The law reports – May 2014

May 1st, 2014
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Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

March 2014 (2) The South African Law Reports (pp – 3190; [2014] 1 The All Law Reports February no 1 (pp 249 – 374); and no 2 (pp 375 – 489)

ABBREVIATIONS

CC: Constitutional Court

GSJ: Gauteng South High Court,­ Johannesburg

SCA: Supreme Court of Appeal

WCC: Western Cape High Court, Cape Town

Arbitration

Review of award: In Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd and Others [2014] 1 All SA 375 (SCA) the court was asked to pronounce on the question whether or not an arbitrator is obliged to apply the rules of evidence in the same way as a court of law.

The salient facts were that the first respondent (Trustco) purchased from the appellant (Dexgroup) the entire issued share capital of the third respondent (the company). The agreement was concluded in November 2007. Part of the purchase price was to be paid in cash and the balance was to be paid by way of the issue of shares in Trustco. In terms of the agreement, Trustco made available to Dexgroup a banking facility or cash of up to R 30 million. In 2009, when Dexgroup contended that it was entitled to receive some 3 million shares in Trustco in settlement of the balance of the payment price, Trustco objected. Trustco argued that Dexgroup would be entitled to the shares only once the facility was discharged or settled, which had not occurred. The parties then submitted the dispute over FirstRand’s entitlement to receive payment of the balance of the purchase price of the company to arbitration. Because the facility had not been properly discharged, as required, the arbiter dismissed FirstRand’s claim and upheld a counterclaim by Trustco for declaratory relief.

Section 28 of the Arbitration Act 42 of 1965 (the Act) provides that the arbitrator’s award was final and binding and not subject to appeal. It could only be challenged on the limited grounds provided in s 33(1) of the Act. The ground on which FirstRand relied in bringing its application was that the arbitrator committed a gross irregularity in terms of s 33(1)(b) of the Act, alternatively, that he exceeded his powers.

The primary issue in the arbitration was whether Dexgroup had satisfied its obligations under the agreement, in relation to the repayment of the facility. On appeal the court was asked to pronounce on a number of issues, only two of which merit discussion here.

Wallis JA rejected Dexgroup’s first contention that the arbitration proceeded on the basis of allegations that had not been pleaded or adequately raised, with the result that Dexgroup and its witness were taken by surprise and thereby deprived of a fair hearing.

Secondly, Dexgroup argued that the arbitrator had allowed evidence that should have been admitted. In this regard, Dexgroup argued an arbitrator is obliged to apply the rules of evidence in the same way as a court of law. However, the court referred to earlier authority stating that in modern arbitral practice, the rule is that, unless the arbitration agreement otherwise provides, the arbitrator is not obliged to follow strict rules of evidence provided the procedure adopted is fair to both parties and conforms to the requirements of natural justice. Arbitrators should be free to adopt such procedures, which they regard as appropriate for the expeditious and inexpensive resolution of the dispute before them, unless the arbitral agreement precludes them from doing so.

The court a quo was correct to dismiss the challenge to the arbitrator’s award. The appeal was accordingly dismissed with costs.

Banking law

Bank-customer relationship – bank’s duty of care: The facts in Absa Bank Limited v Hanley [2014] 1 All SA 249 (SCA) were that the appellant (Hanley) an Irish solicitor and customer of the respondent bank (Absa), had opened an investment account with Absa and invested an amount of US $1 750 000 into the account. In July 2003, a sum of US $1 600 000 was transferred out of the account.

Hanley alleged that the transfer was effected through a fraudulent document submitted by one La Cote, who was also a customer of Absa. Hanley further denied that he had authorised the transfer and sued Absa for re-payment of the lost amount.

Absa alleged that the amount was transferred as a result of Hanley’s negligence, inter alia, by allowing La Cote to come into possession of a transfer instruction document that was signed by Hanley.

In terms of the document that Hanley handed over to La Cote, Hanley instructed Absa to transfer $100 000 from his account to that of La Cote.

Absa raised the defence of ‘estoppel’ by contending that Hanley owed a duty of care in regard to how he operated his account.

The main issues to be determined were –

  • whether Hanley had any legal duty of care as contended by Absa;
  • the question of onus on the issue of duty of care; and
  • the alleged negligent conduct of Absa.

The present discussion will be restricted to the third issue.

The court a quo held that Absa transferred the money from Hanley’s account, not because of any negligence by Hanley, but primarily because it failed to apply prudent and acceptable banking practice. Absa was found to be negligent and was ordered to credit Hanley’s account in the relevant amount.

On appeal Malan JA held that the principal duty of a bank effecting a credit transfer is to perform its mandate timeously, in good faith and without negligence. The duty of the customer is to draw his payment instructions with reasonable care in order to prevent forgery or alteration and to warn of known or suspected fraud or forgery arises from this relationship.

In the present case there were quite a number of factors that indicated that Absa was negligent. Firstly, Absa did not phone the client to confirm the client’s signature. Secondly, Absa made the payment on the basis of a fax and not the original bank form. Thirdly, Absa had opened the bank account for the client, which purported to be a company without any proof of a company resolution authorising the opening of the bank account.

It further held that Hanley could not reasonably have foreseen the possibility that the amount stated on the second page of the bank form would be altered. Hanley did not facilitate the alteration, and wrote the figures and words with care.

Further, it was an employee of Absa who authorised the payment. The employee’s negligence was the proximate cause of the loss by not noticing that the amount on the payment instruction had been altered.

Absa was held liable to repay Hanley the amount of the unauthorised payment.

The appeal was accordingly dismissed with costs.

Company Law

Application for winding-up – service: In EB Steam Company (Pty) Ltd v Eskom Holdings Soc Ltd [2014] 1 All SA 294 (SCA) the court was asked to pronounce on the requirements for the winding-up of a company. The facts were that winding-up orders were made against 20 companies, all of which are apparently subsidiaries of the appellant. The winding-up applications arose out of their failure to satisfy arbitration awards in varying amounts made against each of them. The applications were opposed on the ground that there had not been proper service on the employees of the companies as required by s 346(4A) of the Companies Act 61 of 1973.

The applications for winding-up were duly served on the companies at their registered office. The sheriff purported to serve the applications on the employees of each subsidiary company by affixing a copy of the application for winding-up in relation to that company to the front door of the registered office. The appellant argued that that form of service was defective for two reasons. First, the sheriff had obtained access to the registered office, because he had served the applications on the companies at that office on an employee apparently over the age of 16 years and in charge of the premises. In the absence of any explanation that it was not possible for him to do so, s 346(4A)(a)(ii)(aa) required service to be effected by affixing the application papers to a notice board within the premises to which the employees had access. Service to the front door was thus defective. Second, it was submitted that it was obvious from the names of the companies and the nature of their business that they operated at locations throughout the country and that in those circumstances the court should not have accepted the correctness of the sheriff’s return.

Wallis JA held that s 346(4A)imposes an obligation on the applicant to furnish the application papers to the persons named in the section. Section 346(4A) provides that the application papers ‘must’ be furnished to the named persons, which makes the requirement peremptory. It is not, however, peremptory when furnishing them to the respondent’s employees, that this be done in any of the ways specified in s 346(4A)(a)(ii). If those modes of service are impossible or ineffectual another mode of service that is reasonably likely to make them accessible to the employees will satisfy the requirements of the section.

Finally, it held that the court below should not have been satisfied that there had been compliance with the requirements of s 346(4A) insofar as the employees were concerned.

The appeals were upheld to the extent that the final winding-up orders granted were set aside and replaced by provisional winding-up orders returnable eight weeks from the date of the present order.

 

Inquiry into affairs of company: In FirstRand Bank Ltd t/a Rand Merchant Bank and Another v Master of the High Court, Cape Town and Others [2014] 1 All SA 489 (WCC) the third respondents (the liquidators) were the joint liquidators of Lighthouse Square (Pty) Ltd (the company). The second respondent trust held 25% of the shares in the company and the second applicant held 50% of the shares. The company acquired certain immovable properties and the first applicant (FirstRand) advanced various sums to the company to enable it to develop the properties.

The company was unable to repay its debt to FirstRand. FirstRand successfully applied for its liquidation. The attorney acting for the trust wrote to the Master asking for authority to convene an inquiry into the affairs of the company in terms of the provisions of ss 417 and 418 of the Companies Act 61 of 1973 (the Act). The present application was for the review and setting aside of the decision of the Master of the High Court, to authorise a commission of inquiry in terms of ss 417 and 418 of the Act. The critical issue on which the review application was based was the fact that an attorney of the trust had attended a meeting at the Master’s office, the outcome of which was that the Master authorised the proposed inquiry.

Blignault J pointed out that the trust’s attorney attended the meeting with the Master in order to motivate the holding of the inquiry. The meeting with the Master took place in the absence of FirstRand’s attorney and without informing the attorney in any way of the meeting to be held. That amounted to a misrepresentation in the form of a failure to disclose material facts. The trust’s attorney was under a duty to disclose his intended visit to the Master to FirstRand’s attorney.

FirstRand’s right to procedural fairness was violated by the manner in which the Master, encouraged by the trust’s attorney, dealt with the application for the authorisation of the inquiry.

FirstRand’s review application was thus successful.

 

Liquidation order – just and equitable: In Thunder Cats Investments 92 (Pty) Ltd and Another v Nkonjane Economic Prospecting and Investment (Pty) Ltd and Others [2014] 1 All SA 474 (SCA) the court a quo made an order liquidating the first respondent on the basis that it was just and equitable to do so. The ‘just and equitable’ ground for liquidation is provided for by s 81(1)(d)(iii) of the Companies Act 71 of 2008 (the Act). The appellants and the second and third respondents (the shareholders) were shareholders of the first  holding 25% of the shares in the company. The company was solvent, but the court a quo ordered its liquidation due to the general breakdown of the relationship between the shareholders. Each of the shareholders had the right to participate in the management of the company. The shareholders’ rights to dispose of their shares were restricted so that a shareholder could not, without the consent of the other shareholders, simply sell its shares and go elsewhere. The respondents stated that the directors were not able to operate and make decisions commercially because of a deadlock. Given the irretrievable breakdown in the relationship between the parties, the court found that the liquidation of the company was, in the absence of any other remedy, the only route to follow.

The application in the present case was based on s 81(1)(d)(iii), an alternative ground to various listed grounds for winding-up, where it is just and equitable for the company to be wound up. The application was motivated by the desire of the second and third respondents to dispose of their shares. In terms of the shareholders’ agreement, that could be done only with the consent of the other shareholders. The appellants, it was alleged, were unwilling to consent to the respondents disposing of their shares.

The appellants contended that the relationship between the parties had irretrievably broken down.

The issue to be decided by Malan JA was whether the provisions of s 81(1)(d)(i) and (ii) affect the interpretation of the words ‘just and equitable’ in s 81(1)(d)(iii) so as to preclude all other grounds of deadlock. The court confirmed that the just and equitable ground in s 81(1)(d)(iii) should not be interpreted so as to include only matters similar to the other grounds stated in s 81(1). The examples of ‘deadlock’ given in s 81(1)(d)(i) and (ii), that is, where either the board or the shareholders are deadlocked are examples only, and are not exhaustive and do not limit s 81(1)(d)(iii).

The court was satisfied that the relationship between the shareholders had failed. The company could only function consensually. Transfer of the shares of members was restricted. For those reasons, the company could function only when the relationship of confidence and trust between the parties was maintained. The evidence clearly established a breakdown in the relationship between the shareholders. The court below, therefore, correctly found that it was just and equitable that the company be wound up.

The appeal was dismissed.

Constitutional law

Needs of pregnant learners:  The underlying dispute in Department of Education, Free State Province v Welkom High School and Others 2014 (2) SA 228 (CC) concerned the question how best should the special needs of pregnant learners be accommodated at public schools. The salient facts of the Welkom High School case concerned a clash between the respondent schools’ ‘Management of Learner Pregnancy’ policies (the policies) and the Constitution. The gist of the policies entail that the schools’ governing bodies have the right to temporarily exclude a pregnant learner from school.

The head of a provincial department of education (the HOD), applied for leave to appeal against the SCA’s dismissal of his appeal against a High Court order interdicting him from interfering with the respondent schools’ pregnancy policies. The HOD had instructed the respective principals to ignore these policies.

Khampepe J delivered the CC’s main judgment. There were two further concurring judgments. The CC identified two material issues for determination: First, whether the HOD has the power to instruct principals of public schools to ignore policies adopted by the governing bodies of those schools when the HOD is of the opinion that the policy is unconstitutional; and secondly, the manner and extent to which the court could address the concerns raised regarding the unconstitutionality of the pregnancy policy.

Section 16 of the South African Schools Act 84 of 1996 (the Schools Act) vested the ‘governance’ of public schools in its governing body (s 16(1)) and its ‘professional management’ in the principal under authority of the HOD (s 16(3)). ‘Governance’ in the context of the Schools Act should be understood in contrast to ‘professional management’, the two being distinct categories of responsibility set out in the statute.

A governing body was akin to a legislative authority within the public-school setting, being responsible for the formulation of certain policies and regulations. Conversely, a principal’s authority was more executive and administrative in nature, being responsible (under the authority of the HOD) for the implementation of applicable policies and the running of the school on a day-to-day basis.

In addition, s 8 of the Schools Act empowered school governing bodies, pursuant to a consultative process involving learners, their parents and educators, to adopt ‘codes of conduct’.

In the light of the foregoing, the governing bodies were empowered to adopt pregnancy policies for their respective schools pursuant to their governance responsibilities and their authority to adopt codes of conduct. That being the case, the HOD was obliged to address his concerns with the pregnancy policies pursuant to his powers under the Schools Act. The HOD was not empowered by the Schools Act to act as if policies adopted by a school governing body did not exist when, on the basis of the HOD’s analysis, they prima facie offended the Constitution and the Schools Act.

In Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 it had been unanimously decided that, although an HOD had supervisory authority over the exercise by a governing body of its policy-making governance, that supervisory authority may be exercised only pursuant to the mechanisms provided for by the Schools Act. The present court was bound by the decision in the Hoërskool Ermelo case to conclude that, in addressing his concerns regarding the content of the pregnancy policies, the HOD was obliged to act in accordance with the relevant provisions of the Schools Act or to approach the courts for appropriate relief. The powers of governing bodies must be exercised subject to the limitations laid down by the Constitution and the Schools Act. There was no doubt that the rights of pregnant learners to freedom from unfair discrimination and to receive education had to be protected, promoted and fulfilled, but this had to be done lawfully.

The court accordingly held that the HOD had acted unlawfully, and the courts below were, therefore, correct to have granted and upheld the interdictory relief sought by the schools.

Finally, the court ordered the respondent schools’ governing bodies to review their pregnancy policies in the light of the present judgment. The schools were further ordered to report back to the CC on reasonable steps they have taken to review their pregnancy policies.

Although the respondent schools have been successful in relation to the issue of the unlawfulness of the HOD’s conduct, their pregnancy policies seem to have violated various fundamental rights of learners. Each party was thus ordered to pay its own costs.

Delict

Liability to third party: The facts in Country Cloud Trading CC v MEC, Department of Infrastructure Development 2014 (2) SA 214 (SCA); [2014] 1 All SA 267 (SCA) were as follows. The appellant (the plaintiff) had lent money to a construction company contracted by the respondent’s department (the department) to complete the construction of a partially-built clinic. In terms of the loan agreement, the plaintiff stood to make a profit of R 8,5 million. However, the department cancelled the construction contract, which ultimately led to the liquidation of the construction company. The plaintiff instituted an action against the department in the High Court, for delictual damages in an amount of R 20,5 million together with interest.

The department’s contention was that the contract had been validly cancelled as a result of misrepresentations by the contractor regarding the validity of its tax clearance certificate and because the tender awarded to the contractor was contrary to the procurement regulations and policies of the department. The court a quo held that the contract was invalid and unlawful and dismissed the plaintiff’s claim (Country Cloud Trading CC v MEC, Department of Infrastructure Development [2012] 4 All SA 555 (GSJ)).

On appeal Brand JA dismissed the department’s contentions regarding the cancellation of the contract due to non-compliance with statutory provisions and regulations as flawed. Therefore, its defence, based on an unlawful award of the completion contract, should not have been upheld.

The court also considered the department’s further defence, namely that it could not be held liable in delict for the damages claimed because the plaintiff had failed to establish the element of wrongfulness, which is essential for aquilian liability. Suffice it to mention here that since 1979 aquilian liability was extended to also include liability for pure economic loss. Wrongfulness in the context of delictual liability for pure economic loss is ultimately dependent on an evaluation based on considerations of legal and public policy. The obstacle to the relief sought by the plaintiff was that it was not a party to the contract in this case. For the plaintiff to succeed, the court had to extend delictual liability to a contracting party for damages suffered by a stranger to the contract resulting from the intentional repudiation of the contract by that contracting party. That has never been done before.

A further consideration weighing heavily against the imposition of delictual liability on the department, in the circumstances of the present case, was what has become known in the context of wrongfulness as the plaintiff’s ‘vulnerability to risk’. Vulnerability to risk signifies that the plaintiff could not reasonably have avoided the harm suffered by other means. It has become well-established in our law that the finding of non-vulnerability on the part of the plaintiff is an important indicator against the imposition of delictual liability on the defendant.

There was in the circumstances no reason to impose delictual liability on the department for the loss claimed by the plaintiff. The appeal was dismissed with costs.

Guarantees

Construction guarantee: In Guardrisk Insurance Company Ltd and Others v Kentz (Pty) Ltd [2014] 1 All SA 307 (SCA) the first respondent (Kentz: the employer) was involved in the construction of the Medupi power plant. In September 2008 Kentz entered into a written contract (the contract) with Brokrew (the contractor) relating to the supply of ducting at Medupi.

In terms of the contract Brokrew was obliged to secure ‘an irrevocable, on demand bank guarantee from a recognised financial institution’ for proper performance by Kentz. Brokrew requested the first appellant (Guardrisk) to issue two construction guarantees in favour of Kentz.

By January 2010 Brokrew was experiencing severe financial difficulties and it informed Kentz that unless the terms of the contract were renegotiated, it would not be in a position to perform its obligations in terms of the contract.

On 9 March 2010 Kentz informed Brokrew that in terms of their contract Brokrew was in breach and that Kentz had decided to exercise its right to cancel the contract. Also, on 9 March, Kentz demanded payment from Guardrisk in terms of the guarantees.

Guardrisk resisted the claims on the basis that Kentz’s claims were fraudulent because Kentz was not entitled to cancel the contract.

Kentz successfully claimed payment from Guardrisk in the GSJ where the court held that Guardrisk had failed to prove that Kentz had acted fraudulently.

On appeal to the Supreme Court of Appeal, Theron JA held that the gist of Guard­risk’s arguments on appeal was that the bank guarantees in question were conditional guarantees, rather than demand guarantees.

In order to determine the nature of the guarantees in the present case (that is, whether they are conditional or demand guarantees) the court must interpret their terms.

It was trite that Guardrisk undertook to pay Kentz the guaranteed sums on demand. Such demand had to be in writing and had to contain a statement that the demand amount was payable in terms of the contract and that Brokrew was in breach of its obligations under the contract.

The guarantees provided that Guardrisk’s liability was absolute and unconditional and did not create an accessory obligation.

The guarantees were, thus, unconditional and the only basis on which Guardrisk could escape liability was to show proof of fraud by Kentz.

The court further held that the mere fact that Kentz presented the guarantees for payment knowing that Brokrew held a contrary view about Kentz’s right to cancel the contract did not amount to fraud. Guardrisk relied heavily on the earlier, but incorrect majority decision in Dormell Properties 282 CC v Renasa Insurance Co Ltd and Others NNO 2011 (1) SA 70 (SCA) and the accuracy of the minority decision.

In Dormell the majority held that the beneficiary of a demand guarantee is not entitled to claim payment under the guarantee where an arbitrator had found that the beneficiary had not been entitled to cancel the underlying contract and its cancellation constituted a repudiation.

In FirstRand Bank Ltd v Brera Investments CC 2013 (5) SA 556 (SCA) the court dismissed the reasoning of the majority in Dormell and supported the minority judgment where it was held that ‘once [the employer] had complied with the [provisions] of the guarantee, [the guarantor] had no defence to a claim under the guarantee. The fact that an arbitrator has determined that the [employer] was not entitled to cancel the contract, binds the [employer] – but only vis-à-vis [the contractor]. [The award by the arbitrator] is res inter alios acta as far as the [guarantor] is concerned’ (own insertions).

The court concluded that Guardrisk and Brokrew failed to prove fraud and the appeal was accordingly dismissed with costs.

Land

Instalment sale agreement: In Katshwa and Others v Cape Town Community Housing Co (Pty) Ltd and Four Similar Cases 2014 (2) SA 128 (WCC) the appellants (the buyers) in the present five appeals had entered into instalment sale agreements with the respondent (the seller) for the purchase of immovable property and had all fallen into arrears with their payments. The seller purported to cancel the agreements and eventually launched motion proceedings in a magistrate’s court for the eviction of the buyers. The applications succeeded and the buyers were ordered to vacate the properties by a specified date, failing which the sheriff was ordered to evict them. The buyers appealed to the High Court. It was common cause that the seller had failed to register the contracts with the Registrar of Deeds as required by s 20(1))(a) of the Alienation of Land Act 68 of 1981 (the Act). The buyers further relied on s 26 of the Act, which provided that no person ‘shall by virtue of a deed of alienation relating to an erf or a unit receive any consideration until (a) such erf or unit is registrable; and (b) in case the deed of alienation is a contract required to be recorded in terms of s 20, such recording has been effected’.

The buyers contended that the seller was not entitled to receive any consideration, in terms of the contracts, from the buyers and they were, thus, not in arrears in the payment of their instalments. As a result, so the buyers argued, the seller’s cancellation of the contracts was invalid. The seller, in turn, argued that s 4 of the Act exempted the state and local authorities as sellers from having to comply with s 20, and that the seller, though ostensibly a private company, had to be regarded as a functionary of the state.

Steyn J held that the purpose of s 20 was to protect vulnerable, financially disadvantaged and relatively unsophisticated buyers from private companies, with or without state shareholders. The use of the word ‘state’ in s 4 referred to closed categories of entities, and the wording of ‘state’ in this context could not be widened to include organs of state and definitely not private companies such as the seller in the present matter, regardless of the interest in it by certain organs of state and regardless of whether or not its purpose was to generate profit. The seller was an independent contractor performing certain governmental obligations, including the provision of housing, and there was no evidence before court that the seller formed part of government at any level or was controlled by government, or that it should be regarded as an organ of state. On the contrary, the seller’s own factual averments led to the conclusion that it was not an organ of state, but was, in fact, a private company. The seller had accordingly not shown that there was any foundation in fact or in law why it should be regarded as the state.

The appeals were accordingly allowed with costs.

Prescription

Extinctive prescription: Solenta Aviation (Pty) Ltd v Aviation @ Work 2014 (2) SA 106 (SCA) concerned an appeal against a judgment of the court a quo in which it upheld a special plea of prescription raised by the respondent (the defendant).

The underlying contract concerned the lease of a Cessna aircraft by the appellant’s (plaintiff) predecessor in title to the defendant. It was alleged by the plaintiff that the defendant had committed a breach of contract that caused damage to the plaintiff. The original claimant was not the true creditor. The original claimant was subsequently substituted with the true one (the plaintiff) by means of an amendment. The amendment took place only after the prescriptive period had lapsed.

The description of the lessor in terms of the contract is ‘Solenta Aviation (Pty) Ltd’ and not Solenta Aviation Workshops as described in the combined summons and in the particulars of claim. On 18 August 2009 a notice of intention to amend was delivered in which notice was given that the description of the plaintiff was to be amended to ‘Solenta Aviation (Pty) Ltd’ by the deletion of the word ‘Workshops’ where it appears in the summons and in para 1 of the particulars of claim.

It was alleged in a special plea by the defendant that service on it, whereby the plaintiff claimed payment of damages arising from the defendant’s alleged breach of the contract, did not interrupt the running of prescription in terms of s 15(1) of the Prescription Act 68 of 1999 (the Act), and that a period of more than three years had elapsed since the alleged breach and the delivery of the notice of intention to amend the citation of the plaintiff, or of the actual substitution of the plaintiff for its predecessor in title.

The crisp issue before the court was whether the process served on the debtor was a claim by the creditor of the debt in compliance with the provisions of s 15(1) of the Prescription Act 68 of 1969.

Meyer AJA held that in applying the objective test the claim made in the combined summons was, on a plain reading, not that of the true creditor (here: the plaintiff), and service of the process on the defendant did not interrupt the running of prescription.

The admissions by the defendant of the citations of the parties and of the contract and its terms also did not avail the plaintiff. They did not bring about an automatic substitution of one plaintiff for another.

The appeal was accordingly dismissed with costs, including the costs of two counsel.

Other cases

Apart from the cases and topics that were discussed or referred to above, the material under review also contained cases dealing with administrative law, civil procedure, criminal procedure, intellectual property law, international law, judgments, jurisdictions, labour law, local government, powers of the President, practice, prescription, public service, right to housing, sexual offences and trusts.

This article was first published in De Rebus in 2014 (May) DR 47.