Court : South Africa Supreme Court of Appeal
on appeal from: north gauteng high court, pretoria (matojane j sitting as court of first instance): 1. the first and second appellants appeal against the orders in paras 2 and 3 of the order of the high court is upheld with costs including the costs of two counsel, such costs to be paid jointly and severally by the first and the third to fifth respondents on the scale as between attorney and client. 2. the aforesaid orders are set aside and are substituted with the following orders: (a) any contract entered into between the first respondent and the third to fifth respondents pursuant to the award of the tender to the respondents for the construction of a pipeline between the nandoni dam and the nsami water treatment works (nandoni to giyani pipe project; project number lpr018), is declared void ab initio and is set aside. (b) the first respondent is ordered to formally approach the department of water affairs within seven days of the granting of this order to request that department to do the following: (i) to take such steps as may be necessary to determine the extent of the works necessary to perform remedial work and to complete the construction of the pipeline and the other works as contemplated in the aforesaid tender, for purposes of publishing a tender for the said remedial work and the completion of the works; (ii) to prepare and publish an invitation to tender for the performance of the remedial work and completion of the works as aforesaid; (iii) to evaluate and .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:south gauteng high court, johannesburg (tsoka j sitting as court of first instance): the appeal is dismissed with costs. judgment: leach ja (mthiyane dp, maya and willis jja and mocumie aja concurring) [1] this is an appeal against an order by the south gauteng high court dismissing an application to review a decision taken by a valuation appeal board established under s 56 of the local government: municipal property rates act 6 of 2004, (the act). leave to appeal was refused a quo but granted by this court. [2] section 2 of the act extends the power to a municipality to levy rates on property within its municipal area. on 24 april 2008 the appellant, the city of johannesburg metropolitan municipality, acting in purported compliance with its power to do so and its obligation under s 3(1), adopted a rates policy relating to the levying of rates. it simultaneously adopted by-laws under s 6(1) of the act to give effect to such rates policy. both the rates policy and the by-laws came into effect on 1 july 2008. by then the appellant had prepared a new valuation roll for the levying of rates within its area that had lain for inspection for 90 days from 27 february to 27 may 2008. (i should mention at this stage that the rates policy has since been replaced and is no longer of application. despite this, resolution on the parties dispute is not moot. it affects the second respondents rates liability already imposed and other ratepayers in a similar position are .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court (vermeulen aj sitting as court of first instance): the appeal is dismissed with costs, such costs to include the costs of the applications for condonation, and are to be paid by the appellants jointly and severally, the one paying the other to be absolved. judgment wallis ja (brand, tshiqi and willis jja and van der merwe aja concurring: [1] on 28 july 2003 the first appellant, mr motala, was appointed jointly with three colleagues as the liquidator of cement board industries (pty) ltd (cbi). in february 2005 the liquidators instituted an action before the south gauteng high court against the fifth respondent, boake incorporated (boake inc), a firm of accountants and auditors, and the sixth respondent, mr kevin wiles. that action proceeded at a snails pace and, from a procedural perspective, was still ongoing in august 2010, when mr wiles attorney discovered that cbi had been dissolved in terms of s 419 of the companies act 61 of 1973 (the act). that revelation prompted this application, in terms of s 420 of the act, for a declaration that the dissolution was void and ancillary relief. the application was opposed by boake inc and mr wiles and dismissed by vermeulen aj in the south gauteng high court. this appeal is with his leave. [2] in his founding affidavit mr motala explained rather tersely the circumstances in which cbi came to be dissolved, notwithstanding the fact that its liquidators were engaged in litigation against boake inc .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (mabesele j sitting as court of first instance) a. the appeal is upheld with costs to be paid by the respondents jointly and severally. b. the orders of the court below are set aside and the following orders are substituted: (i) the application succeeds to the extent that paragraphs 4 and 5 of the costs award made by the arbitrator on 5 august 2011 are made an order of court. the respondents are to pay the costs of the application. (ii) the counter-application is dismissed with costs. (iii) in each case the costs are to be paid by the respondents jointly and severally. judgment nugent and tshiqi jja (ponnan ja and swain and saldulker ajja concurring): [1] various disputes between the appellants, on the one hand, and the respondents, on the other hand, were referred to arbitration by agreement. the nature of the disputes, and the award that was made on the merits, are not material to this appeal. the appeal concerns only the costs that were awarded by the arbitrator. [2] in his costs award the arbitrator ordered the first respondent leadtrain (pty) ltd to pay 80 per cent of the costs of the arbitration, and 80 per cent of certain costs that had been incurred in the high court. he went on in paragraph 4 of the award to direct that certain costs be included in the costs of the arbitration. in paragraph 5 he ordered the second respondent mr lilford to bear half the costs jointly and severally with leadtrain (pty) ltd. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north gauteng high court (pretoria) (tuchten j sitting as court of first instance): the appeal is dismissed with costs including the costs of two counsel. judgment heher ja (malan, theron, wallis jja and saldulker aja concurring): [1] this is an appeal with leave of the trial court (tuchten j) against a finding that the appellant (the minister) is liable to pay damages to the plaintiff arising from an armed robbery that took place on 7 march 2003 at three birches on the road between groblersdal and bronkhorstspruit. [2] by agreement the issues of quantum and liability were separated under rule 33(4). the trial proceeded on the latter issue on the basis of a stated case. as will be seen the real dispute between the parties was whether the agreed facts justified the court in holding the minister vicariously liable for the acts and omissions of its employee, jacob motaung. the learned judge concluded that they established a sufficient connection between the conduct of motaung and the purposes and business of the defendant to render the minister liable. it is that conclusion which will be revisited in this appeal. the agreed facts [3] the minister was cited as defendant in his official capacity as head of the department of defence. [4] during the robbery to which i have referred in the first paragraph of this judgment one mahlangu shot the plaintiff, a 42 year old man, several times with an r4 assault rifle consisting of the elements which are referred to in the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (satchwell j sitting as court of first instance): 1. the appeal is upheld with costs, including the costs of two counsel. 2. the order of the court below is set aside and replaced with the following: the plaintiffs claims are dismissed with costs. judgment mhlantla ja(mthiyane dp, bosielo ja and mbha aja concurring): introduction [1] this is an appeal from a judgment of the south gauteng high court, johannesburg (satchwell j) in which imvula quality protection (pty) ltd (the appellant) was found liable to mr licinio loureiro (the first respondent) in contract, and to mrs vanessa loureiro and their two minor sons (the second to fourth respondents respectively) in delict for the loss they allegedly suffered in a robbery which occurred at their home on 22 january 2009. it is that incident which gave rise to the above claims. background [2] the incident can be best understood by reference to the following background facts. on 25 november 2008, the first respondent and his family moved into their house at 50 jellicoe avenue, melrose, johannesburg. he arranged with mr barbosa of sky leah sales to install a comprehensive security system at the house. this involved electric fencing, perimeter protection, beams, multiple alarm systems, guard house, intercom and closed circuit television. there was a safe room concealed by large mirrors inside the house. the first respondent, his nephew (ricardo loureiro) and ricardos father were .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: gauteng north high court (webster j sitting as court of first instance) it is ordered that: the appeal is upheld with costs and the order of the court below is altered to one dismissing the application with costs. judgment wallis ja (mpati p, nugent, ponnan and malan jja concurring) [1] ms ngwenya, the respondent, is employed by the department of international co-operation and international relations. early in 2011 she was told that she had been posted to the south african diplomatic mission in norway, which would require her to live in oslo for the following four years. she wanted to take her two grandchildren, the children of her two daughters, with her, because as the only family member in employment she had been responsible for their maintenance and upbringing. in order to facilitate this she entered into parental rights and responsibilities agreements, under s 22 of the childrens act 38 of 2005, with her daughters in respect of her grandchildren, which permitted her to take them to norway and to arrange for their education and religious upbringing as well as obliging her to maintain them. [2] on the footing of these arrangements ms ngwenya claimed to be entitled to receive in respect of each of the grandchildren the childrens allowance afforded to persons in the foreign service who are appointed to posts abroad. the department of international co-operation and international relations referred the application to the department of public service and .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:south gauteng high court (johannesburg) (lamont, coppin and mayat jj sitting as court of appeal): 1. the appeals of the first, second, third and fourth appellants are upheld with costs. 2. the order of the court a quo is set aside and substituted by the following order: the appeal and cross-appeal are dismissed with costs. 3. all orders for costs are to include the costs of two counsel where employed. judgment heher ja (brand, mhlantla, malan and majiedt jja concurring): [1] the respondent in the appeal was the plaintiff in the court of first instance, the south gauteng high court (tshiqi j). it claimed from the first appellant, a firm of attorneys (joubert scholtz), specific performance of an alleged oral mandate calling for the repayment of surplus funds held in trust after payment to first national bank (fnb) and standard bank (standard) of moneys paid by the plaintiff into trust for the purpose of discharging debts of and secured by assets of the plaintiff. [2] the plaintiff also claimed, in the same action, against pieter andries goosen1and the third and fourth appellants (respectively elandsfontein 95 cc and elandsfontein bottling cc) for payment of amounts paid by joubert scholtz to those appellants or their creditors from moneys paid by the plaintiff into the trust account in pursuance of the aforesaid mandate that, so the plaintiff alleged, were paid by joubert scholtz in breach of its mandate and without legal obligation and resulted in the unjust .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: limpopo high court, thohoyandou (makgoba aj sitting as court of first instance) it is ordered that: the appeal is upheld to the extent that the appellants conviction for rape is replaced by a conviction of indecent assault and his sentence of life imprisonment is altered to one of ten years imprisonment. judgment wallis ja (mthiyane dp and majiedt ja concurring) [1] this appeal is against the appellants conviction of the rape of a seven year old girl and the sentence of life imprisonment imposed upon him for that offence. the alleged rape occurred on wednesday, 31 march 2004. the appellant was arrested on 7 april 2004 and remained in custody pending his trial. the trial was conducted before makgoba aj on 11 and 12 october 2004, on which latter date the appellant was convicted and sentenced. the appeal is before us with leave granted by mann aj on 11 may 2009. [2] two disturbing features emerge from that brief recital of events. the first is that it took four and a half years for the appellant to have his application for leave to appeal heard and the second that it has taken nearly three more years after being given leave to appeal for his appeal to come before this court. that is entirely unacceptable. in terms of s 35(3)(o) of the constitution the appellant had a right to an appeal to, or review of his conviction and sentence by, a higher court. delays of this duration negate that right either wholly or in part. that this is largely what has occurred in this .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north gauteng high court, pretoria (kollapen and webster jj sitting as court of first instance): the appeal is dismissed with costs. judgment leach ja(lewis ja and hancke, swain and mathopo ajja concurring) [1] this is a case about garbage or, more precisely, about the amount the appellant, a local municipality, owes the respondent for rendering refuse and waste removal services under a contract concluded pursuant to a tender process. a claim by the respondent for payment of an amount it alleged was due and owing was dismissed in a magistrates court but upheld on appeal to the north gauteng high court. this further appeal is with this courts leave. for convenience i intend to refer to the appellant as the municipality and the respondent as paphiri. [2] chaos and confusion have bedevilled the matter from the outset, a position helped neither by the pleadings nor the haphazard presentation of the evidence in the trial court. sifting the wheat from the chaff, it appears that in february 2003, paphiri was awarded a contract by the municipality in respect of a tender (s18/2002) to provide waste and refuse removal services in an area situated to the south of the hartbeespoort dam. the municipality subsequently informed paphiri that in fact its services were required not for the area to the south of the dam but to the east. the matter is made all the more confusing by the fact that, in december 2002, under another tender (s22/2002) the municipality had called for .....
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