March 2025 (1) South African Law Reports (pp 1–335); March 2025 (1) South African Criminal Law Reports (pp 225–347)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
ECGq: Eastern Cape Division, Gqeberha
ECMk: Eastern Cape Division, Makhanda
GJ: Gauteng Local Division, Johannesburg
GP: Gauteng Division, Pretoria
KZD: KwaZulu-Natal Local Division, Durban
ML: Mpumalanga Local Seat, Middelburg
SCA: Supreme Court of Appeal
WCC: Western Cape Division, Cape Town
Leave to appeal to SCA against a High Court order: Leave to appeal to the SCA against a High Court order may be sought from the High Court, if it was the court of first instance (s 16(1)(a) of the Superior Courts Act 10 of 2013 (the SC Act)), or directly from the SCA itself, if the High Court was not the court of first instance (s 16(1)(b) of the SC Act).
In an application for leave to appeal to the SCA reported as Hanekom NO and Others v Nuwekloof Private Game Reserve Farm Owners’ Association 2025 (2) SA 128 (SCA), the SCA had to decide if it had jurisdiction where leave had been sought under s 16(1)(b). The background facts were as follows. The first and second appellants were trustees of a trust that owned one of several properties on a private game reserve near Ladysmith, Western Cape. The respondent was the reserve’s homeowners’ association (the association). The reserve was a community scheme as defined in the Community Schemes Ombud Service Act 9 of 2011 (the CSOS Act), which specifies that appeals against CSOS adjudicators’ orders go to the local High Court, but only on questions of law. When an adjudicator granted declaratory relief on petition by the trustees, the association appealed to the WCC, which set the adjudicator’s decision aside. The trustees sought leave to appeal from the SCA under s 16(1)(b). The association contended that, since the appeal was a statutory and not a judicial appeal, the WCC sat as a court of first instance, so that leave to appeal should have been sought from the WCC under s 16(1)(a), not from the SCA under s 16(1)(b). Therefore, the SCA lacked jurisdiction to hear the application. The trustees’ position was that the appeal was a judicial appeal and that the WCC, therefore, did not sit as a court of first instance, making s 16(1)(b) the appropriate route for leave to appeal.
The SCA agreed with the association’s argument. It confirmed precedent stating that s 16(1)(b) did not apply to appeals from bodies outside the judicial system, but to appeals against High Court decisions given on appeal from other courts within the judicial system. The SCA also rejected the association’s contention that it could entertain the application in the exercise of its inherent jurisdiction to regulate its own procedure. The SCA pointed out in this regard that it was well-settled that the SCA could not, in the guise of exercising its inherent power, enter into the merits of an appeal over which it had no jurisdiction: Jurisdiction was a necessary precondition for the exercise of its inherent power. The SCA, therefore, ruled that it lacked jurisdiction to grant the trustees’ application for leave to appeal and struck the matter from the roll.
The appealability of interlocutory orders and taxation under new rule 67A: A company called Buhle Waste approached the GJ for leave to execute an order that was suspended pending appeal. The suspended order set aside a contract awarded to the tenth respondent. Buhle contended that, given the relatively short duration (three years) of the contract, the matter may have become academic by the time it reached the SCA, rendering relief nugatory. When the GJ rejected Buhle’s application, it applied to the same court for leave to appeal.
In a judgment reported as Buhle Waste (Pty) Ltd v MEC of Health, Gauteng and Others 2025 (2) SA 163 (GJ), the GJ held that while an application for leave to appeal a dismissal order may be appealable, the applicant still had to show that such order was of final effect within the meaning of s 18(2) of the Superior Courts Act 10 of 2013, which Buhle had failed to do. The GJ emphasised that the risk of an appeal becoming academic, because of anticipated delays in the Z process, did not make it final in effect. Moreover, Buhle did not satisfy the requirement that there be reasonable prospects that another court may come to a different conclusion. Buhle’s application for leave to appeal was, therefore, dismissed.
Double-barrelled relief for specific performance of a contract, alternatively for cancellation of the contract and damages: When does prescription on the damages claim start to run? The case of Rademeyer v Ferreira 2025 (2) SA 1 (CC) concerned the question whether a claim for contractual damages brought by the respondent, Mr Ferreira, against the appellant, Mr Rademeyer, arising from a breach of a property sale agreement between the parties on 27 August 2008, had prescribed. Mr Rademeyer had purchased from Mr Ferreira one of several subdivided properties forming part of a development in Gqeberha but had then failed to pay the purchase price when it became due on 13 September 2011. This prompted Mr Ferreira to initiate proceedings in the ECGq. He adopted a ‘double-barrelled’ approach, requesting specific performance of the contract, alternatively its cancellation and damages if Mr Rademeyer failed to comply with the order of specific performance within five days. On 7 August 2012, Pickering J granted Mr Ferreira the relief sought. Yet, Mr Rademeyer steadfastly refused to comply with his obligations. In April 2016, Mr Ferreira again approached the ECGq, this time seeking damages pursuant to the cancellation of the agreement. Mr Rademeyer met the claim with a plea of prescription. He argued that prescription started running on the claim for damages on 23 August 2012 – that is, five days after service of Pickering J’s order. This meant that Mr Ferreira’s claim had prescribed before he instituted his damages action. Mr Ferreira’s response to all this was simply that the service of the initial application papers for the double-barrelled relief interrupted the running of prescription on the damages claim as intended in s 15(1) of the Prescription Act 68 of 1969. The ECGq agreed with Mr Ferrera and dismissed the special plea. In an appeal, the SCA held that the ECGq was correct to do so. The matter proceeded on further appeal to the CC.
The CC (per Majiedt J for the majority) held that Mr Rademeyer’s special plea of prescription should have been upheld. The first breach occurred on 13 September 2011, when prescription began running in respect of any damages Mr Ferreira may have suffered in consequence. But Mr Ferreira chose to keep the sale alive by seeking specific performance or, failing that, cancellation and damages. The relevant debt thus arose on cancellation, that is, on 23 August 2012, five days after the service of Pickering J’s order on Mr Rademeyer. This meant that the action for damages had to be instituted within three years from that date, by no later than 23 August 2015.
The majority went on to emphasise that it was crucial to its finding that, when the matter came before Pickering J, Mr Ferreira had not yet suffered any damages, so that there was at that point no claim in respect of which prescription could have commenced running. That happened only when Mr Rademeyer failed to perform as ordered by Pickering J, which was a fresh breach of contract that engendered a prescribable debt.
Pretrial incarceration not in and of itself substantial and compelling circumstance where life imprisonment prescribed sentence: The appellants in S v Ludidi and Others 2025 (1) SACR 225 (SCA) were convicted of murder arising from a contract killing and sentenced to life imprisonment. They had spent five years and eight months in custody prior to sentencing, however, the delays in the completion of the trial were largely attributed by the sentencing court to the appellants and their legal representatives. In an appeal to the SCA, the essential issue was whether the presentencing incarceration could amount to a substantial and compelling circumstance where the prescribed sentence was one of life imprisonment in terms of the Criminal Law Amendment Act 105 of 1997. Nicholls JA, for the SCA, in a unanimous judgment, found in this respect that time spent in custody awaiting trial was not in and of itself a substantial and compelling circumstance justifying deviation, unless it was for an exceptionally long period of time to which the conduct of the accused persons had not materially contributed. The appellant’s pretrial incarceration was ultimately not considered grounds for deviation from the prescribed sentence, and the appeal was dismissed.
In case of criminal charge of trespass, court first had to determine whether accused was ESTA occupier: The appellant in S v Thys 2025 (1) SACR 243 (WCC) was convicted and sentenced for trespassing in contravention of s 1(1) of the Trespass Act 6 of 1959. In issue on review was whether a property owner could use the mechanism of criminal proceedings to constructively evict an occupier as defined in the Extension of Security of Tenure Act 62 of 1997 (ESTA), in this case Olifantskop farm. The reviewing judge (Montzinger AJ) ruled that in criminal proceedings, where the charge was one of trespass, and having regard to how the provisions of the Trespass Act were phrased, a criminal court had to start with determining whether the accused was an ESTA occupier or not. Once it was found to be the case, a conviction in terms of s 1(1) of the Trespass Act could not follow. In the present case that was found to be the case, and the conviction and sentence were, therefore, set aside.
Is publication of an article recounting the plaintiff’s arrest on a charge of sexual assault before the plaintiff had pleaded defamatory? Singh v Caxton CTP Publishers and Printers and Another 2025 (2) SA 225 (KZD) concerned a defamation action for damages brought to the KZD by the plaintiff, Mr Singh, against the co-owners of the community newspaper, Chatsworth Rising Sun, namely the first defendant, Caxton CTP Publishers, and the second defendant, Rising Sun’s owner. The matter had its origin in an article first appearing in the 16 February 2016 edition of the Rising Sun. It was headlined ‘Principal Released on Bail following Sexual Assault Case’ and recounted the fact of the plaintiff’s arrest the previous week on the charge of sexual assault which had been laid against him by a female teacher at the primary school of which he was principal, his overnight detention and his subsequent release on bail of R 1 000. The article included a photo of the plaintiff, and quotes from the complainant as well as from parents of children attending the school. At the time the article was published, the plaintiff had not yet plead to the charges. The plaintiff was later to be acquitted on 28 September 2016 after a trial at which he, the complainant, and other witnesses testified. The plaintiff claimed that the entire article defamed him, creating the impression that he had sexually assaulted the complainant and was, therefore, a criminal. The plaintiff also argued that since the publication of the article was in breach of s 154(2)(b) of the Criminal Procedure Act 51 of 1977, it was for that reason alone defamatory. Section 154(2)(b) states that where a person was charged with on an offence mentioned in s 153(3), no-one may publish information relating to the charge before the accused has pled to it.
The KZD (per Mossop J) rejected the arguments based on the CPA: the provisions cited did not prohibit the disclosure of the details of the accused, but the disclosure of the particulars of the charge itself and were aimed at offering protection to the victim of crime. The KZD pointed out that a breach of the provisions in any event would not by itself make the article defamatory.
As to the article itself, the KZD noted that it went no further than to simply recount, without commentary, the true facts of the plaintiff’s having been being charged with sexual assault, his detention and his subsequent release on bail. It in no way suggested that the plaintiff was in fact guilty, and there could not be discerned from the tone and style of the article any intent to defame the plaintiff. The KZD ruled that the article could not in such circumstances be said to have been defamatory of the plaintiff and dismissed the action.
When does an asylum seeker qualify for asylum on the basis of ‘dependency’ on a family member? Section 3 of the Refugees Act 130 of 1998 provides that a person qualifies for refugee status if he or she –
(a) has a well-founded fear of persecution in their home country; or
(b) was compelled to leave their home country by public-order disturbances; or
(c) is a spouse or dependant of such a person.
In Kapata v Chairperson, Standing Committee for Refugee Affairs and Others 2025 (2) SA 205 (KZD), the KZD dealt with an application under s 3. It appeared that around 2008, Ms KK, a Democratic Republic of Congo national, entered South Africa and was issued with a temporary asylum seeker permit. Seven years later KK’s orphan sister, LK, also entered South Africa. In 2017, LK applied for asylum, arguing that she qualified because, as KK’s dependant, she fell in category (c) of s 3, while KK herself was covered by category (a) or (b). LK’s application was, however, refused, resulting in her detention pending deportation. Later she was released on order of the KZD pending the review of the decision to refuse her application. LK argued that category (c) was a self-standing category under which asylum could be granted.
The KZD pointed out that the legislative scheme of the Refugees Act was such that it allowed a genuine refugee to gain asylum for their immediate family, provided he or she disclosed their existence up front. The intention was that a party applying for asylum under s 3(a) or (b) had to there and then apply on behalf of a dependant on ground (c). This meant that someone like LK could not apply personally on ground (c), citing dependency on a family member who had earlier applied on ground (a) or (b). The KZD consequently dismissed LK’s review application.
The monetary limit of regional court jurisdiction: total or apportioned claim decisive? Magistrates’ courts are creatures of statute – they have no jurisdiction beyond that provided for in the enabling statute. In 2015, when the monetary jurisdiction of the magistrates’ courts was set at a maximum amount of R 400 000, Ms Vorster fell and injured herself while shopping at City Clothing. She proceeded to claim R 256 000 from City Clothing in the local regional court. Before the trial commenced, the merits were settled 75%/25% in her favour. The settlement was made an order of court, and the issue of quantum postponed to a later date. Before the hearing on quantum, Ms Vorster amended her particulars of claim by increasing the quantum of her claim to R 531 000 minus the 25% apportionment, leaving a net claim of R398 418. Clothing City subsequently filed a notice to amend its plea by introducing a special plea to the effect that Ms Vorster’s R 531 000 claim exceeded the regional court’s monetary jurisdiction.
Ms Vorster’s response to the special plea was that, if the apportionment was taken into consideration, the claim did fall within the regional court’s jurisdiction. The matter proceeded in the regional court in respect of the special plea alone. The magistrate found that Ms Vorster could have abandoned part of her claim to bring it within the jurisdiction of the regional court but instead had made a deliberate choice to persist with a claim which exceeded it. In the light of this, the magistrate upheld the special plea, thereby ending the action.
In an appeal by Ms Vorster, the ECMk pointed out that, in taking it on herself to apportion the claim, she had usurped the role of the court, and that if a portion of an indivisible claim exceeded the regional court’s monetary jurisdiction, then the whole claim was beyond its jurisdiction. The ECMk accordingly dismissed the appeal.
In a further appeal to the SCA, Ms Vorster argued that the ECMk was wrong in ruling on jurisdiction based on the total damages instead of damages actually claimed. City Clothing in turn endorsed the ECMk’s finding that Ms Vorster had impermissibly usurped the court’s role by prematurely agreeing to apportionment.
In a judgment reported as Vorster v City Clothing (Pty) Ltd 2025 (2) SA 156 (SCA), the SCA (per Nicholls JA in a unanimous judgment) held that any inquiry into jurisdiction always began with the pleadings. With monetary jurisdiction, the test was whether the amount claimed was within the court’s jurisdiction. To determine whether Ms Vorster’s claim fell within the jurisdiction of the regional court, one had to look at the prayer: if it was for a sum less the prescribed amount, then it fell within regional court jurisdiction. From Ms Vorster’s prayer alone, it was clear that the value of her amended claim – R 398 418 – was less than the regional court threshold. The fact that the regional court had to inquire into larger sums and accounts was irrelevant as long as the value of claim did not exceed its monetary jurisdiction. The SCA accordingly upheld the appeal.
Does a municipality have the power to make a bylaw that embargos the transfer of a property in the absence of a certificate that the property complies with municipal planning requirements? In Govan Mbeki Local Municipality v Glencore Operations South Africa (Pty) Ltd and Others 2025 (2) SA 238 (CC) the applicant municipalities adopted bylaws providing that a property owner could not apply to the registrar of deeds to transfer his land, unless the municipality in question had issued the owner with a certificate confirming the property’s compliance with all municipal planning requirements.
Respondent property owners approached the ML and obtained orders declaring the bylaws unconstitutional and invalid, and the municipalities appealed to the SCA. It dismissed the municipalities’ appeals.
The municipalities applied to the CC for its leave to appeal the SCA’s decision. The issue was whether the municipalities had the power to make the bylaws, and specifically, whether, as the municipalities asserted, s 156(2), or s 156(5) of the Constitution, or s 32(1) of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) were sources of the power.
Analysing each section in turn, the CC concluded that none provided such a power, and accordingly the bylaws imposing the transfer embargos were unlawful and invalid. The CC consequently dismissed the appeal.
Pension fund overrode deceased’s instructions on distribution of benefits: can court interfere? Mr MN, who had two wives and children with each, had before his death completed a pension beneficiary nomination form in which he nominated the second wife and her children for the lion’s share of his R4 million accumulated pension. But the pension fund, invoking a right-to-override provision in the fund rules, disregarded Mr MN’s instructions, and gave each wive 40% of the money with the rest going to the children according to their perceived needs. But the second wife, who had lost ground in new distribution, asked the KZD to review the fund’s decision. The fund defended its decision by pointing out that Mr MN’s original distribution was unfair, inter alia, because it made no provision for the first wife.
In its judgment, reported as Ndwandwe v Trustees, Transnet Retirement Fund and Others 2025 (2) SA 211 (KZD), the KZD (per Shapiro AJ) pointed out that since the fund was expressly not bound by the nomination form, the contents of which were merely a guide to the trustees, it was not a sustainable ground for review that the fund applied its own discretion in making the allocations and ignored the nomination form: it was, indeed, obliged to do so. The fund correctly concluded that the second wife was entitled a sizable benefit, for her own maintenance and, if necessary, for that of her adult children. But the first wife was ten years older and in similar need of financial assistance. While the second wife lost out compared to what she was allocated in the nomination form, it was not for the court to override the pension fund’s decision, which was based on sound principles honestly and fairly applied. The KZD accordingly dismissed the review application.
Can an immovable property sale be revived after the failure of a suspensive condition? Offers to purchase immovable property often contain a suspensive condition that the buyer must obtain a mortgage bond for the balance of the purchase price within a certain period. According to a long line of authority, a contract is unenforceable if a suspensive condition is not fulfilled. This was the problem that confronted the parties to a sale of land in Codevilla v Kennedy-Smith NO and Others 2025 (2) SA 42 (SCA). After the date for fulfilment had passed, the seller agreed that the sale would be revived by means of a written addendum. When the sale eventually fell through, the question was whether the addendum had revived the sale. The WCC found in favour of the seller that the addendum was a fresh agreement that incorporated the terms of the first sale. When a full court of the WCC agreed, the matter went to the SCA, where the majority (per Schippers JA) ruled that the failure of the suspensive condition rendered the sale unenforceable and incapable of revival. There was nothing to revive and the appeal had to succeed. The minority (per Weiner JA) focussed on the parties’ intention, which was to continue with the sale despite the lapsing of the suspensive condition, an intention that was borne out by the subsequent conduct of the parties. The minority reasoned that since the sale was validly revived, the appeal had to fail.
Apart from the cases referred to above, the March 2025 South African Law Reports also contained cases dealing with –
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 2025 (May) DR 41.
