Tag archives: supreme court of appeal

What is the essential character of a bicycle for customs duty

By Patrick Bracher (ZA) on October 19, 2023 Posted in Insurance

The courts get called upon to decide some extraordinary things (often in custom duties matters). The Supreme Court of Appeal on 09 October 2023, for the purposes of the import tariffs under the Customs and Excise Act of 1964, came to the surprising conclusion that a bicycle frame and fork bear the essential character of a … Continue reading

Expert opinions are not fact for admission under the Civil Proceedings Evidence Act

By Nomonde Sithole on October 13, 2023 Posted in Insurance

This blog was co-authored by Candidate Attorneys, Hansica Naidu and Jeneil Peterson. The purpose of an admission of fact is to narrow the issues which will need to be determined by a Court. In order to do so, this must be done correctly and in accordance with section 15 of the Civil Proceedings Evidence Act … Continue reading

Contract from an unlawful administrative decision may be declared invalid by collateral challenge without a review application

By Patrick Bracher (ZA) on October 9, 2023 Posted in General

This blog was co-authored by Felix Le Roux, Candidate Attorney. In a September 2023 judgment, the Supreme Court of Appeal (SCA) affirmed that a court is entitled to declare a contract unlawful and invalid on administrative law grounds, even in the absence of a review application by the party raising such grounds. In October … Continue reading

Loss of SA citizenship when acquiring foreign citizenship is irrational and constitutionally invalid

By Patrick Bracher (ZA) on August 25, 2023 Posted in General

The Supreme Court of Appeal held in June 2023 that section 6(1)(a) of the South African Citizenship Act, 1995 by which South African citizenship is lost when acquiring citizenship of another country is constitutionally irrational and invalid . The section was declared invalid and citizens who lost their citizenship by operation of section 6(1)(a) are deemed not … Continue reading

Arbitration clause is widely interpreted as to arbitrator’s powers

By Patrick Bracher (ZA) on August 2, 2023 Posted in General

In an arbitration relating to obligations under a written lease agreement, the arbitrator made a ruling that an overpaid amount was recoverable. The lessor contended that the arbitrator was not allowed to make an enrichment claim award. The Supreme Court of Appeal held that the arbitration clause which referred to “any dispute or difference or … Continue reading

Cessions in security, parate executie, and performing unenforceable agreements

By Patrick Bracher (ZA) on July 7, 2023 Posted in Insurance

In a decision involving an elaborate set of facts, the Supreme Court of Appeal reminded us of certain legal principles relating to parate executie and the performance of contracts which the law says have no force. When an asset (in this case loan account claims) is ceded in securitatem debiti (as security), the principle of … Continue reading

PAJA applies to regulations made by a Minister

By Patrick Bracher (ZA) on April 13, 2022 Posted in General

The Supreme Court of Appeal has reaffirmed that the making of regulations by a Minister acting in terms of a statute constitutes administrative action within the meaning of the Promotion of Administrative Justice Act, 2000. This means that such regulations can be challenged if they are outside the powers of the Minister under the enabling … Continue reading

Prescription runs from date of acceptance of repudiation of a contract

By Patrick Bracher (ZA) on February 2, 2022 Posted in Insurance

The Supreme Court of Appeal held that where one party to a contract repudiates the contract by expressing an intention not to be bound by their obligations, extinctive prescription to defeat a claim for damages or performance runs from the date that the other party accepts the repudiation and cancels the contract. A contract between … Continue reading

A judgment with a 30 year prescription period includes a maintenance order

By Patrick Bracher (ZA) on January 27, 2022 Posted in General

The Supreme Court of Appeal, not surprisingly, found that a maintenance order made by a court is subject to a 30 year prescription period because it is a “judgment debt” for the purposes of section 11(a)(ii) of the Prescription Act of 1969. The appellant husband had an unpaid maintenance debt of over R3.5 million as a … Continue reading

Rejection of ‘the matter speaks for itself’ doctrine and the Onus of Proof in Medical Negligence cases (Part 3)

By Donald Dinnie on January 13, 2022 Posted in Healthcare, Insurance

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this judgement in the Supreme Court of Appeal the claimant submitted that the hospital breached its statutory duty in that it failed to ensure the proper safe-keeping of the hospital records of the claimant and her cerebral palsied child. The court considered the application of res … Continue reading

Evaluating Expert Medical Evidence (Part 2)

By Donald Dinnie on January 12, 2022 Posted in Healthcare, Insurance

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this claim, alleging that the hospital staff’s negligence during the claimant’s labour resulted in her child’s cerebral palsy, the Supreme Court of Appeal addressed the issue of how to assess expert evidence in a field where medical certainty is virtually impossible. In such circumstances a … Continue reading

Missing Hospital Records and Adverse Inference (Part 1)

By Donald Dinnie on January 11, 2022 Posted in Healthcare, Interpretation

This blog was co-authored by: Caitlin Gardiner, Candidate Attorney In this case, the Claimant sued for damages, alleging that the hospital staff’s negligence during her labour resulted in her child’s cerebral palsy. The Supreme Court of Appeal found that no adverse inference should be drawn because the hospital records are missing. Nor could any negative … Continue reading

Cancellation of a contract between private parties is not judicially reviewable

By Donald Dinnie on October 13, 2021 Posted in General

In this judgment the Supreme Court of Appeal confirmed as trite that a decision by a contracting party to cancel a contract concluded between two private parties cannot form the subject of review by the courts. The power of the courts to review the lawfulness, reasonableness and procedural fairness of decisions or actions applies only to … Continue reading

Unconditional performance guarantees are unconditional

By Patrick Bracher (ZA) on September 29, 2021 Posted in Insurance

The Supreme Court of Appeal has again emphasised that a performance guarantee in terms of which the guarantor undertakes to pay an amount if the contractor fails to perform the required work is unconditional. The beneficiary of the guarantee is not obliged to prove an entitlement under the principal contract before it can make a … Continue reading

Jurisdiction over an insurance dispute where both parties are foreigners

By Donald Dinnie on July 21, 2021 Posted in Insurance

In this judgment both the insured and insurer were foreign peregrini, that is neither was resident nor domiciled in the Republic of South Africa. The insured was a resident of the Virgin British Islands and the insurer, Russia. The policy provided that it was governed by the laws of the insured’s country of domicile, that … Continue reading

Extra-territorial jurisdiction of the Prevention of Organised Crime Act

By Candice Grieve on June 7, 2021 Posted in General

In May 2021, the Supreme Court of Appeal delivered a judgment with two important principles namely: The High Court has jurisdiction to make a forfeiture order in terms of section 50(1)(b) of the Prevention of Organised Crime Act, 1998 (POCA) in respect of property situated outside the territory of South Africa and belonging to persons … Continue reading

Employee injured during protest action by trade union denied COIDA claim

By Patrick Bracher (ZA) on May 6, 2021 Posted in General

The Supreme Court of Appeal held that an executive employee who was injured whilst at work when she became caught up with trade union protestors and was assaulted and mistreated by them and evicted in a humiliating and degrading way, was involved in an accident in the course of, but not arising out of, her … Continue reading

A person cannot be ordered to restore possession of goods not in their possession

By Patrick Bracher (ZA) on April 28, 2021 Posted in General

The court refused to order the return of goods by a spoliation order because the respondent was not in possession of the goods. The claimant gave his motor vehicle to a dealer for a routine maintenance service. When he went to collect the vehicle he discovered that the keys to the vehicle had been handed … Continue reading