Supreme Court Of Appeal Research Articles

"Cause of Action": How Could the Supreme Court of Appeal Get it so Wrong? Olesitse v Minister of Police (SCA) (Unreported) Case No: 470/2021 of 15 June 2022

This contribution contends that in holding that the once-and-for-all rule was applicable in Olesitse NO v Minister of Police the SCA erred. The error was cause by the SCA mischaracterising the cause of action in this matter. It is trite that the succesful application of the once-and-for-all rule is depended on the finding by the court that the current claim is based on the same cause of action with the previous claim. It is also trite that different causes of action may emanate from the same set of fact or even from a single conduct. In Olesitse the SCA failed to appreciate this incontrovertible proposition of law. Although the SCA seems to suggest that the causes of action in this case was different from an earlier action, this submission is unmasked by the Court's conclusion that the difference between the causes of action in this case and the previous case "pales into significance having regard to the fact that the event gave to [the earlier] claim is the same." This conclusion not only misstates the law, it also ignored the significance of the difference of the constituent elements of the two causes of action (unlawful arrest and detention on the one hand and malicious prosecution on the other). To underscore the importance of this difference, it should be noted that the two causes of action do not arise at the same time, and therefore may be brought at different times. It trite also that the prescription of theses causes of action to not begin to run at the same time. How the court could have ignored these factors is incomprehensible. It is thus plain to see that the SCA came to the incorrect conclusion that the once-and-for-all rule was applicable in this case because it had the different causes of action implicated in this case. Needless to say, had the SCA carefully analysed the two causes of action it would not have came to the conclusion it did.

THE COMPANIES ACT 71 OF 2008 DOES NOT OUST THE COMMON-LAW DERIVATIVE ACTION FOR CLOSE CORPORATIONS Naidoo v The Dube Tradeport Corporation [2022] ZASCA 14

The Companies Act 71 of 2008 (2008 Act) abolished the common-law derivative action for companies; section 165 of the 2008 Act replaced it with the statutory derivative action (Griggs “The Statutory Derivative Action: Lessons That May Be Learnt From the Past!” 2002 University of Western Sydney Law Review par 1.2; Coetzee “A Comparative Analysis of the Derivative Litigation Proceedings Under the Companies Act 61 of 1973 and the Companies Act 71 of 2008” 2010 Acta Juridica 298). The question that remained was what impact this would have on common-law rights for close corporations that had been incorporated before the commencement of the 2008 Act but which have not converted to companies under that Act. The Supreme Court of Appeal (SCA) judgment in Naidoo v The Dube Tradeport Corporation ([2022] ZASCA 1) provides much-needed clarity on the status of the common-law derivative action for close corporations. The case also provides guidance on how a court will assess whether knowledge of information can be imputed to a third party in their dealings with a close corporation.

ESORFRANKI PIPELINES (PTY) LTD v MOPANI DISTRICT MUNICIPALITY [2022] ZACC 41

The Constitutional Court, in the recent case of Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality ([2022] ZACC 41), had to decide whether a tenderer, whose tender failed as a result of the intentional misconduct of the State, could claim damages in delict from the State for loss of profits (par 1). The High Court and the Supreme Court of Appeal both applied the res iudicata rule, holding that the matter had already been raised. In both instances the courts also found that wrongfulness and causation had not been proven. The Constitutional Court, in applying the principle of subsidiarity, held that wrongfulness had not been proven. The purpose of the case note is to show that the reasons advanced by the courts for not allowing the delictual claim, are based on incorrect applications of the legal principles.

Editorial: Artifacts of judging: Justice Johan Froneman

Early in the Constitutional era, in Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) Justice Johan Froneman called for the "rubicon … to be crossed out not only intellectually, but also emotionally before the interpretation and application of the … Constitution is fully to come into its own right". He further argued for the Constitution "to become … a living document". In his many judgements in a judicial career spanning 25 years, Justice Froneman suggested some of what such a crossing of the Rubicon could entail. He also gave meaning to the idea of the Constitution as a living document. The contributions in this special edition unpack, reflect on, evaluate and further the work of and themes tackled by Justice Froneman. Justice Johan Froneman retired from the Constitutional Court in 2020. He was appointed to the Constitutional Court in 2009 after serving as Judge of the Eastern Cape High Court, Grahamstown (1994-2009); Deputy Judge President of the Labour Court and Labour Appeal Court (1996-1999) and two terms in 2002 acting on the Supreme Court of Appeal. In 1999 he was a visitor at Harvard University by invitation of Professor Frank Michelman. He was also Extraordinary Professor in Public Law at Stellenbosch University (2003-2008) and a Visitor at the Centre for Socio-Legal Studies, University of Oxford, in 2008. He is currently an extraordinary professor in the Department of Public Law, University of the Free State. He has delivered judgements in a wide range of cases. Of particular interest is his careful deliberation on issues pertaining to transformation, legal interpretation, property and language. Justice Froneman in his many carefully argued judgements displayed not only the intellectual rigour that he was calling for, but also the emotional and very much personal crossing that he referred to in 1994.

LOCUS STANDI IN IUDICIO – THE RIGHT OF A PARENT TO CLAIM MAINTENANCE ON BEHALF OF AN ADULT DEPENDENT CHILD Z v Z 2022 (5) SA 451 (SCA)

This matter dealt with an appeal to the Supreme Court of Appeal (SCA) from the Eastern Cape Local Division of the High Court in respect of a claim for maintenance by one parent on behalf of the adult dependent children against the other parent. The facts of the case were as follows. Mrs Z (the mother) and Mr Z (the father) were married on 10 January 1995. Two children were born of the marriage. The marriage deteriorated and Mr and Mrs Z separated for a period. Both parents continued to support their children financially. Mr Z had been maintaining the children by depositing amounts directly into their individual bank accounts. The marriage relationship between mother and father deteriorated, resulting in Mrs Z initiating divorce proceedings and claiming from Mr Z, inter alia, maintenance for herself and the two major and financially dependent children. Although they were majors, in that they were both over the age of 18, the children were financially dependent on their parents at the time of the divorce. The daughter (B) was a student and unemployed. As part of her studies, she was required to do practical training and received remuneration from time to time for the work she did for a social media company. Notwithstanding these efforts to maintain herself, B remained financially dependent on her parents. Insofar as the adult dependent son (R) was concerned, he was mobile only by means of an electric wheelchair owing to injuries sustained in a motor car accident. Despite obtaining a probationary internship in January 2021, R was still financially dependent on his parents. Owing to his injuries, it was uncertain whether he would be able to continue working as the work required long hours of sitting which caused him to suffer pressure sores, making prolonged sitting impossible.In defending the action, Mr Z raised a special plea, claiming that Mrs Z could not lodge a claim for maintenance on behalf of the children born of the marriage, since they were both adults and, therefore, had the necessary capacity to claim maintenance on their own behalf (Z v Z par 2). As a result, Mr Z contended that Mrs Z lacked the locus standi in iudicio to initiate a claim on behalf of the major children.

The Komape litigation - ensuring effective remedies

The three Komape cases were spurred by the death of Michael Komape in 2014, when he drowned in a dilapidated pit toilet at his school in Limpopo. In the first judgment, the High Court recognised that the government had violated a host of rights - including the right to basic education and the rights of the children to have their best interests considered as paramount in any matter concerning them. However, the court refused to grant common law damages. This refusal was successfully appealed in the Supreme Court of Appeal. In the first judgment, the High Court also granted a structural order requiring the government to eradicate all pit toilets in the province. The plaintiffs did not appeal this part of the order. Subsequently, the plaintiffs needed to return to court after the government did not adequately comply with the structural order. The High Court once again ruled that the government was violating the rights of children by not urgently eradicating pit toilets in schools. A more detailed structural order was granted, requiring the government to formulate a new plan on urgent timelines. However, the court refused to extend its supervisory role. This article argues that structural orders have proved to be valuable tools in litigation for the right to basic education in the Komape case in particular. Further, the article argues that the High Court may have not fully understood the role of court-appointed agents in not granting a task team to monitor the government, as requested by the plaintiffs. The granting of a task team would have been appropriate in the case - given the gravity of the sanitation crisis, learners' right to basic education, and children's right to have their best interests be considered paramount in all matters concerning them.

DISTINGUISHING THE FORMS OF COMMON PURPOSE LIABILITY S v Govender 2023 (2) SACR 137 (SCA)

In the case of S v Govender (2023 (2) SACR 137 (SCA)), the Supreme Court of Appeal (SCA) was required once again to examine the common purpose doctrine, which although it has been in use in South African law for the past century, has in recent years seen significant development, in its expansion from being applied solely to a prior agreement, to also being applied in the case of an active association between two or more persons. The importance of distinguishing between these different forms of the common purpose doctrine has concomitantly also become increasingly important.As the court points out in S v Mzwempi (2011 (2) SACR 237 (ECM) par 56), prior-agreement common purpose encompasses “any conduct which falls within the wide and general common design”, whereas active-association common purpose is “restricted to particular conduct”. Thus, in active-association common purpose, the association is with a “specific act” by which the crime was committed by another participant in the common purpose. It follows that, given the “marked differences” between the two forms of common purpose:“in a case where the state seeks to place reliance on the doctrine of common purpose, the trier of fact will be required to determine the nature of the common purpose relied upon, what the scope of that common purpose happened to be, and whether the accused was a participant, and remained a participant, in the common purpose.”The discussion examines the significance of the distinction between the different forms of common purpose doctrine, in light of the SCA judgment in the case of Govender.

Notes: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

Managing the conduct of public educators is the joint responsibility of the relevant provincial department of education as employer and the South African Council for Educators (educators’ council) tasked with upholding ethics in basic education. Each has its own disciplinary code and procedures to manage educator misconduct, and both include mandatory sanctions for misconduct such as assault. The Centre for Child Law challenged the disciplinary decisions by presiding officers in two assault cases where mandatory sanctions were imposed in line with the mandatory sanctions policy of the educators’ council. While the High Court found it a constitutional imperative that the educators’ council revise its mandatory sanctions policy, the Supreme Court of Appeal (SCA) held that the policy unlawfully restricted decision- makers’ discretion. The disciplinary decisions made by the educators’ council were held to be unlawful, invalid and in breach of its constitutional obligations towards children. This note illustrates the risks posed by mandatory sanctions to the effective management of educator misconduct. It argues that the SCA judgment has broader significance for the management of misconduct, particularly assault, in public basic education and that the educators’ council and employer should abandon mandatory sanctions in response to educator misconduct.

Notes: Mandatory Sanctions Miss the Mark: An Evaluation of Centre for Child Law & others v SA Council for Educators & others 2024 (4) SA 473 (SC)

Managing the conduct of public educators is the joint responsibility of the relevant provincial department of education as employer and the South African Council for Educators (educators’ council) tasked with upholding ethics in basic education. Each has its own disciplinary code and procedures to manage educator misconduct, and both include mandatory sanctions for misconduct such as assault. The Centre for Child Law challenged the disciplinary decisions by presiding officers in two assault cases where mandatory sanctions were imposed in line with the mandatory sanctions policy of the educators’ council. While the High Court found it a constitutional imperative that the educators’ council revise its mandatory sanctions policy, the Supreme Court of Appeal (SCA) held that the policy unlawfully restricted decision- makers’ discretion. The disciplinary decisions made by the educators’ council were held to be unlawful, invalid and in breach of its constitutional obligations towards children. This note illustrates the risks posed by mandatory sanctions to the effective management of educator misconduct. It argues that the SCA judgment has broader significance for the management of misconduct, particularly assault, in public basic education and that the educators’ council and employer should abandon mandatory sanctions in response to educator misconduct.

LEGAL GYMNASTICS: AN EVALUATION OF THE JUDGMENT IN Z v Z [2022] ZASCA 113

The South African Supreme Court of Appeal (SCA) recently considered an appeal (Z v Z [2022] ZASCA 113) against an order of the Eastern Cape Division of the High Court, Port Elizabeth (ECD). The ECD upheld a special plea and confirmed that a parent lacks locus standi in judicio to claim maintenance from the other parent, for and on behalf of adult dependent children, during divorce proceedings (Z v Z supra par 2). The SCA, however, reasoned that the obligations of a divorce court set out in section 6 of the Divorce Act (70 of 1970) (the Act) by implication made provision for a parent to apply on behalf of an adult child for maintenance. The SCA, accordingly, dismissed the special plea and the appeal was upheld with costs.The SCA judgment is noteworthy as several previous High Court judgments found that adult dependent children must pursue claims for maintenance against their parents in their own name. Interestingly, most courts of first instance have reasoned that adult dependent children should be before the court when applying for maintenance. However, the SCA did not share the same position. In its reasoning, the SCA emphasised convenience and stressed that all the matters relevant to the divorce, including maintenance of dependent children, should and could be disposed of at the hearing of the main action. The SCA confirmed that both parents have a duty to maintain their dependent children and that this duty, at times, persists after the child attains majority age. The SCA further commented that children, including adult children, should be removed from the conflict between the divorcing parents as far as possible. The SCA, therefore, held that the requirements of section 6 of the Act provide the basis for admitting a claim by a parent for maintenance for and on behalf of an adult dependent child. It is submitted that the reasoning of the SCA and the precedent created could undermine the ability of a court to make an order of parental support for adult dependent children, and may ultimately result in outcomes that do not effectively provide for the needs of the adult child. This case note evaluates the facts of the matter together with the reasoning of the High Court and the SCA. The previous judgments on parents representing their adult dependent children during divorce proceedings are then evaluated. The specific intent of the case note is to establish whether section 6 of the Act confers locus standi on a parent to apply for maintenance for and on behalf of their adult dependent children during divorce proceedings. The benefits and challenges of conferring locus standi on parents of adult children are also considered. The last relevant issue that is evaluated, and on which the courts did not have to adjudicate, relates to the termination of a parent’s duty to provide financial support for their adult children. This case note ultimately aims to establish what obligations and powers are inherent in the application of section 6 of the Act and what procedures may, therefore, be employed by a Divorce Court when an adult dependent child applies for parental support.

Revisiting the no reflective loss principle under the South African company law regulation: A reflective assessment through the lens of Hlumisa Investment Holdings RRF) Ltd v Kirkinis 2020 3 All SA 650 (SCA)

One of the central concepts in company law is that a company is a juristic person with a separate legal personality. Several consequences flow from the doctrine of separate legal personality, among other things, that a company owns its property and assets and may sue or be sued in its name. Therefore, shareholders do not have a direct right of action for a company's loss. The company itself should institute such a claim save for certain exceptional circumstances like derivative actions. Both the High Court (court a quo) and the Supreme Court of Appeal in Hlumisa Investment Holdings (RF) Ltd v Kirkinis (the Hlumisa case) confirmed that shareholders cannot claim diminution of share value that is linked to the misconduct of company directors and auditors. This article concurs with the court a quo and the Supreme Court of Appeal's interpretations that as a general rule, directors owe fiduciary duty only to the company and that shareholders cannot rely on a claim for reflective loss in company law. This article assesses the proper plaintiff and reflective loss rules against the backdrop of the Hlumisa case.

Repackaging the General Prejudice Principle in Suretyship Agreements as a Breach of Contract under South African Law

Historically, if a creditor through his conduct prejudiced or injured a surety in the latter's rights or interest, the surety was entitled to claim release from his obligations under the general prejudice principle. However, the principle was summarily rejected by the Supreme Court of Appeal in Bock v Dubororo Investments (Pty) Ltd 2004 2 SA 242 (SCA), and it may now be determined whether there exists another interpretation in order to ensure its survival. This article considers the historical application of the general prejudice principle in suretyship agreements under South African law since the principle’s original incorporation from the English law up until its outright rejection by the Supreme Court of Appeal in Bock. It then aims to reinterpret the principle in the light of ordinary contract law principles as being nothing more than a breach of contract by the creditor.

WHAT CONSTITUTES INDECENT ASSAULT? S v Kock 2003 2 SACR 5 (SCA)

The relevant facts in this case are that K, the appellant, a 27-year-old music teacher was arrested on 18 January 2002 and, pending further investigation, was placed in detention. He had been suspected of having committed acts of indecent assault on boys under the age of 16 years. The magistrate refused an application for his release on bail. After unsuccessfuly appealing to the Johannesburg High Court, K, with leave of the court a quo, successfully appealed to the Supreme Court of Appeal (SCA).
 Indecent assault on a person under the age of 16 years is included in Schedule 5. The State failed to present evidence of the arrest of K on specific charges and no formal charge-sheet which contained relevant detailed information on the charges had been drawn up. Furthermore, the State refused K's legal representative access to the docket. The reason provided for this refusal being that it would prejudice the continuing investigation. In his judgment on behalf of the court, Heher AJA observed that the State should have presented evidence in justification of its reliance on section 60(11)(b). This could have been done by the production of a certificate in terms of section 60(11A)(c). Notwithstanding the fact that Heher AJA did not rule out the possibility that the High Court in Prokureur-Generaal, Vrystaat v Ramokhosi (1997 1 SACR 127 (O) 156) might have been correct in finding that section 60(11) is only applicable if the detainee is accused of “'n definitiewe, omlynde en verstaanbare misdaad”, he assumed that “the State had done enough to bring the matter within the terms of the section”.According to the (second- or third-hand) information placed before the court it would appear that the acts complained of by the state witness boiled down to “grooming” which comprises “acts designed to prepare participants for a more adventurous stage of sexual exploration”. This includes the showing of pornographic videos, indulging in suggestive games with boys, non-erotic massaging of the bodies of the boys with oil or cream and sharing a bed with them at night (10). In her judgment the magistrate proceeded from the following definition of indecent assault:“Indecent assault is not only an offence where the accused has to touch the private parts of the children or otherwise but also any immoral or indecent act which is in its nature or circumstances indecent or immoral” (quotation and emphasis by Heher AJA (10)).

WAS JUSTICE DONE? Ntamo v Minister of Safety & Security 2001 1 SA 830 (Tk); Minister of Safety & Security v Ntamo 2003 1 SA 547 (SCA)

Minister of Safety and Security v Ntamo 2003 1 SA 547 SCA is a case which turned on the issue of private defence. The respondent (plaintiffs), who had succeeded in the trial court (Ntamo v Minister of Safety and Security 2001 1 SA 830 (Tk)) in a dependant‟s action, comprised the wife and children of the deceased. The deceased had been shot dead by members of the South African Police Services.The Supreme Court of Appeal (SCA) judgment (Minister of Safety and Security v Ntamo 2003 1 SA 547 (SCA)) is clearly more defensible than that of the trial court. Both judgments however require some comment: the trial court judgment for an observation of some difficulties in adjudicating upon private defence, particularly since the SCA judgment adopted a different route and did not engage with the difficulties encountered by the trial court, and as such issued no confirmation nor corrections. The SCA judgment is brief (four pages) but requires comment, briefly, on the burden of proof resting on the defendant who raises private defence.

DID YOU SAY “ASININE” MILORD? Bekker v Naude 2003 5 SA 173 (SCA)

Bekker v Naude (2003 5 SA 173 (SCA)) concerned the vexing question of whether a will that was drafted by an attorney or other advisor of a person since deceased, but which was never executed by the deceased and indeed complies with none of the formalities for a valid will, can be accepted as a document that was “drafted” by the deceased and therefore be “rescued” and made effective in terms of the power of condonation conferred on a court by section 2(3) of the Wills Act 7 of 1953 (as amended) (hereinafter called “the Act” or the “Wills Act”) if the court is satisfied that the deceased intended the document to be his or her will. Since section 2(3) was enacted in 1992 there have been no less than 25 reported decisions concerning it, and many of them have concerned this question. The first few decisions concerning this question took a narrow approach to the meaning of the term “drafted” in section 2(3) that did not favour rescue, but a more flexible or liberal approach emerged which was soon favoured by the weight of judicial opinion. The apogee of this approach to section 2(3) is perhaps the decision in Ex parte Williams: In re Williams’ Estate (2000 4 SA 168 (T)) where Swart J, delivering the unanimous judgment of a full bench of the Transvaal Provincial Division, went so far as to describe the strict approach to section 2(3) as “an asinine culmination of the very sound reason for promulgating s 2(3)”. However, the Supreme Court of Appeal has now overruled the flexible or liberal approach in a unanimous judgment in Bekker v Naude (supra) in which the so-called “asinine” arguments have been accepted and applied! Such are the vagaries of statutory interpretation. What follows is an account and evaluation of this decision; but first it will be useful to set out the provisions of section 2(3).

The Administrative Authority of Belgian Law in the Europe Modern Political’s Perspective

This research aims to know that since 1831, the Belgian Constitution allows courts to not apply unlawful administrative acts. This power, established as an obligation by the Supreme Court of Appeal, is called “plea of illegality”, and is guaranteed by Article 159 of the Constitution, which states that “the courts and tribunals shall not apply the provincial and local decrees and general regulations, until they comply with the laws. This research used library/literature research technic. The administrative high court also has the jurisdiction to issue non-binding opinions on the preliminary drafts of regulatory orders of the various federal State governments (federal, regional and community governments). This ex ante review, also carried out with regard to the preliminary drafts of legislative texts, is carried out by the legislative section of the Council of State. In 1991, the Council of State was vested with additional powers as litigants could apply, in summary and interim proceedings, for suspension of the execution of administrative acts, firstly in case of risk of serious irreparable harm, and since 2014, in case of emergency. The result show that last constitutional revision of 2014 tempered the monopoly of the judicial courts in litigation involving civil rights, with the Constitution stipulating that the Council of State has the jurisdiction to rule on the civil effects of its annulment judgments (Const. Art. 144 (2)). It can henceforth award a “restorative allowance” to any litigant who has suffered the effects of the annulled administrative act (consolidated acts on the Council of State, Article 11 bis). It may also indicate the measures to be taken to remedy the illegality sanctioned by its annulment judgments and, if the annulment implies that the authority takes a new decision, it may prescribe a time limit for doing so (consolidated acts, Art 35/1 and 36, 1st).

THE FISCAL AUTONOMY OF SOUTH AFRICAN MUNICIPALITIES TO LEVY RATES: AN APPRAISAL OF City of Johannesburg Metropolitan Municipality v Zibi [2021] ZASCA 97

The Constitution of the Republic of South Africa, 1996 protects the fiscal autonomy of local government. Integral to this autonomy, is the original power given to municipalities to impose rates on property. This power is regulated by the Local Government: Municipal Property Rates Act 6 of 2004 (MPRA). In City of Johannesburg Metropolitan Municipality v Zibi (234/2020) [2021] ZASCA 97 (9 July 2021), the Supreme Court of Appeal (SCA) had to decide on whether the City of Johannesburg was entitled to levy a rate in the form of a penalty on residential property for illegal or unauthorised use, without first changing the category of the property on its valuation roll or supplementary roll, from “residential” to “illegal or unauthorised” use and publishing this in the provincial gazette. The majority judgment held that the City’s decision to levy a penalty in respect of the use of the property within its jurisdiction was not ultra vires its constitutional and legislative powers because it had done so as part of a validly adopted property rates policy. On the contrary, the minority judgment came to the conclusion that the City was not empowered under section 8 of the MPRA to determine “illegal use” as a category of rateable property, nor to include such category in its rates policies. The minority judgment held that the action of the City of Johannesburg was illegal. This article appraises the judgments of the SCA in City of Johannesburg Metropolitan Municipality v Zibi. It argues, inter alia, that although the reasoning of the majority judgment was correct, it overlooked the transitional arrangements in section 93B of the MPRA that was introduced by section 35 of the Local Government: Municipal Property Rates Amendment Act 29 of 2014. In addition, it is argued that the position adopted in the minority decision is wrong because it reflects the closed list of ratable properties that municipalities must comply with after 1 July 2022. This overlooked the wide discretionary powers municipalities enjoyed in relation to differentiation and categories of rateable properties as a result of transitional legislative arrangements.

HOLDING THE EXECUTIVE TO ACCOUNT? Public Protector v President of the RSA 2021 (9) BCLR 929 (CC)

This case is part of a growing body of jurisprudence relating to the Public Protector (PP). In particular, it concerns the PP’s mandate, contained in section 182 of the Constitution of the Republic of South Africa, 1996 (the Constitution), to “investigate any conduct in state affairs, or in the public administration, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The PP is further empowered in terms of the Public Protector Act (23 of 1994) (PP Act) to investigate, inter alia, maladministration, the unjustifiable exercise of power and dishonest conduct.In terms of this statutory framework, the PP’s primary function is to hold the executive to account. The Constitutional Court judgment that is the focus of this case note is an example of the PP attempting to hold the President accountable, but failing to do so as a result of producing an error-strewn report that was rejected by a full bench of the High Court and by a majority of judges in the apex court. On the facts, it is possible that had another PP produced a different report – one that satisfied the judges’ concerns – the President might have been less successful in avoiding public accountability.Apart from the main issue of the (at time of publication) now-suspended PP’s inability to hold the President to account, the judgment is significant from an administrative law perspective. In particular, the judgment adds to the debate on whether the PP’s remedial action amounts to administrative action.Although the Supreme Court of Appeal (SCA) held in 2018 that the PP’s remedial action does not constitute administrative action, the question has yet to be definitively dealt with by the Constitutional Court, with judges generally being content to leave the question open. Confusingly, the court a quo held that it was common cause that the PP’s reports do not amount to administrative action, but the judgment nevertheless made numerous references to the right to just administrative action. While Jafta J chose to leave the question open in Public Protector v President of the RSA (2021 (9) BCLR 929 (CC)), he engaged with the SCA’s judgment in Minister of Home Affairs v Public Protector (2018 (3) SA 380 (SCA) (Home Affairs)) and set out some guidelines on how the issue could be dealt with in the future.

Judicial intervention and the call to transformative constitutionalism in the context of consumer law, debt collection and the National Credit Act: Bayport Securitisation Ltd v University of Stellenbosch Law Clinic

As a result of various socio-economic factors, South Africans are some of the most indebted consumers in the world. Bad debt collection has escalated to a significant industry, with billions of rands at stake. The effects of private over-indebtedness and resulting collections are profound and have various negative consequences at household and macro-economic levels. These consequences are exacerbated when vulnerable debtors face unscrupulous debt collectors emboldened by a fragile legislative framework. Debtors depend on judicial intervention and effective access to courts to combat abusive lending and debt-collection practices. Courts are called on to protect vulnerable consumers by enforcing constitutional guarantees and values. Recently, the Supreme Court of Appeal was presented with the opportunity to demonstrate its commitment to transformative constitutionalism in consumer law and debt collection in the case of Bayport Securitisation Ltd v University of Stellenbosch Law Clinic. This judgment is significant as it attempted to address a serious and impactful concern with the interpretation of the National Credit Act. It will be demonstrated that the judgment is susceptible to serious criticism, particularly in its regrettable indifference to the constitutional values pertinent to the matter.

The Decision of “Returning The File To The Lower Degree Court” in Civil Disputes By The Supreme Court Of Appeal

Temyize konu edilen kararla ilgili hukuki denetim gerçekleştirecek Yargıtay’ın incelemeye aldığı dosyada çeşitli usuli eksikliklerin ve hataların bulunması söz konusu olabilir. Kanuni düzenlemelerimize baktığımızda temyiz aşamasında esastan incelemeye geçilerek nihai kararın verilmesine engel olan usuli eksikliklerin varlığı durumunda Yargıtay tarafından ne tür karar verileceğinin net olarak belirlenmediği, bu konuda mevzuatımızda yüksek mahkemeye takdir hakkı tanıyan ifadelere yer verildiği görülmektedir. Bu bağlamda Yargıtay’ın temyiz incelemesine konu dosyada bazı usuli hatalar veya noksanlıklar tespit etmesi durumunda dosyanın mahalline iade edilmesi yönünde bir uygulama geliştirildiği görülmektedir. Çalışmamızda herhangi bir kanuni düzenlemede yer almayan ve bu zamana kadar özel olarak incelenmemiş dosyanın mahalline iadesi kararının hangi durumlarda tesis edildiği, kararın özellikleri ve hukuka uygunluğu ele alınarak bu karar tipi çeşitli açılardan netleştirilmeye çalışılacaktır.