The law reports – October 2014

October 1st, 2014
x
Bookmark

David Matlala BProc (University of the North) LLB (Wits) LLM (UCT) LLM (Harvard) HDip Tax Law (Wits) is an adjunct professor of law at the University of Fort Hare.

August 2014 (4) The South African Law Reports (pp 319 – 636); [2014] 3 The All South African Law Reports July no 1 (pp 1 – 114); and no 2 (pp 115 – 257); 2014 (5) Butterworths Constitutional Law Reports May (pp 511 – 640); 2014 (6) June (pp 641 – 739); and 2014 (8) August (pp 869 – 995)

 

Abbreviations

CC: Constitutional Court

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu Natal Division, Pietermaritzburg

SCA: Supreme Court of Appeal WCC: Western Cape Division, Cape Town

Appeal

An appeal must have practical effect or result: Section 21A(1) of the Supreme Court Act 59 of 1959 (the Act, which has since been repealed by the Superior Courts Act 10 of 2013) provided that if the issues in an appeal were of ‘such a nature that the judgment or order sought would have no practical effect or result, the appeal could be dismissed on that ground alone’. In Absa Bank Ltd v Van Rensburg and Another 2014 (4) SA 626 (SCA) apart from the provisions of the section, there were two other grounds on which the appeal could be dismissed. The appellant, Absa Bank, sued the respondents, Van Rensburg and another, for moneys owing in terms of secured loans. The appellant attached mortgage loans and deeds of suretyship to its simple summons against the respondents but not the underlying credit agreements. Holding that it was necessary to have attached the underlying credit agreements as well, the full Bench of the WCC (Griesel, Fourie and Saldanha JJ) postponed the application for default judgment so that the appellant could amend the papers and attach the credit agreements. The appellant appealed against that order. In the meantime, the matters were settled between the parties, with the result that there was nothing left to appeal against. Nevertheless the appellant persisted with the appeal, contending that as the issue of attachment of a credit agreement was likely to arise frequently, its determination had practical effect or result.

The appeal, which was not opposed by the respondents, was struck off the roll. The SCA, per Maya JA (Shongwe, Saldulker JJA and Mathopo AJA concurring while Leach JA filed a separate concurring judgment), held that the provisions of s 21A(1) set a direct and positive test, namely, whether the judgment or order would have a practical effect or result and not whether it could be of importance in a hypothetical future case. As a result a court would not make determination on issues that were otherwise moot merely because the parties believed that, although the decision or order would have no practical result between them, a practical result could be achieved in other respects. However, the section conferred a discretion on the court. Therefore, depending on the facts of each case, while the parties could have resolved all their differences, a court of appeal could still entertain the merits of the appeal if, for example, important questions of law which were likely to arise frequently were at issue and their determination could benefit others.

In the instant case a determination as to whether a credit agreement had to be attached to a simple summons could be made by the Rules Board for Court of Law, established in terms of the Rules Board for Courts of Law Act 107 of 1985, which had the power to make, amend or repeal the Uniform Rules of Court. Furthermore, the effect of an order postponing the hearing of an application for default judgment in order to give the appellant the opportunity to take further steps to augment its case, was merely a direction from the court as to the manner in which the matter was to proceed before the main action could be entered into. It neither amounted to a refusal of default judgment nor had a direct bearing on or dispose of any of the issues in the main action and was thus not a dismissal of the appellant’s action.

 

Urgent application for appeal against interim order: In South African Informal Traders Forum and Others v City of Johannesburg and Others 2014 (4) SA 371 (CC); 2014 (6) BCLR 726 (CC), the applicants bringing an urgent application for leave to appeal against an interim order were informal traders in the City of Johannesburg, the city, who were joined by two associations representing traders’ interests. The application to the CC was launched after the GJ per Monama J struck an urgent application for interim relief against the city and its functionaries off the roll on the ground that it was not urgent. That meant that the application had to be placed on the ordinary motion roll and would be heard a few months later. The applicants were street vendors who had permission to ply their trade. However, in October 2013 the mayor of the city issued instructions to metro police to remove the applicants from the stalls and confiscate their goods. As a result negotiations followed, agreement was reached and the traders were required to be verified and reregistered, which was done. This notwithstanding, the metro police continued to prevent the traders from carrying on their trade. An application for urgent interim relief against the conduct of the respondents was, as already indicated, struck off the roll for lack of urgency. Hence the present direct appeal to the CC.

The court granted leave to appeal and upheld the appeal itself with costs. Reading a unanimous decision of the court, Moseneke ACJ, held that as a general rule, an urgent appeal to the CC against an interim order would be permitted as a last resort and when it had been shown that the High Court or the SCA did not provide a proper urgent procedure which could result in the relief pursued by an applicant. The question whether a particular interim order was appealable was not novel. The applicable test was whether hearing the appeal served the interests of justice. In making that determination the court had to weigh all relevant circumstances carefully. In the instant case it was in the interests of justice to hear the appeal on an urgent basis. If leave to appeal were not granted the applicants would suffer severe irreparable harm and yet the balance of convenience favoured them. The order sought by the applicants would not anticipate any part of the main proceedings to be determined before the High Court in normal motion proceedings, nor would it prejudice such proceedings. On the contrary, without such an urgent interim order from the CC, damage to the applicants in the interim period would be so severe that their ability to obtain relief from the High Court would substantially be rendered nugatory. The order sought in the instant case was no more than a ‘status quo order’ granted in the interest of justice to prevent what could otherwise be substantial prejudice to the applicants.

Companies

In the absence of a provision to the contrary business rescue plan discharges liability of a surety: In Tuning Fork (Pty) Ltd t/a Balanced Audio v Greeff and Another 2014 (4) SA 521 (WCC); [2014] 3 All SA 500 (WCC), the defendants, Greeff and another, were directors of a certain company for whose debts they stood surety. After the company encountered financial problems it was put under business rescue and a business rescue plan was adopted. The plan provided that concurrent creditors – the plaintiff, Turning Fork being one of them – would receive 28% of their debt in ‘full and final’ settlement. After adoption of the plan, but before its implementation, the plaintiff instituted proceedings against the defendants to recover the part of the debt that could not be recovered from the company and applied for summary judgment. The application for summary judgment was dismissed with costs and the defendant granted leave to defend.

Rogers J held that a deed of suretyship could provide that the claim against the surety would survive a compromise with the principal debtor. The instant case was, however, not one such case as the sureties’ debts had been discharged. If the principal debt was discharged by a compromise with or release of the principal debtor, the surety was released unless the deed of suretyship provided otherwise, which was not the position in the instant case. This general principle also applied to a compromise or release pursuant to a statute, unless such statute provided otherwise.

Accordingly, if a business rescue plan provided for the discharge of the principal debt by way of a release of the principal debtor, and the claim against the surety was not preserved by such stipulations in the plan as would be legally permissible, the surety was discharged. In the instant case the business rescue plan was reasonably to be construed as one by which the company, as principal debtor, had been discharged from its liability to the plaintiff. Since the position of sureties for the company was not addressed in the plan, the defendants, as sureties, had on this construction of the plan been discharged.

Because the obligation of a surety was accessory, the general position was that extinction of the principal obligation extinguished the obligation of the surety. Apart from the obvious case of discharge following payment in full by the principal debtor, the rule found application, for example, where the principal debt was discharged by settlement or was extinguished by prescription. The court emphasised the fact that adoption of a business rescue plan as such did not affect a creditor’s rights against the surety. It all depends on an application of the general principles of the law of suretyship to the actual provisions of the business rescue plan.

 

Security for costs: Section 13 of the repealed Companies Act 61 of 1973 provided that, where a company or other body corporate was the plaintiff in any legal proceedings the court could, at any stage, if it appeared by credible testimony that there was reason to believe that the company or body corporate would be unable to pay the costs of the defendant if it was successful in its defence, require sufficient security to be given for those costs and could stay all proceedings until the security was given. The Companies Act 71 of 2008 does not have similar provisions. Therefore, the question which arises is whether a court can order that security for costs be furnished if the defendant asks for it against a plaintiff company that appears not to be in a position to pay costs if proceedings against the defendant were to founder.

In Boost Sports Africa (Pty) Ltd v South African Breweries Ltd 2014 (4) SA 343 (GP) the plaintiff company, Boost Sports, instituted proceedings against the defendant, South African Breweries, for damages for breach of contract and, in the alternative, for payment of a licence fee. That was after the defendants allegedly used confidential information provided by the plaintiff to exploit an advertising concept known as ‘Fans’ Challenge Sport’ in which fans of a football club would vote for a team to take part in a friendly game and the substitutions to be made. The defendant pleaded that there was no such contract and that the concept did not contain confidential information as it lay in the public domain.

Fairly late in the proceedings, and after the plaintiff had made discovery of the documents it intended using at the trial, the defendant established that the plaintiff was in financial difficulty and would not be able to pay the costs if a costs order were made against it. As a result the defendant applied for an order directing the plaintiff to furnish security for its costs. The plaintiff candidly admitted that it was not in a position to pay the defendant’s costs if it were to lose the case, but contended that in terms of the Companies Act of 2008 there was no obligation on it to furnish security.

Hassim AJ granted with costs, an order requiring the plaintiff to furnish security for the defendant’s legal costs, the form, amount and manner was left to the registrar of the court to determine. The court also ordered a stay of proceedings until such security was provided within 20 days, failing which the defendant was granted leave to apply for the action to be dismissed. The court held that it had unfettered discretion to decide applications for security. Even if the defendant demonstrated that the plaintiff company would not be able to pay an adverse costs order the court had, in the exercise of its discretion, to carry out a balancing exercise, weighing on the one hand the injustice to the plaintiff if it were prevented from pursuing a proper claim by an order for security, and on the other hand, the injustice to the defendant if no security was ordered.

Some of the factors that a court would have regard to when deciding an application for security for costs included questions going to the merits of the claim and the late stage at which the application was made.

The common law did not afford defendants the right to demand security from an incola (resident) plaintiff company. With the repeal of s 13 of the Companies Act, 1973 by the Companies Act, 2008 plaintiff companies were once again immune to a demand for security for costs. The absence of a statutory right did not deprive a defendant of the right to demand security from an incola company where the defendant was brought to court to defend a vexatious or unmeritorious claim. A defendant’s right to claim security stemmed from the court’s inherent jurisdiction to regulate its own process and prevent abuse by discouraging vexatious or unmeritorious claims by ordering a plaintiff to file security. Where litigants were compelled to litigate, whether as plaintiffs or defendants, they should as a matter of fairness and reasonableness be indemnified against the costs of pursuing or defending unsuccessful proceedings. It would neither be just nor equitable for a plaintiff company with doubtful financial strength to litigate with impunity.

Constitutional law

Separation of power between the executive and judiciary: In Capricorn District Municipality and Another v South African National Civic Organisation 2014 (4) SA 335 (SCA), residents of Lebowakgomo Zone A in Limpopo experienced water shortages due to ageing infrastructure and inaccurate water statement accounts. The water pipes were leaking and water meters not functioning properly. It was also alleged that far from taking meter readings, employees of the second appellant, Lepelle-Nkumbi Municipality, were merely making estimation of water consumed and as a result prepared inflated water billing accounts.

This being the position the respondent civic organisation, the South African National Civic Organisation (SANCO), acting on behalf of the residents of Zone A, sought a High Court order mandating the appellants – Capricorn District Municipality and the local municipality, Lepelle-Nkumbi – to repair or replace the water pipes and install new water meters within a period of 12 months. During that period the residents were to pay a flat monthly rate of R 70 per household or business unit, which amount was later to reduce to R 50 per month, irrespective of the amount of water consumed. The GP per Legodi J granted the mandamus sought. An appeal against that order was upheld with costs by the SCA.

Mthiyane DP (Lewis, Bosielo, Petse and Willis JJA concurring) held that in the present matter the first appellant, the district municipality, had commissioned a firm of consulting engineers to conduct a study which would ultimately lead to rehabilitation of the entire reticulation system in the affected area. In doing so, the municipality was performing an executive function and the order of the High Court, which had the effect of fast-tracking the process, offended against the doctrine of separation of powers and the legal framework within which the municipality was working. The measures taken to address the problem of water leakages and shortages occurred in the course of the municipalities’ exercise of its executive powers.

The High Court also erred in respect of the imposition of the flat rates. In terms of s 74(1) and (2) of the Local Government: Municipal Systems Act 32 of 2000 (the Act) a municipality was obliged to adopt and implement a tariff policy on the levying of fees for municipal services, including water, taking into account, among others, that consumers paid for services in proportion to their use of that service and that the tariff had to reflect the costs reasonably associated with the rendering of service, including capital, operating maintenance, administration and replacement costs. It was therefore clear that the High Court order flew in the face of the above provisions of the Act. The orders imposing a flat rate for water consumption were completely out of kilter with the foundational principles of our constitutional order as articulated by the courts and with the applicable legal framework, and were thus not competent.

Consumer credit agreements

Validity of summons issued and served without compliance with s 129(1)(b) of the National Credit Act of 2005: Section 129(1)(b) of the National Credit Act 34 of 2005 (the NCA) provides, among others, that when the consumer is in arrears, the credit provider must give the consumer notice of the default and various measures that may be taken to resolve the default before instituting legal proceedings to enforce payment. Section 130 provides that if proceedings are instituted without compliance with s 129 the court must adjourn the proceedings so that there may be compliance.

In Investec Bank Ltd t/a Investec Private Bank v Ramurunzi 2014 (4) SA 394 (SCA); [2014] 3 All SA 34 (SCA) the appellant, Investec Bank, gave the respondent, Ramurunzi, the required s 129 notice before instituting legal proceedings. The respondent contended that he did not receive the notice as he had changed his address. As a result, the proceedings were adjourned for service of a new s 129 notice. By that time, the period of three years for the running of prescription had lapsed. The issue before the court was whether a summons issued and served before delivery of a s 129 notice was valid and thus interrupted prescription. The WCC held, per Savage AJ, that the summons was not valid and had not interrupted the running of prescription. An appeal against the High Court order was upheld with costs.

The SCA held per Lewis JA (Ponnan, Bosielo, Saldulker JJA and Mocumie AJA concurring) that service of summons on the respondent interrupted the running of prescription. Section 130(4) was unusual as it required a court to pause (adjourn) the proceedings so that the service provider could give the consumer the benefit of notice as to his or her options, a notice that should ordinarily have been given before the summons was issued and served. Thus the proceedings had a life and were not void despite the absence of a s 129 notice. The very fact that a court had to make an order as to how proceedings were to be continued indicated the validity of the summons rather than its nullity. The purpose of s 130(4) was to ensure that even though summons had been served, the consumer was still provided with a s 129 notice so that he or she knew what options were available to resolve the matter before the debt could be enforced.

Divorce

Amount of an accrual claim: Section 4(1)(a) of the Matrimonial Property Act 88 of 1984 (the MPA) provides, among others, that ‘the accrual of the estate of a spouse is the amount by which the net value of his estate at the dissolution of the marriage exceeds the net value of his estate at the commencement of that marriage’. The application of the section was dealt with in MM and Others v JM 2014 (4) SA 384 (KZP) where the plaintiff husband (MM) and the defendant wife (JM) were married to each other out of community of property with the accrual system. When the plaintiff sought a decree of divorce, the defendant made a claim in reconvention in which she claimed for an order directing the plaintiff to pay her an amount equal to 50% of the amount by which the accrual of his estate exceeded that of her estate.

The issue before the court was whether assets in a family trust should be taken into account in the determination of the accrual of the plaintiff’s estate. That was so as both parties were trustees and beneficiaries of the family trust although, over time, the plaintiff took full control of management of the trust and allegedly used it as his alter ego to benefit himself. The plaintiff and other trustees of the trust excepted to the defendant’s claim in reconvention on a number of grounds, but the main one was that the property belonging to the trust could not be taken into account in determining the value of the plaintiff’s accrual.

The main exception was upheld and the defendant granted leave to amend. The other many exceptions having failed, the plaintiff and other trustees were ordered to pay costs. Ploos Van Amstel J held that the defendant’s case was not that the assets ostensibly owned by the trust were in truth the property of the plaintiff or that the trust was a sham. Had the defendant pleaded that the assets of the trust were in truth her husband’s property, then her claim that those assets had to be taken into account in determining the accrual of her estate would have been in order. However, the defendant’s case was that the trust assets should be taken into account in determining the accrual of the plaintiff’s estate as he had the power and ability to use those assets for his sole benefit. The problem was that the amount of an accrual claim was determined on a factual and mathematical basis and not as a matter of discretion. What the spouse’s estate consisted of was a factual inquiry. There was no warrant in the MPA to have regard to assets which did not form part of the estate of a spouse on the basis that it would be just to do so. There was no legal basis for an order that assets which in fact did not form part of the spouse’s estate should be deemed to be part thereof for the purposes of determining the accrual of that estate. If the defendant had averred that the trust assets in truth belonged to the plaintiff, without challenging the validity of the trust, such a claim would not have been excipiable.

Housing

Protection of home consumers against unregistered builders: Section 10(1) of the Housing Consumers Protection Measures Act 95 of 1998 (the Housing Protection Act) provides that –

‘no person shall

(a)      carry on the business of a home builder; or

(b)      receive consideration in terms of any agreement with a housing consumer in respect of the sale or construction of a home, unless that person is a registered home builder’.

The application of the section was dealt with in Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC), where the applicant, Cool Ideas, entered into a contract with the respondent, Hubbard, to build her a house at a cost of some R 2,6 million. The problem was, however, that the applicant was not registered as a home builder as required by s 10(1). Nevertheless, the applicant entered into a subcontract with V corporation, a registered home builder, which duly did the construction of the house and payments were made as work progressed.

In the meantime, the parties entered into an arbitration agreement in terms of which any disputes would be referred to arbitration. After practical completion of the work, the respondent refused to make final payment of R 550 000 citing the quality of elements of the building works as her complaint, and claimed payment of R 1,2 million as the cost of remedial work.

She referred the dispute to arbitration in which she sought payment for contractual damages from the applicant. At that stage the applicant registered as a home builder. The arbitrator found in favour of the applicant and ordered the respondent to pay the outstanding R 550 000. Relying on s 10(1), the respondent refused to comply with the arbitration award, contending that as the applicant had not been registered as a home builder at the time of conclusion of the contract, it was not entitled to payment. The applicant approached the High Court and obtained an order making the arbitration award an order of court so that it could be enforced. The respondent appealed to the SCA which held that, while s 10 did not nullify the contract between the parties, it nevertheless disentitled an unregistered home builder from receiving consideration. In other words, the contract was valid but payment to the home builder in terms thereof could not be enforced.

The CC granted the applicant leave to appeal against the decision of the SCA but dismissed the appeal itself with costs. Reading the main judgment Majiedt AJ (Jafta J concurring in a separate judgment while Froneman J, with Cameron J, Dambuza AJ and Van der Westhuizen J concurred in a dissenting judgment) held that the purpose of the Housing Protection Act was to protect housing consumers. The entire legislative scheme was predicated upon a building contract between a registered home builder and a housing consumer being concluded. The statute was not capable of being construed as permitting after-the-fact registration of a home builder when construction had already commenced or was completed and the home builder sought payment from the housing consumer. The protection was optimally achieved in requiring registration of home builders upfront and not during the course of or at the end of construction. Registration should occur prior to and not during or at the end of construction.

The underlying building contract remained extant in order to render protection to the consumer in respect of what had already been erected and to the home builder for what had already been received. The parties were therefore entitled to retain what had been done or given, as the case might be. No restitution was legally tenable in those circumstances as would have been the case with an invalid agreement. In brief, the underlying building contract remained valid and extant. That was so even though the home builder was in law precluded from seeking consideration for the work done due to its failure to register as a home builder prior to the commencement of the building works.

Local government

Division of powers between provincial and municipal government: Section 44 of the Land Use Planning Ordinance 15 of 1985 (LUPO) of the Western Cape gives municipalities planning powers in the form of, among others, making zoning and subdivision of land-use within their area of jurisdiction. However, an appeal against a decision of the municipality lies with the relevant provincial Minister and not a person or body within the municipality. In Minister of Local Government, Environmental Affairs and Development Planning, Western Cape v Habitat Council and Others 2014 (4) SA 437 (CC), 2014 (5) BCLR 591 (CC), the issue was the constitutionality of s 44. Two cases were consolidated and heard together.

In the first case a certain company, Gordonia Properties, sought approval from the City of Cape Town (the city) to develop a residential estate. When the city failed to respond timeously the developer appealed to the applicant Minister of Local Government, Environmental Affairs and Development Planning who upheld the appeal and gave the company permission to rezone and subdivide the property in terms of LUPO.

In the second case, a trust, Gera Investment Trust, sought to redevelop a building of historical significance in the city centre of Cape Town. Special consent is required to redevelop historical building, and faced with objections from the respondent, Habitat Council, a non-profit organisation, the city refused the special consent. An appeal to the Minister was upheld and the trust given the required special consent. As a result the city instituted High Court proceedings for an order declaring s 44 unconstitutional and invalid. The order was granted by the WCC which held that the order did not have retrospective effect and was suspended for a period of 24 months. The court also followed the reading-in approach, this having the result that in some instances the Minister still retained appellate power so as to supervise planning activities of municipalities.

The order of invalidity, and its non-retrospectivity, was confirmed by the CC. However, the court declined to confirm the reading-in approach as doing so would have given the Minister appellate powers over decisions of municipalities. No order was made as to costs.

Reading a unanimous decision of the court, Cameron J held that s 44 could not withstand constitutional scrutiny as the provincial appellate capability impermissibly usurp­ed the power of local authorities to manage municipal planning and intruded on the autonomous sphere of authority which the Constitution accorded municipalities. It also failed to recognise the distinctiveness of the municipal sphere. Municipalities were responsible for zoning and subdivision decisions while provinces were not. All municipal planning decisions that encompassed zoning and subdivision, no matter how big, lay within the competence of municipalities. The constitutional scheme did not envisage the province employing appellate power over municipalities’ exercise of their planning functions. That was so even where the zoning, subdivision or land-use permission had province-wide implications.

Trusts

Piercing the trust veneer where a trust is a sham or is used as an alter ego: In Van Zyl and Another NNO v Kaye NO and Others 2014 (4) SA 452 (WCC), Kaye (K) was a trustee of the JGN Trust, and a sole director of a company known as Bella Densel. After sequestration of K’s estate, the provisional trustees approached the High Court for an order declaring that the property of the trust and that of the company should fall into his insolvent estate. That was to be so as it was alleged that K had used the trust as his alter ego and that the trust was a sham. The application was dismissed with costs.

Binns-Ward J held that establishing that a trust was a ‘sham’ and ‘going behind the trust form’ entailed fundamentally different undertakings. The expressions ‘alter ego trust’ and ‘sham trust’ were often used interchangeably and with confusing effect. When a trust was a sham, it did not exist and there was nothing to ‘go behind’. In the instant case the applicants had confused and conflated the concepts in their founding papers. Maladministration of an asset validly vested in a properly founded trust did not afford a legally cognisable basis to contend that the trust did not exist, or that the asset no longer vested in the duly appointed trustees. Thus, for the applicants to be able to establish that the property did not vest in the trust they had to prove that the trust was a sham. Holding that a trust was a sham was essentially a finding of fact. Inherent in any determination that a trust was a sham had to be a finding that the requirements for the establishment of a trust were not met, or that the appearance of having met them was in reality a dissimulation. In the present case there was no reason to hold that the trust had not been legitimately founded or that the property had not been validly vested in it.

Going behind the form, on the other hand, entailed accepting that the trust existed but disregarding for given purposes the ordinary consequences of its existence. That could entail holding the trustees personally liable for an obligation ostensibly undertaken in their capacity as trustees, or holding the trust bound to transactions ostensibly undertaken by the trustees acting outside the limits of their authority or legal capacity. Going behind the trust form or ‘piercing its veneer’, as the concept is sometimes described, essentially represented the provision by a court of an equitable remedy to a third party affected by an unconscionable abuse of the trust form. It is a remedy that would be afforded in suitable or appropriate cases. It is an equitable remedy in the ordinary sense, being one that lent itself to a flexible approach to address fairly and justly the consequences of an unconscionable abuse of the trust form in given circumstances. It is a remedy that would generally be given when the trust form was used in a dishonest or unconscionable manner to evade liability or avoid an obligation.

Unlawful occupation of land

Direct and substantial interest in eviction proceedings: In Zulu and Others v eThekwini Municipality and Others 2014 (4) SA 590 (CC); 2014 (8) BCLR 971 (CC), the third respondent, the MEC for Human Settlement and Public Works in KwaZulu-Natal – being the owner of the affected property – sought a court order against the first respondent, the eThekwini Municipality (Durban municipality) and the second respondent, the Minister of Police. The appellants, Zulu and others, were unlawful occupiers of the property and accordingly sought leave to intervene in the proceedings. Leave was denied by the KZD per Kruger J after which the MEC was granted the order which prevented invasion of the property and also authorised eviction of unlawful occupiers.

Application for leave to appeal against denial of intervention was rejected by the High Court. So was a petition for leave to appeal rejected by the SCA. However, the CC upheld the appeal with costs and granted the appellants leave to intervene. The order of Kruger J having been an interim interdict, the appellants were accordingly in a position to be heard on its return day.

The argument of the respondents was that, as the appellants were already in occupation of the property, they could not be affected by the interdict which was aimed at new land invasion. However, that was only a trick as a day after the hearing of the CC appeal and before judgment was delivered, the first respondent started the eviction of established unlawful occupiers in terms of an order that she had assured did not apply to them.

The majority of the CC held per Zondo J (Van der Westhuizen J, with whom Froneman J concurred, dissenting) that the interim order granted by the High Court authorised the first respondent municipality and the second respondent to take all reasonable steps to prevent any person from, among others, occupying the property. There was nothing in the order to suggest that the occupation of the property that was to be prevented did not include continuing occupation that commenced prior to the grant of the order. Indeed, the order was wide enough to include the prevention of continuation of such occupation. That meant that in terms of that part of the order the appellants could be prevented from continuing to occupy the property. Preventing the appellants from continuing to occupy the property would amount to eviction because they would be precluded from either returning to their homes after a temporary absence or they would be removed from their homes to prevent them from continuing to occupy the property. This meant that, to that extent, part of the interim order was an eviction order. Therefore, the appellants had a direct and substantial interest in the interim order proceedings and in its discharge, and should accordingly have been granted leave to intervene.

Other cases

Apart from the cases and material dealt with or referred to above the material under review also contained cases dealing with appealability of court order, co-existence of civil, criminal and administrative liability in financial services sector, consumer credit agreement, customs and excise, legal professional privilege, procedure for passage of Bill, proceedings by liquidator, prohibition of use of confession of accused against co-accused, proof of customary marriage, referral of dispute of fact to hearing of oral evidence in motion proceedings, registration of credit provider, reviewing and setting aside of regulations made by the Independent Communications Authority of South Africa, right to basic education, right to fair trial, setting aside of administrative action, simulated contract, unconscionability, undue influence or duress relating to contract and voidable disposition.

This article was first published in De Rebus in 2014 (Oct) DR 43.