causality or degrees of causation. In such a situation it may well be that the principal may owe commission to both agents and that he has only himself to blame for his predicament; for he should protect himself against that risk.”

The seller was order to pay Wakefields 6% commission, with interest.

Importance/ Value
Commission agents are paid by results and not by good intentions or even hard work. If any action of an Estate Agent render them the effective cause of the sale, such agent has produced a result for which they are entitled to commission, even if this means that the seller has to pay the commission to more than one agent (as evidenced by above, the seller having to pay 3 agents commission)

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Case name (full citation)/Legislation:
Gerolomou Constructions (Pty) Ltd v Van Wyk 2011 (4) SA 500 (GNP)

Area of law:
Contract – The affect of undue influence on the validity of contracts

Brief facts/summary:
The respondent rendered construction services to the appellant for an agreed fee. The appellant, however, deducted contra charges from the agreed fee in respect of, inter alia, damaged material and removal of material.

The respondent was required by the appellant, before any payment was made, to sign a contract that payment will be made in ‘full and final settlement of all accounts’. Subsequent to the signing of the contract, payment was made to the respondent who, later on, instituted proceedings against the appellant in the Magistrates Court. The Magistrates Court found in favour of the respondent and upheld the respondent’s claims in respect of the contra charges which were unduly deducted from the agreed fee. The appellant took this decision on appeal, relying on the contract in ‘full and final settlement of all accounts’ concluded between the parties, which appeal was dismissed.

The court held that, due to the disparity between the respondent and the appellant’s respective economic powers, combined with the fact that the respondent was in desperate financial need, the appellant had misused its influence over the respondent. Accordingly, the court held that the contract was not binding on the respondent as he had been unduly influence.

Importance/value:
A litigant who wishes to claim rescission of a contract due to undue influence must establish that the other party gained an influence over him, that the influence weakened his resistance and that the other party used that influence in an unconscionable manner to persuade him to agree to an unfair contract.

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Case Name:
Votani Majola v Nitro Securitisation (567/10)[2011] ZASCA 180 (30 September 2011)

Area of law:
Dismissal of Appeal for non-appearance-Rule 13(3) of the Supreme Court Rules

Brief summary of facts:
Wesbank entered into a written instalment sale agreement with Mr Majola (“Appellant”) in terms of which it sold and delivered to him a Jaguar motor vehicle (“Jaguar”). The Appellant failed to pay his monthly instalments and thus gave Wesbank the right to cancel the agreement and take back possession of the Jaguar. Wesbank ceded its rights to Nitro Securitisation 1 (Pty) Ltd (“Respondent”) in terms of the agreement.

The Respondent issued summons out of the South Gauteng High Court and then later applied for summary judgment in which it sought the return of the Jaguar and costs on an attorney and client scale. Summary judgment was granted on 20 November 2009.

The Appellant then appealed to the SCA against the judgment granted in the SGHC. Neither the appellant nor his legal representative appeared on the date of hearing. As a result, an order was made striking the appeal from the roll, ordering the Appellant to pay the wasted costs on an attorney client scale, ordering that the appeal was not to be set down again unless the Appellant had provided proof that the wasted costs had been paid in full and directing that when the Appellant set the matter down for hearing, he would have to give a full explanation for his absence.

The Appellant took no steps and didn’t pay the wasted costs. As a result the Respondent wrote to the President of the SCA and requested the matter be set down for hearing despite the Appellant not having complied with the order. The matter was therefore set down. The Appellant then wrote to the Registrar of the court and stated that certain directives (i.e the court order handed down) had to be complied with before the matter could be set down. The Registrar confirmed that the matter would still be set down and informed the Appellant that his failure to appear may lead to a dismissal of the appeal with costs.

On 19 September 2011, the matter was called up and again there was no appearance from the Appellant. The Respondent informed the court that his instructing attorney was advised by the Appellants attorney that they would not be present. All attempts taken to contact the Appellant proved fruitless.

The court is able to exercise its discretion in favour of an absent appellant and either strike the matter from the roll or postpone it. The facts surrounding the Appellant’s absence, the position of the Respondent and the Appellant’s prospects of success were considered. In this case, the court found that nothing operated in the Appellant’s favour.

The appeal was therefore dismissed in terms of Rule 13 (3) of the Supreme Court of Appeal which provides that if an appellant fails to appear on the date of the hearing of an appeal, the appeal shall be dismissed for non-prosecution, unless the court otherwise directs.

Importance/Value:
Unless the court elects to exercise its discretion, an appeal will be dismissed with costs if an appellant fails to attend at court.

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Case Name:
Ponelat v Schrepfer (802/10) [2011] ZASCA 167 (19 September 2011).

Area of Law:
Contract – whether a tacit contract of universal partnership can be inferred from proven facts.

Brief facts/summary:
The Court a quo had found, inter alia, a universal partnership to have existed between the parties and had ordered its division, thereafter granting leave to appeal such decision.

The Respondent (Plaintiff a quo) alleged a universal partnership (which the Appellant denied) and sought, essentially, for the estate to be divided on the basis thereof.

Despite never having married, it was clear that the parties had lived together in what could be described as a ‘what is mine is yours’ relationship. For all intents and purposes, they had enjoyed a joint household, in which both parties had contributed according to their respective means. The Respondent had even (in addition to her freelance business, from which all income had gone towards the joint expenses) assisted the Appellant with the administration of his business affairs. There are numerous other relevant facts.

The parties had, at one point, become engaged (which was, incidentally, found to not preclude a universal partnership). The Respondent described the Appellant as her ‘protector and provider’. The Appellant had made various promises and had acted in accordance with this title.

The Respondent had become insecure about the relationship and the financial consequences of the arrangement and had sought written confirmation that she was entitled to a half share of the partnership estate. The Appellant’s attorneys put together a written offer, which was rejected by the Respondent.

The relationship came to an end and the Respondent moved out. She had very few assets to reflect her contribution, over the years, to the relationship. She sought to address this position through the Courts.

“The evidence is clear that the [R]espondent wanted (and, after throwing herself at the mercy of the [A]ppellant, needed) immediate security and that the [R]espondent, aware of that need, voluntarily committed himself to satisfy it.”

The requisite animus contrahendi was found to have existed. The relationship was considered jointly beneficial and was intended to make a profit (important consideration). A universal partnership was found to exist and the estate was divided 35% / 65% between the parties. The appeal was, accordingly, dismissed with costs.

Note: it is worth reading more into how the division of the estate was to be administered (by Order).

Importance/value:
A tacit contract of universal partnership can be inferred from proven facts.

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Case name (full citation)/Legislation:
David Wallace Zietsman v Electronic Media Network limited and Multichoice Africa (Pty)

Area of law:
Doctrine of estoppel and res judicata

Brief facts/summary:
This appeal was against the judgment handed down in the Court of the Commissioner of Patents of the Republic of South Africa (“CCP”), in which the Appellant was ordered to furnish security for the costs of the First and Second Respondents.

The Appellant was initially ordered to furnish security for the costs of the Respondents in the amount of R250 000 each in the CCP. The Appellant appealed against that ruling and succeeded, as the SCA said that the Respondents application should have been refused on the basis that they had not disclosed a defence and because evidence relating to their defence and their prospects of success in the main action had not been tendered.

Thereafter the Respondent again launched an application for security for costs in the CCP. Furthermore, the application contained the Respondents good prospects of success in their defence of the main action. The Appellant defended the application by stating that the Respondents were precluded from requesting security for costs in light of the previous SCA judgment, as the matter was res judicata. The CCP upheld the application and ordered that security be paid. The Appellant then took this on appeal.

Essentially the issue for decision in the SCA is whether the second application for security for costs should have been refused by the court a quo because of the operation of res judicata or estoppel. The Respondents disputed that the SCA judgment is a final and definitive judgment on the merits of the first application for security for costs and averred further that the causes of action in both applications for security for costs are not the same.

The further evidence tendered by the Respondents shows that the Respondents have good prospects of success in their defence of the main action. This evidence was not before the Court in the first application. The SCA held that due to this the second application is premised on a cause of action which is different from the cause of action in the first application.

On this basis the SCA held that the doctrine of res judicata or estoppel is inapplicable. There was therefore no reason for the CCP, not to entertain the Respondents’ application. Accordingly the appeal was dismissed with costs.

Importance/value:
This case clearly indicates that an application for security of costs may be brought again by the same party without the matter being deemed res judicata, on the basis that an amendment/addition of submissions in the papers may change the cause of action.

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Case name:
Mpinga v Makakuvhule & Associates & another [2011] JOL 27839 (GSJ)

Area of law:
Civil procedure – Delictual action

Brief facts/Summary:
The plaintiff was treated for an injury to her leg, at hospitals under the control of the second defendant. She alleged that as a result of the negligent treatment of her leg by the personnel of the hospitals, the injury deteriorated until the leg had to be amputated in November 2006. In May 2008, the plaintiff instructed the first defendant, an attorney, to act on her behalf to institute action against the defendants.

In November 2009, the first defendant issued summons against the second defendant, which summons was served on 1 December 2009. The second defendant raised two special pleas namely, that there was no compliance with section 3 the Institution of Legal Proceedings Against Certain Organs of State Act, Act 40 of 2002 (“the Act”) by virtue of the fact that notice was not given as required by the Act to the State within six months from the date on which the debt became due. A second special plea was that the plaintiff’s claim had become prescribed as the delict occurred on 26 September 2006 and summons was issued more than three years later.

It was held:
It is declared that the first defendant is not liable to the plaintiff as a result of the alleged non-compliance with s 3 of the Act prior to the finalisation of the application for condonation for the defective notice given pursuant to s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002.

The second defendant’s special plea of prescription is dismissed.

The second defendant is ordered to pay the costs of the plaintiff regarding the determination of the issues herein referred to including the qualifying fees of Dr L Marais.

The second defendant is ordered to pay the costs of the first defendant.

Importance/Value:
Action against State – Failure to give timeous notice – Prescription

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Case name (full citation)/Legislation:
Motor Finance Corporation (Pty) Ltd v Prinsloo (1830/2011) [2011] ZAECGHC 51 (22 September 2011)

Area of law:
Civil Procedure – Summary Judgment

Brief facts/summary:
The defendant had defaulted on his monthly instalments in respect of a vehicle which he purchased from a dealer. The plaintiff was the financier and the owner of the vehicle. In the defendant’s plea he alleged that the vehicle was not in good working order, contrary to the representations which were made to him by the sales person.

The plaintiff applied for summary judgment in an attempt to confirm the cancellation of the written agreement between the parties and to have an order authorising the sheriff to take possession and deliver the vehicle to the plaintiff.

In his opposing affidavit, the defendant alleged that the vehicle had suffered major mechanical problems and there were implied terms in the agreement which included that the vehicle was:

1. of good quality;
2. in working order;
3. free from latent defects; and
4. usable and durable and would continue to be, for a reasonable period of time.

As a result, the defendant claimed that the defects existed at the time of the purchase which had not been disclosed to him.

The plaintiff argued that the defendant had failed to set out sufficient facts to support the contention that the alleged defects were present at the time of the purchase. In addition, the plaintiff stated that in terms of the agreement the defendant had undertaken to inspect the vehicle for defects before the delivery and therefore he would be excluded on relying on the defence which he submitted.

The court held that a defendant wishing to resist summary judgment has to only set out the facts which he believes will constitute a valid defence, these material facts must be fully disclosed so that the court can decide whether they accept the defence as bona fide.

Further the court held that at this stage the enquiry will be limited to whether the defence will constitute a valid defence and will not constitute an analysis into the merits of the defence.

Therefore, in the present case, the court found that the defence put forward by the defendant constituted a valid and comprehensive defence and as a result summary judgment was refused.

Importance/value:
The purpose of a summary judgment application is not deprive someone who has a bona fide defence to pursue that defence but rather aimed at someone who is trying to intentionally delay the proceedings on a “bogus” defence with the sole aim of frustrating the plaintiff’s claim.

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Case Name:
Resnekov v Cohen (1787/11) [2011] ZAWCHC 317 (24 August 2011).

Area of Law:
Property Law: Re: Servitudes – Personal and Praedial.

Brief Facts / Summary:
The Applicant and the Respondent own neighbouring properties in Sea Point. The Applicant applies for an urgent interdict aimed at preventing the Respondent from building a second storey onto his house, inevitably blocking the Applicant’s sea view.

The interdict sought was based on a restrictive condition found in the Respondent’s title deeds which state: “….to the following special conditions contained in said Title Deed of Transfer …… imposed for the benefit of A. Kantorowitch (bought the original property in 1926 and again in 1928) and his Successors in Title……”.

The question is whether the restriction constitutes a praedial or a personal servitude.

Held: The judge held that it is trite law that there has to be at least two properties mentioned in a title deed in order for a praedial servitude to come into existence. In this case, there was no mention of a dominant or servient tenement. The restriction is not registered in favour of any particular property.

The judge held further that a personal servitude is inseparably attached to the beneficiary and that it can not be transmitted to his or her heirs, nor can it be alienated: “When he dies, it perishes with him”. It was therefore held to be a personal servitude.

Importance / Value:
One should always be aware of the provisions that are contained in one’s Title Deed/s. If a provision and/or restriction is beyond understanding, the buyer / owner should obtain professional advice as to the meaning of same before purchasing the property.

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Case Name:
Transnet Freight Rail v Transnet Bargaining Council and Others (C644/2009) [2011] ZALCJHB 15 (4 March 2011)

Area of Law:
Labour re: Alcoholism in the work place: misconduct versus incapacity.

Brief Facts / Summary:
This was an appeal of an arbitration decision in favour of an employee. The question before the Labour Court was whether alcohol abuse should be treated as misconduct rather than incapacity in circumstances where the employee is not an alcoholic.

The employee that was dismissed for ‘serious misconduct’ due to reporting for work under the influence of alcohol, was employed by Transnet as a yard marshal which is a ‘safety critical position’.

When the employee was dismissed, she had already been given a final written warning for reporting to work under the influence of alcohol on previous occasions.

In arbitration, the employee argued that she drank due to personal circumstances. It was held that the employer did not afford the employee any assistance regarding rehabilitation in terms of its “Employee Assistance Programme”, and prematurely dismissed the employee.

The Labour Court first looked at the difference between incapacity and misconduct. Alcoholism is a form of incapacity which requires counselling and rehabilitation, which may both be appropriate measures to be undertaken by the employer (Code of Good Conduct: Dismissal), however, where an employee is not an alcoholic and does not claim to be one, and said employee reports to work under the influence of alcohol, said employee will be guilty of misconduct.

The CCMA has accepted that alcoholism is a disease and should be treated as such. In instances of incapacity, the employee is not responsible for his/her behaviour and disease, and discipline such as dismissal, would be inappropriate. Job function, seniority and job safety are all factors to be taken into account.

It was held that the employee was not incapable of performing her functions, but had rather made herself guilty of misconduct by reporting for work under the influence of alcohol after repeated warnings, as well receiving a lecture from her employer on the dangers of alcohol at work. It was established as common cause that the employee was not an alcoholic; therefore the employee was not obliged to offer the employee assistance and counselling.

Held: The arbitration award in favour of the employee was corrected and set aside.

Importance / Value:
If an employee is found to be an alcoholic, there is an obligation on the employer to offer the employee assistance and counselling before considering immediate dismissal taking into account the relevant factors and circumstances surrounding the employee.

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Case Name:
Guman NO v Ansari & others [2011] ZAGPJHC 124 (23 September 2011)

Area of Law:
Property (Lien)

Brief facts/summary:
The applicant sought an order for the eviction of the first respondent and anyone occupying the property through her of certain premises, same being the main asset in the applicant’s late father’s estate.

One of the three defences raised by the first respondent in this case was that she had an improvement lien of approximately R70 000.00 (Seventy Thousand Rand) in respect of the property and as a result would be entitled to remain in possession of the premises until she had been paid out for such lien.

The court held that:

“a lien (right of retention, ius retentionis) is the right to retain physical control of another’s property, whether movable or immovable, as a means of securing payment of a claim relating to the expenditure of money or something of monetary value by the possessor (termed “retentor” or “lien holder”, while exercising his or her lien) on that property, until the claim has been satisfied. A person who has spent money or done work on another person’s property generally (my emphasis) has a right of retention over that property, operating against the entire world. This right may be either a real lien, a salvage and improvement lien, or an enrichment lien…”

However the court further pointed out that in order to successfully raise the defence of a lien, (in this case an improvement lien) the respondent would need to allege and prove the following:

that the first respondent was in lawful possession of the property;

the expenses that were incurred by the first respondent were necessary for the salvation of the property or alternatively useful for the improvement of the property;
the actual expenses and the extent of the enrichment of the plaintiff (both would need to be proved because the lien only covers the lesser of the two amounts);
that the plaintiff’s enrichment was unjustified; and
that there was no contractual arrangement between the parties (or third person) in respect of the expenses.

The court found that despite the fact that the first respondent previously occupied the property with the consent of the now deceased owner, she was now occupying the property without the executor’s permission and this was therefore unlawful. In light of this, the first respondent would be precluded from using the property for her own benefit.

As a result, the first respondent failed in making the necessary allegations required to raise the defence of an improvement lien.

Importance/value:
The general principle that applies to (real) security is that in the absence of an agreement to the contrary, the secured party is not permitted to use the encumbered asset for his or her benefit and this principle also applies to liens.

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Case name:
Mohammed Yusuf Haffejee N.O. and Others v eThekwini Municipality and Others; Case No: CCT 110/10

Area of law:
The Expropriation Act

Brief facts/ summary:
The trustees of the Haffejee Family Trust challenged an eviction order granted by the KwaZulu-Natal High Court, Durban, regarding the expropriation of the Trust’s property on the banks of the Umgeni River in Durban by the eThekwini Municipality.

In the Constitutional Court the Trust contended that provisions of the Expropriation Act were unconstitutional because they permit expropriation and dispossession of property before the amount of compensation and the time and manner of its payment are determined. It argued that the determination is a constitutional prerequisite for expropriation under the property clause, section 25 of the Constitution. The provisions were thus found to be Constitutional. Appeal dismissed.

Importance of decision:
The Court found that section 25(2)(b) of the Constitution does not require that the amount of compensation and the time and manner of its payment be determined before expropriation, particularly in the case of urgent expropriation in the face of natural disasters. Determination of compensation before expropriation will generally be just and equitable, but in those cases where it must be determined after expropriation, it must be done as soon as is reasonably possible.

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Case name (full citation)/Legislation:
PPS Insurance Company v Mkhabela (159/2011) [2011] ZASCA 191 (14 November 2011).

Area of law:
Deceased Estates/Insurance Law.

Brief facts/summary:
Mmatishibe Louisa Magdeline Sebata (“the daughter”) was the owner of a life policy which PPS Insurance Company, First Appellant, had issued to her. She had nominated her mother, Helen Mmapule Mkhabela, as the beneficiary of the policy in the event of her death, but reserved the right to change or cancel the nomination ‘at any time’. The mother passed away on 26 May 2007. The daughter died afterwards, on 12 August 2007, thus the proceeds of the policy fell due, but the daughter had failed to nominate another beneficiary.

Simon Michael Mkhabela, Respondent and executor of the mother’s deceased estate, claimed the proceeds of the policy belonged to her estate. The issue to be decided was whether the mother’s estate was entitled to the proceeds due to the fact that she had pre-deceased the daughter.

The matter went from the South Gauteng High Court, to a full bench to the Supreme Court of appeal. The SCA held that a nominated beneficiary who predeceases the owner of an insurance policy has no right to any benefit of the policy at the time of her death.

The SCA further held that;

(a) until the death of the daughter, the mother only had an expectation of claiming the benefit of the policy she thus had no vested right to the benefit;
(b) The mother’s expectation expired at the same time as her death, there was no enforceable right that was transmissible to her estate;
(c) the benefit remained with the daughter until her death, when it fell into her estate.

Importance/value:
This case is of importance as it gives an indication as to when benefits accrue should the beneficiary pre-decease the owner of such policy.

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Case name (full citation)/Legislation:
ABSA Bank v Universal Pulse Trading Figures 45 (Pty) Ltd and Others [2011 (5) SA 80 (WCC)

Area of law:
Sale in execution

Brief facts/summary:
Facts: The Applicant sought to have a sale in execution of immovable property cancelled. The sale in execution was without reserve. The sheriff arranged for the auction and after bidding on the immovable property had commenced, the applicant called the sheriff and instructed them to terminate the auction. At that stage, the sheriff had already received one bid and the sheriff refused to terminate the auction and the property was thereafter sold.

The applicant stated that the sheriff’s failure to cancel the auction when instructed was a ‘reviewable irregularity.’ The applicant went on further to state that the sheriff had acted without any authority, thus rendering the sale in execution irregular and void.

Question asked was whether a sheriff has the power to terminate an auction after commencement?

Olivier AJ, stated that it was not open for a sheriff to do so and that an execution creditor could only stop a sale of execution by written instruction as required by Rule 46(4)(b) of the Uniform Rules of Court.

Further, when a bona fide bid is made at an auction, the advertised conditions of sale create a contractual relationship between the bidder and the auctioneer (the sheriff) to sell the property in accordance with those conditions.

The sale was therefore valid and the application was dismissed with costs.

Importance/value:
A sale of execution may only be cancelled by written instruction from the execution creditor and mere verbal instruction to cancel is insufficient.

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Case Name:
Hattingh v Roux NO and Others 2011 (5) SA 135 (WCC)

Area of Law:
Delict: Defence of Consent

Brief Facts/Summary:
During the course of a rugby match between the respective schools of the parties, a scrum took place in which the Plaintiff seriously injured his neck, allegedly as a result of an illegal and dangerous manoeuvre called the “jackknife” executed by the Defendant.

Importance/ Significance:
In a claim for damages, the court held that the fault and unlawfulness of the Defendant’s conduct had to be established with reference to reasonableness, same to be determined with regard to the rules and conventions of the sport, the standards of care and skill to be expected of a participant and the circumstances of the incident.

If the injuries result from actions which have been known reasonably to occur in a rugby match, they will be regarded as lawful. However, if the injuries result from serious transgressions which are not normally associated with the game, the injuries will be regarded as unlawful.

The Court held that the Defendant’s conduct was not the normal type of risk that a participant in a scrum would have consented to, and the Plaintiff accordingly did not consent to the risk of being injured in such a manner.

The Defendant was therefore liable to the Plaintiff for damages.

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Case name (full citation)/Legislation:
President of the Republic of South Africa and others v M and G Media limited CCT 03/11 [2011] ZACC 32

Area of law:
Constitutional Law – Right to access to information held by the State

Brief facts/summary:
The matter arose when the publisher of the Mail and Guardian newspaper, brought an application under the Promotion of Access to Information Act 2 of 2000 (“the Act”), that the President make public a report, drafted by two South African judges, on the 2002 presidential elections in Zimbabwe. The judges observed the elections at the request of President Thabo Mbeki.

In terms of the Act, the State must prove that it is justified in withholding the information, which the State failed to do in the North Gauteng High Court as well as the SCA, both courts finding that the record should be disclosed because the state had not discharged the burden placed upon it by the Act. The State applied for leave to appeal to the Constitutional Court.

The majority, per Ngcobo CJ, found that where the State cannot provide sufficient justification for withholding the information, the High Court should invoke its power, in terms of the Act, to examine the report in order to verify the state’s contentions.

In a strong dissenting judgment, per Cameron J, it was held that the Presidency failed to justify its refusal to release the report. The dissent concluded that the report should therefore be released without further consideration of the matter by the High Court.

Importance/value:
The High Court is now more likely to use its discretionary powers in terms of the Act in order to examine the contents of the information to which access is claimed. Unfortunately, however, it seems that the State will still be allowed to provide poor, unjustified reasons for withholding information requested in terms of the Act.

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Case name (full citation)/Legislation:
Bidoli v Bidoli and Another 2011 (5) SA 247 (SCA)

Area of law:
Arbitration – Power of an arbitrator to make an award by consent.

Brief facts/summary:
Two brothers, Guido and Romolo Bidoli, were involved in the construction industry. The brothers had a disagreement and referred the matter for Arbitration. The parties, however, met outside the Arbitration hearing, which meeting lead to a settlement agreement between them. The settlement agreement was subsequently incorporated in the award by the Arbitrator.

The Applicant, Guido, applied to the Western Cape High Court (“WCC”) to have the arbitrators award made an order of court while the Respondent, Romolo, opposed this application on the basis that the dispute between the parties had been settled and, as a result, the arbitrator no longer had the authority to make the award.

The WCC upheld the Respondent’s view and refused to make the arbitrator’s award an order of court. This decision was taken on appeal to the SCA.

The SCA held that, despite the fact that the current Arbitration Act 42 of 1965 does not make provision for an Arbitrator to record a settlement reached by the parties in the form of an agreed award, it is an unfortunate shortcoming of the Act itself.

The SCA upheld the appeal with costs, and the order of the court a quo was replaced to make the arbitration award an order of court.

Importance/value:
Despite the shortcomings of the Arbitration Act, in so far as it does not make reference to a settlement reached by the parties to form part of the award, the SCA was willing to regulate the vacuum in our law, and align our law with international standards.

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