Court : South Africa Supreme Court of Appeal
on appeal from: kwazulu-natal high court, durban (madondo 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 a quo is set aside and there is substituted an order which reads: (a) the proceedings are stayed pending the determination of case number 13132/2010 in the kwazulu-natal high court, durban. (b) the applicants are ordered jointly and severally the one paying the other to be absolved to pay the respondents costs of the application. judgment meyer aja (lewis, ponnan et pillay jja concurring): [1] this is an appeal with leave of the court a quo, against the judgment and order of madondo j, sitting in the kwazulu-natal high court, durban. the court a quo rejected the appellants objection of lis alibi pendens(amongst others)and declared that the first respondent, mr xolisa kennedy memani (memani), was a director of the eighth respondent, emcom africa (pty) ltd (emcom), and entitled to certain information.1 [2] the appellants, as respondents in the application that led to this appeal, relied on an agreement of sale which was concluded during 2006 between the first to seventh appellants, who at the time were the shareholders of emcom, memani, who is a beneficiary and trustee of the second respondent, the masakhane trust (the trust) and the trust (the sale agreement). in terms of the sale agreement, the first to seventh respondents (collectively referred to as the shareholders) sold 25 .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:south gauteng high court, johannesburg (pandya aj and assessors sitting as court of first instance): 1. the appeal in respect of counts 2, 6 and 7 is upheld and the convictions and sentences on those counts are set aside. 2. the appeal against the convictions on counts 1, 3, 4 and 5 is dismissed. 3. the appeal in respect of sentence on counts 1, 3, 4 and 5 succeeds to the extent that the sentences imposed by the trial court are set aside and replaced with the following: (a) count 1 12 months imprisonment. (b) counts 3, 4 and 5 (taken together for purposes of sentence) six years imprisonment. (c) the sentences in (a) and (b) above are to be served concurrently. 4. the appeal in respect of count 8 is dismissed and the conviction and sentence on that count are confirmed. 5. the effective sentence is therefore one of eight years imprisonment. leach ja (cachalia ja and meyer aja concurring) [1] the appellant, a chartered accountant and businessman, was tried in the south gauteng high court on six charges of fraud counts 1 to 6 and two charges under the companies act 61 of 1973 counts 7 and 8 (the latter act has since been repealed, but all references to the companies act hereinafter are to the 1973 act and not to the new companies act 71 of 2008). the appellant denied his guilt but, after a marathon trial, was convicted on all eight counts. he was sentenced to eight years imprisonment on each of the six counts of fraud, to one years imprisonment or a fine .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:north gauteng high court, pretoria (vorster aj sitting as court of first instance): the appeal is refused with no order as to costs, save that the order granted by the court a quo, directing the appellants to pay the respondents costs, is set aside and replaced by an order that there be no order as to costs. judgment brand ja(nugent, petse jja, van der merwe and swain ajja concurring): [1] this is the tale of seven toll roads around two cities in the province of gauteng. since the proposed method of toll collection is through electronic operation, the matter became dubbed by the media and in popular parlance as the e-tolling case. the seven roads involved constitute the main arteries around johannesburg and pretoria, which in turn form the commercial hub of south africa. these roads form part of a larger project for the infra-structural upgrading of gauteng roads that has become known as the gauteng freeway improvement project or by the acronym gfip. the declarations of the roads as toll roads gave rise to unprecedented public and political debate. these declarations were made by the south african road agency limited (sanral) through publication in the government gazette following upon approval of their decision to do so by the minister of transport (the minister) in accordance with the procedure contemplated in s 27 of the south african national road agency act 7 of 1998 (the act). six of these declarations took effect by way of publications in the government .....
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 theron ja (maya, bosielo, pillay and petse jja concurring): [1] the first respondent, ms pinky mkhwanazi (ms mkhwanazi), instituted application proceedings against the appellant, quartermark investments (pty) ltd (quartermark), a property investment company, claiming that it had fraudulently induced her into signing certain sale and lease agreements in respect of her immovable property. in the south gauteng high court, ms mkhwanazi sought and obtained an order setting aside the transfer of the property to quartermark; declaring the sale agreements that led to the transfer null and void; directing that the second respondent transfer the property into her name and other ancillary relief.1quartermark appeals against the decision of the high court (spilg j) with the leave of that court. the second respondent, the registrar of deeds, johannesburg, has not taken part in the proceedings and abides the decision of this court. [2] in 2004, ms mkhwanazi purchased the immovable property known as erf 1795 klipfontein (the property) with a loan obtained from nedbank limited (nedbank), which was secured by registering a mortgage bond over the property. subsequently, ms mkhwanazi fell into substantial arrears in respect of her loan obligations to nedbank as well as her obligations to another financier in respect of her motor vehicle. nedbank .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from:western cape high court, cape town (davis j sitting as court of first instance): the appeal is dismissed with costs, including the costs of two counsel whenever employed. judgment brand ja(theron, pillay, petse jja et meyer aja concurring): [1] this appeal turns on the application of s 34(1)(b) of the trade marks act 194 of 1993 and s 20(2)(b) of the close corporations act 69 of 1984 prior to its amendment that came into operation in 2011. the first appellant, mr alexander mettenheimer, is the registered proprietor of the trade mark zonquasdrift in class 33 in respect of alcoholic beverages, except beer. the trade mark therefore covers wine but not wine grapes which, incidentally, falls in class 31. mettenheimer and his wife are also the shareholders in the second appellant, a private company which is the owner of a farm called zonquasdrift between malmesbury and riebeek kasteel in the western cape. until recently the second appellant was known as almett properties (pty) ltd, but on 3 may 2012 that is about two years after the commencement of the present litigation it formally changed its name to zonquasdrift estates (pty) ltd. [2] the first respondent is a close corporation with the registered name zonquasdrif vineyards cc. it conducts its farming business on a farm situated about one kilometre from the second appellants farm where it grows wine grapes which it sells under its registered name. the second and third respondents are the registrar of close .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from north gauteng high court (makgoka j sitting as court of first instance). 1. the appeal is upheld with costs that include the costs of two counsel. 2. the order of the court below is set aside and replaced with the following: (a) the plaintiffs action is dismissed. (b) the defendants counterclaims are granted and south african patent no. 2002/2337 is revoked. (c) the plaintiff is ordered to pay the costs of the first defendant, and the costs of the second and third defendants, in the action and the counterclaims, including in each case the costs of two counsel. judgment nugent ja (lewis, bosielo and shongwe jja and swain aja concurring) [1] the standard bank of south africa ltd the first appellant is a well-known commercial bank. through various associated companies mtn group limited the second appellant operates a network that allows for wireless communication. mobile telephone networks holdings (pty) ltd is a subsidiary of mtn group. it and standard bank are equal owners of mtn mobile money holdings (pty) of which oltio (pty) ltd the third appellant is a subsidiary. [2] for some time oltio operated a system known as mtn mobile money. the operation of the system was relinquished by oltio in october 2011 and was thereafter operated by standard bank through one of its divisions. [3] the respondent 3mfuture (pty) ltd is the registered proprietor of south african patent no. 2002/2337 entitled transaction authorisation system. alleging the mtn mobile .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
judgment cachalia ja (malan, pillay jja, van der merwe and zondi ajja concurring): [1] this matter came before us on appeal against an order of the north gauteng high court (tolmay j) on two issues separated for determination under rule 33(4) of the uniform rules. the first was whether the plaintiff (the respondent on appeal) had complied with s 26 of the estate affairs agency act 112 of 1976, and the second whether it had complied with ss 34a(1) and (2) of the act. these provisions require estate agents to have valid fidelity fund certificates before rendering services entitling them to claim remuneration. the high court issued a declaratory order to the effect that the respondent had substantially complied with those provisions, but granted the appellants leave to appeal the order. [2] before the hearing in this court the parties were given an opportunity to lodge supplementary heads of argument on whether the order was appealable in the sense of being definitive of the rights of the parties and also dispositive of at least a substantial part of the relief claimed. after hearing argument on this question the court decided that the matter was not appealable. the matter was accordingly struck from the roll and the appellants ordered to pay the costs of their opponents, including the costs of two counsel. the court indicated at the time that its reasons would follow. these are the reasons. [3] in order to decide whether the order of the high court is capable of being appealed .....
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
..... [29] the problems of limitation thus arising are reminiscent of those referred to by schreiner ja in union government v ocean accident and guarantee corporation ltd 1956 (1) sa 577 (a) at 585b-d. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
on appeal from: south gauteng high court, cape town (vermeulen aj sitting as court of first instance): 1. the appeal is dismissed with costs including the costs of two counsel. 2. the order of the court below is confirmed save to the extent that the words on the scale as between attorney and client' are deleted. judgment malan ja (navsa adp, shongwe ja, wallis ja et meyer aja concurring): [1] this is an appeal against the order of vermeulen aj in the south gauteng high court winding up the first respondent, nkonjane economic prospecting and investment (pty) ltd (the company). the two appellants, thunder cats investments 92 (pty) ltd and turquoise moon trading 8 (pty) ltd and the second and third respondents, bosasa operations (pty) ltd and bosasa youth development centres (pty) ltd (the respondents), are shareholders of the company each holding 25 per cent of the issued shares. the shareholders appointed directors who vote in blocks in proportion to their shareholding. the respondents nominees and the appellants nominees each have 50 per cent of the vote at both board and shareholder level. mr sabelo macingwane, the managing director of the first appellant, is the chairperson of the company but has no casting vote. the company is solvent and its main asset is an 11 per cent shareholding in ntsimbintle mining (pty) ltd which is worth some r132 million. the high court decision [2] vermeulen aj made the order liquidating the company on the basis that it was just and equitable to .....
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