Southern African Legal Information Institute

Property owned by the first and second appellants was sold at a public auction to the respondent. In terms of the conditions of sale the appellants, being the sellers, had seven days to confirm the sale. The High Court, Pretoria, held that no agreement of sale was concluded on the date of the auction; all that happened was that the respondent bound itself to keep its offer open for seen days. The SCA agreed with the High Court on this issue. The SCA, however, overruled the High Court's decision that a sale would only come into existence when the sellers' confirmation of the sale was communicated to the respondent. The SCA held that having regard to the terms of the conditions of sale it was clear that the sale was confirmed, ie a sale came into existence, the moment the Sellers signed the conditions of sale.

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South Africa: Land Claims Court

Thu, 20 Nov 2008 07:46:42 GMT

2007

(1 January 2007) Klink v Klink (LCC59R/2007 ) [2007] ZALCC 15
(11 June 2007) Zueger v Chihlango and Others (LCC46R/07 ) [2007] ZALCC 16
(12 June 2007) Jansen van Rensburg v Khumalo and Others (LCC39R/07) [2007] ZALCC 17
(27 July 2007) Bango and Others v Boschpoort Ondernemings (Pty) Ltd (LCC74/20057) [2007] ZALCC 18
(14 August 2007) Maccsand CC v Macassar Land Claims Committee and Another (LCC 37/03) [2007] ZALCC 19
(28 September 2007) Omar and Another v Minister of Agriculture & Land Affairs and Others (LCC102/07) [2007] ZALCC 20
(11 October 2007) Simpson v Ntsele and Another (LCC38/03) [2007] ZALCC 21
(11 October 2007) Simpson v Ntsele and Another (LCC38/03) [2007] ZALCC 22
(6 December 2007) Sundowners by Stellenbosch BK v Peinke and Another (LCC130R/07 ) [2007] ZALCC 23
(6 December 2007) Melsetter (Edms) BPK v Ceylon and Others (LCC123R/07 ) [2007] ZALCC 24

2008

(1 January 2008) Move-on-up 1014 CC and Others v Zulu ( LCC135/06) [2008] ZALCC 5
(1 January 2008) Monyeki and Another v Regional Land Claims Commission and Another (LCC18/2004) [2008] ZALCC 6
(1 February 2008) Macassar Land Claims Committee v Maccsand CC and Others (LCC 37/2003) [2008] ZALCC 7
(8 February 2008) Lusan Premium Wines (Edms) Bpk v Ontong and Others (LCC 89/02) [2008] ZALCC 8
(24 April 2008) Mariti Landgoed (Pty) Ltd v Minister of Land and Agricultural Affairs and Others ( LCC132/06) [2008] ZALCC 9
(8 May 2008) Majeje Traditional Authority v Ba-Phalaborwa ba-ga-Selwane Community and Another (LCC74/2004) [2008] ZALCC 10
(4 June 2008) Moller and Others v Nhatladisha and Others (LCC06/07) [2008] ZALCC 11

Weare and Another v Ndebele NO and Others (CCT15/08) [2008] ZACC 20 (18 November 2008

Tue, 18 Nov 2008 10:18:43 GMT

Today the Constitutional Court handed down judgment in a case concerning an order made by the Pietermaritzburg High Court declaring section 22(5) of the KwaZulu-Natal Regulation and Betting Ordinance 28 of 1957 (the Ordinance) unconstitutional.

The case arises out of an agreement between the applicants. Betting World (Pty) Ltd carries on the business of bookmaking in eight of South Africa’s nine provinces. It does not do so in KwaZulu-Natal, because section 22(5) of the Ordinance provides that juristic persons – companies like Betting World – may not hold licences to engage in bookmaking in the province. Only natural persons, such as Mr Weare, are permitted to hold these licences in KwaZulu-Natal. In other provinces, both juristic and natural persons may hold licences. In terms of the agreement, Mr Weare was to sell to Betting World, conditionally, the bookmaking business he operates under his licence.

The authorities in KwaZulu-Natal took the view that the agreement violated section 22(5), whereupon the applicants challenged the constitutionality of the section. The High Court found that differentiation contained in the section was arbitrary and irrational, and ruled that it breached the constitutional right to equal protection and benefit of the law. It also held that the section constituted unfair discrimination.

The applicants applied to this Court for confirmation of the High Court’s order. The first respondent, the Premier of KwaZulu-Natal, appealed against the order.

The Premier argued that the differentiation between natural and juristic persons in section 22(5) reflects the fact that juristic persons, by virtue of their separate legal personality and the limited liability of those who operate them, are more difficult to regulate. Section 22(5) therefore represents a legitimate way to protect the public by ensuring that only natural persons, who are easier to hold accountable, can hold bookmaking licences.

The applicants contended that the differentiation was obsolete. They noted that the province had for some years been preparing new legislation to replace the Ordinance. The proposed legislation permits juristic persons to hold bookmaking licences. They argued that the exclusion of juristic persons was out of step with modern business realities. The differentiation in the section was therefore no longer rationally linked to the achievement of a legitimate government purpose.

In a unanimous judgment written by Van der Westhuizen J, the Court held that section 22(5) did not breach the right to equality before the law protected by the Constitution. The regulation of gambling represented a legitimate government purpose. Different practical considerations might indeed apply to the regulation of juristic persons and natural persons, and so it was not irrational to treat the two differently in the interests of regulation. The fact that reform was being considered, and that an allegedly better policy might exist, did not show that the current law was irrational. Furthermore, the section did not amount to unfair discrimination.

Another question had to be decided, namely whether the invalidation of a provision of a provincial ordinance by the High Court must be confirmed by this Court. Section 172(2)(a) of the Constitution provides that an order of constitutional validity made in respect of a “provincial Act” must be confirmed by this Court.

Van der Westhuizen J held that section 172(2)(a) reflected the important status of provincial legislation in our constitutional order. Although this status did not necessarily accrue to all pre-1994 provincial enactments, the Ordinance before the Court had been amended by the KwaZulu-Natal provincial legislature and incorporated by reference into a provincial Act regulating gambling. The provincial legislature in effect decided that the Ordinance should be part of the provincial gambling regime. It therefore should be treated as a provincial Act for the purposes of section 172(2)(a).

The Court therefore held that the order of constitutional invalidity made by the High Court required confirmation by the Court, but declined to confirm the order and upheld the validity of section 22(5).

The appeal accordingly succeeded and the application for confirmation was dismissed.

South Africa: High Courts - Kwazulu Natal

Tue, 18 Nov 2008 10:15:06 GMT

(29 February 2008) Weare and Another v Ndeble NO and Others (8337/06) [2008] ZAKZHC 89

South Africa: High Courts - Gauteng

Tue, 18 Nov 2008 10:12:29 GMT

(14 November 2008) Prokuresorde van die Noordelike Provinsies v Langerak (47899/2007 ) [2008] ZAGPHC 343
(14 November 2008) S v Mkentani (A271/2007) [2008] ZAGPHC 344
(14 November 2008) Commissioner for the South African Revenue Service v Duro Pressings (Proprietary) Limited ( A1031/06 ) [2008] ZAGPHC 345

South Africa: Supreme Court of Appeal

Fri, 14 Nov 2008 13:55:29 GMT

Today, the Supreme Court of Appeal (the SCA) has delivered a judgment dismissing with costs, an appeal by the City of Cape Town (the City) against a decision of the Cape High Court in terms of which a defence raised by the City was rejected. The facts giving rise to the case were the following.

Mrs Marina Reader and Mr Ian Peploe of Sea Point, Cape Town objected to the approval of building plans of Mrs Julia Ikin. The plans in question were approved by the City and Mrs Ikin built a double-story house on her property in terms of the approved plans. Her neighbours complained that the building obstructed their view of the sea and diminished the value of their properties. The parties own adjacent properties in Sea Point.

Both Mrs Reader and Mr Peploe instituted a review application in the Cape High Court, challenging the validity of the permit to build and seeking an order for the demolition of Mrs Ikin’s house. They cited her and the City as respondents. In opposing the application the City contended that the applicants should have exhausted domestic appeals before approaching the court and as a result their application must be dismissed. Veldhuizen J upheld this defence and without consideration of the merits, dismissed the application.

On appeal to the Full Bench, the above finding was set aside. The Full Bench found that s 62 of the Local Government: Municipal Systems Act 32 of 2000, on which the City had relied, did not afford objectors to building permits a “viable internal appeal” and therefore Mrs Reader and Mr Peploe were not obliged to exhaust internal appeals before launching their application. The Full Bench reversed the order granted by the single judge. On a further appeal to the SCA the provisions of s 62 of the Municipal Systems Act were interpreted and the judgment of the Full Bench was confirmed.