Court : South Africa Supreme Court of Appeal
on appeal from: western cape high court, cape town (griesel j, fourie and saldanha jj concurring) sitting as court of appeal. the appeal is struck from the roll. judgment maya ja: (shongwe, saldulker jja and mathopo aja concurring) [1] this is an unopposed appeal against a postponement order of the full court of the western cape high court, cape town (griesel j, fourie and saldanha jj concurring), with its leave. the appeal was heard and struck off the roll on 10 march 2014 and the court undertook that its reasons would follow. these are the reasons. [2] the background facts are simple. the appellant (absa) launched action proceedings against the respondents in the high court based on mortgage bonds registered in its favour over immovable properties belonging to the respondents. the respective claims were commenced by way of simple summonses to which were annexed copies of the relevant mortgage bonds and the deeds of suretyship signed by the spouses of the respective owners. in due course, the claims were set down for hearing as unopposed applications for default judgment. in those proceedings, a question arose whether or not it was necessary to attach to the simple summonses the underlying credit agreements secured by the bonds and suretyships as had been required in some cases of that division. [3] in light of divergent views on the question in the division, the matters were referred for hearing by the full court to obtain clarity as to the correct procedure to be followed. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (maluleke 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: (a) the first plaintiffs action is dismissed with costs, including the costs of two counsel. (b) the second plaintiffs action is dismissed with costs, including the costs of two counsel. judgment maya ja (malan, petse, willis and saldulker concurring): [1] this is an appeal against the judgment of the south gauteng high court (maluleke j) which granted the respondents claims against the appellant, absa bank limited (absa), for payment of money together with interest. the appeal is with the leave of the court below. [2] the two respondents, mr arif mohamed and his nephew mr shiraz abdul, are retail businessmen based in pretoria. the litigation arose out of interest bearing deposit investment agreements which the respondents alleged they concluded with absas agent, mr naresh rama mistry. the transactions were made at absas marabastad agency, one of two absa agencies in pretoria (the second agency was in laudium) that were operated by mistry, as a sole proprietor of mistrys financial services and mistrys estate agencies, on absas behalf. mistry ran the agencies under an agency agreement concluded between his entities and united bank limited, absas predecessor, before the latter was amalgamated with three other commercial banks ( .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from south gauteng high court, johannesburg (hodes aj sitting as court of first instance) the appeal is dismissed with costs including those of two counsel. judgment lewis ja (ponnan, shongwe and saldulker jja and zondi aja concurring) [1] if there are substantive reasons to believe that a contract has been induced by fraud, does a clause in the contract requiring the parties to submit any dispute between them to arbitration bind the aggrieved party? this appeal turns on that question and on a construction of the arbitration clause itself. the south gauteng high court (hodes aj) found that allegations of fraud (inducing the contract between the parties) made by the respondent, standard bank of south africa ltd (the bank), against the appellant, north east finance (pty) ltd (north east), did not appear unfounded, and constituted sufficient grounds for it not to compel the bank to submit to arbitration. the high court thus declined the application by north east to compel such a reference. the appeal is with leave of the high court. the factual matrix [2] the questions to be determined must be considered against the factual matrix or context of the contract, termed a settlement agreement by the parties. in summary, this was that north east conducted business by financing the acquisition of goods by concluding rental agreements with end-users. north east discounted the debts owed to it by end-users with the bank in terms of an agreement of cession. the business between .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north gauteng high court, pretoria (bam aj sitting as court of first instance): (a) the appeal succeeds with costs, which shall include the costs of two counsel. (b) the order of the court below is set aside and the following is substituted: the application is dismissed with costs. judgment mpati p (lewis, malan and petse jja and mbha aja concurring): [1] during november 2005 the respondent, who held the rank of inspector in the south african police service (saps), stationed at the booysens police station, johannesburg (booysens), was charged, together with five of his colleagues, with five counts of misconduct. it was alleged, in respect of each count, that they had contravened regulation 20(z)1of the south african police service discipline regulations2(the regulations). the disciplinary tribunal found him not guilty on counts 1, 4 and 5, but guilty on counts 2 and 3 despite his plea of not guilty. it had been alleged, in the latter two counts, that the respondent had, on 13 august 2005 (count 2) and 15 july 2005 (count 3), received money from members of the community or prisoners, at or near booysens, to release prisoners unlawfully from police custody. having found the respondent guilty, the disciplinary tribunal imposed a sanction of dismissal from the police service. [2] the respondent appealed against both the guilty verdict and the sanction imposed on him, but the appeals authority, established in terms of regulation 17, dismissed his appeal on 11 august .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: land claims court (mia aj sitting with an assessor as court of first instance): the appeal is dismissed. judgment ponnan ja (lewis, ponnan, mhlantla, shongwe jja and erasmus aja concurring) [1] the appellant, mr stephanus jacobus meintjes, and his business associate since the early 1960s, mr phillip jooste both of whom are now octogenarians shared an interest in the development of nature reserves. having established a successful game reserve in letaba, they turned their attention to other properties with similar potential in the lowveld. they identified three farms belonging to h l hall and sons ltd (hall and sons), namely, andover 210ku, leamington 207ku and burlington 217ku, which were situated in a released area immediately adjacent to the kruger national park. the effect of their inclusion in a released area is that they were liable to be expropriated in terms of s 13(1) of the bantu trust and land act 18 of 1936 for the settlement of black people in furtherance of the states racially discriminatory land policies. [2] on 11 march 1971 the appellant wrote to hall and sons: ' i hereby in my capacity as chairman of a syndicate wish to make you an offer of r70.00 (seventy rand) per morgen for the farms in question. should this offer be acceptable to you i would require a three months option period to enable us to make the necessary arrangements.' the response that the offer elicited from the managing director of hall and sons was: 'i have to advise that .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court (johannesburg) (spilg j sitting as court of first instance): the appeal is dismissed with costs. judgment malan ja (harms dp, cloete ja concurring) [1] this is an appeal with leave of the court a quo against the judgment and order of spilg j dismissing a claim of eds south africa (pty) ltd for the payment of funds held in an investment account by the attorneys for nationwide airlines (pty) ltd, duncan okes inc, and in the name of nationwide. [2] nationwide was provisionally liquidated on 29 april 2008 and is represented in these proceedings by its provisional liquidators. eds supplied information technology services to nationwide and the funds held by duncan okes form part of fees allegedly owing by nationwide to eds. [3] prior to nationwides liquidation there existed an information technology agreement in terms of which eds undertook to render such services to nationwide. a dispute arose between them as to the extent of nationwides indebtedness. on 1 february 2008 the attorneys for eds wrote to nationwide demanding payment of the fees alleged to be owing. it concluded with reference to s 345(1) of the companies act 61 of 1973 by stating that should nationwide fail to pay the amount claimed or secure or compound it to the satisfaction of eds within a period of 21 days nationwide would be deemed to be unable to pay its debts. [4] further correspondence followed and on 22 february 2008 duncan okes responded on behalf of nationwide .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the only facts relevant to the plea of prescription that it contained were the date of the accident, that he was treated at the nelson mandela hospital and some general allegations of negligence on the part of the hospital staff. ..... judgment wallis ja (mthiyane dp, maya ja and van zyl and mathopo ajja concurring) [1] mr mbodla was injured in a motor accident on 25 june 2006. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: eastern cape high court, port elizabeth (goosen j sitting as court of first instance): the appeal is dismissed with costs judgment mthiyane dp (lewis, shongwe, petse jja and mocumie aja concurring): [1] this is an appeal against a judgment and order of the eastern cape high court, port elizabeth (goosen j), setting aside an agreement of sale concluded between the appellant, spenmac (pty) ltd, and the respondent, tatrim cc, in respect of a sectional title property, park towers on 8 october 2010 and declaring it void for lack of consensus. the appellant (the defendant) was ordered to pay the respondent (the plaintiff) the sum of r788 157,89 together with interest at the rate of 15 per cent per annum a tempore morae to date of payment and costs of suit. [2] the appeal to this court is with the leave of the high court. at the heart of the dispute between the parties is whether a misrepresentation on the part of the plaintiffs representative, mr spendley, at the time of the conclusion of the agreement, resulted in a fundamental mistake. if it did, the question is then whether the plaintiff purchaser was entitled to rely on the mistake to avoid the sale agreement, given the exemption clause in the contract which provided that the property was sold voetstoots and that the purchaser had acknowledged that he had not been induced to enter into the agreement by any express or implied information, statement, advertisement or representations made by any other person on .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, johannesburg (victor j (horn and wepener jj concurring)) sitting as court of appeal. (a) the appeal is upheld with costs, such costs to include those consequent upon the employment of two counsel. (b) the order of the court below is set aside and in its stead is substituted the following order: (1) the appeal is dismissed with costs, including those of two counsel. (2) the cross appeal is upheld with costs, including those of two counsel. (3) the order of the tax court that 50% of the audit fees incurred for the 2001, 2002, 2003 and 2004 tax years is deductible from income? (as defined) for those tax years? is amended by the deletion of 50? and the substitution therefor of 10?. judgment ponnan ja (shongwe and wallis jja and van zyl and legodi ajja concurring): [1] the respondent, mobile telephone network holdings (pty) ltd (holdings), is the holding company of five directly held and a number of indirectly held subsidiaries and joint ventures. it, in turn, is a wholly owned subsidiary of the mtn group limited. the collective business of the operating companies within the group is the operation of mobile telecommunication networks and the provision of related services to customers in cameroon, nigeria, rwanda, south africa, swaziland and uganda. [2] apart from the dividends it received from its subsidiaries, which were its primary source of income, holdings also loaned funds to those subsidiaries for application in their businesses .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:labour appeal court, johannesburg (ndlovu, tlaletsi and landman jja sitting as court of appeal): 1. the appeal succeeds with costs. 2. the order of the labour appeal court is set aside and replaced with the following: 1. the appeal succeeds with costs. 2. the order of the labour court is set aside and replaced with the following: (a) the second and further applicants dismissal is unfair in terms of s 188(1) of the labour relations act 66 of 1995. (b) the respondent is ordered to pay the second and further applicants 12 months compensation calculated at their rate of remuneration on the date of dismissal. (c) the respondent is ordered to pay the costs of the application.? judgment maya ja (malan, shongwe, pillay and saldulker jja concurring): [1] this matter, which has been pending for over a decade,1starkly illustrates how the provisions of s 198 of the labour relations act 66 of 1995 (the act)2may operate as a stratagem to avoid an employers obligations and circumvent the protections afforded an employee under the labour legislation against unfair dismissal. [2] the crisp issue on appeal is whether the second and further appellants (the employees)3were unfairly dismissed by the respondent, a temporary employment service provider or labour broker (abancedisi), when they were (a) excluded from the premises of its client to which they were assigned and replaced with new workers; (b) thereafter not reassigned work elsewhere; and (c) not paid wages thereafter. the .....
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