Facts: In the mid-2000s, Mrs Kelbrick (now deceased) and Mr and Mrs Van den Berg owned adjoining properties in Westering, Gqeberha. Along with a third owner, Mr Jonker, they agreed to sell their properties to Headline Trading 124 CC, trading as Status Homes Developers, for a residential development. Instead of receiving cash, the sellers would receive newly built units in the development. Nelson Attorneys, acting for Status, drafted the deeds of sale and handled the conveyancing. The development failed, Status was liquidated, and Mr Lamour, its sole member, was sequestrated. The respondents sued Nelson Attorneys in delict for pure economic loss, alleging that the firm had negligently failed to protect their interests during the transaction.

Appeal: Nelson Attorneys appealed against a decision of the full court of the Eastern Cape Division, which had overturned the trial court’s dismissal of the respondents’ claim and found the firm liable for delictual damages. The issue was whether Nelson Attorneys could be held liable in delict for the respondents’ pure economic loss arising from a failed property development, and whether the elements of Aquilian liability had been established.

Discussion: The respondents argued that Nelson Attorneys had admitted wrongfulness by acknowledging a duty of care in their plea. They relied heavily on expert evidence from Mr Burman, a conveyancer, who criticised the firm’s failure to secure adequate protection for the sellers, particularly in relation to the timing of property transfers and the absence of guarantees. The full court accepted that wrongfulness had been admitted and focused its analysis solely on negligence. However, wrongfulness and negligence are distinct elements in delict, especially in cases involving pure economic loss. The pleadings referred to a “duty of care”, which relates to fault, not wrongfulness. Wrongfulness must be established through legal and public policy considerations, not inferred from negligence or the existence of a duty of care. The respondents were not legally vulnerable in the sense required to impose liability, they had access to independent advice, were aware of the risks, and voluntarily proceeded with the transaction.

Findings: The full court had erred in conflating wrongfulness with negligence. The reference to a duty of care in the pleadings did not amount to an admission of wrongfulness. The respondents failed to establish that Nelson Attorneys had a legal duty to prevent their financial loss. The transaction was inherently speculative, and the respondents were not compelled to proceed without safeguards. They had opportunities to withdraw, seek independent legal advice, or insist on guarantees, but chose to proceed. The collapse of the development was attributed to market conditions and funding issues, not the conduct of Nelson Attorneys. The expert evidence was found to be flawed, speculative, and based on hindsight rather than contemporaneous standards. Even if negligence were assumed, causation was not established. The respondents’ loss would likely have occurred regardless of any advice or action by Mr Nelson. The claim for pure economic loss failed on multiple grounds, and the appeal succeeded.

Order: The appeal is upheld with costs, including the costs of two counsel where so employed. The order of the full court is set aside and substituted with the following: “The appeal is dismissed with costs, including the costs of two counsel where so employed.”

Facts: New Life Holdings had sold its shares and loan account in Imalisoft to Climealine under a sale of shares and loan account agreement. To secure Climealine’s performance, a guarantee was concluded between New Life Holdings and three individuals, the respondents, who undertook joint and several liability for Climealine’s obligations. The guarantee defined the respondents as “guarantors” and included detailed provisions for payment on demand, indemnity, and waiver of legal exceptions. After Climealine failed to pay the purchase price, New Life Holdings issued written demands to the respondents, which went unanswered. The respondents disputed liability, citing pending litigation in the Limpopo High Court and arguing that their obligations were dependent on Climealine’s liability under the original sale agreement.

Application: This was an application by New Life Holdings to enforce the guarantee and compel payment of R8,376,045, plus interest and costs, from the respondents. The respondents opposed the application, arguing that their liability was contingent on Climealine’s liability under the sale agreement, which had allegedly been cancelled. They also raised lis pendens defences based on two pending actions in the Limpopo Division. The issue was whether the guarantee created independent obligations enforceable by written demand, or whether the respondents’ liability was conditional on Climealine’s liability under the sale agreement.

Discussion: The respondents contended that the guarantee was akin to a suretyship and that their liability could only arise if Climealine was liable under the sale agreement. They relied on clauses referring to co-principal debtors and the interconnected nature of the guarantee and the sale agreement. They also argued that the guarantee was void for vagueness due to contradictory provisions. New Life Holdings maintained that the guarantee created principal and independent obligations, enforceable upon written demand, regardless of Climealine’s liability. Clause 5.10 was highlighted as the trigger for payment, requiring the respondents to pay immediately upon receiving a written notice, even if liability was disputed. Clause 5.2 reinforced the independence of the obligations. The respondents’ strike-out application and request to file a further affidavit were also addressed, with New Life Holdings arguing that no new matter had been introduced in reply.

Findings: The guarantee created independent obligations, and the respondents’ liability was triggered by the written demand issued by New Life Holdings. The interpretation advanced by the respondents was rejected as inconsistent with the text of the guarantee, particularly clauses 5.2 and 5.10. The use of terms like “co-principal debtors” did not override the clear language establishing independent liability. The lis pendens defences were dismissed, as the pending actions related to Climealine and the sale agreement, not the guarantee. The respondents’ attempt to strike out portions of the replying affidavit was refused, as no new matter had been introduced. Their application to file a further affidavit was also denied. The guarantee was held to be enforceable, and the respondents were found liable for the amount claimed.

Order: The respondents are ordered to make the following payment to the applicant, jointly and severally, with the one paying the others to be absolved: The sum of R8,376,045; interest on the amount referred to above calculated at the rate of 11,75% per annum, from 5 August 2024, until the final date of payment, both days inclusive; and costs of the application on an attorney-and-client scale, including costs of two counsel where so employed.

Facts: Kidrogen RF owned a residential property in Parklands, Cape Town, which was occupied by Nordien and his family. A written lease agreement had been signed between Mr Nordien and two of Kidrogen’s directors, Mr Peter and Mr Davids, but the document did not indicate that they were acting on behalf of Kidrogen. An addendum and subsequent correspondence, however, consistently reflected Kidrogen as the landlord. Mr Nordien later entered into a sale agreement with Kidrogen, which was cancelled. He remained in occupation and failed to pay rental, citing financial difficulties. Kidrogen launched an eviction application and sought rectification of the lease agreement to reflect itself as the true lessor. The High Court dismissed both applications, finding that Kidrogen lacked standing. The Full Court overturned that decision, granted rectification, and ordered eviction. Mr Nordien then applied for special leave to appeal to the Supreme Court of Appeal.

Appeal: This was an application for special leave to appeal against the Full Court’s decision to grant rectification of the lease agreement and uphold Kidrogen’s eviction application. The issue was whether Kidrogen had locus standi to seek eviction and rectification, despite not being named as a party in the original lease agreement, and whether the Full Court had erred in granting relief without rectification being pleaded in the founding papers.

Discussion: The matter turned on whether Kidrogen, as the registered owner of the property, had the legal standing to evict Mr Nordien, and whether rectification of the lease agreement was competent in motion proceedings. Mr Nordien argued that the lease was concluded with Mr Peter and Mr Davids in their personal capacities, and that Kidrogen was a “stranger” to the agreement. He also contended that rectification was impermissible because it had not been pleaded in the founding affidavit and the signatories were not joined. These arguments were rejected, as the addendum to the lease, the acknowledgement of debt, and multiple pieces of correspondence all identified Kidrogen as the landlord. Mr Nordien had consistently treated Kidrogen as the lessor, including in his undertakings to settle arrears. Rectification is available where a written agreement fails to reflect the parties’ true intention due to a common mistake. While rectification is usually sought by action, it may be granted in motion proceedings where the evidentiary record is sufficient. The parol evidence rule was found not to bar rectification in such cases.

Findings: Kidrogen had established its ownership of the property and Mr Nordien was in unlawful occupation. The principle of rei vindicatio entitled Kidrogen to reclaim possession unless the occupant could show a lawful right to remain. Mr Nordien failed to do so. His denial of a lease with Kidrogen relieved the company of the burden to prove cancellation. The lease agreement had been signed by Kidrogen’s directors in their representative capacities, and the written document did not reflect the true intention of the parties. Rectification was therefore appropriate. The evidence, including the addendum, acknowledgement of debt, and Mr Nordien’s own admissions, supported the conclusion that Kidrogen was the intended lessor. The failure to plead rectification in the founding papers was excused, as the defence only arose in the answering affidavit. The non-joinder of Mr Peter and Mr Davids was not prejudicial, as both had confirmed their representative roles. The application lacked merit and failed to demonstrate any special circumstances warranting further appeal.

Order: The application for special leave to appeal is dismissed with costs to be paid by the first and second applicants jointly and severally, the one paying the other to be absolved.

Facts: Govinder was employed as the National Sales Manager at Hartmann Vitamed, a supplier of medical devices and healthcare products. Her responsibilities included overseeing sales across three divisions, with the incontinence division generating the bulk of revenue. During her tenure, Govinder clashed with her line manager, Ms Grady, and raised grievances about the inconsistent application of company policies, particularly the travel allowance policy. She also alleged that she was treated less favourably than a subordinate, Ms Doyle, who had a history of misconduct. Govinder was later retrenched following a restructuring process that consolidated her position with that of the product manager. She challenged the dismissal on multiple grounds, including automatic unfairness based on race and religion, procedural and substantive unfairness, and breach of contract.

Claim: Govinder brought a claim under section 187(1)(f) of the Labour Relations Act 66 of 1995, alleging that her dismissal was automatically unfair due to discrimination based on race and religion. In the alternative, she claimed that the dismissal was procedurally and substantively unfair under section 189. She also advanced contractual claims under section 77(3) of the Basic Conditions of Employment Act 75 of 1997, relating to unpaid bonuses, travel policy breaches, and a bursary for her son.

Discussion: It was examined whether Govinder had discharged the evidential burden to raise a credible possibility of discrimination. Her allegations were largely based on perceived favouritism towards Doyle, but the evidence showed that Doyle suffered from mental health issues, which explained the leniency shown. Comparators cited by Govinder were themselves Black, undermining her claim of racial bias. There was no direct or inferential evidence of discrimination. On the contractual claims, Govinder failed to prove entitlement to a performance bonus, damages from the travel policy, or bursary-related losses. The bonus was contingent on year-end performance and employment status at the time of payment, which she did not meet. The travel policy was not breached, and her own conduct contributed to the vehicle issue. The bursary claim lacked supporting evidence. On the retrenchment, the consultation process was inadequate. Only one meeting was held, and Govinder’s queries were not fully addressed. The employer refused to disclose financial information critical to assessing the rationale for restructuring.

Findings: Although Govinder submitted a written motivation for the consolidated role, she was not interviewed or considered. The employer deviated from its stated selection criteria of “LIFO with skills” and applied only LIFO, without explanation. The absence of a job description and failure to allow affected employees to compete fairly for the new role rendered the process procedurally and substantively unfair. The employer failed to conduct a meaningful consultation process, did not disclose relevant financial information, and excluded Govinder from consideration for the consolidated role without justification. Reinstatement was not appropriate due to the breakdown in the employment relationship and the non-existence of her former position. Compensation was awarded as a solatium for the unfair dismissal, taking into account the timing of the dismissal, the impact on Govinder’s dignity, and her personal circumstances.

Order: The applicant’s dismissal was not automatically unfair but was procedurally and substantively unfair. The applicant’s contractual claims under the BCEA are dismissed. The respondent is ordered to pay the applicant compensation equivalent to five months of remuneration, to be paid within ten court days. There is no order as to costs.

Facts: Komape was employed as a Fire Fighter Emergency Technician by the City of Johannesburg. She was dismissed following allegations of dishonesty and misconduct, including soliciting a bribe of R3,000 from Khoza in exchange for promising her a job. The disciplinary hearing and subsequent arbitration upheld the dismissal, finding that Komape had indeed solicited the bribe and attempted to influence staff appointments for personal gain. The particulars of the charges are that she intended to sell fraudulent qualifications to a friend or associate for her personal gain and took a decision to offer or influence other staff members to obtain employment for a friend for fiscal benefit. The arbitrator concluded that her conduct had irreparably damaged the trust relationship with her employer.

Application: This was a review application brought by SAMWU on behalf of Komape, challenging the arbitration award that upheld her dismissal. The application included a request for condonation for late filing. The issue was whether the arbitrator’s decision was one that no reasonable decision-maker could reach, as contemplated by the Sidumo test, and whether any gross irregularities had occurred during the arbitration proceedings.

Discussion: Komape’s review grounds included allegations that the arbitrator failed to apply his mind to her version of events, ignored contradictions in the respondent’s evidence, and relied on inadmissible or irrelevant material. She also raised claims of unlawful entrapment and procedural irregularities, including the authority of the executive head to institute disciplinary action. The applicable review standards were carefully examined, distinguishing between the Sidumo test and the lower threshold for gross irregularity. It was emphasised that a review court must assess the reasonableness of the award in light of all the evidence, not merely the arbitrator’s reasoning. The applicant’s pleadings were largely speculative, based on misrepresentations of the record, and failed to demonstrate any material irregularity or irrationality in the arbitrator’s findings.

Findings: The arbitrator’s conclusions were supported by a coherent and credible evidentiary record. Khoza’s testimony was consistent and corroborated by her sister, Nziyane, who had alerted the anti-corruption unit and coordinated the police sting. Two police officers testified. Their evidence essentially was that the applicant was found in possession of a brown envelope with R3,000 which envelope she had under her right armpit and that during questioning she admitted that she received money in exchange of documents. The applicant’s version was riddled with contradictions, implausible explanations, and prior inconsistent statements. Her claim that the money was for a stokvel transaction was unsupported and not properly put to the witnesses. The entrapment defence was rejected, as the applicant had denied the misconduct and therefore could not simultaneously claim inducement. The review application was an abuse of process, lacking merit and failing to meet the stringent threshold for interference under section 145 of the Labour Relations Act 66 of 1995.

Order: The review application is dismissed with costs.