Court : South Africa Supreme Court of Appeal
On appeal from: Full Court of the North Gauteng High Court, Pretoria (Mavundla J with Ranchod and Tuchten JJ concurring): The appeal is dismissed with costs including those of two counsel. JUDGMENT MEYER AJA (LEWIS, MAYA AND LEACH JJA AND SWAIN AJA CONCURRING): [1] This appeal arises out of an agreement of sale concluded in May 2005 in terms of which the respondent, the Agricultural and Rural Development Corporation (the ARDC), sold shares it held in a company known as Outspan (Pty) Ltd to Mr Charles Andrew Boyes, trading at the time as Henley Farm (Boyes). Boyes paid the purchase price but the shares were not transferred to him. Subsequently the appellant (Northern Estate and Trust Administrators (Pty) Ltd) instituted action against the respondent alleging that Boyes had ceded his rights, title and interest in a claim against the respondent for transfer of the shares, and claiming an order directing the respondent to transfer such shares to it. [2] At first instance, the matter came t...
Tag this Judgment!Court : South Africa Supreme Court of Appeal
On appeal from: Limpopo High Court, Thohoyandou (Hetisani J sitting as court of first instance): The appeal is allowed and the convictions and sentences are set aside. JUDGMENT Shongwe JA (Cachalia and Majiedt JJA concurring) [1] On the morning of 10 November 2002 the appellant and one Avhashoni Rasilingwane (the deceased) were found lying side by side on the lawn of one Patrick Khwashaba, near Makwarela Location, in the district of Thohoyandou. The deceased was dead and the appellant was injured on his head and on his hand. The two had apparently met each other the night before at a beer-hall where they had been imbibing sorghum beer together. [2] The appellant was taken to the local Tshilidzini hospital but subsequently charged with murder and rape of the deceased. Upon a plea of guilty on both charges, the appellant was convicted as charged and sentenced to imprisonment for life on each of the counts. The sentences were ordered to run concurrently (Hetisani J). The appeal before us ...
Tag this Judgment!Court : South Africa Supreme Court of Appeal
On appeal from: North Gauteng High Court, Pretoria (Bertelsmann J sitting as court of first instance): The appeal is dismissed with costs, which costs are to include the costs of two counsel. JUDGMENT Willis JA (Cachalia and Petse JJA and Swain and Meyer AJJA concurring): [1] This case is concerned with an issue which has vexed the high court in various centres around the country since the coming into operation of the Companies Act 71 of 2008 (the new Act) on 11 May 2011: to what extent is it, in the words of counsel for the appellant, Mr Oosthuizen, business as usual where an application is made for the liquidation of a company that is commercially insolvent, even though its assets may exceed its liabilities? [2] The respondent (the bank) applied to the high court (Bertelsmann J) for an order to wind up the appellant in terms of s 344(f) read with s 345 of the Companies Act 61 of 1973 (the old Act), alternatively in terms of s 344(h) of the old Act, further alternatively in terms of s...
Tag this Judgment!Court : South Africa Supreme Court of Appeal
On appeal from: Western Cape High Court, Cape Town (Griesel J sitting as court of first instance): The appeal is dismissed with costs JUDGMENT Mthiyane AP (Bosielo, Wallis, Pillay JJA and Zondi AJA concurring): [1] This is an appeal against a judgment and order of the Western Cape High Court (Griesel J) in which the court a quo dismissed an appeal in terms of s 30P of the Pension Funds Act 24 of 1956 (the Act) against a determination of the Acting Pension Funds Adjudicator (the Adjudicator). The appeal is with the leave of the court a quo. Section 30P of the Act provides that a party who is aggrieved by a determination of the Adjudicator may apply to the division of the high court which has jurisdiction, for relief, and the high court may then consider the merits of the complaint made to the Adjudicator under s 30A(3) and may make any order it deems fit. [2] The appellant (the City) lodged a complaint with the Adjudicator in terms of s 30A of the Act, against the conduct and administra...
Tag this Judgment!Court : South Africa Supreme Court of Appeal
On appeal from: Free State High Court (Hancke AJP sitting as court of first instance): The appeal is dismissed with costs. JUDGMENT WALLIS JA (concurring) Introduction [1] The respondent, S Bothma and Seun Transport (Edms) Bpk (Bothma and Seun), was originally a family company established by a father and handed on to his sons, Louis, Pelham and Tertius. Louis died, and in 2005 Pelham and Tertius went their separate ways. Pelham retained Bothma and Seun and Tertius established the appellant, Bothma-Batho Transport (Edms) Bpk (Bothma-Batho). In dividing the original business between them they had to deal with a tank farm situated in Standerton, which Bothma and Seun were hiring from Omnia Kunsmis Bpk (Omnia) under a contract executed in 1999, but pre-dating that date. In 2005 a new lease agreement was concluded with Omnia to which both Bothma and Seun and Bothma-Batho were parties. It provided for Bothma and Seun to have the use of three tanks, numbers 1, 2 and 3, with a total capacity o...
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 ac...
Tag this Judgment!Court : South Africa Supreme Court of Appeal
On appeal from: South Gauteng High Court, Johannesburg (Wepener J sitting as court of first instance): The appeal is dismissed with costs, such costs to include those consequent upon the employment of two counsel. JUDGMENT PONNAN JA (BOSIELO and PILLAY JJA, VAN DER MERWE and ZONDI AJJA CONCURRING): [1]The appellant, Born Free Investments 364 (Pty) Limited (Born Free), sued, the respondent, Firstrand Bank Limited (FRB), as the cessionary of two claims from the liquidators of two companies in liquidation. The two companies, Summer Season Trading 49 (Proprietary) Limited (Summer Season) and Central Lake Trading 256 (Proprietary) Limited (Central Lake), had borrowed moneys from FRB and at the time of their liquidation owed the latter R49.2 million and R25.1 million, respectively. FRB, whose claims were admitted by the liquidators, is a major creditor in each insolvent estate. Born Free alleges that FRB repudiated the loan agreements that had been concluded by it (FRB) with each of Summer S...
Tag this Judgment!Court : South Africa Supreme Court of Appeal
On appeal from: North Gauteng High Court, Pretoria (Fabricius J et Cilliers AJ, sitting as court of appeal): The appeal is upheld. The order of the court below is set aside and substituted with the following: The appeal succeeds. The appellants convictions and sentences are set aside. JUDGMENT MAJIEDT JA ( Mthiyane, Cachalia, Malan, Tshiqi JA concurring): [1] The appellants, Mr Tshepo Bongani Zwane and Mr Amos Nkosinathi Zwane, were convicted in the Pretoria Regional Court on 9 counts of robbery with aggravating circumstances. The first appellant was also convicted on a count of the contravention of s 37 of the General Law Amendment Act 62 of 1955 (receiving stolen property), as a competent verdict on the offence the appellants had originally been charged with, namely theft of a motor vehicle. They were sentenced to 15 years imprisonment on each of the robbery counts, ordered to run concurrently. In addition, the first appellant was sentenced to three years imprisonment on the tenth co...
Tag this Judgment!Court : South Africa Supreme Court of Appeal
On appeal from: South Gauteng High Court, Johannesburg (Wepener J sitting as court of first instance): The appeal is dismissed with costs, such costs to include those consequent upon the employment of two counsel. JUDGMENT PONNAN JA (BOSIELO and PILLAY JJA, VAN DER MERWE and ZONDI AJJA CONCURRING): [1]The appellant, Born Free Investments 364 (Pty) Limited (Born Free), sued, the respondent, Firstrand Bank Limited (FRB), as the cessionary of two claims from the liquidators of two companies in liquidation. The two companies, Summer Season Trading 49 (Proprietary) Limited (Summer Season) and Central Lake Trading 256 (Proprietary) Limited (Central Lake), had borrowed moneys from FRB and at the time of their liquidation owed the latter R49.2 million and R25.1 million, respectively. FRB, whose claims were admitted by the liquidators, is a major creditor in each insolvent estate. Born Free alleges that FRB repudiated the loan agreements that had been concluded by it (FRB) with each of Summer S...
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): 1. The appeals are upheld to the extent that the final winding-up orders granted in cases 8303 to 8312/2012 and 8381 to 8390/2012 are set aside and replaced by provisional winding-up orders returnable eight weeks from the date of this order. 2. The appellants are directed by no later than five weeks from the date of this order to furnish to the employees of the respondent in each application a copy of the application papers in that application and within one week thereafter to deliver an affidavit setting out details of when and in what manner they have complied with this order. 3. The respondents costs in this appeal, including the costs of two counsel, are to be costs in the liquidation of the appellant companies, unless the provisional winding-up orders are discharged on the return date, in which event the appellants are ordered jointly and severally to pay the respondents costs, inc...
Tag this Judgment!