April 2022 Law Reports

A discussion of recent reported judgments originally published in the April 2022 De Rebus and which have been discussed as and when they were published in the South African Law Reports - the All South African Law Reports, and the Butterworths Constitutional Law Reports.

February [2022] 1 All South African Law Reports (pp 297 – 613); February 2022 (2) Butterworths Constitutional Law Reports (pp 129 – 264)

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 – De Rebus Editor.

By Merilyn Rowena Kader LLB (Unisa), a Legal Editor at LexisNexis South Africa.

Abbreviations

FB: Free State Provincial Division, Bloemfontein

CC: Constitutional Court

KZD: KwaZulu-Natal Local Division, Durban

KZP: KwaZulu-Natal Division, Pietermaritzburg

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

1. Civil procedure - Application for leave to appeal: In Land and Agricultural Development Bank of South Africa and Another v Van den Berg and Others [2022] 1 All SA 457 (FB), appeal dismissed on grounds of being diffuse and ambiguous, leave may now only be granted if there is a reasonable prospect that the appeal will succeed.
2. Civil Procedure - Quantum of interest claimed – in duplum rule: In Body Corporate of Nautica v Mispha CC [2022] 1 All SA 399 (WCC), defendant refused to pay levies without justification, Body Corporate has locus standi to institute action, in duplum rule permits interest to run anew from the date that the judgment debt is due and payable.
3. Company law - Business rescue practitioners: In Shiva Uranium (Pty) Limited (In Business Rescue) and Another v Tayob and Others 2022 (2) BCLR 197 (CC), if a company enters business rescue voluntarily in terms of s 129, the power to appoint a substitute, if the practitioner resigns, remains with the company.
4. Company law - Piercing the corporate veil: In Department of Agriculture, Forestry and Fisheries and Another v B Xulu and Partners Incorporated and Others [2022] 1 All SA 434 (WCC) if there is in fact no distinction between the separate juristic personality of a juristic entity and those controlling it improperly, a piercing is justified.
5. Constitutional and administrative law - Appointment of magistrates: In Magistrates’ Commission and Others v Lawrence and Another (Helen Suzman Foundation as amicus curiae) [2022] 1 All SA 321 (SCA), a non quorate Appointments Committee, therefore decisions taken, including the shortlisting of candidates, had to be set aside. Process fundamentally flawed.
6. Criminal law and procedure - Application for bail pending appeal: In Rohde v S [2022] 1 All SA 504 (WCC) an apprehension or fear of an adverse order is not the basis for recusal, nor were other grounds relied on by the applicant, individually or cumulatively.
7. Criminal law and procedure - Sexual intercourse with underage child: In Mbhamali v S [2022] 1 All SA 488 (KZD), practice of child marriages does not supersede the laws and the Constitution of the country. The fact that a child might have consented to such an act is no defence.
8. Criminal law and procedure - Special plea in criminal trial: In S v Zuma and Another [2022] 1 All SA 533 (KZP), ‘title to prosecute’ - the test in respect of the apprehension of bias in a prosecutor does not apply to a judicial officer. Other grounds apply for a substantive application.
9. Insurance - Business interruption indemnity: In Santam Limited, a division of which is Hospitality and Leisure Insurance v Ma-Afrika Hotels (Pty) Ltd and Another [2022] 1 All SA 376 (SCA), business interruption indemnity period, objective approach of interpreting contracts and parties’ intentions applied.

Note: Select the APRIL 2022 LAW REPORTS tag for a full discussion of each of the above cases.

Other cases

Apart from the cases and material dealt with above, the material under review also contained cases dealing with –

• adequate remuneration, an aspect of judicial independence, and judicial officers not to be placed in a position of having to engage in negotiations with the executive over their salaries;
• application to recuse a judge;
• fiduciary duty of a trustee, a trustee nominating a company owned by him to acquire property being sold by a trust in which he was a trustee, and a company subsequently selling property at a significant profit;
• parliamentary obligations and not ensuring compliance with binding remedial action;
• postponement of proceedings pending re-enrolment, an applications for default judgments postponed affording a plaintiff an opportunity to take further steps deemed necessary by court under s 129(1) of the National Credit Act 34 of 2005 before matters could be re-enrolled;
• powers of the public protector; and
• trusts and trustees, beneficiaries, and locus standi to act independently.

Merilyn Rowena Kader LLB (Unisa) is a Legal Editor at LexisNexis in Durban.

This article was first published in De Rebus in 2022 (April) DR 18.