By Duncan Wild on 27 March 2015
In this case, the Constitutional Court held that entities that engage in lending that falls outside the scope of the National Credit Act 34 of 2005 (“NCA“) (e.g. to entities which exceed the value thresholds set out in the Act) do not need to be registered as credit providers under the NCA, and a failure to register does not invalidate credit agreements outside the scope of the Act. In addition, the Court reversed the current position regarding how the common law in duplum rule applies when litigation commences. The position before this case being that interest may start running again if the creditor institutes action. The Court, however, found that commencing proceedings will not have an effect on the in duplum rule, and interest may not run again. Interest will only run again on a judgment, which effectively is a new debt which restarts any in duplum calculation. Continue reading
By Duncan Wild on 11 December 2014
This is a case seeking to expand the South African common law to recognise a claim for “wrongful life”, or what the applicant calls “wrongful suffering”. Historically, such claim have arisen where a medical professional is alleged to have failed to inform parents that there is a high risk that a foetus may be born with abnormalities, and had the parents been informed, they not have permitted the foetus to be born. The applicant sought to cast the claim as one for “wrongful suffering”, seeking to emphasise that it is not claim with the basis that it would have been better for the child not be born, but that in failing to give the accurate information, the physician caused the suffering of the child once it was born. At present neither of these claims exist in South African law, and the applicant sought to have such a claim recognised.
The Constitutional Court did not recognise the claim for “wrongful life”, but indicated that there was the potential for such a claim in South African law, and so upheld the appeal against the High Court’s dismissal of the claim. The Constitutional Court, however, found that the parties had not put argument before it on how the constitutional protection for the rights a child impacted the claim, and that it would not develop the common law to recognise this claim without all the facts before it. Therefore, the Constitutional Court indicated that the applicant could amend their papers and reinstitute the case in the High Court which could then consider whether a valid claim existed and whether the applicant met the requirements for that claim.
On 30 October 2014
The central question in this case is the extent to which the South African Police Service (SAPS) has domestic and/or international law obligations to investigate alleged crimes against humanity, including torture, committed by Zimbabweans in Zimbabwe. The High Court and the Supreme Court of Appeal (the SCA) found that, on the facts of this particular case, SAPS were indeed obliged to investigate these allegations.
The Constitutional Court in a unanimous judgment dismissed the appeal by the SAPS and ordered SAPS to investigate the alleged crimes.
By Duncan Wild on 3 October 2014
The primary question in this case was whether a third party can bring a claim against the party to a contract (where the claimant is not a party to the contract) as a result of loss suffered by the third party caused by the intentional repudiation of the contract.
The Constitutional Court, in a unanimous judgment by Justice Khampepe dismissed the appeal, finding that that cancellation of the contract in question was not wrongful as it did not fit within the existing law concerning interference with a contract, and nor was it necessary to recognise such a claim.
By Michael Mbikiwa on 25 June 2014
The central legal question in this case is whether a debt restructuring proposal, purportedly sent to a creditor in terms of section 86(1) of the National Credit Act, is an act of insolvency for the purposes of section 8(g) of the Insolvency Act. However, in a unanimous judgment by van der Westhuizen J, the Constitutional Court (the “Court”) refused the application for leave to appeal without needing to reach this central question. Continue reading
||Lower Court Judgments
||North Gauteng High Court, 28 Aug. 2012
SCA, 27 Mar. 2013
|10 Sep. 2013
11 Feb. 2014
|29 Nov. 2013
17 Apr. 2014
| Froneman J.
By Duncan Wild and Mzukisi Kota
AllPay Consolidated Investment Holdings (Pty) Ltd (“Allpay“) bid for a tender from the South African Social Security Agency (“SASSA“) to administer the national social grant system worth R10 billion, but the tender was awarded to Cash Paymaster Services (Pty) Ltd (“CPS“). Allpay then challenged the decision in the North Gauteng High Court (“NGHC“) on the basis of alleged flaws in the tender process, including the composition of the Bid Evaluation Committee, the failure of CPS to submit separate provincial bids, and the failure to assess CPS’s BEE partners capacity to perform their obligations. The NGHC accepted Allpay’s challenge, but the SASSA appealed to the Supreme Court of Appeal (“SCA“).
The Constitutional Court unanimously found the tender unlawful, but in view of the potential ramifications requested further submissions on an appropriate remedy.
In a second judgment on remedy the Court, an another unanimous decision authored by Justice Froneman, found that a new tender process should be carried out, but that in the mean itme Cash Paymaster was to continue providing the services in view of the constitutional and contractual obligations to maintain a workable payment system.
By Duncan Wild 12 April 2014
This matter pertains to the validity of section 44 of the Land Use and Planning Ordinance (“LUPO“) in so far as it allows the provincial government of the Western Cape, through the applicant, the Minister of Local Government, Environmental Affairs and Development Planning, Western Cape (“Minister“), to hear appeals from the decisions municipalities on certain land use planning decisions. The key question in the matter is the constitutional inter-relationship between the provincial and municipal spheres of government and their powers in relation to land use planning. The potential importance of the Constitutional Court’s decision in this matter lies in the fact that in the relationship between provincial and municipal power.
The Constitutional Court, in an unanimous decision authored by Cameron J, confirmed the High Court’s finding of invalidity of section 44, however, but not in its entirety. We set out the background to the matter and the High Court’s decision below.