Court : South Africa Supreme Court of Appeal
on appeal from:eastern cape high court (mthatha) (dukada aj sitting as court of first instance). 1. the appeal is upheld with costs on the attorney and client scale. 2. the order of the court below is set aside in its entirety and substituted as follows: a. the applicants application to strike out succeeds with costs. b. the proceedings are stayed pending the determination of either case 464/08 in the magistrates court for the district of mount currie or case 522/09 in this court. c. the applicant is to pay the respondents costs of these proceedings on the attorney and client scale. judgment navsa ja (ponnan and shongwe jja concurring) [1] this is an appeal against a judgment of the mthatha high court (dukada aj), in terms of which it granted an order confirming the cancellation of a lease agreement in respect of commercial property and ordered the appellants eviction from the premises. the appellant was ordered to pay the costs of the application on an attorney and client scale. the appeal is before us with the leave of the mthatha high court. [2] in november 2006 the respondent company, grindstone investments 134 (pty) ltd (grindstone), concluded a lease agreement with the appellant, mr savvas socratous (mr s), in terms of which it let to him, for a period of twelve years, certain premises situated at 107 york road, mthatha. the property was used to conduct a supermarket business under the style of a national supermarket chain. clause 14 of the agreement provides that in .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court (gamble j sitting as court of first instance) the appeal is dismissed with costs. judgment ponnan et saldulker jja (maya, leach and swain jja concurring): [1] this appeal, with the leave of the court below, concerns the validity of a suretyship. judgment was granted by the western cape high court (gamble j) in the sum of r16 631 071,41, together with interest and costs, in favour of the respondent, structured mezzanine investments limited (smi), against the first appellant, gerhardus adriaan odendal (odendal) and the second appellant, gabriel joshua jordaan (jordaan) in terms of that deed of suretyship (the suretyship) which had been signed by the appellants and francois basson (basson), who were the trustees of fxt property trust (the trust), as security for a loan to the trust. [2] on 18 february 2008, smi, a bridging financier, approved an application by the trust for a loan facility in the amount of r10 million to partly fund a sectional title development by the trust in hermanus. in its letter of approval, smi recorded, inter alia, that as security for the loan a second mortgage bond would have to be registered over erf 10965 hermanus (the property), the trustees would have to bind themselves as sureties for all of the trusts obligations, and an irrevocable guarantee would have to be furnished on behalf of the trust to smi. the terms and conditions recorded in the facility letter were accepted by basson on behalf of the trust by .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (tolmay j sitting as court of first instance): 1. the order of the court a quo reviewing and setting aside the first appellants resolution of 25 october 2007, to invite tenders for the alienation and development of the public open space is set aside; 2. the order of the court a quo reviewing and setting aside the first appellants resolution of 31 january 2008, to accept the second appellants tender for the alienation and development of the public open space is set aside; and 3. the order declaring the deed of sale between the first and second appellants dated 8 february 2008 (for the purchase of the property) ab initio invalid is set aside; 4. save as above, the appeal is dismissed. the first respondent is ordered to pay the first and second appellants costs of appeal, including, in the case of the second appellant, the costs of two counsel. judgment southwood aja (nugent, cachalia, leach and petse jja concurring): [1] the issue in this appeal is whether the emalahleni local municipality (first appellant) complied with the relevant provisions of the transvaal local government ordinance 17 of 1939 (lgo) and the local government : municipal finance management act 56 of 2003 (mfma) before it sold or alienated a portion of stand 2243 witbank extension 10 (the property) to the witbank muslim jamaat (second appellant) and decided to close the property permanently. [2] in an application for review in terms of the promotion of .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north gauteng high court, pretoria (legodi j sitting as court of first instance): the appeal against the sentence of imprisonment for life is dismissed. judgment petse ja (nugent ja and erasmus aja concurring): [1] the appellant was arraigned before a regional magistrate in modimole, limpopo on a charge of rape read with ss 51(1) or 51(2) of the criminal law amendment act 105 of 1997 (the act). consequent upon his conviction he was committed to the northern circuit district of the north gauteng high court sitting at polokwane for sentence in terms of s 52 of the act. [2] section 521as it then stood required a regional court, when it has convicted an accused person of an offence for which life imprisonment is the prescribed sentence, to stop the proceedings and commit the accused for sentence by a high court. the high court (legodi j), having concluded that the appellants conviction was supportable on the evidence, proceeded to consider whether substantial and compelling circumstances as intended in s 51(3)(a) of the act existed. it found that none existed and therefore imposed a sentence of imprisonment for life. the high court subsequently granted the appellant leave to appeal against the sentence to this court. [3] in granting leave to appeal the high court alluded to two factors: first, it stated that this was not the worst rape imaginable; and second, it said that there was no evidence suggesting that the complainant had suffered serious physical injury as .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: the labour appeal court, johannesburg sitting as court of appeal (mlambo jp (davis and jappie jja, concurring). the following order is made: 1. the appeal is upheld with costs including the costs of two counsel. 2. the order of the labour appeal court is set aside and substituted as follows: the appeal is dismissed with costs. judgment navsa adp, (ponnan, tshiqi and theron jja and zondi aja concurring): [1] this appeal, which deals with the application of the employment equity act 55 of 1998 (eea) and an employment equity plan (eep) devised in terms thereof, is a peculiarly south african tale. it demonstrates the difficulties we face in forging a future in which everyone ultimately will have a place in the sun. in our journey towards that end we have in juxtaposition those who were previously denied opportunities and those who had them. in redressing the skewed situation created by our racist past, and to recalibrate and achieve a balanced society, there has to be an accommodation and a scrupulous adherence to fairness. it is that exercise that has as a consequence difficult, awkward and even acrimonious moments for those who find themselves in contestation and for society as a whole. sometimes we get it right and sometimes we get it wrong. we are, of course, dealing with the legacy of an institutionalised racially divisive past, the effect of which continues to haunt us as a nation recently come to democratic values. put simply, we are experiencing .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court, cape town (savage aj sitting as court of first instance): 1. the application to supplement the appeal record is dismissed with costs. 2. the appeal is dismissed with costs. judgment swain aja(navsa adp, brand, malan and pillay jja concurring): 1. the appellant, mr michael alexander cowan (cowan), unsuccessfully applied to the western cape high court (savage aj) for an order in terms of rule 30 of the uniform rules of court to set aside an action instituted against cowan in terms of s 32(1)(b) of the insolvency act 24 of 1936 (the act), in the names of the first respondent mr craig hathorn n.o, the second respondent mr christopher van zyl n.o. and the third respondent mr dudley davids n.o, (the liquidators) in their capacities as the joint liquidators of africa plastics holdings (pty) ltd (in liquidation). 2. the main relief sought against cowan were orders in terms of ss 26, 29, 30 and 31 of the act read with ss 339 and 340 of the companies act 61 of 1973 and schedule 9 of the companies act 71 of 2008, setting aside certain notarial general covering bonds registered by cowan in his favour, over the movable property of the company in liquidation. essentially, it was alleged that the passing of these bonds constituted prohibited dispositions by the company in liquidation of its property within the meaning of the applicable sections in the act. 3. the relevant facts which formed the basis for cowans application in terms of rule 30 are as .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: tax court (johannesburg) (coppin j sitting as court of first instance): the appeal is dismissed with costs. ponnan ja (cloete, lewis, ponnan and cachalia jja and erasmus aja concurring) [1] during october 2003 the respondent, the commissioner for the south african revenue services (sars), conducted an audit in respect of the tax affairs of the appellant, h r computek (pty) ltd (formerly h r computek cc) (the taxpayer). the audit revealed that the taxpayer had under-declared and, in consequence, underpaid value-added tax to sars in terms of the value-added tax act 89 of 1991 (the vat act). on 9 march 2004 sars wrote to the taxpayer: the vat 201 returns submitted for the periods 03/2002 to 09/2003 inclusive, have been revised to account for vat charged and not disclosed / declared on the appropriate vat 201 returns. additional tax equal to two hundred percent has been levied in terms of s 60 of the value added tax act no. 89 of 1991 (herein referred to as the act). the taxpayer was thus assessed to tax in the total sum of r4 040 377.28, being: (a) r1 246 177.57 as to under-declared output tax (the capital amount); (b) r2 492 355.06 as to additional tax levied on the capital amount in terms of s 60 of the vat act; (c) r124 617.75 as to a penalty levied on the capital amount in terms of section 39(1)(a)(i) of the vat act; and (d) r177 226.90 as to interest levied on the capital amount in terms of s 39(1)(a)(ii) of the vat act. the revised assessment concluded with .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north gauteng high court, pretoria (poswa j sitting as court of first instance): the appeal is dismissed with costs, including the costs of two counsel. judgment brand ja(mthiyane dp, cloete and pillay jja and saldulker aja concurring): [1] this appeal turns on the question whether or not a binding agreement came into existence between the parties on the terms alleged by the appellant. proceedings commenced when the appellant, as the plaintiff, instituted an action against the respondent, as the defendant, in the north gauteng high court, pretoria, for damages it allegedly sustained through the respondents repudiation of an agreement between them. in broad outline the appellant contended that: (a) on 28 july 2003 the parties concluded a written agreement in terms whereof the appellant undertook to provide guarding services for the respondents post offices in three regions of the republic; (b) on 30 january 2004 the respondent wrote a letter to the appellant which constituted a repudiation of that agreement, which repudiation was accepted by the appellant; (c) as a result of the respondents breach of contract, the appellant suffered damages in the sum of about r14 million. the respondents answer to this claim consisted, in the main, of a denial that the agreement relied upon by the appellant ever came into existence. [2] when the matter came before poswa j in the court a quo, he was asked, by agreement between the parties, to order a separation of issues. in .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court, cape town (gamble j sitting as court of first instance): 1. the appeal is upheld with no order as to costs. 2. paragraphs c to f of the order of the court below are set aside. 3. the counter application is referred back to the western cape high court for the hearing of oral evidence on a date to be arranged but otherwise in terms of the order of zondi j made on 15 january 2014. judgment theron and wallis jja (mpati p, hancke and swain ajja concurring): [1] on 27 may 2014, this court granted an order as set out above. these are the reasons for that order. [2] on 7 and 8 january 2014 the city of cape towns anti land invasion unit (the unit), with the assistance of both the metro police and the south african police service (saps), demolished certain structures erected on erf 150 (remaining extent) philippi, the property of mrs iris fischer, an elderly widow. on 10 january 2014, mrs fischer and the city, the first and second appellants, respectively, launched an urgent application (the main application) seeking an interdict restraining a group of persons described as persons whose identities are to the applicants unknown and have attempted or are threatening to unlawfully occupy erf 150 (remaining extent), philippi from seeking to occupy that property or erecting structures thereon. [3] a rule nisi was issued in the main application and the return date was anticipated by mr ramahlele and 40 other people, who opposed the confirmation of the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (van oosten j sitting as court of first instance): the appeal is dismissed with costs, which shall include those of two counsel where employed. judgment mpati p (bosielo, leach, saldulker jja and swain aja concurring): [1] this appeal concerns the validity of a companys deregistration, in terms of the provisions of section 73 of the now repealed companies act 61 of 1973 (the previous act), when the deregistration occurred whilst the company was under provisional or final liquidation. the appellant (fintech) sought orders in the south gauteng high court, first, declaring null and void, alternatively setting aside, an order issued on 26 october 2010 in terms of which an earlier order provisionally winding up the respondent was set aside; second, declaring null and void, alternatively setting aside an order issued on 21 october 2011 in favour of the first respondent compelling fintech to produce certain documentary evidence; and third, an order directing the second respondent to repay to fintech a sum of r1 764 641,34, with costs on the scale as between attorney and client. the basis upon which the first two orders were sought was that the first respondent (to which i shall henceforth refer as awake solutions) had been deregistered on 16 july 2010 with the result that it had no legal status when the orders were granted. as to the third order sought (repayment of the amount mentioned above), the basis was that at the times .....
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