January [2025] 1 All South African Law Reports (pp 299 – 596); February [2025] 1 All South African Law Reports (pp 1 – 298)| This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports, the South African Criminal Law Reports and the Butterworths Constitutional Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor. |
ECG: Eastern Cape High Court, Makhanda (Grahamstown)
FB: Free State Division, Bloemfontein
GJ: Gauteng Division, Johannesburg
GP: Gauteng Division, Pretoria
NWM: North West Division, Mahikeng
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Shared residency arrangements: In three unopposed divorce cases, the court was tasked with addressing the issue of joint or shared residency arrangements agreed on by the parties. In PB VZ v L VZ and related matters [2025] 1 All SA 265 (GP), the legal question centred on whether the Children’s Act 38 of 2005 mandates joint decision-making for child-related decisions. The court clarified that the Act does not require joint decision-making except in specific circumstances. According to s 30, co-holders of parental rights and responsibilities can act independently unless restricted by the Act, another law, or a court order. Section 31 emphasises considering the views of the other co-holder and the child before making major decisions affecting the child, but it does not mandate joint decision-making. The court noted that shared parenting does not necessitate equal time with the child, nor is shared residency the default when both parents have full parental rights. Furthermore, an agreement on shared residency or any related matters is not automatically in the child’s best interests simply because the parents have agreed and implemented it. In these cases, the particulars of claim merely stated that the parties had a settlement agreement attached to the summons, without providing facts to support the relief sought. The evidence affidavits, required by the Practice Directive for unopposed divorces in the Gauteng Division, lacked detail about the child arrangements and were inconsistent with oral evidence and information from the Family Advocate, the children, and their schools. Section 6 of the Divorce Act 70 of 1979 requires the court to ensure that a divorce agreement serves the best interests of a minor or dependent child, particularly regarding residency, contact, and maintenance. The court must assess each case on its merits and not simply approve agreements because the parents have reached them. In these cases, the affidavits provided minimal detail to meet the requirements of the Divorce Act and the Practice Directive. Consequently, the court granted a divorce decree and maintenance order in one case but postponed the other two for further investigation to determine the children’s best interests.
Entitlement of credit provider to judgment against consumers: In 2013, the applicant in Land and Agricultural Development Bank of South Africa v Ntsekwa and Another [2025] 1 All SA 395 (ECG) extended a loan of R1 620 000 to the respondents, with the agreement stipulating repayment in 16 annual instalments. A default clause allowed the applicant to demand full repayment and initiate proceedings to declare mortgaged properties executable if the respondents defaulted. The respondents fell into arrears, prompting the applicant to seek a court judgment and an order for the properties to be declared executable. The respondents opposed, claiming they had settled their arrears. The legal issue centred on whether the respondents’ additional payments remedied their default. Under s 129(3) of the National Credit Act 34 of 2005, a consumer can remedy a default by paying overdue amounts and associated costs before the credit provider cancels the agreement. The respondents paid nearly double the overdue amount, effectively remedying the default and reinstating the credit agreement by law. The applicant’s legal costs were not yet quantified or demanded separately, so they were not due when the default was remedied. The court also examined whether the proceedings were justified. Legal action requires a s 129(1) notice to be given to the consumer, which the applicant failed to prove was received by the respondents. This omission invalidated the proceedings, as the notice is a prerequisite for legal action. Additionally, the applicant was not entitled to an order for property executability, as r 46A requires evidence of insufficient movable property before declaring immovable property executable. Consequently, the court dismissed the application with costs, emphasising the necessity of compliance with statutory notice requirements and procedural rules.
Breach of contract due to supervening impossibility of performance: In a contractual dispute, the appellant in Maher v Avianto Pty Ltd [2025] 1 All SA 410 (GJ) had agreed to lease a venue from the respondent for her wedding, scheduled for 28 March 2020, at a cost of R 63 000, which was paid in full. However, two days before the wedding, South Africa entered a nationwide lockdown due to the COVID-
19 pandemic, preventing the event from taking place. The contract stipulated that a postponement by the appellant would be considered a cancellation, while a cancellation by the respondent for reasons not attributable to the appellant would result in a full refund. The appellant argued that the event was cancelled due to a force majeure event, the lockdown, and sought a refund, which the respondent refused, leading to a court case. The court a quo ruled that the postponement due to force majeure did not entitle the appellant to a refund, dismissing her claim of unjust enrichment. On appeal, it was determined that the lower court had erred in applying the law. The appeal court noted that while non-performance typically constitutes a breach of contract, extraordinary events beyond the parties’ control, such as a government-imposed lockdown, can invoke the doctrine of supervening impossibility. This doctrine, under South African common law, extinguishes contractual obligations when performance becomes objectively impossible due to unforeseen and unavoidable events. The court found that the respondent’s inability to provide the venue was due to the government’s lockdown, not the virus itself, constituting supervening impossibility rather than force majeure. As the contract was reciprocal, with payment made for the venue’s use, the impossibility of providing the venue nullified the contract. The requirements for unjust enrichment were met, and the court ordered the respondent to refund the appellant’s payment.
Unlawful arrest and detention: The plaintiff in Boysa v Minister of Police [2025] 1 All SA 140 (NWM) was arrested on 20 July 2020 by the South African Police Service (SAPS) and detained at a police station. He subsequently filed a lawsuit against the Minister of Police, seeking damages for his unlawful arrest and detention. The parties agreed that the defendant was fully liable for all damages resulting from the plaintiff’s unlawful arrest and detention. The court’s task was to determine the amount of general damages owed to the plaintiff. The case highlighted several constitutional rights violations. Section 10 of the Constitution guarantees the right to human dignity, while s 12 ensures freedom and security of the person. Section 35(2)(e) further protects the dignity of detained individuals. The plaintiff was arrested on suspicion of arson, a charge he was unaware of, and his requests for information were ignored by the police. The arrest occurred publicly, in front of his family, friends, and neighbours. During the first five hours and 30 minutes of detention, the plaintiff was held in a small cell without beds, chairs, or a toilet, forcing detainees to urinate on the floor. He was then moved to a larger, overcrowded cell with approximately 30 detainees, where lying down was impossible due to congestion. The plaintiff lacked blankets in the cold and was unable to contact a legal representative, as police informed detainees they could only do so at their first court appearance. The plaintiff was never taken to court and was released without explanation, missing the birth of his son due to the detention. The court, considering similar cases, awarded the plaintiff R95 000 plus interest for his unlawful arrest and detention. The defendant was also ordered to cover the plaintiff’s legal costs.
Can a cross-appeal be entertained in the absence of leave to appeal having been granted? In Minister of Police v Nontsele [2025] 1 All SA 44 (SCA) the State conceded a lack of prima facie evidence after presenting its witnesses on the respondent’s acquittal on a rape charge. The respondent, arrested on 8 December 2013 and detained for 527 days, subsequently sued the Minister and the National Director of Public Prosecutions for wrongful arrest, detention, and malicious prosecution. The High Court partially upheld the claim, dismissing the allegations of unlawful arrest and malicious prosecution but ruling the detention unlawful from the bail refusal date to the release date, awarding R1,6 million in damages. The Minister sought leave to appeal, which the High Court denied, but the present court granted on petition. The respondent filed a cross-appeal on 27 August 2022 against the High Court’s findings on unlawful arrest and malicious prosecution, despite not seeking leave to cross-appeal. The present court faced two questions: whether a cross-appeal could proceed without granted leave and whether the High Court correctly deemed the detention unlawful from the bail refusal date. Under ss 16(1) and 17(2)(a) of the Superior Courts Act 10 of 2013, leave to appeal is required before an appeal, and without it, the court lacked jurisdiction to consider the cross-appeal. The court then focused on the lawfulness of the respondent’s detention. While agreeing on wrongful and unlawful detention principles, the majority opinion diverged from the minority, noting the respondent’s claim was not about unlawful extended detention due to a legal duty breach but rather malicious opposition to bail, allegedly driven by improper motives and a conspiracy between police and prosecutor. Malicious deprivation of liberty involves unjustifiable lawful restraint with intent to harm and improper motive. The respondent needed to prove collusion and lack of reasonable cause in opposing bail, which was not evidenced. Consequently, the cross-appeal was struck from the roll with costs, and the appeal was upheld.
Late registration of marriage: The applicant in Kgalema v Department of Home Affairs and Others [2025] 1 All SA 234 (GP) sought legal recognition of his alleged customary marriage to the deceased, the daughter of the third respondent, and requested the late registration of this marriage under the Recognition of Customary Marriages Act 120 of 1998. He also sought a marriage certificate and primary care and residence of their minor children. The third respondent opposed the application, denying the existence of the marriage and arguing that the applicant had not exhausted the internal remedy provided by s 4(5)(a) of the Act, which requires an application to the registering officer before court proceedings. The Recognition of Customary Marriages Act, effective from 15 November 2000, governs the recognition, requirements, and registration of customary marriages. Section 4(9) states that failure to register a customary marriage does not affect its validity. The court found that s 4(5)(a) allows individuals with a sufficient interest to apply to the registering officer to verify a marriage’s existence but does not mandate this step before seeking court intervention. Non-compliance with s 4(5)(a) does not invalidate legal proceedings for marriage registration. The third respondent’s challenge on the marriage’s existence required a factual inquiry, which the court addressed. The court dismissed the preliminary objection, noting that the applicant’s failure to apply to the registering officer was not a barrier to the current application. The third respondent’s denial of the marriage led to a claimed material dispute of fact. However, under the Plascon-Evans principle, the court found no genuine dispute of fact, as the applicant’s version was not contradicted by a credible alternative. The court concluded that a valid customary marriage existed between the applicant and the deceased, granting the relief sought.
Application for removal of executor: In Börner v Brand and Another [2025] 1 All SA 102 (WCC) following the death of her husband in January 2024, the applicant sought to remove the first respondent, the executor of the deceased’s estate, under s 54(1)(a)(v) of the Administration of Estates Act 66 of 1965. The applicant also requested that the respondent be barred from receiving remuneration for his services as executor, that a new executor be appointed, and that costs be awarded on an attorney-client scale. The deceased, who owned properties in Germany and South Africa, was married to the applicant in community of property. His will instructed the respondent to resist any claims by the applicant against his assets. The applicant accused the respondent of alienating joint estate property without her consent and displaying bias, arguing that his status as a beneficiary disqualified him from serving as executor. The respondent denied any conflict of interest. The court noted that assets acquired before and during a marriage in community of property form an indivisible joint estate. On a spouse’s death, the entire joint estate is administered by the deceased’s executor. Section 15(2) of the Matrimonial Property Act 88 of 1984 prohibits the alienation of certain joint estate assets without the other spouse’s written consent. An executor must administer the estate legally and in good faith, with a fiduciary duty to the surviving spouse, who is an automatic heir to half of the joint estate after debts are settled. Section 54 of the Act allows for the removal of an executor if their private interests conflict with the estate’s interests. The court found that the respondent’s removal was justified due to potential conflicts of interest and limited his remuneration. The decision underscores the fiduciary responsibilities of executors and the conditions under which they may be removed.
The case discusses that an executor may be removed from office if his private interests conflict with those of the estate, as this can lead to prejudice against the beneficiaries. An executor should not derive any personal benefits from how he conducts the business or manages the estate’s assets. The executor’s actions are expected to be scrutinised to ensure that they do not adversely affect the welfare of the estate or the legal interests of the beneficiaries. The court finds that the respondent’s actions, which include overvaluing assets and declaring the estate insolvent, affect the welfare of the estate and the legal interest of the applicant, indicating a conflict of interest and potential prejudice to the beneficiaries.
Bequest of property by testator to sons, subject to special bequest of usufruct in favour of wife: In Hart v Hart and Others [2025] 1 All SA 373 (WCC) the applicant’s husband, the testator, passed away in September 2013, leaving a will that nominated the first and fourth respondents as executors of his estate. The will bequeathed the entire estate to four respondents in equal shares, with a special bequest of usufruct in favour of the applicant. This allowed the applicant to dispose of any assets and reinvest the proceeds with the executors’ approval, which should not be unreasonably withheld, prioritising the applicant’s comfort and well-being. At 78, the applicant found managing the guesthouse challenging and decided to sell the property to fund her living expenses. The respondents opposed the sale, arguing that the applicant misinterpreted the will, which they believed intended to vest the estate in the testator’s four sons. The applicant sought court intervention to enforce the will’s special bequest, asserting her right to sell the property at a market-related price despite the respondents being the registered owners. The court’s decision hinged on interpreting the testator’s will, focusing on the cardinal principle of ascertaining the testator’s true intention as expressed in the will. The court applied the armchair evidence rule, considering the material facts and circumstances known to the testator when drafting the will. The will’s terms were clear and unambiguous, with the dominant clause bequeathing the estate to the four respondents. However, the testator’s intention was to grant the applicant an absolute right to dispose of the property, restrained only by the usufruct. The respondents’ insistence on reinvesting the proceeds solely in immovable property was deemed unreasonable. Consequently, the court granted the declaratory relief requested by the applicant, affirming her right to sell the property.
Rights over gravesite: The respondent and her late husband in Johannesburg City Parks & Zoo and Another v Zwane [2025] 1 All SA 388 (GJ) were married in community of property in 1993. They stopped cohabiting in 2011, and a default divorce decree obtained by the deceased in 2013 was later set aside. The deceased was killed in 2019, and despite their marriage still being valid, his family wrongly believed they were divorced and excluded the respondent from burial arrangements. The respondent chose and paid for the gravesite, but the deceased’s sister handled the funeral arrangements. When the respondent, now the executrix of the deceased’s estate, wanted to erect a tombstone, cemetery officials told her she needed the sister’s permission. The respondent sought urgent court relief, which ordered the appellants to recognise her rights to the gravesite, prompting the current appeal. The court held that the right to bury, and by extension, the right to erect a tombstone, falls to the heirs in the absence of specific instructions from the deceased. As the intestate heir and executrix, the respondent had chosen and paid for the gravesite. The appellants’ argument that the respondent should have sought judicial review was dismissed, as informing her of the need for permission did not constitute administrative action. Ownership of the burial site was also addressed. The relevant by-law clearly stated that paying the prescribed burial fees conferred private rights over the grave, which the respondent had done. Additionally, her marriage in community of property granted her ownership of the grave’s contents, a common law right that could not be overridden by a municipal by-law. The court criticised the City’s inflexible approach and dismissed the appeal, affirming the respondent’s rights.
Injury to member of public caused by actions of police: In Gunter v Minister of Police [2025] 1 All SA 352 (FB), the plaintiff accused the Minister of Police of liability after a South African Police Service (SAPS) officer allegedly threw a stun grenade at him and others without justification, resulting in the plaintiff suffering permanent hearing loss. The plaintiff sought compensation for general damages, loss of life amenities, disability, and medical expenses. The Minister denied any breach of duty of care, arguing that the stun grenades were used to disperse an unlawful crowd, thus justifying the police’s actions. The court held that any infringement of bodily integrity is prima facie unlawful, placing the burden on the defendant to justify such actions. The plaintiff needed to prove the physical interference, which he did by demonstrating that the stun grenade’s detonation caused his hearing loss. The State has a constitutional duty to protect individuals from violence, and failure to do so can result in liability. The Minister was required to prove that the police’s actions were justified. The court examined the reasonableness of the SAPS member’s conduct and whether the Minister should be held liable. The determination of wrongfulness involved assessing the objective reasonableness of the conduct and whether a legal duty was breached, referencing the community’s general legal convictions. The Minister acknowledged SAPS’s duty to prevent public injury but claimed the actions were justified by necessity. However, the plaintiff’s and defendant’s accounts were conflicting. The court had to evaluate witness credibility, reliability, and the probability of each version. The Minister’s failure to present the SAPS member or operational commander as witnesses led to an adverse inference. Ultimately, the court found the SAPS’s conduct wrongful and unreasonable. The Minister did not prove the police officer’s actions were justified. The plaintiff’s claims succeeded, and the court ordered the Minister to pay R757 561 in damages.
Assessment by tribunal of Health Professions Council to determine seriousness of injury: In Coughlan NO v Health Professions Council of South Africa and Others [2025] 1 All SA 20 (SCA) legal dispute involving Mr Daniels, who sustained injuries in a hit-and-run accident, the appellant, acting as curator, sought damages from the Road Accident Fund (RAF) under s 17(1)(b) of the Road Accident Fund Act 56 of 1996. The claim included compensation for general damages, contingent on the injuries being classified as serious, requiring a whole person impairment (WPI) rating above 30%. A psychiatrist assessed Mr Daniels with a WPI of 35%, but the RAF’s neurosurgeon concluded that Mr Daniels did not suffer a brain injury from the accident, attributing his severe psychotic episodes to substance abuse. Disputing this, the appellant obtained a report from a clinical psychologist, asserting that the accident triggered Mr Daniels’ psychotic disorder, not his pre-accident drug use. The appellant challenged the tribunal’s decision, which was based on the neurosurgeon’s report, arguing that the tribunal improperly focused on causality rather than the seriousness of the injury. The High Court dismissed the review application, supporting the tribunal’s decision as evidence-based and within its authority. However, the tribunal’s role is limited to assessing injury severity, not causality, which is a judicial matter. Despite psychiatric experts deeming Mr Daniels’ injury serious, the tribunal relied on the neurosurgeon’s causality-focused report, exceeding its authority. The tribunal’s composition, mandated by a court order, lacked compliance, as psychiatric experts were not appointed. The tribunal’s decision, influenced by a misunderstanding of its powers, improperly investigated the causal link between the accident and Mr Daniels’ psychosis, overstepping its jurisdiction. The High Court failed to address whether the tribunal’s decision to classify the injury as non-serious was correct, leaving unresolved issues. Consequently, the appeal was upheld, as the tribunal’s conclusion was ultra vires and unsustainable.
Assessment of damages in respect of loss of earnings: In 2016, the plaintiff in Phephetho v Road Accident Fund [2025] 1 All SA 458 (NWM), a pedestrian, was struck by a vehicle, resulting in a negligence determination of 80/20% in his favour. The court was tasked with assessing his claims for general damages, loss of earnings, and past medical expenses. The defendant offered an undertaking under s 17(4)(a) of the Road Accident Fund Act 56 of 1996 for future medical expenses and acknowledged the seriousness of the plaintiff’s injuries under s 17(1)(a) and (b) of the Act. The evidence presented highlighted the plaintiff’s extensive medical interventions and impairments post-accident. A key claim was a head injury with alleged loss of consciousness until the next day. However, hospital records showed the plaintiff was conscious and oriented two hours post-admission, focusing primarily on orthopaedic injuries rather than a head injury. The court questioned the absence of a trust for the plaintiff’s funds, given his alleged head injury, and his refusal to consent to such a trust raised doubts about the injury’s severity. Consequently, the court concluded the plaintiff retained a residual earning capacity of approximately 40%. Regarding loss of earnings, the court considered the plaintiff’s injuries, age, and medical boarding, determining his competitiveness in the labour market was significantly impaired. The accident severely limited his future employment prospects, rendering him unemployable in the open market and resulting in a total loss of income. The court’s approach, aligned with case law, required compensation for the difference in the plaintiff’s estate value post-delict versus pre-delict. The court assessed the plaintiff’s past loss of earnings at R1 389 011 and future loss at R1 837 057,80.
Role of parenting co-ordinator: In Kalipershad v Kalipershad [2025] 1 All SA 226 (GJ), a contentious divorce case involving ongoing litigation, the parties were primarily concerned with the custody and care of their five-year-old child. The applicant filed a motion under r 43(6), arguing that the appointed parenting coordinator had improperly reduced his contact with the child, allowed directives to lapse, and failed to issue new directives or reports as promised since 31 May 2024. The applicant claimed the parenting coordinator was not fulfilling her duties and that her services were no longer necessary. He sought to have the child’s contact regulated by an earlier directive, which allowed equal time with each parent. The court examined the evidence, noting a pattern where the applicant reacted negatively whenever experts or coordinators made decisions contrary to his views or his goal of shared residence. The role of a parenting coordinator is crucial, and while their authority is limited by agreements, court orders, and case law, they must act in the child’s best interests without succumbing to parental pressure. If parties are dissatisfied with a coordinator, they can request the court for their removal but must provide substantial factual reasons. Mere disagreement is insufficient for removal. Due to the breakdown in the relationship between the applicant and the current parenting coordinator, the parties agreed on a new coordinator. The court issued an order establishing checks and balances to ensure the new coordinator could perform her duties without threats or interference. The order also addressed related issues pending the divorce proceedings.
Apart from the cases and material dealt with above, the material under review also contained cases dealing with –
Merilyn Rowena Kader LLB (Unisa) is a Legal Editor at LexisNexis in Durban.
This article was first published in De Rebus in 2025 (April) DR 26.
