Facts: The Competition Commission initiated a complaint in 2015, amended in 2016, and referred it in 2017 to the Competition Tribunal, alleging that numerous local and foreign banks, including BNP Paribas (BNP), Credit Suisse Securities (USA) LLC (CSS) and others, colluded between 2007 and 2013 to manipulate the USD/ZAR exchange rate in contravention of section 4(1)(b) of the Competition Act 89 of 1998. The proceedings involved complex procedural developments, including exceptions to the referral, joinder applications for additional banks, and disputes regarding jurisdiction over foreign firms (peregrini). The Tribunal and Competition Appeal Court (CAC) in successive decisions required the Commission to file a refined “superseding affidavit” and determined issues of personal jurisdiction, subject matter jurisdiction, and the sufficiency of pleading a single overarching conspiracy (SOC).

Appeal: Three related applications for leave to appeal, and a cross-appeal, were before the Constitutional Court. BNP sought leave to appeal dismissal of its exception; CSS challenged its joinder and the adequacy of pleading; and the Commission appealed the CAC’s decision that several banks had been improperly joined or insufficiently implicated. Central issues included whether the Commission could join additional respondents after referral without fresh initiation, whether the superseding affidavit met the pleading standard for an SOC, whether the Tribunal had jurisdiction over foreign banks, and whether earlier determinations in CAC I were binding. Various banks opposed the appeal, contending that the Commission was barred by res judicata and peremption, and that the pleaded case was insufficient.

Discussion: The Court considered the procedural framework of competition proceedings, emphasising that referral affidavits must contain material facts sufficient to make out a prima facie case, while allowing flexibility due to the Tribunal’s inquisitorial powers. It addressed the doctrine of res judicata and peremption, finding that the Commission, having accepted CAC I and failed to appeal it, was bound by its conclusions on jurisdiction under section 3(1) of the Competition Act. The Court examined joinder and initiation principles with reference to Pickfords, holding that complaints are initiated against prohibited practices rather than specific firms, and that additional respondents may be joined post-referral without fresh initiation, subject to fairness and procedural control by the Tribunal. It analysed the pleading requirements for an SOC, drawing on European jurisprudence, particularly the need to show a common objective, intentional participation, and knowledge. The Court further scrutinised whether the CAC had committed legal or factual errors when evaluating the sufficiency of the pleaded case against each bank.

Findings: The Commission was precluded by res judicata and peremption from rearguing the interpretation of section 3(1), and the Court declined to revisit CAC I. The CAC had not generally erred in law in evaluating whether the superseding affidavit disclosed a prima facie case, and most challenges concerned factual assessment rather than legal misdirection. However, the CAC erred in certain respects, including incorrectly treating CSS as a local peregrinus and misconstruing the requirements for subject matter jurisdiction in relation to JPMorgan Chase Bank N.A. The Court held that joinder after referral was permissible and did not require fresh initiation, rejecting the CAC’s contrary conclusion. In respect of individual banks, most appeals failed because no legal errors were established, but the Commission succeeded against JPM Bank and Standard Americas Incorporated (SAI), and CSS succeeded in resisting joinder due to lack of personal jurisdiction. BNP’s appeal, based on vagueness, was not appealable and lacked merit.

Order: Leave to appeal by BNP is refused with costs. CSS’ appeal succeeds and its joinder is set aside. The Commission’s appeal succeeds in part in respect of JPM Bank and Standard Americas Incorporated, but is otherwise dismissed. The cross-appeal by HSBC Bank plc is dismissed. No general costs order is made, save for BNP’s unsuccessful application.

Facts: The Minister of Police (the Minister) sought leave to appeal against a decision ordering payment of interest on an award of general damages granted to Cynthia Nobuhle Khedama for unlawful arrest and detention. The respondent had been arrested in 2011 on suspicion of fraud, detained in degrading conditions, and later released when charges were withdrawn. She instituted action for damages in 2013 arising from humiliation, detention, and trauma. The High Court awarded R1 million in general damages and ordered interest to run from the date of service of summons. On appeal, the Full Court reduced the damages and directed interest to run from the date of judgment, but the Supreme Court of Appeal increased the damages to R580,000 and ordered interest from the date of summons. The dispute concerned the proper commencement date for interest on general damages under the Prescribed Rate of Interest Act 55 of 1975.

Appeal: The Minister contended that interest on general damages, being unliquidated, should run only from the date of judgment and not from the date of service of summons. It argued that awarding interest from summons leads to unjust overcompensation, since general damages are assessed in current monetary value at the date of judgment. The respondent opposed the appeal, asserting that section 2A(2)(a) of the Prescribed Rate of Interest Act mandates that interest on all unliquidated debts runs from the date of demand or summons. The appeal therefore required determination of whether general damages fall within the ambit of section 2A(2)(a) and whether a court retains a discretion under section 2A(5) to alter the commencement date of interest.

Discussion: The Court examined the legislative framework of the Prescribed Rate of Interest Act 55 of 1975, particularly sections 2 and 2A, and the distinction between liquidated and unliquidated claims. It noted that general damages are unliquidated, as they are assessed at the discretion of the trial court as a fair solatium at the date of judgment. Historically, interest was not awarded on unliquidated debts before judgment, but section 2A was introduced to address undercompensation caused by currency depreciation. The Court considered conflicting jurisprudence regarding whether interest on general damages should run from summons or judgment. It distinguished between pecuniary losses, which may be assessed at the time of the delict, and non‑pecuniary damages, which are assessed at the date of judgment. The Court emphasised that section 2A(5) grants courts a discretion to order what is just in respect of interest, thereby avoiding inequitable outcomes.

Findings: The Court held that general damages, although unliquidated, differ from pecuniary claims in that they are quantified at the date of judgment using current monetary value. Awarding interest from the date of summons on an amount already assessed at current value would result in unjustified enrichment and overcompensation. Section 2A(2)(a) must therefore be applied with regard to the nature of the claim, and section 2A(5) affords a discretion to depart from the default rule. It was concluded that interest on these general damages should run from the date of judgment to the date of payment. The Supreme Court of Appeal erred in applying a rigid interpretation of section 2A(2)(a) and in failing to invoke the discretionary power under section 2A(5). The correct approach ensures fairness and aligns with the purpose of the statute.

Order: Leave to appeal is granted; the appeal is upheld; the order of the Supreme Court of Appeal is set aside and replaced with an order that interest on the damages runs from the date of the trial court’s judgment to date of payment; each party bears its own costs in the Supreme Court of Appeal; Cynthia Nobuhle Khedama is ordered to pay the Minister’s costs in the Constitutional Court.

Facts: Dr Ganes Anil Ramdhin (Dr Ramdhin), a specialist obstetrician and gynaecologist, concluded an agreement with Rondebosch Medical Centre (Pty) Ltd (RMC) in 2019 granting him admission privileges to admit and treat patients at the hospital. In June 2023, the Health Professions Council of South Africa (HPCSA) found Dr Ramdhin guilty of unprofessional conduct and suspended him from practice, resulting in his inability to practise medicine. During his suspension, RMC’s governance structures changed and a formal policy regulating admission privileges was introduced. After his suspension was partially lifted in June 2024, Dr Ramdhin sought to resume his privileges. RMC, however, required him to reapply and ultimately refused to grant fresh admission privileges based on considerations including lack of need, reputational risk, and his prior sanction.

Appeal: Dr Ramdhin applied in the High Court for an interdict preventing RMC from denying him the exercise of his contractual admission privileges, pending declaratory relief that the termination of those privileges was invalid. He contended that the 2019 agreement remained in force and that his inability to perform during suspension constituted only a temporary impediment. RMC opposed the application, contending that the agreement was subject to an implied term that required continued registration and legal entitlement to practise, and that the privileges terminated automatically upon his suspension. The High Court dismissed the application, and Dr Ramdhin appealed to the Supreme Court of Appeal.

Discussion: The issue was whether Dr Ramdhin’s admission privileges survived his suspension under the Health Professions Act 56 of 1974. The Court examined the statutory framework, particularly section 44, which provides that a practitioner who is suspended is disqualified from practising and their registration certificate is deemed cancelled for the duration of the suspension. The parties disputed whether this merely suspended performance or terminated the contract. Dr Ramdhin attempted to raise a new argument based on temporary supervening impossibility of performance, contending that the agreement persisted and could revive after the impediment ceased. The Court considered the nature of admission privileges as contractual rights dependent on professional registration, and the role of implied terms imposed by law in regulating such agreements.

Findings: The Court held that the right to practise was an essential condition of the agreement conferring admission privileges and constituted a term implied by law. Once Dr Ramdhin was suspended, he was no longer legally permitted to practise, and his registration was deemed cancelled for that period, thereby extinguishing the contractual foundation of the agreement. The suspension was not a mere temporary inconvenience but a fundamental change to the contractual substratum, rendering continued performance impossible and terminating the agreement automatically. The argument based on temporary impossibility was rejected as both procedurally impermissible and substantively unsustainable, particularly because the impossibility was self‑created through Dr Ramdhin’s own misconduct. No administrative action existed for review under the Promotion of Administrative Justice Act 3 of 2000, as the matter was one of private contract. Consequently, Dr Ramdhin had no right to specific performance or reinstatement of his privileges and was required to apply afresh under the new policy.

Order: The appeal is dismissed with costs.

Facts: Kealeboga Kelvin Molefe (Molefe) instituted an action against the Minister of Police (the Minister) and the National Director of Public Prosecutions (the National Director) arising from his arrest on 6 January 2020 on charges of arson and murder, his release on bail on 30 March 2020, and his discharge in terms of section 174 of the Criminal Procedure Act 51 of 1977 on 2 October 2020. Molefe served a notice in terms of section 3(1) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 on the Minister on 11 November 2020, received on 17 November 2020. The respondents raised a special plea that the notice was late and that no notice had been served on the National Director. The matter thus concerned Molefe’s application for condonation under section 3(4) of the Act for non-compliance with the statutory notice requirements.

Application: Molefe sought condonation for the late service of notice in respect of his claims for unlawful arrest and detention, and for any failure to serve notice on the National Director, so that he could proceed with his action. He contended that both his unlawful arrest and malicious prosecution claims accrued only upon his discharge on 2 October 2020, rendering the notice timeous. Alternatively, he argued that good cause existed for any delay and that no prejudice arose. The Minister and National Director opposed, contending that the claim for unlawful arrest accrued upon arrest or at the latest release on bail, rendering the notice approximately six to seven weeks late; they further alleged that no notice was served on the National Director and that Molefe’s explanation was inadequate.

Discussion: The Court considered section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, which requires service of notice within six months from when the debt becomes due, and section 3(4) permitting condonation where the debt has not prescribed, good cause exists, and no unreasonable prejudice is shown. The Court examined the distinction between claims for unlawful arrest and detention and malicious prosecution, relying on Mmabasotho Christinah Olesitse NO v Minister of Police, which clarified that these are separate causes of action accruing at different times. It evaluated the parties’ submissions on when the cause of action accrued and whether the delay could be excused, as well as the evidentiary issues relating to proof of notice on the National Director and the applicability of the Plascon-Evans approach.

Findings: Molefe’s claim for unlawful arrest and detention accrued at the latest upon his release on bail on 30 March 2020, rendering the November 2020 notice late, while the malicious prosecution claim accrued upon discharge and was timeous. Condonation was nevertheless warranted: the action had not prescribed; Molefe showed good cause by relying on a legal position reasonably held on advice and supported by earlier authority, and not due to mere ignorance; and no unreasonable prejudice to the respondents was established. With regard to the National Director, even assuming no notice was served, condonation was justified in light of Molefe’s bona fides, the overlap in interests with the Minister, and absence of prejudice. The prospects of success were not so weak as to justify refusal of condonation.

Order: The Applicant's failure to serve a notice in terms of section 3(1) of the Act within the prescribed period is condoned in respect of the claim for unlawful arrest and detention; any failure to serve notice on the National Director is condoned; the Applicant may proceed with the action; the matter is to serve before Reddy J; costs are costs in the cause.

Good cause:

[23] Molefe's explanation for the delay in serving notice on the unlawful arrest and detention claim is not that he was personally ignorant of the law, which would not avail him, but that a considered legal position was adopted on his behalf and maintained consistently, from his reply to the special plea filed on 13 March 2024 to the present, namely that his cause of action only arose upon discharge. That position, though ultimately incorrect, was neither contrived nor unreasonable when taken, finding support in Makhwelo, Tlake and Mashaba until settled against it by the Constitutional Court in Olesitse.

[24] A legal position taken on advice, honestly and consistently maintained, and reasonable when adopted notwithstanding that it was later overtaken by binding authority, is capable of constituting good cause. As I see it, this is to be distinguished from mere ignorance of the law, which would not constitute good cause. The same consideration, reinforced by the fact that it was only upon the matter being called for trial on 24 February 2026 that this Court directed a substantive application be brought, adequately explains the delay in launching this application itself, of which the Minister and the National Director complain.

Facts: Maxam Onasis (Maxam) and Bongani Nkosi (Nkosi) were convicted in the Gauteng Division of the High Court of numerous offences arising from a coordinated series of robberies at branches of the South African Post Office. The charges included contraventions of the Prevention of Organised Crime Act 121 of 1998 (POCA) relating to racketeering, as well as fraud, theft, robbery with aggravating circumstances, and unlawful possession of firearms and ammunition. The evidence revealed an organised criminal enterprise consisting largely of former post office employees who opened false accounts, executed armed robberies, and made fictitious deposits followed by withdrawals. The trial court imposed effective sentences of 23 years’ imprisonment on Maxam and 20 years on Nkosi. Both denied involvement in the enterprise and the offences.

Appeal: Maxam and Nkosi appealed against their convictions, contending that the evidence—particularly that of a key witness and the cell phone records—was insufficient, unreliable or improperly evaluated. They denied participation in any racketeering enterprise and challenged their identification in the robberies. The Director of Public Prosecutions cross‑appealed, arguing that the sentences imposed by the High Court were too lenient and that higher sentences, including those aligned with the seriousness of racketeering under POCA and minimum sentence legislation, ought to have been imposed.

Discussion: The Court considered whether a criminal enterprise existed under POCA and whether the appellants participated in its affairs through a pattern of racketeering. It evaluated extensive evidence, including eyewitness accounts, admitted cell phone data showing communication and location patterns, banking records evidencing fraudulent transactions, and an informer’s testimony linking the appellants to the enterprise. The Court also addressed legal issues concerning duplication of convictions under sections 2(1)(e) and 2(1)(f) of POCA, applying the later authority of S v Ditlhakanyane which held that conviction on both provisions based on the same evidence constitutes impermissible duplication. In respect of firearm offences, the Court applied the principles in S v Nkosi and S v Makhubela requiring proof of possession or joint possession. It further examined whether factual findings of the trial court justified interference and reiterated the limited role of an appellate court absent material misdirection.

Findings: The evidence established beyond reasonable doubt that a single enterprise existed and that both appellants participated in its racketeering activities, supported by corroborated testimony, objective data, and consistent modus operandi across robberies. The trial court’s credibility findings were sound and there was no basis to disturb them. Maxam’s conviction under both sections 2(1)(e) and 2(1)(f) of POCA constituted duplication, and the latter conviction had to be set aside, while the section 2(1)(e) conviction remained valid. Convictions for unlawful possession of ammunition and certain firearm counts failed due to lack of evidence and were set aside, though firearm possession in relation to one robbery was proved. Regarding sentence, the Court found the POCA sentences imposed by the High Court unduly lenient and increased them, while upholding most other sentencing determinations and setting aside the non‑parole period imposed on Nkosi as irregular.

Order: The appeals against conviction succeed in part; certain POCA and firearm‑related convictions and sentences are set aside. Remaining convictions are confirmed. Sentences for POCA contraventions are increased to 20 years’ imprisonment for Maxam and 15 years for Nkosi, with effective sentences of 23 years and 20 years respectively. The State’s cross‑appeal succeeds partially; the non‑parole order is set aside and the remaining sentences are otherwise confirmed.

Facts: Adrianus Merceij (the Intervening Party) sought to intervene in proceedings instituted by the liquidators of HGG Financial Group Inc (the liquidators) against Square Rock Limited, a company formerly owned and controlled by him. The liquidators had previously obtained an ex parte order before another judge declaring payments made by HGG to Square Rock in the amount of €4,739,968.22 to be voidable preferences under section 29(1) of the Insolvency Act 24 of 1936, and authorising recovery of that amount. Mr Merceij, a Dutch businessman and former sole director and shareholder of Square Rock, was not cited or notified. After the order was granted, the liquidators relied on it to institute proceedings against him personally in the Netherlands and to secure pre-judgment attachment of his immovable property. He contended that the order directly affected his rights and had been obtained without his participation, despite his possession of material information concerning Square Rock’s affairs.

Application: Mr Merceij applied for leave to intervene in the main proceedings and for rescission of the earlier order in terms of Rule 42(1)(a) of the Uniform Rules of Court alternatively the common law. The liquidators opposed, raising a point in limine that Mr Merceij lacked locus standi, contending that he had no direct legal interest in the section 29 proceedings and that his interest was merely financial. They further sought separation of issues in terms of Rule 33(4) to determine locus standi first. Mr Merceij argued that the order was being used as a springboard for personal claims against him abroad and that he had a direct and substantial interest justifying intervention, particularly given the absence of full disclosure in the ex parte proceedings.

Discussion: The Court considered whether to grant separation of issues, whether Mr Merceij possessed locus standi, and whether the earlier order had been erroneously granted. It reaffirmed that Rule 33(4) applies to actions and not to application proceedings, though courts retain inherent powers to separate issues where appropriate. The test for intervention requires a direct and substantial interest in the subject matter capable of being prejudiced by the order. Authorities such as SA Riding for the Disabled Association v Regional Land Claims Commissioner and Peermont Global (KZN) (Pty) Ltd v Afrisun (KZN) (Pty) Ltd were applied. In respect of rescission, the Court emphasised that Rule 42(1)(a) allows rescission where an order was erroneously granted in the absence of a party affected, and highlighted the strict duty of full disclosure in ex parte applications as set out in Recycling and Economic Development Initiative of South Africa v Minister of Environmental Affairs. The enquiry focused on whether the absence of Mr Merceij and material non-disclosures undermined the validity of the earlier order.

Findings: Separation of issues was inappropriate, as locus standi was intertwined with the merits and the matter could be determined holistically. Mr Merceij was found to have a direct and substantial legal interest, as the section 29 order formed the basis for proceedings against him personally and resulted in attachment of his assets. His interest was neither remote nor abstract but immediate and prejudicial. The Court held that he qualified as an affected party under Rule 42(1)(a). It further found that the earlier ex parte proceedings were conducted without full disclosure of material facts, including Mr Merceij’s availability and knowledge of Square Rock’s affairs, and that the Court had been presented with a one-sided version. Such non-disclosure, irrespective of intention, justified rescission. The section 29 order had therefore been erroneously granted in his absence, depriving him of the opportunity to place relevant facts before the Court.

Order: The separation of issues fails; the locus standi objection fails; Adrianus Merceij is granted leave to intervene; the order granted on 23 October 2024 is rescinded; and the respondents are ordered to pay costs, including the costs of two counsel on Scale C.

Facts: Brian William Louis and Louis Jacobus Cloete (the appellants) were directors within the Louis Group of companies and appealed against a High Court judgment holding them personally liable in delict to The Arts Foundation (TAF) for pure economic loss. TAF had invested USD 230,000 in a property syndication known as Century Falls, managed by the Louis Group. Upon maturity in 2009, proceeds of USD 380,228.99 were not paid to TAF but transferred to another entity, Violet Ivy Property Investment Ltd, purportedly as a reinvestment in a new development, the Paddocks, without TAF’s written authorisation. TAF had imposed strict conditions requiring written instructions for any transaction. No such instructions were given and none of the required safeguards were complied with. Despite repeated demands for repayment, the funds were not returned, and shares in Violet Ivy were later issued to TAF without its consent when the investment had already failed.

Appeal: The appellants challenged the findings of personal delictual liability, contending that the court a quo erred in treating their admitted “duty of care” as dispositive of wrongfulness, in finding fault and causation, and in imposing personal liability on directors where company law principles should apply. Brian Louis argued inter alia that the rollover was authorised, that any loss was reflective, and that liability lay with the company rather than him personally. Cloete contended that his role was purely operational, limited to releasing payments on instruction, and that there was no evidence of his personal wrongdoing, knowledge or participation in the impugned conduct.

Discussion: The main issue concerned wrongfulness in claims for pure economic loss, particularly whether an admission of a duty of care obviates the need to establish a legal duty as a matter of policy. The Court reaffirmed that wrongfulness requires a value judgment based on public and legal policy, and that a “legal duty” is a conclusion of law not determined by pleading admissions. Relying on authorities such as Nelson Attorneys v Smit and Country Cloud Trading CC v MEC, the Court distinguished between duty of care (fault) and legal duty (wrongfulness). It analysed whether each appellant bore a legally recognisable duty to prevent TAF’s loss. In respect of Brian Louis, emphasis was placed on his direct dealings with TAF, his participation in the unauthorised transfer and subsequent conduct, including his involvement in issuing shares to TAF despite repeated demands for repayment. In respect of Cloete, the Court considered his lack of personal engagement, his operational role, and the absence of evidence establishing knowledge or participation in the wrongful conduct.

Findings: The court a quo was not materially misdirected; although it relied on an admitted duty, it nonetheless conducted a proper inquiry into wrongful breach. On a fresh policy-based analysis, wrongfulness, fault and causation were established against Brian Louis. He had personal involvement, knowledge of the absence of mandate after repeated demands, and participated in conduct that caused the loss, particularly the continued withholding of funds and irregular share transfer. His conduct justified the imposition of personal liability in delict. By contrast, Cloete’s position differed materially. He had no personal dealings with TAF, no special relationship, and no proven knowledge of the irregularities. The findings against him were unsupported by evidence and not put to him in cross-examination. His role as financial director executing payment instructions did not justify personal liability. Wrongfulness was therefore not established against him.

Order: The appeal of Brian William Louis is dismissed with costs, including the costs of two counsel on Scale C. The appeal of Louis Jacobus Cloete is upheld with costs on Scale C. The order of the court a quo is set aside and replaced with judgment against Brian Louis and Dr Alan Louis, jointly and severally, for USD 380,228.99 with compound interest and costs, and dismissal of the action against Cloete with costs.

Facts: Peter Tebogo Jonker (Jonker) was employed as Chief Mechanical Engineer by the Department of Public Works and Roads North West (the Department). Following allegations of irregular conduct relating to procurement, diesel supply, and departmental contracts, Jonker made disclosures to internal structures, the Hawks, and other authorities, alleging improper conduct by senior officials. Thereafter, he was subjected to suspension, redeployment, and disciplinary steps. In January 2026, he was served with a notice to attend a disciplinary hearing on charges including defamatory allegations and leaking information. Jonker believed these proceedings were a consequence of his disclosures and invoked section 188A(11) of the Labour Relations Act 66 of 1995 (LRA), requesting that the inquiry be conducted by an arbitrator under the auspices of the Bargaining Council. The Department refused and insisted on proceeding with an internal disciplinary hearing.

Application: Jonker approached the Labour Court on an urgent basis seeking an interim interdict to halt the disciplinary proceedings pending the Bargaining Council’s decision on his request for a section 188A(11) inquiry. He contended that he had invoked a statutory right after making protected disclosures and that continuation of the internal process would undermine that right and cause injustice. The Department opposed the application, disputing that Jonker was a whistleblower or that he acted in good faith, contending that the disciplinary process was legitimate, and arguing that urgency was self-created and that Jonker had alternative remedies.

Discussion: The Court considered urgency, jurisdiction, and the requirements for interim relief. It accepted that section 188A(11) of the LRA, read with the Protected Disclosures Act 26 of 2000 (PDA), allows an employee who in good faith alleges that disciplinary action contravenes the PDA to request an inquiry by an arbitrator. The Court emphasised that, at this stage, Jonker was not required to prove that he made protected disclosures, but only that he alleged in good faith that the disciplinary process was linked thereto. Authorities such as Nxele v National Commissioner: Department of Correctional Services and Tsibani v Estate Agency Affairs Board clarified that the determination of whether disclosures are protected is a matter for later adjudication, not a prerequisite for invoking section 188A(11). The Court further considered the requirements for an interim interdict as set out in Setlogelo v Setlogelo, including a prima facie right, irreparable harm, balance of convenience, and absence of alternative remedy, and the principle that intervention in ongoing disciplinary proceedings is justified only in exceptional circumstances.

Findings: The Court found that Jonker established urgency, as failure to intervene would render his statutory right nugatory. A prima facie right was established because the charges arose from disclosures he had made, and his allegation of victimisation was made in good faith. The harm was irreparable, as continuation of the disciplinary hearing would deprive him of the opportunity for an independent inquiry, and the outcome could not be undone. The balance of convenience favoured Jonker, as the Department would suffer no prejudice if the hearing were delayed pending the Bargaining Council’s decision, whereas Jonker would suffer injustice if it proceeded. No adequate alternative remedy existed. Exceptional circumstances were present given the interplay between disciplinary proceedings and alleged protected disclosures.

Order: The disciplinary hearing against Jonker is interdicted and suspended pending the Bargaining Council’s decision on whether to conduct a section 188A(11) inquiry. If such inquiry proceeds, the internal disciplinary process is terminated; if not, it may resume. No order as to costs.

Facts: The President approached the Constitutional Court in terms of sections 79(4)(b) and 84(2)(c) of the Constitution, seeking a determination of the constitutionality of various provisions in the Copyright Amendment Bill, 2017 and the Performers’ Protection Amendment Bill, 2017. These Bills sought to overhaul the copyright regime by introducing broader exceptions and limitations to enhance access to works, particularly for education and persons with disabilities. After initially referring the Bills back to Parliament with constitutional reservations, Parliament amended certain provisions and resubmitted them. The President remained unconvinced and raised concerns that specific provisions, notably sections 6A, 7A, 8A, 12A–12D, 19B and 19C, resulted in retrospective and arbitrary deprivations of property, infringed section 25(1) of the Constitution and conflicted with South Africa’s international obligations. Various political parties and amici curiae made submissions, reflecting competing interests between copyright protection and access to information, education and freedom of expression.

Application: The President sought a declaratory ruling that the impugned provisions were unconstitutional, contending that they arbitrarily limited copyright holders’ property rights and failed to comply with international copyright treaties such as the Berne Convention for the Protection of Literary and Artistic Works and the TRIPS Agreement. Some parties supported this view, asserting that the provisions undermined copyright owners’ economic interests and introduced legal uncertainty, particularly through the fair use regime and educational exceptions. Others opposed the application, contending that the provisions constitutionally balanced competing rights, promoted access to education, expression and information, and were consistent with both domestic constitutional principles and international human rights obligations. A preliminary issue arose regarding whether the referral was competent within the narrow scope of section 79 procedure.

Discussion: The Court reaffirmed that a referral under section 79 is a limited and narrowly circumscribed form of abstract judicial review confined to the President’s articulated reservations. It emphasised that Parliament must first be afforded the opportunity to address those concerns, and that the Court cannot consider matters beyond the scope of the referral. The Court further addressed the nature of copyright as “property” protected under section 25(1) of the Constitution and set out the principles governing deprivation and arbitrariness, drawing on First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Mkontwana v Nelson Mandela Metropolitan Municipality. It recognised that copyright is not absolute and must be balanced with competing constitutional rights such as freedom of expression and the right to education. The Court adopted a cautious approach to abstract review, emphasising that only reasonably foreseeable unconstitutional effects justify invalidation. The analysis proceeded section by section, considering whether the impugned provisions effected deprivations of property and, if so, whether such deprivations were arbitrary.

Findings: The Court held that the referral concerning sections 6A, 7A and 8A was incompetent because the President had altered the basis of his objections beyond those previously placed before Parliament, thereby depriving the Legislature of the opportunity to consider them. In relation to section 12A, the Court held that the fair use regime, though constituting a deprivation of copyright, was not arbitrary due to its structured balancing factors and public-benefit objectives. Sections 12B and 12C were found to contain narrowly defined, purpose-driven exceptions with sufficient safeguards and were thus not arbitrary. By contrast, subsections 12D(1)–(5), dealing with educational reproduction, were held to permit overly broad and insufficiently defined uses, allowing extensive copying without proper limitation or regard to the copyright owner’s market, thereby constituting an arbitrary deprivation of property. Subsections 12D(6)–(9) were upheld as they were limited and appropriately tailored. Sections 19B and 19C were found to be rational, limited and constitutionally permissible. The Court emphasised that confirming constitutionality in this context does not preclude future challenges once the legislation is enacted and applied.

Order: The referral concerning sections 6A, 7A and 8A is incompetent; sections 12A, 12B, 12C, 12D(6)–(9), 19B and 19C are constitutional and do not infringe section 25(1); subsections 12D(1)–(5) are unconstitutional as arbitrary deprivations of property; and these findings apply equally to the corresponding provisions of the Performers’ Protection Amendment Bill.

Facts: Christo Johan Rose (Rose) laid criminal charges against Elrico Esterhuizen (Esterhuizen), which led to Esterhuizen being prosecuted for attempted murder in the Regional Court. After appearing in court, Esterhuizen submitted representations to the Senior Public Prosecutor, which resulted in the withdrawal of the charges. The Director of Public Prosecutions confirmed the decision not to prosecute. Rose requested both the nolle prosequi certificate and the representations made by Esterhuizen. While the certificate was furnished, the representations were withheld on the basis that they were confidential and made on a without-prejudice basis. Rose instituted applications in the High Court seeking disclosure of these representations, but he failed to join Esterhuizen as a party to the proceedings.

Appeal: Rose appealed against the High Court’s dismissal of his application, contending that as a private prosecutor he was entitled to access the representations made by Esterhuizen to the prosecuting authority. He argued that a private prosecutor stands in the same position as a public prosecutor and therefore should have access to all relevant material, including without-prejudice representations. The National Prosecuting Authority and related respondents opposed the appeal, contending that Esterhuizen had a direct and substantial interest in the matter, that the representations were confidential and privileged, and that Rose’s failure to join Esterhuizen rendered the application fatally defective.

Discussion: The Court considered the principles governing non-joinder, emphasising that a party must be joined if they have a direct and substantial interest in the subject matter of the litigation. The test is whether the order sought may prejudicially affect that party’s legal rights. The respondents argued that Esterhuizen, as the author of the representations made on a without-prejudice basis, had a clear interest in whether they were disclosed, particularly given protections under section 41(6) of the National Prosecuting Authority Act 32 of 1998. Rose maintained that the dispute was purely legal and involved only himself and the prosecuting authority. The Court further considered whether the matter could be remitted or struck from the roll to allow joinder, but noted that Rose had been aware of the issue and elected not to join Esterhuizen, both in the High Court and on appeal.

Findings: The Court held that Esterhuizen had a direct and substantial interest in the outcome, as disclosure of his representations would affect his rights, including privilege against self-incrimination and confidentiality attaching to without-prejudice communications. The failure to join him violated the principle of audi alteram partem and rendered the application fundamentally defective. This procedural defect was dispositive, and it was unnecessary to determine whether a private prosecutor is entitled to such representations. The Court found that Rose had deliberately chosen not to join Esterhuizen despite clear indications that joinder was necessary and therefore was not entitled to further opportunity within the same proceedings.

Order: The appeal is dismissed with costs.

Facts: Jocelyn de Bruyn (De Bruyn), the adult daughter of the late Johannes Jacob Prinsloo (the deceased), challenged the liquidation and distribution (L&D) account of the deceased estate. The deceased had married Martha Johanna Prinsloo (Prinsloo) in 1989, who was appointed as executrix and was also a beneficiary under the will. The will bequeathed immovable property to De Bruyn, subject to Prinsloo’s lifelong usufruct, and intended to provide for Prinsloo’s maintenance. Prinsloo lodged a spousal maintenance claim under the Maintenance of Surviving Spouses Act 27 of 1990, which exceeded the value of the estate, resulting in no residue for heirs and allocation of the immovable property to Prinsloo. De Bruyn objected to the maintenance claim as excessive and unsupported. The Master of the High Court dismissed her objection after considering revised actuarial calculations.

Appeal: De Bruyn appealed against the dismissal of her review application under sections 35(10) and 54 of the Administration of Estates Act 66 of 1965, seeking to set aside the Master’s decision, declare that no valid maintenance claim existed, and remove Prinsloo as executrix. Before the Supreme Court of Appeal, she abandoned the challenge to the existence of any maintenance claim and to the removal of the executrix, confining her case to disputing the amount of the maintenance claim. She contended that the claim was improperly based solely on actuarial reports derived from unverified information and did not properly consider the factors in section 3 of the Maintenance of Surviving Spouses Act. Prinsloo opposed the appeal, asserting that the claim complied with statutory requirements and was supported by evidence of need.

Discussion: The Court considered sections 2 and 3 of the Maintenance of Surviving Spouses Act 27 of 1990, which entitle a surviving spouse to reasonable maintenance where unable to maintain themselves, taking into account factors such as estate value, means, earning capacity, needs, duration of marriage, standard of living, and age. The appellant relied on Friedrich v Smit NO to argue that maintenance must be reasonable and proven. The Court examined evidence regarding Prinsloo’s financial position, including her limited income, advanced age, lack of employment prospects, and expenses. It also considered the estate’s financial position and the testator’s intention in his will, emphasising that interpretation must give effect to the testator’s wishes where ascertainable. The Court further considered whether actuarial evidence was insufficient without independent verification and whether voluntary support from children constituted “means” for purposes of the Act.

Findings: The Court found that Prinsloo had discharged the onus of establishing a claim for reasonable maintenance. She demonstrated need, insufficient income, and an inability to sustain herself independently, particularly given her age and diminished earning capacity. The actuarial report was not undermined by the absence of a contrary expert opinion from De Bruyn. Prinsloo’s financial resources, including limited salary, irregular rental income, and modest assets, were inadequate to meet her needs. Voluntary support from family did not negate her statutory claim. The Court accepted that the maintenance claim was adjusted to avoid insolvency and aligned with the estate’s distributable balance. It further found that the deceased intended to provide for Prinsloo’s maintenance and that her standard of living had deteriorated following his death. The Master’s decision to dismiss the objection was therefore correct, and the full court did not err.

Order: The appeal is dismissed with costs.

Facts: Zaid Seedat (Seedat) instituted an action for delictual damages against the Minister of Correctional Services (the Minister) arising from his contraction of tuberculosis while detained at Pollsmoor Prison. He was incarcerated between 2000 and 2003 and diagnosed with pulmonary tuberculosis during his detention. Summons was issued in 2004. The matter thereafter remained largely dormant for many years, pending the outcome of Lee v Minister of Correctional Services, which clarified liability for such claims. Liability was eventually conceded in full by the Minister in 2025, more than 20 years after institution of the action. The parties then agreed that general damages were payable in the amount of R350,000, and all other heads of damages were abandoned. The only outstanding issue for determination was the plaintiff’s entitlement to pre‑ and post‑judgment mora interest, as well as the relevant period, rate, and costs.

Claim: Seedat sought pre‑judgment mora interest in terms of section 2A of the Prescribed Rate of Interest Act 55 of 1975 (PRIA), calculated from the date of service of summons in 2004 at the prescribed rate. He contended that the claim constituted an unliquidated debt, and therefore interest accrued from demand or summons. The Minister opposed this, arguing that general damages do not constitute a monetary debt until quantified, that the claim was not reasonably assessable at the date of summons, and that interest should only run from judgment or settlement. The Minister further advanced an argument that personal injury claims against organs of state should be treated similarly to claims under the Road Accident Fund Act 56 of 1996, which limits interest. In the alternative, both parties addressed the Court’s discretion under section 2A(5) of PRIA.

Discussion: The Court examined the statutory framework of PRIA, particularly section 2A, which governs interest on unliquidated debts. It recognised that the Act provides both a structured regime for interest (sections 2A(1)–(4)) and a broad discretionary power under section 2A(5) to determine what is just in the circumstances. The parties’ competing arguments raised issues concerning the definition of a “monetary debt”, the applicability of the “future loss” exception, the requirement of reasonable assessability, and the possible application of the in duplum rule. The Minister’s reliance on parity with the Road Accident Fund Act was rejected on both substantive and procedural grounds, as the two statutes regulate different stages of interest and the argument had not been pleaded. The Court further considered the unique history of the matter, including the long delay and the uncertainty in law prior to the Constitutional Court’s decision in Lee.

Findings: The Court held that this was a matter appropriately determined under the discretion in section 2A(5) of PRIA. It found that it would not be just to award interest from the date of summons in 2004, as the legal basis for liability was uncertain until the Constitutional Court’s decision in Lee in 2012. Neither party could reasonably have resolved the claim earlier. Once that judgment clarified liability, however, the Minister ought reasonably to have known of its liability and the plaintiff was deprived of compensation. The Court therefore exercised its discretion to award pre‑judgment mora interest from 11 December 2012 at the prescribed rate of 15.5% per annum. It further held that the in duplum rule does not apply to pre‑judgment interest under PRIA, as such interest is not “arrear interest”. The plaintiff was successful overall and entitled to costs of the quantum trial, while the interlocutory costs were apportioned.

Order: The defendant shall pay pre‑judgment mora interest on R350,000 at 15.5% per annum from 11 December 2012 to 2 March 2026, amounting to R717,734.93. The total judgment debt is R1,067,734.93. Post‑judgment interest accrues at 10.25% per annum until payment. The defendant shall pay the plaintiff’s costs of the quantum trial on Scale B. Each party shall bear its own costs for interlocutory and postponement applications after 14 May 2025.

Facts: Solidarity, acting on behalf of Brig G Van Niekerk (the applicant), brought a review in the Labour Court arising from her unsuccessful application for promotion within the South African Police Service (the SAPS). The applicant applied for senior management positions but was not shortlisted, while other candidates were appointed in November 2022. She believed the decision unfair and lodged a grievance in October 2022, which remained unresolved until a mediation certificate was issued in January 2023. Thereafter, she referred an unfair labour practice dispute via her union to the Safety and Security Sectoral Bargaining Council (SSSBC) in February 2023. Following the withdrawal of the SSSBC’s accreditation, the matter was transferred to the Commission for Conciliation, Mediation and Arbitration (CCMA), where a jurisdictional ruling found the referral to be out of time under the Labour Relations Act 66 of 1995. The applicant subsequently brought a condonation application, which the commissioner dismissed due to excessive delay and weak prospects of success.

Application: The applicant sought to review and set aside the condonation ruling issued by the CCMA commissioner, arguing that the decision was unreasonable and not one a reasonable decision-maker could have reached. She contended that the commissioner erred in calculating the 90-day period prescribed under section 191(2) of the Labour Relations Act 66 of 1995, asserting that the referral should be calculated from the date of the mediation certificate rather than the date she became aware of the non-promotion. She further argued that she had complied with the applicable SSSBC timeframes prior to its accreditation being withdrawn and that she had sufficiently addressed both the reasons for delay and her prospects of success. SAPS opposed the review, maintaining that the applicant’s referral was significantly late, that the explanation for delay was inadequate, and that her claims lacked merit.

Discussion: The applicable review test required the Labour Court to determine whether the commissioner’s decision was one that a reasonable decision-maker could reach, as articulated in Fidelity Cash Management Service v CCMA and related authorities. The Court considered section 191(1) and (2) of the Labour Relations Act 66 of 1995, which require that an unfair labour practice dispute be referred within 90 days of the act or the employee becoming aware of it. The applicant’s reliance on SSSBC rules was examined, but it was emphasised that statutory requirements cannot be overridden by bargaining council procedures. Authorities confirmed that there is no obligation to exhaust internal remedies before referring an unfair labour practice dispute. The Court also considered jurisprudence establishing that disputes relating to promotion arise at the time the appointment is made and are not continuous in nature. The commissioner had rejected the condonation application based on the extent of delay, absence of a full explanation, and lack of prospects of success.

Findings: The Court found that the applicant was aware of the alleged unfair conduct by October 2022 and was therefore required to refer the dispute by December 2022. The referral in February 2023 was significantly late, and the condonation application itself followed even later, rendering the delay excessive. The explanation provided was inadequate as it relied largely on misinterpretation of applicable timeframes and did not fully account for the period of delay. The applicant’s reliance on SSSBC rules was misplaced, as the Labour Relations Act 66 of 1995 governs the matter. The Court further found that prospects of success were poor, as the applicant merely asserted compliance with requirements and disputed reasons given by SAPS without providing substantial supporting evidence. In circumstances of such excessive delay and weak prospects, the commissioner was entitled to dismiss the condonation application without considering the merits in detail. The decision was reasonable and not reviewable.

Order: The review application is dismissed. There is no order as to costs.

Facts: Knysna Municipality (the Municipality) resolved on 26 October 2023 to conclude a lease agreement with Grey Elephant Investments (Pty) Ltd (Grey Elephant) for office space at Knysna Mall without following a competitive procurement process, and the lease was concluded on 12 December 2023. The lease covered substantial office space at a monthly rental of R546,000, later amended to commence on 1 May 2024. The Municipality occupied the premises but paid no rent and vacated in July 2025. A complaint was lodged with the Public Protector shortly after the agreement. The Municipality later sought to undo its own decision by self‑review, alleging that the resolution and lease contravened section 217 of the Constitution and procurement laws. Grey Elephant opposed the application on the merits and on the basis of delay, maintaining that it acted in good faith and performed fully under the lease while incurring significant expense.

Application: The Municipality brought a legality review seeking to declare the council resolution and lease agreement unconstitutional, unlawful and invalid, and to set them aside retrospectively. It contended that the deviation from procurement requirements was irrational, unauthorised and inconsistent with the Municipal Finance Management Act 56 of 2003 and its supply chain policies. Grey Elephant opposed the application, arguing that the Municipality delayed unreasonably in launching the review, that the lease was concluded in good faith, and that it would be unjust to deprive it of payment for performance rendered. It also denied complicity in any illegality and asserted that the Municipality’s application was motivated by a desire to avoid paying rental.

Discussion: The Court considered the principles governing legality review, including the requirement that such proceedings be brought without undue delay, as articulated in Khumalo v MEC for Education, KwaZulu-Natal and Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd. It emphasised that the clock for delay begins when the applicant knew or ought reasonably to have known of the impugned conduct, and that organs of state bear a heightened duty to act promptly. The Municipality’s explanation that it only discovered the illegality after obtaining legal advice was rejected, as objective knowledge arose when the resolution was passed. The Court further examined whether the unlawful conduct should nevertheless be reviewed despite delay, having regard to the seriousness of the illegality and section 217(1) of the Constitution, which mandates fair, competitive and transparent procurement. The deviation from procurement requirements lacked a rational basis and failed to meet the strict standards for departures from competitive bidding.

Findings: The Court found that the Municipality’s delay in launching the review was unreasonable and inadequately explained, as it failed to account for the entire period from October 2023. However, given the patent unlawfulness of the procurement process, the Court was compelled under section 172(1)(a) of the Constitution to declare the impugned resolution and lease invalid. The deviation from competitive procurement was irrational and inconsistent with section 217. The Court rejected allegations of complicity against Grey Elephant, holding that suspicion and conjecture were insufficient and that the respondent acted transparently and in good faith. Applying the principles in Special Investigating Unit v Phomella Property Investments (Pty) Ltd and Central Energy Fund SOC Ltd v Venus Rays Trade 220 (Pty) Ltd, the Court distinguished between innocent and complicit parties. Grey Elephant, as an innocent party that had rendered performance, was entitled to payment to avoid unjust loss, even though it could not benefit from the unlawful contract.

Order: The Municipal Council resolution dated 26 October 2023 and the lease agreement of 12 December 2023 are declared unconstitutional, unlawful and invalid and are reviewed and set aside. The Municipality must pay unpaid rental, consumption charges and tenant installation costs for its occupation, with quantum to be determined as provided, together with interest and costs on scale C including two counsel.