The Law Reports – May 2024

May 1st, 2024

March 2024 (2) South African Law Reports (pp 1–328); March 2024 (1) South African Criminal Law Reports (pp 227–334)

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.


CC: Constitutional Court
EqC: Equality Court
FB: Free State Division, Bloemfontein
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
LP: Limpopo High Court, Thohoyandou
SCA: Supreme Court of Appeal
TC: Tax Court

Criminal law

Prisoners’ right to study: The constitutionality of the no-computer policy: Recently, the Acting Commissioner of Correctional Services imposed a blanket policy forbidding prison inmates from using personal computers in their cells to study. In a review application, the GJ found that the policy was not only in conflict with the respondent prisoner’s right to further education under s 29(1)(b) of the Constitution, but also constituted unfair discrimination against him. The GJ consequently made an order directing that the respondent was entitled to use his personal computer in his cell, but without a modem, and subject to certain conditions. Because of the general nature of the policy and various security concerns, the appellants contested the GJ’s findings in an appeal to the SCA, which was reported as Minister of Justice and Correctional Services and Others v Ntuli 2024 (1) SACR 227 (SCA).

The respondent was serving a 20-year prison sentence. He had privately acquired a laptop and enrolled in a course in computer studies with a focus on data-processing. This required him to use his personal computer in his cell, to which he was confined for 17 hours a day.

The SCA (per Unterhalter AJA) set aside that part of GJ’s order that declared the policy to be unfair discrimination on the ground that the judge in the GJ had not been designated as a presiding officer of the EqC, and had, therefore, lacked jurisdiction to entertain the unfair discrimination claim. As to the remainder of the order, the SCA agreed with the GJ that the no-computer policy was invalid in that it breached the respondent’s right to further education. The respondent was entitled to pursue his chosen course of study, and this entailed being able to use his time in prison to study and to do so effectively, that is, by using a personal computer. The SCA, while acknowledging the need to maintain security in prisons, noted that the precise risk emanating from computer usage had been left unclear. The SCA accordingly made an order that allowed prisoners to use their computers for study while the appellants reformulated the impugned policy.


The duty of legal representatives in criminal cases to concede the merits: The legal representative of the appellants in S v Dzingarai and Others 2024 (1) SACR 327 (FB) informed the FB, when asked to advance her submissions in an appeal against her clients’ convictions for robbery with aggravating circumstances, that she could not, as an officer of the court, advance any meaningful arguments on their behalf.

The FB (per Zietsman AJ) felt it necessary, notwithstanding the merits of the matter, to address the delicate balance between a legal practitioner’s duty to the court and to his client. They had to be impartial administrators of justice and fearless representatives of their clients, whether in the light of public hostility or hostility from the Bench. The FB ruled that there was no duty on legal representatives to concede the merits of their client’s case as an incident of their duty to the court. The FB pointed out that it might well be that the legal representative was unable to provide a meaningful argument for their client because the facts or law were stacked against him or her. But even in such a case, there was no duty to make concessions, provided the court was not deceived regarding the facts or the law.

Other criminal cases

Apart from the cases referred to above, March 2024 Criminal Reports also contained cases dealing with

  • appeals generally;
  • forfeiture orders; and
  • measure of damages.

The constitutionality of the redistribution remedy of s 7(3) of the Divorce Act: The matter cited EB v ER NO and Others and a Similar Matter 2024 (2) SA 1 (CC) – which comprised two separate cases in which the CC was approached to confirm declarations of constitutional invalidity made by the GP – concerned the constitutionality of s 7(3) of the Divorce Act 70 of 1979. Section 7(3) states that a divorce court could, if the divorcing spouses that were married out of community of property in terms of an antenuptial contract (ANC) and the divorce was instituted before the commencement of the Matrimonial Property Act 88 of 1984 (the MPA), make a ‘redistribution order’ transferring the assets of one spouse to the other. The MPA made all ANC marriages entered into after its commencement subject to the accrual system by default, while giving spouses in ANC marriages entered into before its commencement an opportunity (in a two-year window) to also adopt the accrual regime.

The GP’s order in the first case, EB (Born S) v ER (Born B) NO and Others (case no CCT 364/21), declared s 7(3) unconstitutional to the extent that it failed to make the redistribution remedy available where marriages were terminated by death as opposed to divorce. The order was sought by one Ms B, who sought a redistribution order in divorce proceedings against her husband, who had died before close of pleadings. The first respondent was Mrs R, the sole beneficiary of the deceased husband’s estate and its executor. The second respondent was the Minister of Justice and Correctional Services.

The GP’s order in the second case, KG v Minister of Home Affairs and Others (case no CCT 158/22), declared s 7(3)(a) unconstitutional because it made the redistribution remedy available only in the case of ANC marriages entered into before the commencement of the MPA. The applicant, Ms KG, had sought a redistribution against her husband, the third respondent, but the marriage was entered into after the commencement of the MPA. The first respondent was the Minister of Home Affairs and the second respondent, the Minister of Justice and Constitutional Development. The Commission for Gender Equality (CGE) was admitted as an amicus and supported the order of invalidity. The Gauteng Attorneys Association (GAA) was also admitted as amicus but did not support the relief.

The CC, in a unanimous judgment penned by Rogers J, upheld both the GP’s invalidity orders.

In EB (Born S) v ER (Born B) NO and Others, the CC held that the differentiation in s 7(3) between spouses married in terms of an ANC before 1 November 1984 whose marriages were dissolved by divorce – to whom the redistribution remedy was available – and those married in terms of an ANC whose marriages were dissolved by death – served no legitimate government purpose. By introducing the redistribution remedy, Parliament had wanted to improve the plight of spouses to pre-MPA ANC marriages who had not adopted the accrual regime during the window-period and who would be left without recognition for their contributions to the increase in the estate of the other spouse. But this hardship could arise regardless of the way in which the marriage was dissolved. The CC accordingly held that s 7(3) violated s 9(1) of the Constitution and that the violation could, moreover, not be justified under s 36 of the Constitution. The CC, therefore, declared 7(3) to be unconstitutional and invalid. It suspended the order to allow Parliament time to cure the defects, with an appropriate reading-in to apply in the meantime.

In KG v Minister of Home Affairs and Others the CC held that s 7(3), in differentiating between, on the one hand, spouses in ANC marriages entered into after the commencement of the MPAto whom the redistribution remedy was not made available and, on the other hand, spouses in ANC marriages entered into before the commencement of the MPA to whom the remedy was available discriminated against spouses on the grounds of gender. While the discrimination was indirect, it was a reality that in South Africa, where women tended to be poorer than men and often financially dependent on their husbands, it was more often women than men who were prejudiced by the absence of a redistribution remedy. The discrimination was, moreover, patently unfair. The provisions in question, therefore, violated
s 9(3) of Constitution without justification in terms of s 36. The CC accordingly declared para (a) of s 7(3) of the Divorce Act unconstitutional and invalid. The CC suspended the order to allow Parliament time to cure the defects, with an appropriate reading-in to apply in the meantime.


CC rules that 1 000 signatures sufficient for independent candidates to contest elections: In 2020, the CC declared part of the Electoral Act 73 of 1998 unconstitutional for not allowing independent candidates to stand for election. The CC suspended its declaration of invalidity to allow Parliament time to rectify the defect. In February 2023, Parliament came up with an amendment (the Electoral Amendment Act 1 of 2023) that, inter alia, allowed independent candidates to stand for election if they obtained signatures equal to 15% of the votes that were required for a National Assembly seat in the last election. So, if 100 000 votes had been enough to obtain a seat in the region the candidate intended contesting, he or she would have to get 15 000 signatures from locals to stand there in the forthcoming election.

In an application for direct access to the CC – reported as One Movement SA NPC v President of the Republic of South Africa and Others 2024 (2) SA 148 (CC) – the applicant (OSA), a non-profit organisation, argued that the 15% threshold was excessive – it would  require independent candidates to collect anywhere from 10 000 to 14 000 signatures, thereby limiting the fundamental rights to make political choices, to stand for public office and to freedom of association. OSA argued instead for a 1 000-signature threshold, which it justified on various grounds.

The respondents (the President, the Minister of Home Affairs, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, and the Independent Electoral Commission) contended that the 15% threshold was set with the legitimate government purposes of discouraging frivolous candidates and ensuring that candidates had a reasonable chance of success. They argued that the threshold was fair, reasonable, and constitutionally compliant.

A majority of the CC (per Kollapen J) agreed with OSA’s challenge to the threshold, pointing out that the advances achieved under the political-rights provisions of s 19 of the Constitution would be eroded if Parliament were allowed to put up unreasonable barriers to contestation.

Kollapen J found that the 15% threshold went beyond mere regulation, creating a barrier to contestation that intentionally limited not only the right to stand for public office, but all three the implicated rights. The burden it placed on presumptive candidates would require immense time and energy to overcome.

Kollapen J pointed out that the above finding meant that OSA did not have to comply with the second-stage requirement of showing that the limiting provision could be complied with via the reasonable steps alluded to in Zondo CJ’s dissent.

In performing the ensuing justification analysis required under s 36(1) of the Constitution, Kollapen J concluded that the 15% threshold was not only an unjustified limitation of the right to contest elections, but also an unfair and arbitrary one. He stressed that the fact that a candidate might only muster one or 2 000 signatures at the preliminary stage did not mean that he could not do much better in an all-out campaign.

In deciding on an appropriate remedy, Kollapen J expressed the view that the 1 000-signature requirement argued for by OSA was the only plausible one, particularly since it was already a de facto contestation requirement in that 1 000 signatures were required for the registration of a political party.

In fashioning his order, Kollapen J pointed out that since the looming national elections barred a referral to Parliament, the 1 000-singature requirement had to be read into the Act for a period of 24 months from the date of judgment (4 December 2023).

In his dissent, Zondo CJ argued that the 15% threshold was in order because it simply obliged independent candidates to ‘do something they had to do anyway’, namely to canvas for votes among voters whose support they were also going to need in any case come the actual election. The Chief Justice emphasised that the test for determining whether the right to vote or stand for public office was infringed by the threshold, was whether it would prevent independent candidates from participating in an election even if they took reasonable steps to realise those rights. This was not the case here: Reasonable steps would get them on the ballot. Zondo CJ criticised the majority judgment for failing to provide adequate grounds for its usurpation of Parliament’s power to make a decision that was rightly its own. He found that OSA failed to show why the 15% requirement was a barrier to contesting the elections or why it was unfair.


CC rules the 200-seat limitation on the number of seats independent candidates may contest valid: Independent Candidate Association SA NPC v President of the Republic of South Africa and Others 2024 (2) SA 104 (CC) also concerned the constitutionality of a provision in the Electoral Amendment Act 1 of 2023, namely the one that limited the number of seats independent candidates could contest in provincial and national elections by providing for a 200/200 split of seats in the National Assembly. It provided for 200 seats to be filled by independent candidates and candidates from regional lists of political parties (regional seats) and 200 seats to be filled by candidates from national lists of political parties (compensatory seats).

The applicant, the Independent Candidate Association South Africa (ICASA), a registered non-profit company representing and promoting the interests of independent candidates in the electoral system, applied for direct access to the CC for declaratory relief regarding the constitutionality of the 200/200 split.

ICASA contended that the split meant that the quota of votes a political party had to obtain to be allocated compensatory seats was much lower than the quota of votes the independent candidate had to obtain. This, ICASA claimed, infringed not only the fundamental rights to equality in s 3(2)(a) and s 9(1) of the Constitution by arbitrarily differentiating between independent candidates and political parties, but also the rule of law due to its arbitrariness and irrationality.

While ICASA accepted that compensatory seats should be reserved only for political parties, it rejected the reservation of 200 seats on the basis that independent candidates needed double the votes that political parties needed to win a seat since a vote for a political party counted twice. In its place, ICASA proposed a 350/50 split between regional and compensatory seats, namely, a reduction in the compensatory seats from 200 to 50, which it submitted would result in an approximation of the actual voter support required for regional and compensatory seats, respectively, while preserving proportional representation for political parties. ICASA argued that it would also pose a minimal risk of a so-called overhang (which occurred where the election formula required political parties to be allocated more seats than are actually available in the Parliament).

The CC granted direct access in the interests of justice. At issue was whether item 1 of sch 1A of the Electoral Act 73 of 1998 infringed fundamental rights in the Constitution and whether the 200/200 split was rationally connected to a legitimate governmental purpose.

As to the rationality inquiry, the CC held that rationality of the 200/200 split depended on whether it resulted in proportional representation in general and avoided the risk of overhang. But this inquiry should be conducted by Parliament, which enjoyed wide latitude to consider the way to conduct the electoral system: Section 46(1) and s 105(1) of the Constitution expressly left the choice of electoral system in Parliament’s hands. On the requirement of achieving proportionality, the 200/200 split chosen by Parliament passed constitutional muster, and, as to the risk of overhang, it would not always be an insurmountable obstacle. On the applicant’s pleaded case, Parliament’s second stated objective with the 200/200 split, which was to avoid the risk of overhang, was achieved. Consequently, the 200/200 split passed the rationality test, and it followed that the rule-of-law challenge was without merit. The CC also rejected ICASA’s argument that the 200/200 split arbitrarily differentiated between independent candidates and political parties, holding that Parliament had articulated and proven that there was a rational basis for the split, which was to facilitate proportional representation and to avoid the risk of overhang. It concluded that there was no differentiation in respect of regional seats; independent candidates and political parties competed for the same quota in regional elections and the votes carried the same weight.

The court rejected also rejected ICASA’s contentions on the infringement of fundamental rights. It held that ICASA failed to discharge the onus of proving that the model articulated by Parliament infringed on the equal protection provisions in ss 3(2)(a) and 9(1); ICASA did not prove that

  • the split was arbitrary; and
  • a vote for an independent candidate carried less weight.

ICASA, the court concluded, therefore, did not show that the measures adopted by Parliament constituted a limitation of the political of fundamental rights alleged. The application was accordingly dismissed.

Motor vehicle accident claims

Is a forklift a ‘motor vehicle’ for the purposes of a Road Accident Fund (RAF) claim? In 2016, a worker at a Spar supermarket in Limpopo was knocked down by forklift driven by a fellow worker. It happened in the store’s receiving bay, a loading facility closed to the public. The knocked-down worker instituted a claim for compensation against the RAF.

At the trial in the LP, and before evidence was led on the merits, the parties agreed that the only remaining issue in respect of the merits was whether the particular forklift was a ‘motor vehicle’ as defined in the Road Accident Fund Act 56 of 1996 (the RAF Act). The LP ruled that it was not, and that the claim should, therefore, fail. In an appeal to the SCA, reported as Nemangwela v Road Accident Fund 2024 (2) SA 316 (SCA), the claimant’s counsel relied heavily on Road Accident Fund v Mbele 2020 (6) SA 118 (SCA) that held that a ‘reach stacker’, a wheeled vehicle used for the stacking of marine containers in a port, qualified as a motor vehicle under the RAF Act.

The SCA (per Molefe JA) ruled that the claimant’s reliance on the 2020 case was misplaced because in that case the SCA had made it clear that the reach stacker passed muster as a ‘motor vehicle’ as defined in the RAF Act because it was designed for use on harbour roads whereas the forklift in question never travelled on a road, in the sense of ‘a wide way leading from one place to another’, but was used only in the Spar’s receiving area. The SCA, therefore, ruled that the forklift was not a ‘motor vehicle’ for the purposes of the Act and dismissed the claimant’s appeal.

Proceedings against Eskom

Is Eskom an ‘organ of state’ that has to be notified of intended proceedings against it under the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002? In Botha and Others v Eskom Holdings Soc Ltd 2024 (2) SA 322 (FB), the plaintiffs were private parties, and the defendant was Eskom, the state-owned electricity provider. Consequent on fires on the plaintiffs’ farms allegedly caused by Eskom’s negligence, the plaintiffs instituted claims against Eskom for the resulting damages. In response, Eskom raised a special plea that plaintiffs had failed to notify it of their intention to institute proceedings as required by s 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Proceedings Act). In their replication, the plaintiffs asserted that Eskom was not an organ of state under the Act and that they had not been required to notify it of the impending proceedings. The issue before the FB (per Loubser J) was whether Eskom fell within the Act’s definition of an ‘organ of state’. The FB ruled that, while Eskom was certainly an organ of state under the Constitution, it was not one under the Proceedings Act. The Proceedings Act’s definition of ‘organ of state’ was much narrower and did not embrace Eskom. Therefore, there had been no need to give it notice under the Proceedings Act. The FB accordingly dismissed Eskom’s special plea.


The amendment of a ground of objection: Commissioner, South African Revenue Service v Free State Development Corporation 2024 (2) SA 282 (SCA) concerned an appeal to the SCA against a TC order granting the taxpayer permission to withdraw its statement of grounds of appeal against additional assessments issued by the receiver (the original statement), and to file an amended statement of grounds of appeal (the amended statement).

The receiver had raised the additional assessments after finding that the taxpayer had erroneously claimed that supplies were zero-rated and had, therefore, understated output value-added tax (VAT) for the disputed tax periods. The taxpayer raised the objection in its original statement that the payment received was not linked to a supply but relied on an incorrect legal opinion to claim that it was zero-rated. In the amended statement, based on a second legal opinion, the taxpayer claimed that the transactions were not subject to VAT because the transactions did not involve a supply.

The main issue before the SCA was whether, as was argued by the receiver, the amended statement was premised on a new ground of objection that was not originally raised, and therefore, in breach of Tax Court Rule (TCR) 10(3), which provides that a taxpayer may not appeal ‘on a ground that constitutes an amended objection against a part or amount of the disputed assessment not objected to under rule 7’.

The SCA, having interpreted TCR 10(3) and 32(3), found that the taxpayer was not precluded from raising a new ground of appeal in its amended statement if the grounds were in substance the same as those stated in the initial objection under rule 7(1). And since amended grounds were clearly foreshadowed in the objection − which was to the legality of imposing a VAT liability on all the transactions under consideration − the TC was empowered to grant the amendment. The SCA found that, since the taxpayer had shown that the amendment was sought in good faith, that there would be no prejudice to the receiver, and that the granting of the amendment would allow the true legal issues between the parties to be ventilated, it would dismiss the appeal.

Sectional title

The power of a bodies corporate to withhold transfer certificates pending the payment of moneys due to them: The facts in Body Corporate, Marsh Rose v Steinmuller and Others 2024 (2) SA 270 (SCA) were that a third party had borrowed money from a bank and then defaulted on the loan. The bank then obtained judgment against the third party together with a warrant of execution against the third party’s unit in a sectional title scheme. At the sale in execution, the unit was sold to the first respondent, Steinmuller. It was a condition of the sale that Steinmuller had to pay the sheriff ‘all levies due to the body corporate’. The body corporate then provided Steinmuller with the sum due to it by the third party. The body corporate provided Mr Steinmuller with an amount of R 312 903,21, which he had to pay before the body corporate could issue a certificate under s 15B(3)(a)(i)(aa) of the Sectional Titles Act 95 of 1986, a prerequisite for the transfer of the unit. Steinmuller demanded from the body corporate documentation proving that this amount was due, which the body corporate refused to do. Steinmuller then applied to the GJ for an order directing the body corporate to issue the certificate against the tender of security for payment of the levies. The GJ granted the order. A Full Bench of the GJ dismissed an appeal by the body corporate, after which it appealed on petition to the SCA.

The SCA (per Molefe JA and Goosen JA) found that Steinmuller’s payment of the levies due by the third party would give Steinmuller a contractual right as against the sheriff to demand the transfer of the property to him. But the body corporate was not a party to this contract, which meant that its statutory right to withhold the certificate until ‘all moneys due’ to it were paid was unaffected thereby. The SCA, therefore, upheld the body corporate’s appeal and set aside the trial court’s order directing the body corporate to furnish the certificate.

Other civil cases

Apart from the cases referred to above, the March 2024 South African Law Reports also contained a case dealing with

  • trademark registrability: distinctiveness.


Gideon Pienaar BA LLB (Stell) is a Senior Editor, Joshua Mendelsohn BA LLB (UCT) LLM (Cornell), Johan Botha BA LLB (Stell) and Simon Pietersen BBusSc LLB (UCT) are editors at Juta and Company in Cape Town.

This article was first published in De Rebus in 2024 (May) DR 38.

De Rebus