Tag Archives: South Gauteng High Court

Loureiro and Others v iMvula Quality Protection (Pty) Ltd

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 40/13 South Gauteng High Court, 30 Sep. 2011
SCA, 15 Mar. 2013 		 6 Nov. 2013 20 Mar. 2014  Van der Westhuizen J  Unanimous

By Duncan Wild on 23 March 2014

Imvula Quality Protection (Pty) Ltd (“iMvula“) was hired to provide security guards to guard the home of Lincio Loureiro (“Loureiro“) and his family. In January 2009, an armed robbery occurred at the house after a man pretending to be a police was allowed entry to the house by a guard employed by Imvula.

The Constitutional Court found that iMvula had breached its contractual duty, owed to Loureiro, not to allow access to the premises to any person without authorisation. In addition, that iMvula, as a security company, owed a duty to prevent harm, and in addition, the guard on duty had breached that duty by negligently failing to take the necessary precautions in allowing the disguised robber access. Continue reading →

Cool Ideas 1186 CC v Christine Hubbard and Another

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Case No. Lower Court Judgments Hearing Date
CCT 99/13 Gauteng Division of the High Court, Johannesburg
SCA, 28 May 2013		 5 Feb. 2014

By Duncan Wild February 2014

The issue in this case involves the correct interpretation of section 10 of the Housing Consumers Protection Measures Act 95 of 1998 (“Housing Consumers Act“), and, second, whether a contravention of its provisions of the may be used to resist enforcing an arbitral award.  Continue reading →

Ferris and Another v Firstrand Bank Limited and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 52/13 South Gauteng High Court, 5 Oct. 2012 5 Nov. 2013 12 Dec. 2013  Moseneke ACJ  Unanimous

By Duncan Wild on 12 December 2013

The applicants, Destri Ferris and Soraya Ferris, entered a credit agreement with the Firstrand Bank Limited (“Firstrand“). They defaulted on their payments, and applied for debt review under section 86 of the National Credit Act 2005 (“NCA“). The debt counsellor proposed a debt restructuring which Firstrand refused. The matter was referred to the Magistrate’s Court, but then Firstrand terminated the review. Notice was not given to the Magistrate’s Court or the applicants of the termination.  The Magistrate’s Court, being unaware of the termination, ordered a debt restructuring. Firstrand instituted summons against the applicants, and after the applicants attorneys failed to comply with procedural steps in the litigation (without the knowledge of the applicants themselves), a judgment was taken against them in default.

When the applicants became aware of the judgment they applied to have the judgment rescinded, but this was refused. The applicants then appealed to Supreme Court of Appeal but leave to appeal was refused.

The Constitutional Court, in a unanimous judgment by Acting Chief Justice Moseneke (Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, Van der Westhuizen J and Zondo J), found there was no basis to interfere with the SGHC’s decision. Firstrand was entitled to proceed to enforce the loan agreement under the National Credit Act as the applicants had breached the debt-restructuring order. The requirements for rescission of a judgment were therefore not met.

Download the judgment here.

South African Informal Traders Forum and Others v City of Johannesburg and Others

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 Case No.  Lower Court Judgments  Hearing Date
 CCT 173/13  South Gauteng High Court, 27 November 2013 5 December 2013

By Duncan Wild on 4 December 2013

The first applicant, South African Informal Traders Forum (“SAITF“), is an association of informal traders, the second to one thousand two hundred and twelfth applicants (“the Traders“) until recently were informal traders doing business in the inner city of Johannesburg. During October 2013, all of the Traders were removed from their trading locations and their goods impounded, preventing them from trading. The first respondent, the City of Johannesburg (“the City“) states this was necessary to determine which of the Traders were operating unlawfully.

On 19 November 2013, SAITF and the Traders launched an application in the Gauteng Local Division of the High Court of South Africa in Johannesburg (“Johannesburg High Court“), on an urgent basis, seeking first that the Traders be allowed to trade in the City, pending the resolution of second part of the application, which is a review of the lawfulness City’s actions in removing the Traders. The Johannesburg High Court found that the application was not urgent and so struck it from the roll. This would allow SAITF and the Traders to continue with the review application in the ordinary course, which could take several months to resolve. As the Traders would not be permitted to Trade during this period, this would, they say, cause them great prejudice as they would have no means to earn a living for at least several months.

SAITF and the Traders therefore approached the Constitutional Court seeking leave to appeal against the decision of the Johannesburg High Court, and either allowing the Traders to trade pending the outcome of the appeal in the Constitutional Court, or allowing them to trade pending the determination of the review application by the Johannesburg High Court.

 

 

Food & Allied Workers Union v Ngcobo NO and Another

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 50/13 South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012		 29 Aug. 2013 9 Oct. 2013 Cameron J Unanimous

By Mzukisi Kota and Duncan Wild on 10 October 2013

This case is concerned with the question of whether a trade union is liable for damages to its members where it has failed to perform in terms of a mandate to represent its members in proceedings before the Commission for Conciliation Mediation and Arbitration (“the CCMA”) and the Labour Court.

The Constitutional Court, in an unanimous judgment authored by Justice Cameron (joined by Deputy Chief Justice Moseneke, Justices Froneman, Jafta, Madlanga, Nkabinde, Skweyiya, Van der Westhuizen, Zondo and Acting Justice Mhlantla), found that once the Union had undertaken to provide legal assistance to its member, it could not unilaterally withdraw that assistance. If it failed to accord with its agreement with its members, it could be held liable for that failure. So the Constitutional Court refused to grant leave to appeal as there were not prospects of success in the appeal. Continue reading →

MEC for Education, Gauteng Province v The Governing Body of the Rivonia Primary School

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 135/12 South Gauteng High Court, 7 Dec. 2011
Supreme Court of Appeal, 30 Nov. 2012		 9 May. 2013 3 Oct. 2013 Mhlantla AJ 7-2

By Duncan Wild on 3 October 2013.

The case concerns whether it is the Provincial Department of Education or the governing body of a public school that has the power to determine the number of learners that the school may admit, and whether the Provincial Department of Education may override any determination in this respect by a governing body.

The Constitutional Court, in a judgment authored by Acting Justice Mhlantla with  Deputy Chief Justice Moseneke, Justices Froneman, Khampepe, Nkabinde and Skweyiya and Acting Justice Bosielo concurring, found that although the school governing body had the ability to determine the capacity of a school, a Provincial Department maintains ultimate control, and a school’s admission policy cannot inflexibly limit the discretion of the Head of Department. Continue reading →

Tulip Diamonds FZE v Minister of Justice and Constitutional Development and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 93/12 South Gauteng High Court, 9 Jun. 2011
SCA, 7 Sep. 2012		 26 Feb. 2013 13 Jun. 2013 Van der Westhuizen J. 6-3

The issue is whether Tulip Diamonds FZE (“Tulip“), an entity incorporated in Dubai, has legal standing to challenge a decision by the Minister of Justice and Constitutional Development to give assistance to the Belgian authorities following a Letter of Request for such assistance sent under the International Co-operation in Criminal Matters Act 75 of 1996 (“the Act“).  The documents are required in a criminal investigation into a Belgian company, Omega Diamonds. The South African authorities were requested to search and seize certain documents from a South African company, Brinks (Southern Africa) (Pty) Ltd (“Brinks“), related to shipments of diamonds from Angola to Tulip in Dubai.  The SCA held that Tulip had no standing to challenge the decision and the issuance of a subpoena by the Kempton Park Magistrate’s Court requiring Brinks to produce the relevant documents, because Tulip did not have a sufficient interest in those documents.  According to the SCA, Tulip did not show that the documents in question were confidential or that Brinks had a contractual duty to preserve their confidentiality, and so Tulip had no proprietary right in the documents.   Continue reading →

Mpofu v Minister of Justice and Constitutional Development and Others

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Case No.
 Lower Court Judgments Hearing Date Judgment Date Majority Author
 Vote
CCT 124/11
 WLD (now South Gauteng High Court),
4 May 2001
 29 Nov. 2012
 6 Jun. 2013 Skweyiya J. 8-3

Mr Mandla Mpofu was convicted of murder, kidnapping, assault, robbery with aggravating circumstances and unlawful possession of firearms and ammunition, and was sentenced to twenty years imprisonment.  At the time he committed the crimes, Mr Mpofu claimed he was sixteen years old, and he has appealed his sentence on the basis that the High Court did not adequately take into account the rights of children in section 28 of the Constitution, and specifically that “every child has the right not to be detained except as a measure of last resort….[and] the child may be detained only for the shortest appropriate period of time“.

The Majority of the Constitutional Court, in a judgment written by Justice Skweyiya and concurred in by Chief Justice Mogoeng, Deputy Chief Justice Moseneke and Justices Cameron, Froneman, Jafta, Zondo and Yacoob dismissed Mr Mpofu’s application for leave for appeal and application on the basis he had not shown he was under 18 at the time the offence was committed, and so section 28 would not relevant. In addition, the application for leave was made more than 10 year s after Mr Mpofu’s sentence, and despite two additional applications for leave to appeal that did not raise the issue of his age, was not adequately explained.

Justice Van der Westhuizen wrote a dissenting judgment finding that on the wording of the High Court judgment, Mr Mpofu was a child at the time of the offence, and the High Court had failed to take this into account during sentencing. Justice Van der Westhuizen would have set aside the sentence and replaced it with one of 20 years imprisonment. Justices Nkabinde and Khampepe concurred in this judgment.

Download the judgment here.

National Director of Public Prosecutions v Elran

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Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author Vote
CCT 56/12 South Gauteng High Court (Full Bench), 8 Mar. 2012 15 Nov. 2012 19 Feb. 2013 Cameron J. 5 – 4 (and 4 separate but concurring)

The Prevention of Organised Crime Act 121 of 1998 (“POCA“) allows the State to apply for the forfeiture of property that was used in the commission of a crime or is the proceeds of a crime under the Act.  Before the final forfeiture order is granted the State may approach a Court for a “preservation order” that prevents the owner of the property from removing the assets pending the forfeiture case.  The possible problem, that POCA recognizes, is that this preservation order may prevent the owner of the property from adequately providing for his living expenses or paying the legal expenses of defending the forfeiture action or the criminal charges he faces.  POCA therefore provides in section 44(1)(b) that a court may allow the person holding interest in the “property subject to the preservation order” to have reasonable living and legal expenses paid for from that property.  In order to qualify for such a dispensation the person must make a sworn statement of his interest in the property, and show that he cannot meet the expenses claimed out of any other property. Continue reading →