CIVIL LAW UPDATES DECEMBER 2018 INDEX CASE NAMES SUBJECT INDEX CASES CASE NAMES ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA)

Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ) Good Hope Plasterers CC t/a Good Hope Construction v Aecom SA (Pty) Ltd [2018] JOL 40628 (WCC) In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP) Makhambi v Member of the Executive Council for Health, Eastern Cape and another [2018] JOL 40604 (ECM) Mathimba and others v Nonxuba and others [2018] 4 All SA 719 (ECG) METROPOLITAN EVANGELICAL SERVICES NPC AND ANOTHER v GOGE 2018 (6) SA 564 (GJ)

Mkhize NO v Premier of the Province of KwaZulu-Natal and Others (CCT285/17) [2018] ZACC 50 (6 December 2018)

Monde v Viljoen NO and others [2018] 4 All SA 665 (SCA)

N K v K M (2018/25403) [2018] ZAGPJHC 634 (7 December 2018)

Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT) Plastomark (Pty) Limited v Small and others [2018] JOL 40580 (ECG) RSC Avelo (Pty) Limited v Kenako Concrete (Pty) Limited and others [2018] JOL 40593 (ECP)

Standard Bank of South Africa Limited v Hendricks and Another; Standard Bank of South Africa Limited v Sampson and Another; Standard Bank of South Africa Limited v Kamfer; Standard Bank of South Africa Limited v Adams and Another; Standard Bank of South Africa Limited v Botha NO; Absa Bank Limited v Louw (11294/18;

15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18) [2018] ZAWCHC 175 (14 December 2018)

The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association (106/2018) [2018] ZASCA 176 (3 December 2018)

Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others (1189/17) [2018] ZASCA 189 (19 December 2018)

SUBJECT INDEX

Anton Piller order – requirements –necessity for evidence of prima facie existence of vital documents and materials – electronic searches – need for specificity in regard to objects of search – purpose of order not to give the applicant access to documents or material or to search for evidence on which to base claim – not to be used to obtain early discovery Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others (1189/17) [2018] ZASCA 189 (19 December 2018)

Appeal— Appealability — Interim interdict — Interim interdict granted prohibiting infringement of patent — Claim that patent would have expired prior to determination of final interdict — Whether interdict final in effect, and therefore appealable — Discussion of test set out in BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) for whether application for interim interdict should be treated as final — Court concluding that interim interdict not final in effect and therefore not appealable. CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA) Appeal — Appealability — Generally — Restatement of test for appealability of judgment or order. CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA) Appeal-security- Irregular steps-appeal-security ordered not given-appeal dismissed Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ) Applications- Drafting of application – Negligence of legal practitioners Makhambi v Member of the Executive Council for Health, Eastern Cape and another [2018] JOL 40604 (ECM) Attorney-Contingency fee agreements – Validity – Contingency Fees Agreements Act 66 of 1997 – In casu, there were two contingency fee agreements, one was for the attorney’s fees and the other for Counsel’s fees, which was impermissible – Contingency Act makes no provision for an advocate to sign a contingency fee agreement separately from the attorney; and it is not proper for an advocate to conclude a contingency agreement directly with a client – Court held that section 2 of the Contingencies Act contemplates a single contingency agreement for a single matter to which all the relevant legal practitioners (attorneys and advocates) are party,

and not separate agreements for each practitioner. Mathimba and others v Nonxuba and others [2018] 4 All SA 719 (ECG) Courts – Access to – High Courts and Magistrate’s Courts – Jurisdiction – Commercial institutions, to enrol in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates’ Courts – Litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involves parties located within the jurisdiction of the Gauteng Local Division, Johannesburg. In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP) Execution– Execution against immovable property – Primary residence – Court’s discretion Plastomark (Pty) Limited v Small and others [2018] JOL 40580 (ECG)

Execution-Foreclosure –Western Cape High Court- The application for the money judgment and an order of special execution against immovable property which is mortgaged to secure the loan and which is the primary residence of the judgment debtor are intrinsically connected and must be brought in one proceeding and not in a piecemeal manner as separate applications, where possible Standard Bank of South Africa Limited v Hendricks and Another; Standard Bank of South Africa Limited v Sampson and Another; Standard Bank of South Africa Limited v Kamfer; Standard Bank of South Africa Limited v Adams and Another; Standard Bank of South Africa Limited v Botha NO; Absa Bank Limited v Louw (11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18) [2018] ZAWCHC 175 (14 December 2018)

Execution-Housing — Right to housing — Prohibition against eviction from home without court order — Occupant barred from returning to room in emergency shelter — Regarded room as home — Left for three months after being injured in fight with other residents — Possessions left behind and key retained — Room not interfered with in his absence — Right not to be evicted without court order violated — No indication that occupant posed threat to anyone — Order restoring possession confirmed on appeal — Constitution, s 26(3). METROPOLITAN EVANGELICAL SERVICES NPC AND ANOTHER v GOGE 2018 (6) SA 564 (GJ) Execution-Litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involves parties located within the jurisdiction of the Gauteng Local Division, Johannesburg. In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP) Execution-Mortgage— Foreclosure — Judicial execution — Sale in execution — Residential property — Reserve price — Court must, except in exceptional circumstances, set reserve price — Both sides to place all relevant facts before court — Uniform Rules of Court, rule 46A(8)(e). ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) Execution-Mortgage — Foreclosure — Judicial execution — Primary residence — Money judgment and execution claims inextricably linked — Must be sought and adjudicated together in one proceeding — If postponement required, then matter to

be postponed in its entirety. ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ)

Execution-Property – Land – Eviction order – Requirements – Eviction of appellant was sought on basis that his right of residence flowed solely from his employment – Evidence establishing that appellant was in fact an occupier as defined in the Extension of Security of Tenure Act 62 of 1997 – Termination of appellant’s right of residence not shown to have been just and equitable as required by section 8(1) of Extension of Security of Tenure Act. Monde v Viljoen NO and others [2018] 4 All SA 665 (SCA)

Irregular steps-appeal-security ordered not given-appeal dismissed Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ)

Legal Representation-at state expense-State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings-not authorised Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

National Credit Act-Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Permissible until credit provider realises proceeds of sale in execution — Mere attachment of goods or property no bar to reinstatement — Power to reinstate resting with consumer, not credit provider — National Credit Act 34 of 2005, s 129(3) and s 129(4). ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) National Credit Act-Settlement agreements-Consumer – Complaint to National Consumer Tribunal – Settlement agreement – Power to confirm as consent order Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT)

Res judicata — requirements — finality — decision concerning legal standing is final- the High Court could not re-adjudicate the same issues between the same parties.Mkhize NO v Premier of the Province of KwaZulu-Natal and Others (CCT285/17) [2018] ZACC 50 (6 December 2018)

Review-Administrative law – Applications for judicial review under the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and under the principle of legality - Decisions by the Presidency and by the State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings – Statutory authority invoked for the impugned decisions are s 3(1) or s 3(3) of the State Attorney Act 56 of 1957 and reg 12.2 of the Treasury Regulations made in terms of the Public Finance Management Act 1 of 1999. Democratic Alliance v President of the Republic of South Africa and

Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

Rule 33 (4) application for separation of issues in terms of rule 33 (4) of the Rules. Applicant seeking determination of the issue of decree of divorce be separated from that of division of joint estate in the divorce proceedings. Legal principles governing separation restated. Consequences to the application in terms rule 43 of the Rules once separation is granted and decree of divorce is made. Rule 43 application cannot sustain once decree of divorce is granted. N K v K M (2018/25403) [2018] ZAGPJHC 634 (7 December 2018)

Security for costs – Increase of amount Good Hope Plasterers CC t/a Good Hope Construction v Aecom SA (Pty) Ltd [2018] JOL 40628 (WCC)

Separation of issues in terms of Uniform rule 33(4) – separation of issues -thought should be given to a separation of issues, and that convenience and expedition should be the object, not heeded – when issues are inextricably linked a full ventilation of all the issues is more often than not the better course and might ultimately prove expeditious and provide The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association (106/2018) [2018] ZASCA 176 (3 December 2018)

Settlement agreements-Consumer – Complaint to National Consumer Tribunal – Settlement agreement – Power to confirm as consent order Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT) Summary judgment – Requirements – Rule 32, Uniform Rules of Court-facts in legal proceedings they must be within his personal knowledge-not so in this case RSC Avelo (Pty) Limited v Kenako Concrete (Pty) Limited and others [2018] JOL 40593 (ECP) CASES Plastomark (Pty) Limited v Small and others [2018] JOL 40580 (ECG)

Execution– Execution against immovable property – Primary residence – Court’s discretion

On 24 November 2016, judgment was granted in favour of the applicant (“Plastomark”) against the first respondsent (“Small”) and another. Since the judgment was granted, Small made no payment. Execution against his movable property resulted in a nulla bona return and he deposed to an affidavit to the effect that he was unable to pay the amount due and that he did not possess any disposable property to satisfy the judgment.

The present application was for an order declaring Small’s immovable property executable.

Held that the principles to be applied in deciding whether or not to authorise execution against immovable property which is a person’s home have developed considerably in the constitutional era. A primary consideration in such matters is the constitutional right to access to adequate housing. Rule 46A(2)(a)(ii) of the Uniform Rules of Court requires a court to consider alternative means by the judgment debtor of satisfying the

judgment debt, other than execution against the primary residence. Rule 46A(8)(d) provides that a court may order execution against the primary residence of a judgment debtor if there is no other satisfactory means of satisfying the judgment debt.

In the present case, the debt was a large one and the court was of the view that execution against the property was in the circumstances, not disproportionate. The relevant factors cumulatively demonstrated that there was little reason for the court to exercise its discretion in favour of Small. The disadvantage to Plastomark if execution was refused outweighed any harm to Small which might occur if the property was sold in execution.

The application accordingly succeeded.

RSC Avelo (Pty) Limited v Kenako Concrete (Pty) Limited and others [2018] JOL 40593 (ECP)

Summary judgment – Requirements – Rule 32, Uniform Rules of Court-facts in legal proceedings they must be within his personal knowledge-not so in this case

In its action against the defendants, the plaintiff sued the first defendant for payment in respect of goods sold and delivered. The claim against the second and third defendants was based on a suretyship agreement wherein they had bound themselves as surety and co-principal debtors in solidum with the first defendant.

After the defendants filed a notice of intention to defend, the plaintiff applied for summary judgment in terms of Rule 32 of the Uniform Rules of Court.

Held that Rule 32(2) provides, “The plaintiff shall within fifteen days after the date of delivery of notice of intention to defend, deliver notice of application for summary judgment, together with an affidavit made by himself or by any other person who can swear positively to the facts verifying the cause of action and the amount, if any, claimed and stating that in his opinion there is not bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay.”

An applicant in a summary judgment application needs to comply strictly with the different, distinct requirements set out in Rule 32(2). Generally, before a person can swear positively to facts in legal proceedings they must be within his personal knowledge. In the present matter, the court raised the question of whether the deponent to the supporting affidavit had the requisite direct knowledge of the facts. A proper consideration of the papers as a whole indicated that the deponent to the verifying affidavit did not have direct knowledge of the facts to be able to swear positively to them. Consequently the application for summary judgment was fatally defective and had to fail.

Eagle Creek Investments 472 (Pty) Limited v Focus Connection (Pty) Limited and another [2018] JOL 40609 (GJ)

Irregular steps-appeal-security ordered not given-appeal dismissed Appeal-security- Irregular steps-appeal-security ordered not given-appeal dismissed

in terms of Rule 30A of the Uniform Rules of Court, the applicant sought to have the various steps taken by the respondent in this matter set aside as an irregular step.

The respondents had obtained leave to appeal against the granting of summary judgment against them, in favour of the applicant. The applicant then applied for security for costs of appeal in terms of Rule 49(13). On 18 April 2018, the Registrar fixed the security for costs of the appeal at the amount of R65 000 and ordered that it be secured by way of a bank guarantee within 30 days from 18 April 2018. On 17 May 2018, the respondents delivered a notice for security for costs without providing the actual security.

Held that Rule 49(13)(a) provides that, “Unless the respondent waives his or her right to security or the court in granting leave to appeal or subsequently on application to it, has released the appellant wholly or partially from that obligation, the appellant shall, before lodging copies of the record on appeal with the registrar, enter into good and sufficient security for the respondent’s costs of appeal”. If security is not provided as stipulated in the Rule an appeal may be struck off the roll. The Court was advised during argument that the respondents were still to provide security for costs. In terms of Chapter 7 of the Practice Manual, the Registrar could not accept any appeal matter, unless the appellant or the attorney of the appellant simultaneously submitted to the Registrar, a complete record, indexed and paginated, heads of argument and practice note. The respondents’ failure to provide security timeously, precluded them from furnishing the Registrar with the appeal record, heads of argument and practice note. All the steps that they took without providing security to the Registrar in an attempt to advance the matter towards a hearing date were therefore irregular.

The application was duly granted.

Makhambi v Member of the Executive Council for Health, Eastern Cape and another [2018] JOL 40604 (ECM)

Applications- Drafting of application – Negligence of legal practitioners

The applicant alleges that after sustaining injury for which she was admitted for two days at a State hospital for treatment and care, she instructed her attorneys to lodge a request for accessing the relevant duly completed RAF1 form and her medical records pertaining to the injuries she sustained. She intended to claim compensation from the Road Accident Fund. Her request to access the records elicited no response from the second respondent.

Seeking an order declaring unlawful the respondents’ refusal and/or failure to consider and take a decision on the applicant’s request for access to her medical reports and records, the applicant based her application on section 78(2) read with section 82 of the Promotion of Access to Information Act 2 of 2000, read with the provisions of the Promotion of Administrative Justice Act 3 of 2000.

When the matter went before court, it was removed from the roll, and the applicant granted leave to deliver a supplementary affidavit. Without any supplementary affidavit having been delivered, the application was re-enrolled for hearing and served before the present court. The Court drew the provisions of section 14 of the Promotion of Access to Information Act to the attention of the applicant’s counsel and enquired

whether the request for access to records and the resulting appeal had been duly and properly served. Counsel disavowed any reliance on the said Act, and when pointed to the relevant paragraphs in the founding affidavit wherein pertinent reference was made to the Act, counsel pressed no further with the contention.

Held that noting that there were 66 similar applications enrolled for hearing before the court, the Court was concerned that a culture had developed for practitioners to remove a matter from the roll of a judge who had raised a concern and thereafter reinstate the matter so as to serve before another judge, even without any supplementary papers having been filed, in the hope that the judge hearing the matter on the subsequent occasion might not pick up the shortcoming and grant the order sought without ado.

The present application, purporting as it did to be in terms of the Promotion of Access to Information Act, did not pass muster. The Court found that the applicant’s counsel did not bother to read the papers before submitting that they were in order. The practitioner who drafted the papers either resorted to cutting and pasting or was utterly remiss as to the content of the papers that were being drawn. The lack of professionalism on the part of the applicant’s legal representatives led to the Court directing that they were not entitled to recover any fees from the applicant for handling the case.

The application was dismissed.

Good Hope Plasterers CC t/a Good Hope Construction v Aecom SA (Pty) Ltd [2018] JOL 40628 (WCC)

Security for costs – Increase of amount

The applicant (“Good Hope”) was a building contractor and the plaintiff in the main action between the parties. The respondent (“Aecom”) provided professional engineering, consulting and project management services for infrastructure projects.

In the present application, Good Hope sought an order declaring that Aecom was not entitled to approach the registrar to increase what Aecom regarded as security for costs of R25 000 in terms of an order granted by agreement on 13 January 2017.

In August 2016, Good Hope instituted the main action against Aecom for payment of various amounts allegedly owed under certain payment certificates totalling R3.9 million together with an order directing Aecom to take certain steps including the furnishing of a final payment certificate as well as payment in terms thereof. Aecom entered an appearance to defend and delivered a request for security for costs in terms of uniform rule 47 in the amount of R100 000. Good Hope responded with an offer to furnish an amount of R25 000 as security, despite disputing Aecom’s entitlement thereto. The offer was accepted by Aecom. However, after Good Hope paid the amount into its attorney’s trust account, Aecom indicated that the undertaking was unacceptable, and demanded that Good Hope to put up security for costs in the amount of R25 000 by way of an irrevocable and unconditional guarantee issued by a first class South African commercial bank. Good Hope demurred, repeating its contention that Aecom was not entitled to security.

Held that Good Hope wrongly interpreted Aecom’s defence and counterclaim as admission of liability in at least the sum of R1.4 million. However, Aecom’s pleadings showed that Good Hope’s claim was completely extinguished by set-off and that after set-off had been applied, Good Hope was nonetheless indebted to Aecom in the amount of R9 million.

Although Good Hope disputed Aecom’s entitlement to security, it nonetheless offered such security in order to avoid any unnecessary litigation in the amount of R25 000 in a form determined by the Registrar. Aecom accepted the amount of R25 000 tendered as security and the only remaining dispute was the form that the security should take. It was clear from Aecom’s application, which culminated in the order of 13 January 2017, that Aecom approached the court not only to order that security be furnished (in the agreed sum of R25 000) but also to determine the form and manner of such security. Not only did the order determine that security be furnished, and its amount, it also determined the form and manner thereof. There was therefore nothing preventing Aecom seeking to have the amount of security increased.

The application was dismissed.

Netshivhuyu v Kia Motors South Africa (Pty) Limited t/a Kia Hatfield [2018] JOL 40636 (NCT)

Settlement agreements-Consumer – Complaint to National Consumer Tribunal – Settlement agreement – Power to confirm as consent order

The respondent was a motor vehicle dealership from which the applicant had purchased a pre-owned vehicle. He alleged that the vehicle started to show problems a few weeks after he bought it. An extended period of engagement between the parries ensued, in which the problem with the vehicle was diagnosed and the applicant was told that the defective part would be replaced. He found however, that instead of replacing the part, the respondent had merely had it repaired.

Dissatisfied with the respondent’s failure to attend to the vehicle’s performance, the applicant filed a complaint against the respondent with the Motor Industry Ombudsman of South Africa, which issued a finding that the respondent had adhered to the provisions of section 56 of the Consumer Protection Act 68 of 2008. Unhappy with that decision, the applicant then referred the matter to the National Consumer Commission. The Commission issued a notice of non-referral, stating that the complaint did not allege any facts, which, if true, would constitute grounds for a remedy under the Consumer Protection Act. The applicant obtained leave to refer the matter directly to the Tribunal.

Before the matter could be heard, the parties settled the dispute and provided a signed settlement agreement to the Tribunal for confirmation as a consent order. However, having examined the terms of the settlement agreement, the Tribunal decided on a different conclusion.

Held that the Tribunal is entitled to vary its decision or order when it becomes aware of an error. Section 165 of the National Credit Act 34 of 2005 provides for the rescission or variation of an order granted by the Tribunal acting of its own accord or on application by a person affected by a decision or order. The Tribunal highlighted certain clauses in the agreement which were cause for concern. Two of the clauses pointed to constituted an express denial of any prohibited conduct or failed required

conduct. Tribunal can only make a settlement agreement an order of the Tribunal if the conduct relates prohibited conduct, or required conduct, and is not empowered to address agreements that fall outside of the scope of our jurisdiction. Two other clause were shown to have the effect of nullifying the Tribunal’s powers to confirm the settlement agreement post facto, and to exclude the application of section 160(1) of the National Credit Act.

The settlement agreement was held to fall outside the Tribunal’s jurisdiction to confirm an agreement as a consent order.

Mkhize NO v Premier of the Province of KwaZulu-Natal and Others (CCT285/17) [2018] ZACC 50 (6 December 2018)

Res judicata — requirements — finality — decision concerning legal standing is final- the High Court could not re-adjudicate the same issues between the same parties.

On Thursday 6 December 2018, the Constitutional Court handed down judgment in an application for leave to appeal against an order of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg (High Court). The matter concerned the High Court’s interpretation of an earlier order of the Supreme Court of Appeal whether the High Court had erred in deciding the merits of the case rather than dismissing it as a matter already decided by a court.

The applicant is Ms Sithembile Mkhize, acting in her capacity as executrix of the estate of her deceased husband, the late Zwelibhekile Mbuyazi (the deceased). The first and fourth respondents are the Premier of KwaZulu-Natal (Premier) and the Member of the Executive Council of the Department of Co-operative Governance and Traditional Affairs (MEC) in KwaZulu-Natal, respectively. The second respondent is Mr Mkhanyiseni Mbuyazi, the deceased’s younger brother.

In 2010, the MEC removed the deceased as Inkosi of the Mbuyazi Community and appointed the second respondent as the new Inkosi. The deceased launched an application in the High Court seeking to review and set aside his removal from office (review application). The deceased also sought an interim order preventing either himself or the second respondent from holding the position of Inkosi until the matter had been resolved. The interim order was granted and the matter was referred to trial for determination. However, the deceased died before the commencement of the trial.

Following the deceased’s death, the second respondent launched an application in the High Court seeking an order, amongst others, (1) rescinding the interim relief; and (2) dismissing the deceased’s application for review. Ms Mkhize brought a counter-application seeking to be substituted as the first applicant in the review application in her capacity as executrix of the deceased’s estate and also to be joined as the second applicant in her capacity as legal guardian of the deceased’s minor son, Phathokuhle. Ms Mkhize also sought an order directing the Premier to pay to the deceased’s estate the further amounts to which the deceased was entitled as salary from 2010 until his death in 2012 (salary claim). The High Court dismissed Ms Mkhize’s counter-applications to be substituted as the applicant in the deceased’s review and to join her as the second applicant. The High Court also rescinded the interim order, thereby allowing the second respondent to become Inkosi.

Ms Mkhize appealed to the Supreme Court of Appeal which granted her substitution application in the deceased’s monetary claims but dismissed her application to be substituted or joined as guardian of Phathokuhle in the review application on the basis that the deceased’s claim to be reinstated as Inkosi was a personal right and not transmissible. The second respondent’s application for rescission of the interim order was unsuccessful. The Court held that the question of the deceased’s wrongful removal should still be determined at trial in order to determine the monetary claims and the deceased’s rightful successor.

In 2015, the second respondent launched an urgent application in the High Court seeking rescission of the order referring the matter to trial. Ms Mkhize counter-applied to consolidate this application, the salary claim, and her separate action on behalf of Phathokuhle in his succession claim. Sishi J for the High Court held that: (1) the effect of the Supreme Court of Appeal’s judgment was that Ms Mkhize had no legal claim to pursue a review of the deceased’s removal and therefore the review application must fall away because there is no longer any applicant; (2) the monetary claim was separate from the review application and unrelated to whether or not the deceased was unlawfully removed; (3) Ms Mkhize and the deceased’s son’s claim was unlikely to achieve anything and so the counter-application for consolidation of the applications should be dismissed; and (4) the interim order should be rescinded.

Ms Mkhize then applied for leave to appeal to the Full Court, this was dismissed. Thereafter, she applied to the Supreme Court of Appeal for leave to appeal; that application was also dismissed.

Before the Constitutional Court, Ms Mkhize argued that Sishi J in the High Court misinterpreted and effectively overruled the judgment of the Supreme Court of Appeal, and failed to appreciate the principle of res judicata which prevents the High Court from adjudicating a matter already decided by the Supreme Court of Appeal. Ms Mkhize also submitted that the matter must go to trial because the monetary claim and the deceased son’s succession claim both depended on a finding that the deceased’s removal was unlawful. The Premier, MEC and the second respondent contended that the decision to remove the deceased from office was an administrative decision and that an administrative decision can only be set aside on review. However, because the applicant in the review application is now deceased, the review application must fall away and the deceased’s removal from office is therefore valid.

In a unanimous judgment penned by Dlodlo AJ, the Constitutional Court considered the judgment of the Supreme Court of Appeal and held that the Supreme Court of Appeal had concluded that Ms Mkhize could not be substituted in the review application only insofar as the original review application sought the reinstatement of the deceased. The right to reinstatement was a personal right of the deceased that could not be transferred. However, in terms of the Promotion of Administrative Justice Act, the right to pursue a judicial review of administrative action is not a personal right and anyone can seek such a review. The Supreme Court of Appeal could not have intended to limit the right to seek an administrative review. On this basis, the Constitutional Court held that the High Court, per Sishi J, did not give due consideration to both the binding effect of previous judgments and matters already decided. In terms of the binding effect of previous judgments, the High Court was bound by the legal principles applied by the Supreme Court of Appeal, and in terms of the matter already being decided, the High Court could not re-adjudicate the same issues between the same parties. Though it was not central to the issue at hand, the

Constitutional Court also held that courts should not consider customary law matters through a common law lens, but should adjudicate customary law matters using the customary law.

Consequently, the Constitutional Court issued an order granting leave to appeal and upholding Ms Mkhize’s appeal. The Premier and the MEC were ordered to pay the costs of the application

Democratic Alliance v President of the Republic of South Africa and Others; Economic Freedom Fighters v State Attorney and Others (21405/18; 29984/18) [2018] ZAGPPHC 836 (13 December 2018)

Review-Administrative law – Applications for judicial review under the provisions of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) and under the principle of legality - Decisions by the Presidency and by the State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings – Statutory authority invoked for the impugned decisions are s 3(1) or s 3(3) of the State Attorney Act 56 of 1957 and reg 12.2 of the Treasury Regulations made in terms of the Public Finance Management Act 1 of 1999.

Legal Representation-at state expense-State Attorney to procure private legal representation for Mr Zuma and for the state to pay for his private legal costs in defending the corruption, fraud and other criminal charges against him and in the ancillary or related civil legal proceedings-not authorised

Impugned decisions were not authorised by the statutory provisions invoked - they amount to a breach of the principle of legality, are unconstitutional, and fall to be set aside – they also fall to be reviewed and set aside in terms of PAJA - they were not authorised and are ultra vires, and materially influenced by an error of law.

N K v K M (2018/25403) [2018] ZAGPJHC 634 (7 December 2018)

Rule 33 (4) application for separation of issues in terms of rule 33 (4) of the Rules. Applicant seeking determination of the issue of decree of divorce be separated from that of division of joint estate in the divorce proceedings. Legal principles governing separation restated. Consequences to the application in terms rule 43 of the Rules once separation is granted and decree of divorce is made. Rule 43 application cannot sustain once decree of divorce is granted.

This is an application in terms of which the applicant seeks an order in terms of rule 33(4) of the Uniform Rules of the High Court (the Rules) for a separation of the issues in the divorce proceedings between him and his wife filed under case number 2017/42930. The relief sought is to have the issue of divorce separated from that in which he seeks to have the respondent forfeit the right to share in the joint estate on divorce.

Common cause facts

2. It is common cause that both parties are in the main action seeking an order to have their marriage dissolved. They are still living together in the same matrimonial home, except that they are no longer living as husband and wife for a period in excess of one year. They have accepted that their marriage, concluded on 21 March 2015 in community of property, has irretrievably broken down. There are no children born of this marriage. The respondent has two children from her previous marriage.

3. The divorce proceedings were instituted by the applicant during November 2017. In addition to seeking a decree of divorce in the main application the applicant prays for the forfeiture of the benefit of the marriage and whether he should be ordered to pay maintenance for the respondent.

4. From the papers it is apparent that the respondent is opposing the applicant’s claim only to the extent that he is seeking forfeiture of the matrimonial benefits of the marriage. She contends that the joint estate should be divided equally between the parties and also that she be granted spousal maintenance or contribution towards her costs.

5. The main issues between the parties as matters stand now are:

a. The applicant’s claim for forfeiture of patrimonial benefits of the marriage.

b. The respondent’s claim for the division of the joint estate.

c. The respondent’s claim for maintenance.

6. The respondent has instituted proceedings in terms of rule 43 of the Rules in terms of which she is claiming maintenance pending the finalisation of the divorce. The application is opposed by the applicant.

The grounds for the separation of issues

7. The grounds for the separations of issues as set out in the applicant’s founding affidavit are as follows:

“14. As the Respondent and I are [living] together as husband and wife, share no common interest and the relationship between us is extremely strained, I wish to get on with my life and seek a decree of divorce.”

15. The trial in this matter has been set down for hearing on 18 April 2019.

16. I submit that it is convenient that the issues be separated as sought by me in the notice of motion and that the matter be set down for hearing on the unopposed roll for a divorce, subject to the remaining issues being stayed and to be determined at the hearing of the trial.

17. The Respondent will not suffer any prejudice if such separation be granted.”

15. The above includes the contention that:

i. the respondent is employable and has assets and means to be self-supporting;

ii. that he will continue to pay maintenance pendente lite as tendered in the Rule 43 application until the final determination of the divorce

action. The other reason for seeking separation is that the applicant wishes “to get on with his life.”

It is thus correct that once a decree of divorce is granted the provisions of rule 43 of the Rules will find no application. Accordingly the decisions in Gunston and Beckleymade by the Gauteng division are correct and binding on this court as opposed to KO v MO which is a decision of the Western Cape division.

40. In light of the above findings there would be no basis in law for the respondent to institute a rule 43 application once a decree of divorce is granted following the separation of the divorce from the other issues. In the premises, the applicant's application stands to fail because it would not be convenient for the respondent if the issue of divorce was to be separated from the other issues.

41. In the circumstances, the applicant's application is dismissed with costs.

The City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners Association (106/2018) [2018] ZASCA 176 (3 December 2018)

Separation of issues in terms of Uniform rule 33(4) – separation of issues -thought should be given to a separation of issues, and that convenience and expedition should be the object, not heeded – when issues are inextricably linked a full ventilation of all the issues is more often than not the better course and might ultimately prove expeditious and provide

The Supreme Court of Appeal (the SCA) upheld the appeal with costs, the effect being that the remaining issues have to be adjudicated by the court below.

The essential issue between the parties, even before the inception of litigation, was which of a range of tariffs the appellant, the City of Tshwane Metropolitan Municipality (the City) could charge the respondent, the Blair Atholl Homeowners Association (the association), for the water it supplied to the housing estate which the latter administered. The dispute was about whether the words ‘normal rate’ in an Engineering Services Agreement (the ESA) was the ‘bulk rate for municipalities’.

At the relevant time, a major problem encountered by the developer was that, because the land was situated outside of the urban edge and beyond priority areas, the City was not yet supplying water to that area nor was it in contemplation in the immediate future. The developer entered into discussions with the City to resolve this difficulty and to attempt to persuade the City to facilitate the development of the proposed township by providing water and other municipal services to the area.

The City was only prepared to provide water to the area on the basis that the developer fund the construction of a 20 kilometre water pipeline that would enable the water to be supplied to the new development. It also required the developer to construct an internal and external reservoir and a sewage package plant. After extended

discussions and exchanges of written communications as well as several drafts of a contemplated written agreement, an ESA was concluded in February 2006.

The matter was decided on a separated issue in terms of Uniform rule 33(4), namely, an interpretation of clause 6.16 of the ESA and consequently whether the ‘bulk rate for municipalities’, as contended for by the association, applied. No order of separation was made at the commencement of proceedings and there was no order at that time that the remaining issues were to stand over.

The SCA repeated that careful thought should be given to a separation of issues, and that convenience and expedition should be the object. The court held further that when issues were inextricably linked a full ventilation of all the issues was more often than not the better course and might ultimately prove expeditious and provide finality. In the present case it did not have that effect.

The clause in question, was interpreted as dictated by prior decisions of the SCA. The courts recent experience has been that in many cases extensive inadmissible extrinsic evidence has been allowed in relation to the interpretation of written documents.

The SCA had regard to the context within which the ESA was concluded. It took into account that City supplied water services on the basis that certain infrastructural costs were met by the developer. Much was sought to be made of this fact in justifying the contention that it would only be fair and it made business sense to conclude that the ‘normal rate’ referred to in clause 6.16 was the bulk rate for municipalities. Against that, for contextual purposes, one had to take into account that the City’s insistence, at the outset, that in order for it to provide water services, the developer would have had to pay for infrastructural costs was justifiable, on the basis that the development was located beyond the urban edge and the City’s priority area. The SCA also had regard to the contention on behalf of the association that the clause being interpreted commenced by stating that the ‘normal rate’ of the municipality would apply in recognition of the infrastructure being provided and that, therefore, it implied that a reduced rate was the quid pro quo. The SCA also took into account that the City did not charge for sewage and that the legislation regulating tariffs provided for surcharges, where justifiable, and in the present case did not impose them. It also took into account that there was a range of ‘normal rates’. The SCA considered it significant that the rates did not provide for consumers that were ‘like a municipality’. In this regard it had been contended on behalf of the association that, by bearing infrastructural costs, it was ‘like a municipality’.

The SCA held in favour of the City on the basis that the normal rate provided for in the ESA was not the bulk rate for municipalities. It went on to uphold the appeal.

The SCA concluded that the remaining issues, including a constitutional statutory challenge by the association to the City’s claimed rate and the amounts claimed by the City based on the tariff it contended was applicable were to be remitted to the court below to be adjudicated. It held that this demonstrated how insufficient thought had been given to the separation of issues.

Viziya Corporation v Collaborit Holdings (Pty) Ltd and Others (1189/17) [2018] ZASCA 189 (19 December 2018)

Anton Piller order – requirements –necessity for evidence of prima facie existence of vital documents and materials – electronic searches – need for specificity in regard to objects of search – purpose of order not to give the applicant access to documents or material or to search for evidence on which to base claim – not to be used to obtain early discovery

The Supreme Court of Appeal (SCA) dismissed an appeal brought by the appellant, Viziya Corporation (Viziya), against a judgment of the Gauteng Division of the High Court, Pretoria (the high court).

The issue at the centre of this appeal concerned the question of whether the high court exercised its discretion properly when it set aside an Anton Piller order that had been granted in favour of the appellant on appeal in the same court. The Anton Piller order was discharged following a reconsideration application brought by the respondents Collaborit Holdings (Pty) Ltd and others (Collaborit). Related to this issue is the question whether the respondents should be allowed to lead further evidence on appeal.

The appeal stemmed from the following factual background. On 25 August 2014, Viziya, a company that develops and sells computer systems and software, concluded an agreement (the agreement) with Collaborit in terms of which Collaborit was to facilitate the referral and sale of Viziya’s products and services. In return for such referrals, Collaborit would be paid fees in accordance with a formula set out in the agreement.

The agreement contained two crucial provisions that were pertinent to the litigation of this matter. The first provision required Collaborit to use all necessary precautions to ensure that disclosure of Viziya’s proprietary property would not be made available to a competitor or a suspected competitor of Viziya. While the second provision required Collaborit not to sell and develop work products that are competitive to Viziya products.

On 10 January 2016, the agreement was terminated pursuant to a notice given to Collaborit in terms of which Viziya alleged that during the period of the agreement and in breach of the provisions pf the agreement Collaborit developed its own work products which it marketed and sold in unlawful competition with Viziya. Viziya alleged that these products did not exist when the agreement was concluded and that Collaborit endeavoured to market this product in competition with them and that such action was in breach of the agreement.

Based on these allegations, Viziya brought an ex-parte application for an Anton Piller order in the high court, which was heard and granted in chambers. At a later stage,

Collaborit brought an application to set aside the order. The high court granted the application and discharged the order and subsequently refused Viziya leave to appeal. It is against the order refusing leave to appeal that Viziya appealed to this Court.

In its judgement, the high court found that Viziya had satisfied the first two requirements of an Anton Piller order namely that (1) Viziya had prima facie established a cause of action against Collaborit which it intended to pursue; (2) Viziya had in its possession documents or things which constituted vital evidence in substantiation of Viziya’s cause of action (but in respect of which Viziya could not claim a real or personal right). The high court however, held that Collaborit failed to establish that there was a real and well-founded apprehension that this evidence which was preserved by means of the Anton Piller order might be hidden or destroyed or in some manner be spirited away by the time the case came to trial or to the stage of discovery. It accordingly discharged the Anton Piller order and additionally, refused leave to appeal on the grounds that there were no reasonable prospects of success on appeal.

On appeal this court dismissed the application for leave to lead further evidence and subsequently found that Viziya had fail to identify or specify which vital information was in the possession of Collaborit that needed to be preserved. It held that a blanket search for unspecified documents or evidence which may or may not exist is not permitted. The court further held that the proposed keyword search was invasive and amounted to a trawling expedition through every aspect of Collaborit’s business. This court concluded that the high court erred in categorising the information sought by Viziya as vital and specific and thus concluded that the ex parte order was wide and expansive.

This court held that Viziya failed to show that Collaborit was untrustworthy or dishonest and that Viziya failed to show why Collaborit would destroy or conceal information whilst continuing to market its rival products.

In short, the court held that Viziya’s evidence of dishonesty on Collaborit’s part was flimsy. Without a substantiated case of significant dishonesty, there cannot be a reasonable apprehension that a party will destroy or conceal evidence. As a result the appeal was dismissed with costs.

Standard Bank of South Africa Limited v Hendricks and Another; Standard Bank of South Africa Limited v Sampson and Another; Standard Bank of South Africa Limited v Kamfer; Standard Bank of South Africa Limited v Adams and Another; Standard Bank of South Africa Limited v Botha NO; Absa Bank Limited v Louw (11294/18; 15134/18; 12777/18; 12285/18; 13809/18; 22263/17; 12365/18) [2018] ZAWCHC 175 (14 December 2018)

Execution-Foreclosure –Western Cape High Court- The application for the money judgment and an order of special execution against immovable property which is mortgaged to secure the loan and which is the primary residence of the judgment debtor are intrinsically connected and must be brought in one proceeding and not in

a piecemeal manner as separate applications, where possible. The applications must be served personally on the debtor, unless ordered otherwise by the Court. The application for the money judgment may be postponed together with the application for an order of special execution against property which is the primary residence of the judgment debtor given that the two applications are intrinsically linked and therefore together engage a debtor’s s 26 constitutional right. All the facts should be placed before the court to sustain the relief sought in the combined application. A new practice direction 33A is proposed, together with the form of the affidavit which must be attached to the application for relief in such matters. A failure to adhere to this format, it is proposed would disentitle a party to relief. When a court is appraised of all the facts, a decision whether to place a reserve price on the sale of a house that may be sold in execution, can be properly taken. Each matter will depend on its own facts.

CIPLA AGRIMED (PTY) LTD v MERCK SHARP DOHME CORPORATION AND OTHERS 2018 (6) SA 440 (SCA) Appeal — Appealability — Generally — Restatement of test for appealability of judgment or order. Appeal— Appealability — Interim interdict — Interim interdict granted prohibiting infringement of patent — Claim that patent would have expired prior to determination of final interdict — Whether interdict final in effect, and therefore appealable — Discussion of test set out in BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W) for whether application for interim interdict should be treated as final — Court concluding that interim interdict not final in effect and therefore not appealable. Cipla was the proprietor of patent 92/7457 (the 1992 patent); Merck, of patent 98/10975 (the 1998 patent). In June 2011 Cipla instituted an application (revocation application) in the Court for the Commissioner of Patents (the CCP) for the revocation of Merck's 1998 patent, based on two grounds: that the 1998 patent was anticipated by Cipla's 1992 patent (anticipation point); and that it did not involve an 'inventive step' (obviousness point). Merck, in October 2011 in the CCP, launched an action (infringement action) for an interdict against what it alleged to be Cipla's infringement of its 1998 patent. Cipla, in its plea to such action, submitted that Merck's patent was invalid, and liable to be revoked on the same grounds set out in the revocation application. When the revocation application was heard before the CCP in March 2013 (the infringement action was stayed in the meantime), Cipla, in argument, attacked the validity of Merck's patent only onthe anticipation point. The CCP granted revocation, but the SCA upheld the appeal (in which Merck again relied only on its anticipation point), heard in November 2015, finding that the 1998 patent was valid and that on such grounds the revocation application should have been dismissed. In January 2016 Merck launched an urgent application in the CCP — the court a quo for present purposes — for an interdict pending the final determination of the infringement action. Cipla now sought to rely on its 'obviousness point' to once again dispute the validity of the 1998 patent. The CCP (delivering judgment in March 2016) granted an interdict, with the proviso that it would lapse on the expiry date of the 1998 patent — 3 December 2018 — if the action was not finally determined by that date. The sole ground on which the court granted relief was that the validity of the 1998 patent was res judicata. In explanation it added that, although only the anticipation point had been argued in the CCP and before the SCA, Cipla had

been obliged to put forward, in the revocation application, all its attacks on the validity of the 1998 patent. The CCP granted leave to Cipla to appeal to the SCA. Only one issue was in issue: the appealability of the court a quo's decision to grant the interlocutory interdict. The rule, referred to by the SCA, was that, for a decision to be appealable, as a general principle, it had to have three attributes (see [18] and [37]): it had to be final in effect; it had to be definitive of the rights of the parties; and it had to have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. Cipla acknowledged the general rule that interdicts granted pending final relief were not appealable. It, however, argued that, although the interdict was interim in form, it was final in effect, because the pending infringement action was unlikely to be determined before the expiry of the patent on 3 December 2018. Since the final interdict claimed in the infringement action could itself not endure beyond 3 December 2018, the interim order in effect finally disposed of the interdictory relief. On such basis, Cipla concluded, the granting of the interim interdict was appealable. Gorven AJA and Rogers AJA wrote separate judgments. Both arrived at the same conclusion — that the court a quo's decision to grant an interim interdict was not appealable, and the appeal should hence be struck from the roll — but differed in their approach. Gorven AJA (with whose judgment Ponnan JA, Cachalia JA and Mathopo JA concurred) (judgment from [34]) provided an overview of the principles governing the appealability of decisions of a court, in particular the circumstances in which interlocutory orders might qualify as being 'final in effect', despite their being interim in form. 'Final in effect' meant that an issue in the suit had been affected by the order such that the issue could not be revisited either by the court of first instance or the court hearing the appeal (see [47]). Gorven AJA noted that the fact that the granting of an interim interdict gave rise to prejudice on the person against whom it operated did not in itself render such an order appealable; the only prejudice which might make such an order appealable was prejudice that in some way affected the final determination of an issue in the suit or stood in the way of an issue being determined at a later date. (See [39] – [40].) Cipla's argument — that the interim interdict against it was 'final in effect' because the patent would have run its course by the time the main action came to be considered — Gorven AJA held, boiled down to the argument that Cipla was prejudiced because 'time could not be recalled'. This kind of prejudice did not render the order of the court a quo appealable. The court a quo had not finally decided the res judicata issue; it would be considered by the court considering the infringement action. Gorven AJA concluded that the order was not final in effect, was in form and effect an interlocutory interdict and not appealable. (See [48] and [50].) Rogers AJA differed from Gorven AJA to the extent that he found it appropriate to consider and apply the principles established in a case relied on by Cipla — BHT Water Treatment (Pty) Ltd v Leslie and Another 1993 (1) SA 47 (W). * In that case the applicant had sought to enforce a 12-month restraint of trade. Presiding Judge Marais said that, although what the applicant sought was an interim interdict, it was in substance final because the granting of an interdict would not be finally determined before the expiry of the restraint. Marais J thus considered that he should apply the test for final interdicts. (See [21].) A principle to be extracted from such case, Rogers AJA held, was that if a court granted an interim interdict in circumstances where it should, on the basis of BHT, have treated the application as one for final relief, the interdict, though interim in form, was final for purposes of appealability. This was particularly so where, as here, Cipla pertinently alleged in the

court a quo, and subsequently argued, that the matter should, in accordance with BHT, be adjudicated as a claim for a final interdict and where the court a quo's failure to do so was one of the grounds of appeal. (See [23].) (Since the correctness of the competing lines of authority was not canvassed in argument, Rogers AJA assumed, without deciding, that the BHT approach was sound in principle (see [24]).) Rogers AJA, however, held that, on the basis of BHT, the court a quo was correct in treating the interdict asked for as an interim one (see [27]). This was so because the BHT approach had to be confined to cases where it was clear, at the time the court granted the interdict, that the matter would not be able to be finally determined before the interdict in any event expired.That condition was not met here on the facts: when the court a quo heard the matter in March 2016, the probabilities were that a final decision could be achieved prior to 3 December 2018 (see [26]). Rogers AJA concluded that the interdict that was granted was interim in form and in substance, and on ordinary principles it was not appealable. ABSA BANK LTD v MOKEBE AND RELATED CASES 2018 (6) SA 492 (GJ) Credit agreement — Consumer credit agreement — Reinstatement of agreement in default — Permissible until credit provider realises proceeds of sale in execution — Mere attachment of goods or property no bar to reinstatement — Power to reinstate resting with consumer, not credit provider — National Credit Act 34 of 2005, s 129(3) and s 129(4). Mortgage — Foreclosure — Judicial execution — Primary residence — Money judgment and execution claims inextricably linked — Must be sought and adjudicated together in one proceeding — If postponement required, then matter to be postponed in its entirety. Mortgage— Foreclosure — Judicial execution — Sale in execution — Residential property — Reserve price — Court must, except in exceptional circumstances, set reserve price — Both sides to place all relevant facts before court — Uniform Rules of Court, rule 46A(8)(e). A full bench of the High Court was tasked, under s 14(1)(a) of the Superior Courts Act 10 of 2013, with making a ruling on the procedures to be followed by banks when foreclosing mortgages on primary residences, and on the propriety of the practice of the courts of granting applications for money judgments against defaulting homeowners while postponing the associated applications for sale in execution. The court was also required to consider under what circumstances courts should set a reserve price for the property, a matter that had to be determined under the new rule 46A of the Uniform Rules (effective since 22 December 2017). The applicable statutory provisions were — • s 26 of the Constitution, which guarantees the right to adequate housing; • s 129(4) of the National Credit Act 34 of 2005 (the NCA), under which reinstatement (revival) of a credit agreement is no longer possible after — • the sale of property pursuant to an attachment (ss (4)(a)(i)); or • the execution of any other court order enforcing the agreement (ss (4)(b)); and • rule 46A(8)(e) of the Uniform Rules of Court, which allows a court hearing an application for execution against residential property to set a reserve price. Held 1. In all matters where execution was sought against a debtor's primary residence, the entire claim, including the money judgment, had to be adjudicated at the same time. The money judgment in personam was the basis of, and a necessary averment

in, the claim in rem for execution (see [17], [20]). Since the two claims were inextricably interlinked, they had to be brought at the same time in one proceeding (see [22], [29].) If the matter required postponement, it had to be postponed in its entirety. 2. Execution against movable and immovable property was no bar to the revival of the agreement, up to the point when the proceeds of the auction sale were realised. * Until then the homeowner could, despite the existence of a money judgment and order for executability, revive the mortgage agreement by paying the arrears. 'Execution' in s 129(4)(b) meant execution against security under the bond, not against movables. (See [39] – [46].) Despite the 2015 amendment to s 129(4), the right to reinstate or revive the mortgage agreement still rested with the consumer (see [49]). 3. Save in exceptional circumstances, the court was obliged to set a reserve price in all matters where execution was granted against the primary residence of the debtor. It was incumbent on both sides to set out the relevant facts for the court to properly exercise its discretion in this regard (see [59], [65]). METROPOLITAN EVANGELICAL SERVICES NPC AND ANOTHER v GOGE 2018 (6) SA 564 (GJ) Housing — Right to housing — Prohibition against eviction from home without court order — Occupant barred from returning to room in emergency shelter — Regarded room as home — Left for three months after being injured in fight with other residents — Possessions left behind and key retained — Room not interfered with in his absence — Right not to be evicted without court order violated — No indication that occupant posed threat to anyone — Order restoring possession confirmed on appeal — Constitution, s 26(3). The first appellant ran the Ekuthuleni emergency shelter on behalf of the City of Johannesburg. The respondent was a resident who had occupied a room there for four years. On 18 June 2016 he went away after an altercation with fellow residents. He left his belongings behind, locked his room and retained the keys. He returned three months later, on 25 September, and he re-entered his room using his keys, spent the night, and went out for a while the next day. But when he attempted to return to his room, he was barred from doing so by the appellants' security personnel. The appellants did not during the three months the respondent was absent open or otherwise interfere with his room. On 28 September the respondent, claiming unlawful eviction and spoliation, launched an urgent High Court application for readmission to his room. The court ruled in his favour, finding that the respondent's right, under s 26(3) of the Constitution, not to be evicted without a court order, had been infringed. The appellants appealed to a full bench, arguing that the court a quo erred because the room was not the respondent's home and because he had abandoned the room when he left it on 18 June 2016. They also justified their conduct by relying on a form of private defence. Held The undisputed facts showed that the respondent regarded the room as his home, that he intended to return, and that he was still in occupation when his access was barred (see [21] – [22]). The appellants' conduct in barring the respondent's access to his room violated his right not to be evicted without a court order under s 26(3) of the Constitution (see [23]). There was no evidence that the respondent attacked or

threatened to attack anyone after he left on 18 June, and the appellants' reliance on private defence was unsustainable (see [24]). The appellants' resort to self-help meant that an order restoring the status quo ante was appropriate (see [23], [28]). Appeal dismissed (see [29]).

Monde v Viljoen NO and others [2018] 4 All SA 665 (SCA)

Property – Land – Eviction order – Requirements – Eviction of appellant was sought on basis that his right of residence flowed solely from his employment – Evidence establishing that appellant was in fact an occupier as defined in the Extension of Security of Tenure Act 62 of 1997 – Termination of appellant’s right of residence not shown to have been just and equitable as required by section 8(1) of Extension of Security of Tenure Act. On automatic review, in terms of section 19(3) of the Extension of Security of Tenure Act 62 of 1997 (the “Act”), the Land Claims Court (“LCC”) confirmed an eviction order by the Magistrate’s Court against the appellant. Leave to appeal having been granted by the LCC, the appellant noted an appeal against the eviction order in the present Court. The appellant was appointed as a general farm worker on 6 January 1995 and was given a house to occupy on the farm. On 4 November 2011, he concluded a written employment contract with the first respondent (a trustee of the trust which owned the farm). One of the essential terms was that the appellant would only have accommodation for as long as he was employed by the first respondent. At all times it was the policy of the farm, as well as other farms in the area, that an employee would be entitled to reside on the farm only whilst he worked on the farm. The appellant’s right of residence was thus derived exclusively from his employment.

On 25 March 2013, the appellant was dismissed from his employment after he was found guilty on charges that he had been absent from work without permission. He did not challenge his dismissal and his right of residence terminated automatically upon termination of his employment. He was informed that his right of residence on the farm came to an end upon his dismissal, and he was given notice to vacate the house on the farm within 30 days.

While admitting that his employment gave rise to his right of residence, the appellant denied that it was the only source of that right. He alleged that he had been given permission to live on the farm and enjoyed a right of residence on the basis of his family connection to his mother, who was also an occupier with a right of residence. The appellant conceded that his employment had been terminated, but denied that the dismissal was fair. He said that he had referred a dispute to the CCMA, but had heard nothing further. He alleged that his right of residence had not been lawfully terminated. Held – The central issue in the appeal was whether the first and second respondents satisfied the requirements for an eviction order in terms of section 9(2) of the Act.

The Act contains clear provisions that must be complied with before an eviction order can be granted. An applicant who seeks the eviction of an occupier under the Act is required to allege and prove all the elements of its cause of action. The respondents had to show that the termination of the appellant’s right of residence was both lawful, and just and equitable, as required by section 8.

Significant in this case was the judgment of the Constitutional Court in the case of Snyders and others v De Jager and others, where it held that an owner of land or farm manager who relies on section 8(2) to justify the termination of an occupier’s right of residence, bears the onus to prove that the occupier’s employment was terminated for a fair reason related to the occupier’s conduct as an employee and that it was effected in accordance with a fair procedure as required by the Labour Relations Act 66 of 1995. Although the termination of the appellant’s employment was both substantively and procedurally fair, and his assertion that he had attempted to challenge the dismissal was unfounded, his right of residence did not flow from the employment contract. He claimed an existing benefit, alleging that he had enjoyed a right of residence from the time that he lived with his mother on the farm, prior to the allocation of a house to him in 1995. The respondents contended that the appellant was not an occupier in his own right while he was living with his mother and that he only became such an occupier when he received express permission to live in his own house. In upholding the respondents’ contention, the magistrate disregarded the definition of an “occupier” in the Act. The Act does not describe an occupier as a person occupying land in terms of an agreement or contract, but one occupying land with the consent of its owner.

Concluding that the respondents did not establish that the appellant’s right of residence flowed exclusively from the employment contract and, with the termination of the latter, that his right to occupy a room on the farm terminated, the Court upheld the appeal.

As the respondents failed to show that the termination of the appellant’s right of residence was just and equitable as required in terms of section 8(1) of the Act, the purported termination of the appellant’s right of residence was unlawful and invalid.

A final issue addressed by the Court was the requirement of a probation officer’s report prior to granting an eviction order. The Court confirmed the approach by the LCC that a probation officer’s report in terms of section 9(3) of the Act, is compulsory. In terms of section 9(3), a court granting an eviction order must consider, inter alia, the availability of suitable alternative accommodation, the effect of an eviction order on constitutional rights including the rights of children and any hardship which an eviction would cause.

The appeal was upheld and the eviction order set aside.

In re: Nedbank Limited v Thobejane and related matters [2018] 4 All SA 694 (GP) Civil procedure – Courts – Access to – High Courts and Magistrate’s Courts – Jurisdiction – Commercial institutions, to enrol in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates’ Courts – Litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involves parties located within the jurisdiction of the Gauteng Local Division, Johannesburg. Constitutional law – Question to be answered was how the court should ensure that access to justice was attained having regard to the issues before it – Court held that it was appropriate for the court to regulate its own procedures in order to ensure access to justice.

Dealing with several applications before it, the Court raised the issue of parties enrolling in the High Court, foreclosure applications with amounts falling within the jurisdiction of the Magistrates’ Courts; and of litigants taking advantage of concurrent jurisdiction between the Gauteng Division, Pretoria and the Gauteng Local Division, Johannesburg, by enrolling matters in Pretoria even where it involved parties located within the jurisdiction of the Gauteng Local Division, Johannesburg.

In all the matters being addressed by the Court, the applicants were financial institutions (the “banks”). They offered various reasons why they chose to institute actions in the High Court. They also conceded that in foreclosure matters and even in credit agreement matters, where vehicles were involved, they as a matter of course, instituted actions in the High Court. Those matters not only fell within the Magistrates’ Courts jurisdiction, but were often for paltry amounts. Held – Course taken by the banks affected the right of access to justice of impecunious litigants, and raised the issue of the sustainability of burdening the present division of the High Court with matters that could have been instituted in other courts. The approach followed by the banks could potentially result in an abuse of process, because if impecunious litigants were denied proper access to justice, or the High Court was incapable of dealing properly and effectively with its workload, due to the practice, it would constitute abuse.

The constitutional right of access to justice is inherent to the rule of law. Because of the issues of poverty and social economic inequality in our country,there is an even bigger obligation on our courts to ensure access to justice to everyone.

The question to be answered was how the court should ensure that access to justice was attained having regard to the issues before it. It was held that it was appropriate for the court to regulate its own procedures in order to ensure access to justice. The solution pertaining to matters that fall within the jurisdiction of the Magistrates’ Courts was that such matters should be issued in the Magistrates’ Courts. If a party is of the view that a matter that falls within the jurisdiction of the Magistrates’ Courts should more appropriately be heard in the present Division, an application must be brought setting out reasonable grounds why the matter should be heard in the present Division. Inefficiency of the other court, real or perceived, and the convenience of the plaintiff alone will not constitute such reasonable grounds. Only after leave has been granted may the summons be issued in the High Court. The High Court is not obliged to entertain matters that fall within the jurisdiction of the Magistrates’ Courts purely on the basis that the High Court may have concurrent jurisdiction. The Court confirmed that both the Local and Provincial Division can mero motu transfer a matter to the other court, if it is in the interest of justice to do so. Mathimba and others v Nonxuba and others [2018] 4 All SA 719 (ECG) Legal practice – Contingency fee agreements – Validity – Contingency Fees Agreements Act 66 of 1997 – In casu, there were two contingency fee agreements, one was for the attorney’s fees and the other for Counsel’s fees, which was impermissible – Contingency Act makes no provision for an advocate to sign a contingency fee agreement separately from the attorney; and it is not proper for an advocate to conclude a contingency agreement directly with a client – Court held that section 2 of the Contingencies Act contemplates a single contingency agreement for a single matter to which all the relevant legal practitioners (attorneys and advocates) are party, and not separate agreements for each practitioner.

The present dispute arose from two actions for damages by the first applicant (“Mathimba”) against two entities. The second respondent (“Nonxuba Inc”) represented by the first respondent (“Nonxuba”) acted as attorney of record for Mathimba in both actions. The third respondent (“Dutton”) was the first applicant’s Counsel in one of the matters.

After receipt of the amounts awarded to Mathimba in both matters, Nonxuba Inc deducted the fees and disbursements that it considered due to it. Mathimba disputed that the fees and disbursements deducted were reasonable. He alleged further that it came to his knowledge that first and second respondents were claiming fees based on a contingency agreement. He contended that the alleged contingency agreement concluded with Nonxuba Inc was invalid for want of compliance with the Contingency Fees Agreements Act 66 of 1997. Held – First issue for determination by the Court was whether a settlement agreement was concluded between the applicants and first and second respondents concerning all disputes between them. The settlement agreement was disputed by the applicants, who claimed that interest should have been included therein. The evidence suggested that interest was never discussed during the negotiations preceding the agreement. The applicants attempted to rely on iustus error in that regard, but the Court found that the facts did not support that contention as it could not be found that the inclusion of interest had been contemplated but erroneously omitted.

In challenging the validity of the contingency fee agreement, the applicants relied on a number of grounds. Essentially, Mathimba sought an order that the agreement be declared invalid, void and of no force and effect. In the event that such relief were granted, he sought an order that the total fees of first and second respondent together with the fee of third respondent should not exceed 25% of the capital amount awarded in the action. The Court found that there were two contingency fee agreements in the matter. One was for the attorney’s fees and the other for Counsel’s fees. That was impermissible. The Act makes no provision for an advocate to sign a contingency fee agreement separately from the attorney; and it is not proper for an advocate to conclude a contingency agreement directly with a client. Section 2 of the Act contemplates a single contingency agreement for a single matter to which all the relevant legal practitioners (attorneys and advocates) are party, and not separate agreements for each practitioner. Matters with both an attorney and Counsel on contingency the globular fee must be assessed to see whether the agreement complies with the statutory 25% cap.

The agreement in this case did not comply with the Act in various respects, and was set aside.

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