Facts: L[…] N[…] (the appellant) was convicted in the Regional Court, Butterworth, of possession of an unlicensed firearm and two counts of common assault. The firearm was a Vektor Z88 9 mm Parabellum semi-automatic pistol. It had been handed to the appellant by a representative of the Jonase family for valuation after the death of its owner. On 29 July 2021 police executing a search warrant found it in a locked safe in the appellant’s bedroom. Before the safe was opened, the appellant told them that the firearm belonged to his late relative and that he intended to purchase it. He was not licensed to possess it and had previously surrendered a licensed firearm following a domestic violence protection order.

Appeal: The Regional Court sentenced the appellant to five years’ imprisonment for unlawful possession of the firearm and 12 months’ imprisonment on each assault conviction, the latter sentences to run concurrently, producing an effective five-year term. His application for leave to appeal was refused, as was his petition to the Eastern Cape Division of the High Court, Mthatha. The Supreme Court of Appeal granted special leave only against the High Court’s refusal to grant leave to appeal against sentence. The issue was therefore whether reasonable prospects existed that another court would interfere with the sentence imposed for unlawful possession of the firearm.

Discussion: The minimum sentencing regime under the Criminal Law Amendment Act 105 of 1997 ordinarily applies to unlawful possession of a semi-automatic firearm, but the Regional Court correctly declined to invoke it because the charge sheet did not notify the appellant that the prosecution would rely on section 51(2). The applicable Firearms Control Act 60 of 2000 prescribed a maximum sentence of 15 years’ imprisonment. The Regional Court considered the appellant’s personal circumstances, including that he was 59 years old, educated, employed as an educational specialist and diabetic. It also considered the probation officer’s recommendation of correctional supervision, but concluded that a non-custodial sentence would be unduly lenient.

Findings: The Regional Court properly balanced the appellant’s personal circumstances, the seriousness of the offence and the interests of society. Chronic diabetes did not itself constitute mitigation warranting avoidance of imprisonment, absent evidence that the prison system could not manage the condition or that incarceration would be disproportionately harsh or life-threatening. The appellant furnished no acceptable explanation for unlawfully possessing the firearm. Although it had initially been entrusted to him for valuation, he denied possession at trial despite his earlier admission to the police. He knew he was prohibited from possessing a firearm, yet kept it for almost a month without valuing or surrendering it. Those factors materially aggravated his culpability. The fact that the firearm was not possessed for commission of another serious offence did not remove the moral blameworthiness of unlawful possession. The five-year sentence, coupled with concurrency of the assault sentences, was neither shockingly disproportionate nor inappropriate. No reasonable prospect existed that another court would reach a different conclusion.

Order: The appeal against the High Court’s dismissal of the petition for leave to appeal against sentence under section 309C of the Criminal Procedure Act 51 of 1977 was dismissed.

Facts: Celebratio (Pty) Ltd (Celebratio) owned Farm Celebratio 107 in the Calitzdorp district and cultivated pomegranates in a drought-prone area. It was an authorised water user with an existing lawful water-use entitlement for 55,8 hectares, administered through the Stompdrift-Kamanassie Water Users’ Association (SKWUA). Its water allocation was supplied only two or three times a year through a dirt furrow known as the Braksloot. Because Celebratio’s property was last in line, the condition of the furrow, vegetation, seepage and interruptions caused by other users’ unpaid water charges resulted in substantial losses, including up to 31% of its allotted water. Celebratio proposed an underground pipeline approximately 4,5 kilometres long across 21 contiguous properties owned by Transnet SOC Ltd (Transnet), along a disused railway reserve.

Application: Celebratio sought a declarator that it was entitled to a praedial servitude of aqueduct over Transnet’s properties in favour of its farm. The pipeline would carry its allocated water more effectively from the source to its property. Celebratio relied on sections 126(b), 127 and 130 of the National Water Act 36 of 1998 (the Act). Transnet opposed the application, disputing Celebratio’s water entitlement, contending that the statutory notice procedure had not been properly followed, and arguing that Celebratio should instead pursue remedies against the SKWUA or apply to Transnet for a wayleave.

Discussion: A servitude of aqueduct under section 126(b) is the right to occupy another’s land by means of a waterwork for abstracting or leading water. Section 127(1) permits a person authorised under the Act to use water to claim such a servitude to the extent necessary to give effect to that authorisation. Celebratio’s entitlement was supported by the declaration of an existing lawful water use and by confirmation from the SKWUA and relevant catchment management agency. The Act did not require a water-use licence specifically, and a water entitlement could arise from an existing lawful use. Nor did the Act require exhaustion of alternative remedies against the SKWUA or ministerial intervention before invoking section 127.

Findings: Celebratio established a statutory entitlement to the servitude. The deficiencies in the Braksloot materially impaired effective use of its lawful water allocation, and the alternative remedies suggested by Transnet were theoretical and uncertain. The statutory purpose was to permit a servitude where necessary to make authorised water use effective. Celebratio had also substantially complied with Schedule 2: Transnet received notice identifying the affected properties, the nature of the servitude and maps showing the proposed route along the boundary fence. A wayleave was not an equivalent remedy because it operated contractually and did not provide the enduring real right of a servitude. Transnet’s concerns regarding future railway use were speculative, particularly given the long disuse of the line and the proposed position of the buried pipeline away from the railway foundation. No real or substantial prejudice was established. In exercising its discretion to grant declaratory relief, the effective use of scarce water in a drought-stricken area strongly favoured the order sought.

Order: Celebratio was declared entitled to a praedial servitude of aqueduct approximately three metres wide and 4,5 kilometres long over the specified Transnet properties in favour of Farm Celebratio 107. Transnet was ordered to pay the costs of the application, including the costs that stood over from 23 April 2026, with counsel’s fees taxed on Scale B.

Facts: Johan Frederik Botha trading as JB Law (JB Law) was the execution creditor in interpleader proceedings concerning a Buccaneer rubber duck vessel, its fitted boat canopy and a trailer. The sheriff attached the items at the residence of Benjamin Phillipus de Bruyn (De Bruyn), the judgment debtor. Christopher Fielding (Fielding) claimed ownership of all three. JB Law accepted that Fielding owned the trailer but disputed his ownership of the rubber duck and canopy. During April 2025 Fielding and De Bruyn concluded a written agreement under which Fielding would take over the rubber duck and canopy in lieu of unpaid invoices for mechanical services. Despite the agreement, the items remained at De Bruyn’s residence until attachment on 17 July 2025.

Appeal: The Magistrates’ Court upheld Fielding’s claim to the rubber duck and canopy, finding it probable that he had acquired them and thereby rebutted the presumption of ownership arising from De Bruyn’s possession. JB Law appealed under section 83(b) of the Magistrates’ Courts Act 32 of 1944 against that part of the judgment. The narrow issue was whether ownership had passed to Fielding before the sheriff attached the goods. Fielding and De Bruyn did not oppose the appeal and filed notices to abide.

Discussion: Because the goods were in De Bruyn’s possession when attached, he enjoyed prima facie title for the benefit of the execution creditor and Fielding bore the onus of proving ownership. Transfer of ownership in corporeal movable property requires both a real agreement and delivery. The contract of sale and delivery pursuant to it are distinct juristic acts. Delivery may be physical or constructive, including traditio longa manu or constitutum possessorium. The former requires, among other things, that the item be clearly pointed out, that the parties intend to employ that mode of delivery and that the transferee be capable of exercising physical control. Constitutum possessorium requires the transferor to cease possessing for himself and thereafter hold the thing on behalf of the transferee with the latter’s consent.

Findings: The evidence did not establish either form of constructive delivery. Fielding expressly testified that he never received the rubber duck and canopy and that De Bruyn had failed to deliver them. De Bruyn similarly explained that he had intended to take the boat to Fielding but could not do so because he was in Pollsmoor. Neither testified that the goods had been pointed out for purposes of traditio longa manu, nor that they intended to resort to that form of delivery. There was likewise no evidence that De Bruyn thereafter possessed the goods on Fielding’s behalf; their evidence indicated instead that actual delivery remained outstanding. Although the magistrate was entitled on the evidence to accept the validity of the written agreement and there was insufficient material to find simulation, that did not determine ownership. By failing to address whether delivery had occurred, the magistrate materially misdirected the enquiry. The agreement alone could not transfer ownership and, because delivery had not been effected, title remained with De Bruyn at attachment.

Order: The appeal succeeded. The Magistrates’ Court order upholding Fielding’s claim was set aside and replaced with an order dismissing his claim to the rubber duck and boat canopy, which remained under attachment. Fielding and De Bruyn were ordered jointly and severally to pay the appeal costs, including counsel’s costs on Scale B.

Facts: Innovation Nest (Pty) Ltd (Innovation Nest) developed and marketed personal care and fragrance products under its Being Kind brand exclusively through Clicks stores. It registered the composite trade mark INNOVATION NEST BEING KIND in class 3 for, amongst other goods, cosmetics, toiletry preparations, beauty care preparations, body sprays, lotions and perfumery. The first Being Kind products were launched in November 2023 and the range expanded substantially thereafter. In February 2026 Alchemy Business Development (Pty) Ltd (Alchemy), an importer and distributor, introduced hair-care products in South Africa under the BEING INC. brand. Those products were manufactured offshore and bore the BEING INC. device, in which “being” was visually dominant. They were sold through Clicks and online retailers.

Application: Innovation Nest urgently sought final interdictory and ancillary relief restraining Alchemy from infringing its registered trade mark under section 34(1)(a) of the Trade Marks Act 194 of 1993 (the Act) and from passing off the BEING INC. products as connected with its Being Kind products. Alchemy disputed infringement and passing-off and raised non-joinder of the foreign manufacturer and trade mark proprietor. It also counter-applied under sections 15 and 24(1) of the Act for disclaimers of exclusive rights in the word “BEING” and phrase “BEING KIND” in Innovation Nest’s registered mark.

Discussion: For section 34(1)(a), the relevant comparison was between the mark as registered, INNOVATION NEST BEING KIND, and the impugned BEING INC. device. The hair-care products fell within broad categories such as “toiletry preparations” or “beauty care preparations”, so the decisive issue was likelihood of deception or confusion. All fair and normal uses of the registered mark had to be considered, but “Innovation Nest” could not simply be ignored. Within “being kind”, the word “kind”, rather than “being”, conveyed the differentiating brand concept. The impugned device was visually dominated by “being”, while “Inc.” was barely visible. Although the goods fell within the registered class, Innovation Nest did not itself market shampoos or comparable hair-care products. For passing-off, reputation had to be assessed when Alchemy’s products entered the market in February 2026, not when exploratory discussions with Clicks began in October 2024.

Findings: The overall impressions created by the marks were materially different. A four-word composite mark containing INNOVATION NEST BEING KIND did not so nearly resemble a device essentially presenting the single dominant word “being” as to be likely to deceive or cause confusion. The marks did not share a dominant feature: kindness was central to Innovation Nest’s brand, whereas Alchemy’s packaging contained nothing alluding to that concept. The difference between the actual products further reduced the likelihood of confusion. Evidence of individual instances of alleged actual confusion did not displace the objective assessment. Trade mark infringement under section 34(1)(a) was therefore not established. Assuming Innovation Nest had established the required reputation for passing-off by February 2026, Alchemy’s presentation nevertheless did not amount to a misrepresentation likely to cause confusion as to origin or trade connection, and passing-off accordingly failed. Alchemy’s disclaimer counter-application also failed because “being” and “being kind” were inherently capable of distinguishing the relevant goods and were not directly descriptive. The non-joinder objection concerning the foreign manufacturer and proprietor was rejected.

Order: The main application was dismissed with costs, including two counsel, with senior counsel’s fees on Scale C and junior counsel’s fees on Scale B. The counter-application was likewise dismissed with costs on the same basis. Innovation Nest was additionally ordered to pay Alchemy’s wasted costs arising from the original set-down on 28 April 2026.

Facts: Nedbank Ltd (Nedbank) obtained default judgment against Althea Mathekga (Mathekga) on 19 October 2023 for R403,033.70 plus interest. Her primary residence was declared specially executable subject to a reserve price of R255,000. At the sale in execution on 21 November 2024, 22 registered bidders attended but no bid was made at or above the reserve. By October 2026 the bond balance had increased to R737,950.41, arrears to R291,808.94 and municipal charges to R142,394.01. Nedbank’s latest valuation placed market value at R550,000 and forced-sale value at R385,000. Mathekga lived at the property and operated a small guesthouse business there, but her payments remained insufficient to service even the accruing interest.

Application: Nedbank applied under Uniform Rule 46A(9)(c) for reconsideration of the reserve price. It ultimately sought reduction from R255,000 to R180,000 and, if that reserve was not achieved, permission for the sheriff to accept the highest bid provisionally without reserve, subject to confirmation by the High Court. Mathekga opposed in person. She accepted the indebtedness and default but asked for time to negotiate a restructuring, alternatively for a proper valuation reflecting improvements and the guesthouse business. She also disputed municipal charges and emphasised that the property was both her home and source of income.

Discussion: A Rule 46A(9)(c) reconsideration is inquisitorial and takes place within the original execution proceedings; no party bears an onus. The court may revisit the whole execution order because both creditor and debtor interests remain engaged until sale. Relevant considerations include market value, municipal charges, mortgage indebtedness, equity, occupation, prejudice and the likelihood that the reserve will again fail. Mathekga’s arrears had grown from R23,303.33 in 2022 to almost R292,000, while payments from March to September 2026 totalled R16,500 against interest and fees exceeding R54,000. Her proposed weekly payments could not rehabilitate the account, and the bond debt exceeded even the highest valuation before the Court.

Findings: Continued execution remained justified. Although Mathekga’s loss of her home and livelihood weighed heavily, further delay would increase the unsecured shortfall for which she would remain liable after sale. There was no evidence of sufficient income to clear arrears, and no equity existed in the property. An unconditional sale without reserve would, however, inadequately protect her given that the property was her primary residence and she disputed its valuation. The previous reserve had failed despite substantial bidder attendance, showing that retaining it was unrealistic. A reduced reserve of R180,000 was a measured response. Judicial confirmation of any lower bid would preserve oversight, permit consideration of an updated valuation and accounts, and allow Mathekga to place further evidence before the Court.

Order: The request to set aside, stay or postpone execution was refused. The reserve price was reduced from R255,000 to R180,000. If that reserve is not achieved, the sheriff may provisionally accept the highest bid without reserve, subject to High Court confirmation under Rule 46A(9)(e) after updated valuation, bond and municipal information and notice to Mathekga. The remaining 2023 execution order stays in force. Mathekga was ordered to pay costs on the attorney-and-client scale, excluding costs occasioned by Nedbank’s condonation application.

Facts: Jo Ann Epstein (Epstein), the trustees of the Spolander 1964 Trust (the Trust) and Paul Elgin Walker (Walker) owned neighbouring properties in Fresnaye and were engaged in prolonged litigation concerning building alterations and plans approved by the City of Cape Town (the City). In 2021 Epstein and the Trust obtained an interdict restraining Walker from further building work in specified areas pending final determination of their review of his approved plans. The City subsequently approved amended Walker plans in February 2025. Separately, Walker instituted proceedings in May 2022 to review the City’s approval, granted on 11 July 2018, of Epstein’s plans for an additional deck and extension of an existing deck. By the time of the hearing several further reviews concerning Walker’s plans were pending.

Application: Walker sought declarations concerning the meaning and effect of the 2021 interdict, including that it did not prohibit maintenance and repair work and that its effect concerning a proposed balcony had been superseded by the City’s 2025 approval. Alternatively, he sought discharge of the interdict. In his separate review, Walker sought to set aside the City’s 2018 approval of Epstein’s building plans. Epstein opposed both matters and contended, among other things, that the declaratory relief amounted to an impermissible attempt to revisit the earlier order and that Walker’s review had been instituted far outside the 180-day period prescribed by the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Discussion: Declaratory relief under section 21(1)(c) of the Superior Courts Act 10 of 2013 involves a two-stage enquiry. First, the applicant must be an interested person with an existing, future or contingent right or obligation. Secondly, if that requirement is met, the court must exercise its discretion whether granting the declaration is appropriate. Relevant considerations include whether the relief would serve a useful purpose, resolve uncertainty and settle the dispute, or instead amount to an advisory opinion where rights have already been determined and other remedies such as appeal, variation or rescission are available. An interlocutory order having final and definitive effect is not a purely interlocutory order and ordinarily cannot simply be altered by a court of equal status. Discharge may nevertheless be considered where changed circumstances or the interests of justice justify it.

Findings: Walker satisfied the first stage of the declaratory enquiry but not the second. The 2021 interdict had already determined the parties’ rights pending the review, and the requested declarations effectively sought interpretation of an existing order after the disputes giving rise to it had been fully ventilated. Other established remedies were available, and declaratory relief would serve no utility, would amount to an advisory opinion and, given the parties’ acrimonious relationship, was more likely to generate further litigation. The circumstances underlying the interdict had not materially changed: the 2025 plans themselves were under review, and the duration of the interdict alone did not make discharge just. Walker’s review of Epstein’s 2018 plans was instituted approximately 1,400 days after approval. His explanation did not cover the entire delay, and the true complaint concerned construction allegedly inconsistent with the plans rather than unlawfulness of the plans themselves. Condonation was therefore not in the interests of justice.

Order: Walker’s application to uplift or discharge the interdict was dismissed with costs, including two counsel where employed, senior counsel on Scale C and junior counsel on Scale B. Condonation for the late PAJA review of Epstein’s 2018 plans was refused and that application was dismissed with costs on the same basis. Epstein’s remaining three review applications concerning Walker’s building plans were consolidated for later hearing and postponed sine die.

Facts: Marcel Edwin Nel NO, Jochen Eckhoff NO and Brian Lulamile Mbolekwa NO, the joint liquidators of World Marine Energy (Pty) Ltd (WME), sought recovery of payments made to Mcebisi Maguga (Maguga) and Maguga Attorneys Inc (Maguga Inc). WME had received a R100 million facility from the Unemployment Insurance Fund, administered by the Public Investment Corporation, for trading in fuel and fuel-related products. Maguga, an attorney and 9% shareholder, became Head of Legal in December 2017 and CEO in February 2018. Between December 2017 and January 2018 WME paid Maguga Inc R3.6 million. After a winding-up application was instituted on 19 August 2020, WME made a further eleven payments to Maguga Inc totalling R2,418,533.97. WME was ultimately placed in compulsory liquidation, with its winding-up deemed to have commenced on 19 August 2020.

Application: The liquidators sought to set aside the four earlier payments under section 31 of the Insolvency Act 24 of 1936 as collusive dispositions and to have the eleven post-commencement payments declared void under section 341(2) of the Companies Act 61 of 1973 (the Act). Maguga and Maguga Inc opposed and counter-applied for an order validating the post-commencement payments. Maguga contended that the R3 million payment was a success fee owed to the Sundoo Group, that the R200,000 payments represented consulting fees and a bonus, and that the later payments were ordinary remuneration and severance paid in good faith.

Discussion: A collusive disposition required fraudulent concert between debtor and recipient, with knowledge that creditors would be prejudiced or one creditor preferred. Under section 341(2), dispositions after commencement of winding-up by a company unable to pay its debts are void unless the court otherwise orders. The recipient bears the burden of persuading the court to validate them, with particular regard to good faith, fairness to the recipient and fairness to creditors generally. Maguga’s explanations were tested against the facility agreement, his own trust records, invoices, prior statements to the liquidators and his evidence at the enquiry.

Findings: The R3 million payment was not supported by a genuine commercial liability. The fee agreement had lapsed, the amount was three times the contractual rate on funding actually advanced, the addendum falsely recorded that R400 million had been secured, and R500,000 was diverted to an unrelated company not mentioned in the agreement. Routing the payment through Maguga Inc’s trust account obscured its true destinations. The three R200,000 payments were likewise unsupported by any agreement, included amounts channelled to a third party under invoices falsely describing the whole amount as Maguga Inc’s consulting fee, and were funded contrary to the facility restrictions. The four payments were collusive dispositions prejudicing creditors. The later payments were made after winding-up commenced, while Maguga knew of the application and WME’s severe insolvency. They preferred him over unpaid creditors, including employees, and the severance payments were made for no services rendered. Good faith was not established and the balance of fairness favoured the general body of creditors.

Order: The four earlier dispositions totalling R3.6 million were set aside under section 31 of the Insolvency Act, and Maguga and Maguga Inc were ordered jointly and severally to repay that amount. The eleven post-commencement payments were declared void under section 341(2) of the Act, and the respondents were ordered jointly and severally to repay R2,418,533.97, with prescribed interest on both amounts from service of the application. The counter-application was dismissed. The respondents were ordered jointly and severally to pay the costs of the application and counter-application, including two counsel where employed, on Scale C.

Facts: Leanne Laubscher (Laubscher) was admitted as an attorney on 4 April 2005 and practised for own account from 1 August 2016 as a partner or director of Stopforth, Laubscher Attorneys in Klerksdorp. The firm operated a trust banking account. Its other partner left in October 2019, leaving Laubscher as the sole remaining partner or director. The last Fidelity Fund Certificate issued to her was dated 5 June 2019, and none was issued thereafter. The last auditor’s report was received on 4 February 2019, while the report due on 31 August 2019 was not furnished. In June 2024 Laubscher acknowledged that audit reports remained outstanding and requested an extension to the end of July 2024, but did not comply.

Application: The Legal Practice Council of South Africa (LPC) applied for Laubscher’s removal from the roll of legal practitioners under sections 40(3)(a)(iv) and 44(1) of the Legal Practice Act 28 of 2014. Ancillary relief included appointment of a curator bonis over the trust accounts, removal from statutory offices and costs on the attorney-and-client scale. Laubscher filed no notice of opposition or answering affidavit and did not appear despite personal service of the notice of set down. Her absence did not relieve the High Court of independently determining whether the misconduct was established, whether she remained fit and proper to practise and, if not, whether striking off or suspension was appropriate.

Discussion: The LPC’s records showed that Laubscher had practised for own account without a Fidelity Fund Certificate from 1 January 2020 and had failed to furnish auditor’s reports for every financial year from the year ending 29 February 2020. A single 2023 levy of R4,630 also remained unpaid. The Court emphasised that the Fidelity Fund Certificate and annual auditor’s reports were not formalities: the former protected members of the public against pecuniary loss arising from misappropriation of trust funds, while the latter enabled the LPC to verify the state of trust accounts. The LPC’s records also reflected an unexplained internal “Suspended” status from October 2022, but no adverse inference was drawn from that entry.

Findings: The sustained failure to hold a Fidelity Fund Certificate and to submit auditor’s reports was established on a balance of probabilities. Although no theft, trust deficit, client loss or dishonesty was proved, Laubscher had disregarded essential safeguards governing trust money for more than five years. She was an experienced practitioner, had been warned, obtained an indulgence and thereafter remained non-compliant. She also failed to engage with the LPC’s disciplinary process and ignored the High Court proceedings despite personal notice. This conduct demonstrated that she was not a fit and proper person to continue practising. Suspension was inadequate because rehabilitation presupposed acknowledgement of the default and steps towards compliance, neither of which was present. Leaving the trust account unverified while imposing an indefinite compliance burden on the LPC would not sufficiently protect the public.

Order: Laubscher’s name, also recorded as Leanne Pentz (Laubscher), was struck from the roll of legal practitioners. She was prohibited from operating the trust accounts, and Sanelisiwe Princess Ngcobo, Director of the LPC’s North West Provincial Office, or her successor, was appointed curator bonis with powers to take control of the practice and trust affairs. Laubscher was removed from statutory offices dependent upon her status as a legal practitioner and ordered to pay the LPC’s costs on the attorney-and-client scale.

Facts: The Public Servants Association (PSA), acting for Lucinda Booysen (Booysen), challenged a jurisdictional ruling concerning her employment in the Department of Defence (the Department). Booysen worked as a Military Intelligence Assistant within the South African National Defence Force (SANDF). Her 2013 appointment letter was headed “Appointment in the Department of Defence: Public Service Act Personnel” and recorded a permanent appointment in the occupational category “Administration line functions and Support Personnel”. The attached conditions of service subjected her employment to the Public Service Act, Public Service Regulations, Public Service Co-ordinating Bargaining Council collective agreements and the Labour Relations Act 66 of 1995 (the LRA), and regulated temporary disability leave under Resolution 7 of 2000. After her temporary incapacity leave was declined, she referred an unfair labour practice dispute concerning benefits to the General Public Service Sector Bargaining Council (the Council).

Application: During arbitration the Department raised a jurisdictional objection, contending that Booysen was a member of the SANDF excluded from the LRA by section 2(a), and that she had not exhausted the grievance procedures applicable to Defence Force members. Commissioner Patrick Stilwell ruled that the Council lacked jurisdiction because Booysen was employed by the State, attached to the SANDF, performed intelligence functions and worked at a SANDF facility. The PSA applied under section 145 of the LRA to review and set aside that ruling, obtain a declaration that the Council had jurisdiction and have the dispute remitted for arbitration before another commissioner. The application was unopposed.

Discussion: A jurisdictional ruling is determined objectively: the question is not whether the commissioner’s conclusion was reasonable, but whether the facts necessary to confer jurisdiction existed. Section 2(a) excludes only “members” of the National Defence Force. The Defence Act 42 of 2002 distinguishes a “member”, meaning an officer or other rank, from an “employee”, meaning a person appointed to the Department under the Public Service Act. It expressly contemplates Public Service Act employees serving in posts within the Defence Force without becoming members. The commissioner therefore had to determine Booysen’s formal employment status, not merely where she worked or the nature of her functions.

Findings: The commissioner misconceived the enquiry. The facts relied upon – employment by the Department, service at a SANDF facility and performance of intelligence-related duties – were equally consistent with Booysen being Public Service Act Personnel serving within the SANDF. Her appointment letter and conditions of service expressly identified her as Public Service Act Personnel and subjected her employment to the Public Service Act, bargaining council resolutions and the LRA. Nothing before the commissioner contradicted that documentary evidence or established that she had been enrolled or appointed as an officer or other rank. Objectively, Booysen was therefore an employee appointed under the Public Service Act and not a “member” of the SANDF for purposes of section 2(a). The Council accordingly had jurisdiction. The commissioner also failed to determine the separate issue concerning which grievance procedure applied, and that issue together with the merits had to be decided by the Council.

Order: The jurisdictional ruling of 27 July 2024 was reviewed and set aside and replaced with a ruling that the Council had jurisdiction over Booysen’s dispute. The matter was remitted to the Council for an arbitration hearing de novo before a different commissioner. No order was made as to costs.

Facts: Coast & Country Sales (Pty) Ltd (Coast & Country) employed Shaun Zachary Baard (Baard) as a beverage merchandiser performing manual work. After several workplace injuries to his right wrist and arm, Baard underwent surgery and continued receiving treatment. On 15 May 2019 he collapsed with severe spinal pain and bilateral lower-limb immobility and was booked off work until 16 June 2019. Further medical material recorded major depressive disorder and suspected psychosomatic symptoms affecting his mobility. Coast & Country rejected aspects of the medical documentation and suspected that Baard was exaggerating or fabricating his condition. Baard and his representative nevertheless remained in regular contact with the employer, supplied medical information and explained his difficulties obtaining specialist assistance through public healthcare.

Application: Coast & Country applied under section 145 of the Labour Relations Act 66 of 1995 to review an arbitration award finding Baard’s dismissal substantively and procedurally unfair and awarding him R46,800, equivalent to 12 months’ remuneration. Coast & Country had initially charged Baard with unauthorised absence and other misconduct, but abandoned that disciplinary enquiry. It later issued a return-to-work notice warning that failure to provide acceptable medical proof or a return date would result in his absence being treated as desertion. Despite Baard responding within the stipulated period, his employment was terminated on 13 August 2019 for abscondment or desertion.

Discussion: The fairness of dismissal had to be assessed on the reason given by the employer at the time, namely abscondment. Abscondment or desertion requires more than mere absence: the evidence must justify an inference that the employee intended to abandon employment. Unauthorised or unexplained absenteeism is conceptually distinct and may be separately disciplined. Where an employer cannot contact an employee who has apparently vanished, a pre-dismissal hearing may be impractical, but where the employee remains contactable the employer must ordinarily afford an opportunity to answer the allegation. If the employer doubts the legitimacy or severity of an illness, incapacity procedures provide the appropriate mechanism to investigate the medical condition and possible accommodation.

Findings: The arbitrator reasonably concluded that Baard had not intended to desert. He remained at his known address, maintained near-constant communication with Coast & Country, responded to the return-to-work notice within seven days and continued trying to obtain medical assistance. His medical records did not establish fitness for work, and Coast & Country relied on lay assumptions rather than contrary expert medical evidence. Although the employer might have suspected that Baard’s explanations were contrived, that issue had to be determined through a disciplinary enquiry for abscondment or unauthorised absence. Coast & Country had already commenced such an enquiry but abandoned it and dismissed him without a hearing. The return-to-work ultimatum did not cure that procedural defect. The arbitrator’s findings on substantive and procedural unfairness, and the compensation awarded in light of the employer’s handling of Baard’s medical plight, fell comfortably within the range of reasonable outcomes.

Order: The review application was dismissed. Coast & Country was ordered to pay Baard’s costs on Scale A under Uniform Rule 67A and Rule 69.

Facts: Intellisec Access Control (Pty) Ltd (Intellisec) employed Stuart Bougaard (Bougaard) from October 2022. His duties included client liaison, stock control, store management and use of Intellisec’s custom Business Process Optimiser (BPO) accounting and stock-control system. Bougaard had no accounting qualification and his initial three-day induction was general orientation rather than dedicated BPO training. By late 2023 he had reported difficulty coping, and an administrative assistant was appointed in February 2024. In May 2024 Intellisec introduced formal key performance indicators (KPIs) across the business and placed Bougaard on a performance improvement plan. Two short Loom videos were supplied to assist him with aspects of BPO. Following several review sessions, Intellisec concluded that he had not improved sufficiently and dismissed him for incapacity arising from poor work performance.

Application: Bougaard referred an unfair-dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The arbitrator found his dismissal substantively unfair and awarded four months’ compensation of R116,000. Procedural fairness was not in dispute. Intellisec applied under section 145 of the Labour Relations Act 66 of 1995 to review and set aside the award, contending that the arbitrator had ignored material evidence, improperly reduced the dispute to Bougaard’s BPO difficulties, and reached a conclusion no reasonable arbitrator could reach. Bougaard opposed, maintaining that the employer had failed to establish known standards, adequate training and a fair opportunity to improve.

Discussion: Review required consideration of the award and the evidence as a whole, not whether a different outcome was preferable. A failure to consider material evidence warrants intervention only where it materially distorts the enquiry or renders the result unreasonable. Intellisec relied on Bougaard’s acknowledgment that he was “battling”, the written performance improvement records and alleged operational defaults involving aged stock, tool and vehicle checks, storeroom management and purchase orders. Bougaard maintained that his principal difficulty was the complex BPO system and that he had repeatedly sought structured training. The employer’s own witness conceded that formal KPIs had not previously existed, that BPO functions were not separately broken down in the original job description, and that no signed acceptance or detailed explanation of the new KPIs had been proved.

Findings: The arbitrator’s conclusions were reasonably available on the evidence. Bougaard’s acknowledgment that he experienced difficulties did not amount to a blanket admission of general incompetence. The non-BPO shortcomings were supported mainly by vague evidence and were met by specific explanations that Intellisec did not rebut. The arbitrator was also entitled to find that the newly formalised KPIs had not been adequately explained before being used as the basis for an eight-week performance process. Meaningful support had not been demonstrated. Appointment of an assistant initially required Bougaard to train the new employee, the WhatsApp support evidence was hearsay, and the two Loom videos did not amount to adequate training on the complex system. Although the arbitrator erred in accepting that other employees also struggled with BPO, that flaw did not make the overall award untenable. The findings that Intellisec failed to prove poor performance against a known standard, failed to provide adequate training and reasonable opportunity to improve, and failed to justify dismissal all fell within the range of reasonable outcomes.

Order: The review application was dismissed. No order was made as to costs.

Facts: The Democratic Alliance (DA) challenged appointments made by the eThekwini Municipal Council (the Council) after restructuring its senior management establishment. Vacancies were advertised for Executive Director: Operations Management, Executive Director: Public Safety and Executive Director: Technical Services. After shortlisting, screening, competency assessments and interviews, Lindokuhle Mkhize, Cyril Bhekinkosi Mkhize and Ednick Msweli were recommended and appointed by the Council on 13 November 2025. The Municipal Manager made the appointments effective from 15 November 2025. Cyril Mkhize held Bachelor of Arts and Bachelor of Arts Honours degrees rather than the advertised law or safety-and-security qualification. Msweli had previously headed water services, which had attracted adverse findings from the Auditor-General concerning failures including pollution and service-delivery shortcomings.

Application: The DA sought review and setting aside of the three appointments under the Promotion of Administrative Justice Act 3 of 2000 and legality, contending that the Council failed to comply with section 56 of the Local Government: Municipal Systems Act 32 of 2000 (the Act) and the Regulations on Appointment and Conditions of Employment of Senior Managers. It also challenged the effective date fixed by the Municipal Manager and sought declaratory relief concerning councillors’ disclosure of confidential information for purposes of judicial review. The respondents contended that there had been substantial compliance and that non-compliance with regulatory steps or timeframes did not automatically invalidate the appointments.

Discussion: Not every deviation from prescribed timeframes rendered the recruitment process invalid; materiality depended on the purpose of the requirement. Delays in advertising, shortlisting and screening did not themselves defeat the statutory purpose. The critical defects concerned the substance of screening and the Council’s obligations under regulation 17. Screening had to be completed before interviews so that reference checks, misconduct information and other material could inform questioning and assessment. Regulation 17 required the Council itself to be satisfied that candidates met competency requirements, had been properly screened and were not disqualified by previous misconduct. The relevant information therefore had to be placed before Council rather than merely summarised by the Municipal Manager.

Findings: Screening was incomplete when interviews were conducted, with material reference and misconduct information obtained only afterwards. The Council consequently lacked the jurisdictional facts necessary to satisfy itself under regulation 17 and effectively rubber-stamped the Municipal Manager’s recommendations. Cyril Mkhize did not possess the minimum qualification advertised for Executive Director: Public Safety, and appointing him despite that requirement was irrational and prejudicial to potential candidates who may have been deterred from applying. Msweli’s appointment was also irrational because the adverse Auditor-General findings bearing on his suitability were not meaningfully interrogated or explained. Making the appointments effective on 15 November rather than the first day of the following month contravened regulation 8(2). Taken together with the misleading screening record, unexplained qualification departure and subsequent salary-increase request, the irregularities materially tainted the process. They struck at fair, transparent and lawful recruitment and could not be preserved.

Order: The Council’s decision of 13 November 2025 appointing Lindokuhle Mkhize, Cyril Bhekinkosi Mkhize and Ednick Msweli as senior managers was reviewed and set aside and declared invalid, unlawful and inconsistent with the Constitution. It was declared that councillors did not breach item 11 of Schedule 7 to the Local Government: Municipal Structures Act 117 of 1998 by disclosing confidential or privileged council information when applying for judicial review. The first to sixth respondents were ordered jointly and severally to pay the application costs, including two counsel on Scale C.

Facts: Johanna Kerstin Schinker (Schinker), a German national intending to establish a guesthouse business in South Africa, applied for a business visa under section 15 of the Immigration Act 13 of 2002 (the Immigration Act). On 3 November 2025 an immigration officer at the South African embassy in Berlin refused her application. In the second matter, Gautier Charles Luciani (Gautier), a French national and South African permanent resident, was the father of Thibaud Luciani (Thibaud). Thibaud applied for permanent residence under section 27(g) of the Immigration Act as a relative within the first step of kinship of a permanent resident. The Director-General of Home Affairs (the Director-General) refused that application, stating that Thibaud had failed to submit a valid relative’s visa.

Application: Schinker and the Lucianis separately applied under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to review and set aside the refusals. Both notices of motion also sought exemption under section 7(2)(c) of PAJA from exhausting internal remedies. The respondents filed only Rule 6(5)(d)(iii) notices, contending that the applications should be dismissed because internal remedies had not first been exhausted. The respondents sought, if exemption were granted, postponement for delivery of the review record and answering affidavits.

Discussion: Section 8 of the Immigration Act provides internal review and appeal procedures only in respect of decisions made under the Act. A person aggrieved by a decision contemplated in section 8(3) may seek review or appeal to the Director-General under section 8(4), and thereafter to the Minister under section 8(6). An appeal to the Minister is therefore available only where the Director-General acted on review or appeal from a decision taken by a lower-ranking official. No further internal appeal exists where the Director-General was the original decision-maker. In Schinker’s case, section 15 vested the power to issue or refuse a business visa in the Director-General. Although delegation was legally possible, no evidence established that the Berlin immigration officer had been delegated that power. In Luciani’s case, the Director-General himself made the original decision.

Findings: Schinker was not required to pursue an internal remedy because there was no valid statutory decision to review internally. The immigration officer had no proved authority to refuse the business visa, and an internal review procedure presupposed a valid initial decision. The purported refusal was accordingly invalid and had to be set aside. In Luciani’s case, section 8 provided no internal appeal from an original decision of the Director-General, making the respondents’ non-exhaustion objection misconceived. On the merits, section 27(g) required that Thibaud be the relative within the first step of kinship of a citizen or permanent resident. The Director-General’s reliance on the absence of a valid relative’s visa was not supported by section 27(g), and the applicable regulations added no such requirement. The refusal was therefore materially influenced by an error of law. In both matters the exemption prayers under section 7(2)(c) fell away because no internal remedy was available.

Order: Schinker’s purported refusal was declared invalid, set aside, and her business visa application remitted to the Director-General for decision within 20 days. Thibaud’s permanent residence refusal was reviewed and set aside, and his application remitted to the Director-General for decision within 20 days. The respondents were ordered jointly and severally to pay the costs in both matters, including counsel’s fees on Scale B.

Facts: David Stone (Stone), a farmer, ordered timber poles from Treated Timber Products (TTP) and received an emailed invoice for R709,333.41. Unknown persons intercepted the email, altered TTP’s banking details and caused Stone to transfer payment into another account. Stone’s proof-of-payment email was also apparently intercepted and altered so that TTP believed payment had been made into its own account. First National Bank (FNB) records showed that an account opened in Bongani Archibold Jele’s (Jele) name received R709,327.32 under the reference “Magtape Credit Treated Timber Products”. Jele admitted opening the account but said that, for R500, he had sold it to a person called Sheppard after being introduced by “Ma-Africa”. He changed the linked cellphone number so Sheppard could receive banking notifications and later obtained a replacement bank card after becoming concerned about the arrangement, but thereafter handed the new card back to Sheppard.

Appeal: Jele was convicted in the Ixopo Regional Court of fraud involving more than R700,000 and sentenced to 15 years’ imprisonment. Leave to appeal was initially granted only against sentence. After considering the record, the High Court raised concerns about the conviction and the matter was remitted so that Jele could seek leave to appeal against conviction. That leave was granted unopposed. On appeal, the issue became whether the State had proved beyond reasonable doubt that Jele participated in the fraud or shared a common purpose with those who intercepted and altered the communications.

Discussion: Fraud required proof of an unlawful misrepresentation, intent to defraud and actual or potential prejudice. The misrepresentation alleged was the insertion of false banking details into the invoice sent to Stone. There was no evidence that Jele made that misrepresentation, possessed the technical ability or opportunity to intercept the emails, or was otherwise involved in the deception. The State relied primarily on the fact that the money was paid into an account registered in his name. Jele’s explanation concerning the transfer of control over the account was not seriously challenged. The changed cellphone number and replacement bank card were consistent with his version, yet the State did not investigate who owned the new cellphone number. Nor did it properly explain the discrepancy between the amount Stone said he paid and the amount credited, or why the bank statement reflected TTP as the source of the payment.

Findings: The Regional Court materially misdirected itself by failing properly to consider Jele’s evidence and whether it established a reasonable alternative hypothesis. His version had been given to the investigating officer before trial and remained consistent. No adverse credibility findings were made against him. Ownership of the receiving bank account, without more, did not establish participation in the fraud. The State also failed to prove common purpose: neither prior agreement nor active association was established, and the requisite mens rea was absent. The probabilities did not exclude Jele’s explanation that the account had been placed under another person’s control. The investigation was inadequate, particularly regarding the new cellphone number and unexplained banking anomalies. The State itself conceded on appeal that the fraud conviction could not stand and that the sparse evidence did not justify substitution with theft. Jele’s version remained reasonably possibly true and his guilt was not proved beyond reasonable doubt.

Order: The appeal against conviction and sentence was upheld. Jele’s conviction and sentence for fraud were set aside and replaced with a verdict of “Not Guilty”.