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)

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1 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 (GJ) Good Hope Plasterers CC t/a Good Hope Construction v Aecom SA (Pty) Ltd [2018] JOL (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 (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 (NCT) Plastomark (Pty) Limited v Small and others [2018] JOL (ECG) RSC Avelo (Pty) Limited v Kenako Concrete (Pty) Limited and others [2018] JOL (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;

2 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 (GJ) Applications- Drafting of application Negligence of legal practitioners Makhambi v Member of the Executive Council for Health, Eastern Cape and another [2018] JOL (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,

3 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 (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

4 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 (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 (NCT) Res judicata requirements finality decision concerning legal standing is finalthe 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 Democratic Alliance v President of the Republic of South Africa and

5 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 (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 (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 (ECP) CASES Plastomark (Pty) Limited v Small and others [2018] JOL (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

6 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 (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 (GJ) Irregular steps-appeal-security ordered not given-appeal dismissed Appeal-security- Irregular steps-appeal-security ordered not given-appeal dismissed

7 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 R and ordered that it be secured by way of a bank guarantee within 30 days from 18 April 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 (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 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

8 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 (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 R in terms of an order granted by agreement on 13 January 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 R Good Hope responded with an offer to furnish an amount of R 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 R 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.

9 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 R in a form determined by the Registrar. Aecom accepted the amount of R 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 (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 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

10 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 finalthe 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.

11 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

12 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 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/ 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

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

14 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

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

16 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,

17 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