Facts: Yokogawa South Africa (Pty) Ltd (Yokogawa) appointed 3E Control and Instrumentation (Pty) Ltd (3E Control) as a non-exclusive distributor of its process-control products. Theko Letsie and Makabele Belinah Letsie were directors of 3E Control, with Mr Letsie acting as principal managing officer. By November 2019, 3E Control had accumulated substantial unpaid indebtedness. Mr Letsie signed a payment plan acknowledging approximately R6,521,341, including about R2,200,878 already paid by end-users to 3E Control but not remitted to Yokogawa. Despite this, between December 2019 and April 2021, 3E Control placed a further 59 orders on credit totalling R2,832,601.73, all of which remained unpaid. It was voluntarily liquidated on 27 August 2021 with liabilities materially exceeding assets.

Claim: Yokogawa sought to hold Mr and Ms Letsie personally liable for 3E Control’s debt. Its primary claim relied on section 218(2) of the Companies Act 71 of 2008, arising from 3E Control’s contravention of section 22(1) through reckless trading and the directors’ knowing participation, together with conduct calculated to defraud Yokogawa under section 214(1)(c). Yokogawa abandoned a prayer seeking to declare the directors themselves in contravention of section 22, accepting that the prohibition is directed at the company. It relied alternatively on section 424(1) of the Companies Act 61 of 1973. Mr Letsie testified; Ms Letsie did not.

Discussion: Section 22(1) prohibits a company from carrying on business recklessly, with gross negligence, with intent to defraud or for a fraudulent purpose. Recklessness is assessed objectively and includes incurring debts when there is no reasonable prospect of creditors being paid when due. Section 218(2) renders a person who contravenes the Act liable for loss caused by that contravention. For section 214(1)(c), actual knowledge and participation in conduct “calculated to defraud” are required, but all the elements of common-law fraud need not be proved. Mr Letsie relied on past successful trading, COVID-19 and Yokogawa’s later appointment of another distributor as explanations for 3E Control’s collapse. He also sought to explain payments from the company account as director-loan repayments and business expenses.

Findings: 3E Control traded recklessly from December 2019. Mr Letsie already knew in November 2019 that the company could not meet its obligations, yet it continued ordering on credit and incurred the entire amount claimed. Neither the proposed funding arrangement nor repayment plan cured the position. COVID-19 did not explain conduct already underway before March 2020, and the later appointment of another distributor could not explain debts accumulated beforehand. Mr Letsie also contravened section 214(1)(c). The strongest evidence was the retention of client payments for Yokogawa products while further goods continued to be ordered on credit, together with preferential director-loan repayments unsupported by board resolutions or written loan agreements. Ms Letsie’s direct involvement in those specific acts was not proved, so no section 214(1)(c) finding was made against her. She was, however, a director throughout, was positioned to know the company’s financial affairs, and gave no evidence to rebut the inference that she knew of and acquiesced in the reckless trading. She was therefore personally liable under section 218(2) read with section 22(1). All 59 invoices were incurred after Mr Letsie’s knowledge of 3E Control’s inability to pay, establishing causation for the full loss.

Order: Mr Letsie was declared to have contravened section 214(1)(c) by knowingly participating in conduct that was reckless under section 22(1) and calculated to defraud Yokogawa. Ms Letsie was declared liable under section 218(2) read with section 22(1) for knowingly permitting reckless trading. They were ordered jointly and severally to pay Yokogawa R2,832,601.73 plus contractual interest at 2% above the First National Bank overdraft rate per annum, calculated monthly from 13 July 2021 to final payment, and costs including counsel on Scale B.

Facts: The Chianina is an ancient Italian cattle breed which had long been present and recognised in South Africa. It was recognised under the Livestock Improvement Act 25 of 1977, appeared in the regulations under the Animal Improvement Act 62 of 1998 (the Act), and had been recorded on the INTERGIS system since 1998. Its omission from amended regulations in 2007 was accepted to have been inadvertent. After litigation concerning import permits, the Minister restored the Chianina breed to Table 7 of the regulations in May 2019. The Chianina Cattle Breeders’ Society of South Africa (the Breeders’ Society) meanwhile applied repeatedly for registration as an animal breeders’ society, first in 2014, again in 2018 and finally in May 2019. The Registrar of Animal Improvement (the Registrar) never determined any of those applications.

Appeal: After the Registrar failed to decide the 2019 application, the Breeders’ Society invoked the internal appeal procedure under section 23 of the Act. Despite sustained efforts to have the appeal heard, it was not determined within the Appeal Board’s statutory period. The Breeders’ Society then approached the High Court under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which directed the Registrar to register it as an animal breeders’ society and issue the necessary certificate and notices. The Registrar appealed, contending that the Breeders’ Society had failed to exhaust internal remedies, that registration required an impact assessment study and specialist discretion, and that the High Court’s substitution order usurped his statutory powers.

Discussion: PAJA ordinarily requires exhaustion of internal remedies before judicial review, but that requirement is not absolute. An internal remedy must be capable of providing effective redress and cannot be used by administrators to frustrate an aggrieved party or insulate administrative failure from scrutiny. The Breeders’ Society had utilised the section 23 appeal process and repeatedly attempted to procure a hearing. By the time litigation commenced, years of delay, the expiry of Appeal Board terms and the appointment of an improperly constituted further board rendered that remedy ineffective. As to the merits, section 11 of the Act sets the requirements for registration of an animal breeders’ society: the relevant animal must have been declared under section 2, no other breeders’ society for the same breed must exist, and the applicant’s constitution must contain the prescribed provisions. An environmental impact assessment is not among those requirements.

Findings: Exceptional circumstances plainly existed and it was in the interests of justice for the High Court to entertain the review notwithstanding the absence of a separate exemption application under section 7(2) of PAJA. The Registrar’s reliance on the absence of INTERGIS registration was factually wrong; Chianina had been recorded there since 1998. His reliance on an incomplete impact assessment was equally misplaced because he conflated requirements for registration of an animal with those for registration of a breeders’ society. The Chianina breed had already been declared and used in South Africa, and breeding standards existed. The Registrar had never identified any deficiency in the Breeders’ Society’s constitution or any competing breeders’ society. The statutory requirements were therefore satisfied and the outcome was a foregone conclusion. Substitution was justified because the Court was in as good a position as the Registrar to decide the matter, no specialised scientific determination remained, remittal would cause further prejudice, and the Registrar had displayed persistent obduracy and failure to perform his statutory duties over many years. The circumstances were exceptional enough to warrant judicial substitution rather than another remittal.

Order: The Registrar’s application for condonation and reinstatement of the appeal was granted, with the costs of that application payable by him as tendered. The appeal against the High Court’s order directing registration of the Breeders’ Society was dismissed with costs.

Disgraceful administrative conduct:

[52] This case is a manifestation of disgraceful administrative conduct (and a recurring failure to act), with indifference to time limits and the consequences for the Breeders’ Society. Fully accepting that courts are loathe to grant orders of substitution, there are times when the regulatory body is so incompetent and so indifferent to the effects of its obdurate attitude, that courts are obliged to step in. This is one such case. Farming is an important industry that employs thousands of people and on whom South Africa’s food security depends. Courts ask no more than that administrative functionaries perform the duties entrusted to them. Constant obfuscation and delays do not serve the country and amount to an abdication of duty.

* See also the dissenting judgment of NORMAN AJA from para [64].

Facts: Elizabeth Hartzenberg and Jonatan Hermanus Jonas separately claimed compensation under the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). Hartzenberg, whose highest qualification was Standard 8, performed heavy manual work involving operating a wood saw and handling timber. She sustained bilateral femoral-neck fractures after falling from a truck in September 2016, developed chronic moderate-to-severe pain, a limp and severely restricted hip movement, and was dismissed in 2018 after being unable to resume her former duties. Jonas, who had Standard 4 education and a Code 14 licence, worked as a heavy-duty truck driver involving loading and securing heavy cargo. He sustained a serious left shoulder injury in September 2020, underwent three operations, lost power and movement in the arm, was dismissed for incapacity in October 2021 and remained unemployed. Dr Oelofse regarded both as 100% functionally incapacitated from their previous work.

Appeal: Hartzenberg appealed against a tribunal determination increasing her permanent disablement from 3% to only 17%. Jonas appealed against a determination increasing his assessment from 10% to 13%. Both contended that their injuries fell within item 6 of Schedule 2 to COIDA as “any other injury causing permanent total disablement”, warranting 100%. They challenged the tribunals’ reliance on the American Medical Association Guides, Whole Person Impairment methodology and Circular Instruction 157, and submitted that “permanent disablement” and “any work” had to be interpreted purposively with regard to the work reasonably available to employees of their education, training and experience. The respondents maintained that neither appellant had proved inability to perform every conceivable form of work and relied on the absence of occupational-therapy evidence.

Discussion: COIDA is social legislation intended to compensate employees for occupational disablement and must be interpreted generously rather than restrictively. The assessment of permanent disablement under section 49 and Schedule 2 is not a mechanical comparison between anatomical losses and numerical percentages. For unlisted injuries, the Commissioner or tribunal must determine the true extent of disablement from the facts and medical evidence. Administrative tools such as the AMA Guides and Circular Instruction 157 cannot override or dilute the statutory scheme. Previous decisions had recognised that permanent loss of the use of a limb may, depending on the circumstances, be treated as equivalent to actual loss. The tribunal is also not merely an impartial referee in an adversarial process; its function is inquisitorial, and an injured worker should not be penalised for absence of evidence which the tribunal itself could have obtained if necessary.

Findings: Both tribunals materially misdirected themselves by undertaking a “robot-like”, mechanical and tick-box exercise, assigning percentages to body parts and relying on the AMA Guides and Circular Instruction 157 instead of assessing the appellants as whole persons in their actual circumstances. Hartzenberg’s bilateral hip injuries, chronic pain, restricted mobility, limited education, lifetime of physical labour and continued unemployment established that she could not realistically perform other work suited to her background. Her functional loss of the use of her hips was properly treated as an injury causing total permanent disablement under item 6. Jonas had similarly lost functional use of his left arm because of shoulder immobility and chronic pain. Given his very limited education and work history confined to heavy-duty driving and manual labour, there was no evidence that realistic alternative employment remained available. The absence of occupational-therapy reports did not defeat either claim because the undisputed medical evidence was overwhelming. Both appellants were therefore 100% permanently disabled. The amended costs regime limiting recoverable costs to the Magistrates’ Court scale, which commenced on 23 January 2026, did not operate retrospectively in respect of work performed before that date.

Order: Both appeals succeeded. Hartzenberg’s 17% and Jonas’s 13% tribunal determinations were set aside and each appellant was declared 100% permanently disabled. The Compensation Commissioner / Director General was directed to pay the appellants’ tribunal costs according to the regime applicable before 23 January 2026, including counsel where employed, and to pay the costs of each appeal, including the costs of two counsel.

Facts: Claire Cawood N.O., on behalf of O[…] M[…], instituted a Road Accident Fund (RAF) claim arising from a motor vehicle collision on 12 May 2016 in Strand, Western Cape. O[…] was 12 years old at the time and sustained, among other injuries, a serious traumatic brain injury with a frontal bone fracture, extradural haemorrhage and subdural blood. He later developed post-traumatic epilepsy, left school, suffered headaches, memory difficulties, personality and behavioural changes, irritability and depression. The RAF conceded 80% liability and the claim for general damages was settled. The remaining issues concerned future hospital and medical expenses and future loss of earnings.

Claim: Cawood relied on expert evidence from a neurosurgeon, clinical psychologist, occupational therapist and psychiatrist, admitted by affidavit under Rule 38(2), and called industrial psychologist Ms Tryfonos-Naidoo to testify. In her original report dated 14 December 2022, she postulated that O[…] would probably have entered the labour market in 2023 at unskilled earnings and progressed to semi-skilled earnings. In a 2026 addendum, after considering a report by the RAF’s educational psychologist, Ms Ndlovu, she substantially revised the pre-morbid scenario upward to graduate-level entry earnings and later skilled earnings. The RAF called no witnesses but challenged reliance on the addendum because Ms Ndlovu’s report had not been admitted under Rule 38(2) and Ms Ndlovu had not testified.

Discussion: Expert opinion must be supported by facts proved in evidence and by reasoning that enables the Court to assess its cogency. An expert is required to explain the factual basis for the opinion and may not simply advance a conclusion. The greater the reliance on facts not established in evidence, the less weight the opinion carries. The question was therefore whether Ms Tryfonos-Naidoo’s revised opinion was underpinned by proper reasoning and whether it could properly rely on Ms Ndlovu’s report when that report had not been placed in evidence. The Court considered the addendum itself, which stated that the revised scenario followed consideration of the educational psychologist’s findings.

Findings: The addendum lacked the necessary foundation of proper reasoning. Ms Tryfonos-Naidoo’s original opinion had been formulated with reference to other medico-legal reports, school records and collateral information from O[…]’s teacher. Her subsequent report materially changed the pre-morbid educational and vocational trajectory solely after receipt of Ms Ndlovu’s opinion, yet did not provide substantive reasons explaining why that single report justified departure from her earlier conclusions. That omission was fatal to the revised opinion. In addition, Ms Ndlovu’s report was not evidence before the Court because no Rule 38(2) application had been made in respect of it and Ms Ndlovu was not called to testify. The addendum therefore rested heavily on material not properly before the Court. It followed that the revised industrial-psychology opinion had to be disregarded. The appropriate basis for actuarial calculation was the original report of 14 December 2022, with contingencies to be considered after a fresh calculation was obtained.

Order: Cawood was ordered to file within five days a fresh actuarial report based on Ms Tryfonos-Naidoo’s original report dated 14 December 2022. Both parties were directed to file notes addressing the appropriate contingencies within two days after filing of the actuarial report. Costs were reserved for later determination.

Facts: Sheree Foggitt, a 70-year-old pensioner, had been accommodated at various shelters operated by the Haven Night Shelter Welfare Organisation (the Haven) since 2020. In April 2024 she was admitted to the Haven’s Malmesbury/Swartland shelter and signed its Rules and General Admissions Policy. The Policy contemplated six months’ accommodation, review after three months, a maximum stay of nine months and a known exit date. For clients aged 60 or older, the primary intervention was family reunification or placement at an appropriate older-person facility. Foggitt paid shelter fees irregularly. In January 2025 the Haven informed her that its services would terminate because of non-payment despite receipt of a SASSA grant, non-compliance with Rules and social-work services, and uncooperative conduct. On 23 January 2025 she was transported from Malmesbury to Cape Town, but was not admitted to alternative facilities and ultimately slept on the streets until 7 February 2025.

Application: Foggitt sought final relief declaring that the Haven had unlawfully evicted her without complying with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), and had infringed her rights under sections 10, 26 and 27 of the Constitution and the Older Persons Act 13 of 2006. She also challenged the Haven’s policy permitting police or security assistance to remove clients who refused to leave, and sought orders requiring PIE-compliant eviction procedures. Broader systemic relief against the state respondents was abandoned at the hearing. The Haven opposed, contending that it provided temporary shelter-based social-work services rather than permanent accommodation and that its shelters were not “homes” for purposes of PIE.

Discussion: The anterior question was whether the Malmesbury shelter was Foggitt’s “home” within PIE. A home connotes regular occupation coupled with some degree of permanence. Accommodation provided for a defined purpose and limited period does not become a home merely because occupation endures for some time. The Haven’s model was finite and transitory: each stay was governed by a personal development plan, an exit date and rotation necessitated by limited beds and the scale of homelessness. Foggitt was aware of those terms. The Court also considered the Haven’s constitutional position under section 8(2). Although privately funded in part by government and performing shelter-based social-work services, it did not stand in the Department’s stead or assume the State’s positive constitutional obligations to provide housing or social assistance.

Findings: Foggitt failed to establish that the Malmesbury shelter had the degree of permanence required to constitute her home under PIE. Her occupation from April 2024 to January 2025 remained subject to a policy contemplating a maximum nine-month stay, and duration alone could not alter the essential temporary character of the arrangement. On the Haven’s version, alternatives including transfer to another shelter, a bus ticket to reunite with her son and placement at a Safe Space had been offered and declined. Her departure therefore did not constitute an eviction under PIE. The Haven also did not bear the positive constitutional and statutory obligations Foggitt sought to impose. Its funding and support of state functions did not amount to devolution of governmental power. Its internal policy created no enforceable legal right to continued accommodation, and its shelters were not residential facilities under the Older Persons Act. As to dignity, the Haven owed a negative duty not unjustifiably to impair her dignity, but the accepted facts showed warnings, social-work interventions, a documented termination process and attempts to secure alternatives. No breach was established.

Order: The Haven’s late answering affidavit was condoned. The application was dismissed. There was no order as to costs.

Facts: Numacon (Pty) Ltd (Numacon) and its majority shareholders became obliged, following litigation under section 163 of the Companies Act 71 of 2008, to purchase the Bellstedt Family Trust’s 10.02% shareholding. An appeal to the Supreme Court of Appeal was settled on 1 September 2022. The settlement agreement required the appellants to purchase the Trust’s shareholding at fair value, subject to a defined residual dispute concerning principally whether a minority discount applied and the valuation date. A private valuer was appointed. Although the agreement mentioned only the minority discount, the appellants asked the valuer also to apply portfolio valuation and marketability discounts. The valuer quantified both at 20%, deducted them in his valuation table, but recorded that their legal applicability should be left to the arbitrator. After arbitration and an arbitral appeal, the appellants paid R19,797,723 against transfer of the shares. No communication stated that the payment was in full and final settlement.

Appeal: The Trust subsequently approached the High Court contending that the valuer had not been entitled to apply the portfolio and marketability discounts and claimed R11,136,219, being the difference between the amount paid and the fair value before those deductions. The High Court granted relief and ordered payment of that balance. The appellants appealed, contending that the valuation was contractually final and binding, that the court lacked jurisdiction after completion of the agreed valuation and arbitration process, that the respondents had waived any right to review by proceeding to arbitration, and that acceptance of the R19,797,723 extinguished any further claim.

Discussion: A private valuer’s determination agreed to be final and binding is generally insulated from ordinary review, but remains susceptible to challenge on narrow grounds including fraud, improper procurement, acting outside the contractual mandate and gross mistake producing a patently inequitable result. The settlement agreement created a carefully defined, multi-stage process. The valuer was to determine fair value, while the arbitrator was expressly confined to the residual dispute, including whether a minority discount applied, the valuation date, interest and costs. Clause 4 separately preserved court remedies for breach. The enquiry was therefore whether the valuer exceeded the mandate by applying discounts not contemplated in the settlement, whether the respondents had waived review rights, and whether the later payment amounted to compromise.

Findings: The valuer exceeded his contractual mandate by applying the portfolio and marketability discounts. His own report acknowledged that the settlement agreement did not refer to a marketability discount and that legal applicability of both additional discounts was for determination elsewhere, yet his valuation table nevertheless subtracted them. The settlement agreement did not authorise those deductions and did not confer jurisdiction on the arbitrator to determine them. The High Court therefore retained jurisdiction to review the ultra vires portions of the valuation and to determine the proper interpretation and enforcement of the settlement agreement. The respondents had not waived that right. Proceeding with arbitration was consistent with the sequential contractual process and was not conduct unequivocally inconsistent with later judicial challenge; moreover, the agreement required any waiver to be in writing and signed. Nor did acceptance of R19,797,723 constitute a compromise. Compromise requires mutual intention to extinguish the obligation. The payment was neither tendered nor accepted in full and final settlement and accordingly operated only as part-payment. The remaining R11,136,219 was therefore payable.

Order: The appeal was dismissed with costs, including the costs of two counsel on Scale C. The patent error in the High Court order was corrected by deleting all references to, or relief directed against, the first respondent.

Facts: Anna Sophia Bellstedt and Roland Fredrich Bellstedt established the Bellstedt Family Trust in 2008 for the benefit of their family. The Trust acquired a farm in Paarl in 2009. Roland, who experienced financial difficulties, lived on the farm rent free for approximately 16 years. The trustees were Anna, Roland and Mr de Kock, Roland’s personal accountant. In 2025 Roland sought to sell the farm. Anna opposed the sale and raised concerns about the absence of a Trust bank account, financial statements and a purported loan account claimed by Roland. Draft financial statements produced in November 2025 reflected a loan account of R4,105,372, later reduced without explanation to R2,949,372. No contemporaneous loan agreement, trustee resolution, minutes, bank records or accounting records evidencing the alleged loan were produced.

Application: Anna sought declaratory and interdictory relief concerning the administration of the Trust, including a declaration that Roland’s purported loan account was invalid and review and setting aside of a resolution allegedly adopted on 19 December 2025 authorising repayment of that account. She contended that the claim was fabricated, unsupported by evidence and advanced for Roland’s personal benefit, and that she had been excluded from meaningful participation as co-trustee. Roland maintained that payments he made towards acquisition and financing of the farm were always treated as loan account allocations and relied particularly on clause 10.2 of the parties’ 2021 divorce settlement agreement and provisions of the Trust deed permitting borrowing.

Discussion: A party alleging a loan must establish the agreement, the advance and the basis on which repayment is due. Where the debtor is a trust, valid trustee authority must also be shown. Trustees must administer trust property with the care, diligence and skill required by section 9(1) of the Trust Property Control Act 57 of 1988, observe the trust deed, act jointly or through a valid majority mechanism where permitted, keep trust property separate from personal interests and afford co-trustees meaningful participation. A matrimonial settlement between spouses cannot itself bind a trust unless the Trust, acting through duly authorised trustees, validly assumes the liability. The 19 December 2025 meeting also had to be assessed against Roland’s conflict of interest and Anna’s attempted participation.

Findings: Roland failed to establish any lawful loan account. His claim rested on retrospective characterisation of payments made between 2009 and 2022 and was unsupported by basic contemporaneous documentation. The draft financial statements merely reflected information supplied after the dispute arose and could not prove a loan. His own correspondence indicated that payments required a resolution before being treated as loans, and the unexplained reduction of the claim by more than R1 million materially undermined its credibility. Clause 10.2 of the divorce settlement presupposed but did not prove a loan account and could not create trustee authority or convert disputed personal payments into an enforceable Trust debt. The resolution of 19 December 2025 was likewise invalid. Anna was effectively prevented from participating, Roland was conflicted and did not vote, leaving only Mr de Kock voting in favour. Proceeding in those circumstances, after litigation had commenced and while the claim remained disputed, was inconsistent with transparency, joint trustee governance and fiduciary duties. The conduct sought to prefer Roland’s personal financial interest over those of the Trust and beneficiaries.

Order: Condonation for the late replying affidavit was granted. Roland’s purported loan account against the Bellstedt Family Trust was declared invalid and of no force or effect. The resolution of 19 December 2025 approving repayment was reviewed and set aside. Miller Bosman Le Roux Hill Inc was directed to retain the farm-sale proceeds pending lawful distribution to a valid Trust bank account. Roland was ordered to pay Anna’s costs of Parts A and B on the attorney-and-client scale.

Facts: Tsenolo Joyce Phillips concluded a written mortgage loan agreement with Absa Bank Limited (Absa), a registered credit provider, on 8 October 2019 for the purchase of immovable property at Lindequesdrif Agricultural Holdings Extension 2, Potchefstroom. Absa advanced R795,000. Instead of registering a mortgage bond in Absa’s favour, the parties used a guarantee structure. Absa Home Loans Guarantee Company (RF) Proprietary Limited (AHLGC) guaranteed Phillips’s indebtedness to Absa; Phillips indemnified AHLGC; and an indemnity mortgage bond was registered over the property in AHLGC’s favour. Phillips later fell into arrears. Absa sent her a notice under section 129(1) of the National Credit Act 34 of 2005 (the NCA). She was a pensioner on a fixed income and continued paying R7,500 monthly against a contractual instalment of R15,941.80.

Application: AHLGC and Absa applied for default judgment and an order under Rule 46A declaring Phillips’s home specially executable. AHLGC pursued the principal claim under the indemnity and indemnity bond, while Absa pleaded only an alternative claim on the loan agreement. The relief sought included payment of R793,909.20, interest, attorney-and-client costs, special executability and a reserve price. Phillips did not dispute her arrears but asked that her home not be sold. The Court raised whether an unregistered entity affiliated with the registered credit provider could, through an indemnity and indemnity bond, demand payment and execute independently of the regulated credit agreement.

Discussion: Clause 1.2 of the indemnity went beyond an ordinary indemnity. It created a “separate and independent primary obligation” arising from Phillips’s own failure to perform her obligations under the loan, without requiring AHLGC first to pay or become liable to Absa under the guarantee. The indemnity bond secured Phillips’s obligations to AHLGC, not her obligations to Absa. The practical result was that, upon Phillips’s default, AHLGC could demand the full outstanding loan balance and realise the property without first honouring the guarantee. Section 129 afforded Phillips remedies directed at curing default under her agreement with Absa, including the right under section 129(3) to reinstate the credit agreement by paying arrears and specified charges before sale in execution.

Findings: AHLGC’s claim was, in substance, Absa’s debt under a regulated credit agreement recovered through an unregistered intermediary holding the only security over Phillips’s home. The indemnity structure rendered the section 129 remedies ineffective against the very execution sought. Even if Phillips reinstated her loan agreement with Absa, AHLGC’s independent claim under the indemnity and its right to realise the bond would remain unaffected. That would reduce the statutory reinstatement protection to “mere lip service”. It was unnecessary to determine whether AHLGC’s guarantee was itself a credit guarantee under the NCA or whether AHLGC was required to register as a credit provider. It was sufficient that the structure, as invoked, bypassed the remedies afforded to Phillips as consumer. AHLGC accordingly failed to establish the standing asserted for the relief. Absa had not pursued its alternative claim to judgment and, in any event, held no bond over the property. No plaintiff had therefore established an entitlement capable of supporting a Rule 46A declaration.

Order: The application for default judgment was refused. Consequently, the application declaring Phillips’s immovable property specially executable was also refused. There was no order as to costs.

Facts: Isak Delport was convicted in the Regional Court, Thembalethu, George, of raping an eleven-year-old girl during 2023. He was in a relationship with the complainant’s maternal grandmother and lived with her in the same yard as the complainant and her mother. While the grandmother was at work, the complainant visited Delport’s house. He took her inside and had sexual intercourse with her. Delport admitted knowing that she was eleven years old and could not lawfully consent to sexual penetration. He was 65 years old when the offence was committed. In 2012 he had been sentenced to fifteen years’ imprisonment for raping a child and committed the present offence while on parole. He told the probation officer that he could not resist a beautiful woman or young girl and that, had the complainant not reported the offence, he would have continued.

Appeal: Delport pleaded guilty and tendered a statement under section 112(2) of the Criminal Procedure Act 51 of 1977. He did not challenge his conviction. He appealed against the sentence of life imprisonment imposed under section 51(1) of the Criminal Law Amendment Act 105 of 1997. He contended that the Regional Court had failed to accord sufficient weight to his age, guilty plea, remorse and personal circumstances, and had overemphasised deterrence, the seriousness of the offence and the interests of society. He maintained that the cumulative mitigating circumstances justified departure from the prescribed minimum sentence.

Discussion: Appellate interference with sentence is limited to material misdirection, failure properly to exercise the sentencing discretion, or a sentence so disproportionate that it is disturbingly inappropriate. Under the prescribed minimum-sentence regime, life imprisonment remains the legislative benchmark unless substantial and compelling circumstances render it unjust or disproportionate. The complainant’s age, Delport’s exploitation of familiarity and access through his relationship with her grandmother, his previous conviction for raping a child, his parole status and the repetition of materially similar offending were central considerations. Although a guilty plea may demonstrate acceptance of responsibility and spare a complainant from testifying, it is not invariably proof of genuine remorse. Age likewise remains relevant but must be assessed together with culpability, health, rehabilitation prospects and future risk.

Findings: The Regional Court committed no material misdirection. Delport’s guilty plea had practical mitigating value because it avoided a contested trial, but his statements to the probation officer were inconsistent with genuine contrition and demonstrated poor insight. His assertion that he could not resist young girls attempted to externalise responsibility, while his statement that he would have continued had the complainant not disclosed the offence showed a continuing risk of repetition. His age did not materially reduce his culpability or danger to children, particularly because he had already served a substantial sentence for the rape of another child and reoffended while on parole. His prospects of rehabilitation were poor and prior punishment had failed to deter him. The need for deterrence, incapacitation and protection of children therefore carried exceptional weight. The absence of additional physical violence or detailed evidence of psychological injury to the complainant did not materially reduce the seriousness of the rape. Considered cumulatively, Delport’s personal circumstances, age and guilty plea did not amount to substantial and compelling circumstances. Life imprisonment was proportionate and did not induce a sense of shock.

Order: The appeal against sentence was dismissed. The sentence of imprisonment for life imposed by the Regional Court for the Regional Division of the Western Cape, held at Thembalethu, George, was confirmed.

Facts: Nicolaos Riga was employed by Voltex (Pty) Ltd (Voltex) as Internal Audit Manager for almost 30 years until his dismissal on 1 June 2022. He alleged that between 2017 and 2020 he uncovered suspicious payments and accounting manoeuvres which might have involved corrupt procurement of state business, procurement of stolen goods and deliberate overstatement of Voltex’s inventory. Riga alleged that he reported these matters to Voltex’s executives, including its managing director, and was consequently demoted and ultimately dismissed. On 25 May 2023 he instituted proceedings claiming damages for wrongful dismissal based on breach of his employment contract and initially sought development of the common law to permit recovery of remuneration he would have earned until retirement.

Claim: On 23 February 2024 Riga amended his particulars of claim. He abandoned the contractual-development case and alleged instead that his demotion and dismissal constituted an occupational detriment under the Protected Disclosures Act 26 of 2000 because they resulted from protected disclosures concerning his audit findings. He claimed compensation placing him in the position he would have occupied had he not been dismissed. The value and factual basis of the claimed loss remained the same. Voltex raised a special plea of prescription, contending that the amendment introduced a substantially different debt from that pursued in the original particulars and that the later claim had prescribed. By agreement, only the special plea was separated for determination.

Discussion: The issue depended on the meaning of “debt” in the Prescription Act 68 of 1969 and its relationship to a cause of action. A cause of action comprises every material fact necessary to establish an enforceable claim. A debt, however, is not necessarily identical to that set of material facts. Although Evins v Shield Insurance Co Ltd suggested a close correlation between debt and cause of action, CGU Insurance v Rumdel Construction (Pty) Ltd adopted a broader approach, holding that a debt bears a wide and general meaning and may remain substantially the same even where an amendment changes the contractual basis of the cause of action. The essential enquiry was therefore whether the amendment changed the debt itself, rather than merely the legal basis upon which liability was asserted.

Findings: Riga’s amended particulars did not introduce a different debt. The amount claimed remained the same, the loss remained loss caused by his alleged wrongful dismissal, and the underlying facts remained that he was dismissed after exposing audit matters his superiors allegedly wished to conceal. What changed was only the legal basis upon which the dismissal was said to be wrongful: initially breach of contract and subsequently breach of the Protected Disclosures Act. Direct reliance on the statute did not fundamentally alter the nature of the debt. This conclusion accorded with the purpose of prescription, which is to protect defendants against stale claims by allowing them to preserve evidence and plan for contingent liability. Voltex had been alerted throughout to the same factual complaint and substantially the same liability. It identified no evidence lost because of the amendment. Prescription is designed to penalise inaction, not legal ineptitude. The amended claim therefore remained the same debt for prescription purposes.

Order: Voltex’s special plea of prescription was dismissed with costs, including the costs of two counsel taxable on Scale C.

Facts: Jerome Norman Classen committed the offence for which he was convicted on 9 November 2000. He was convicted on 14 March 2002 and sentenced to life imprisonment on 15 March 2002. A decision was taken on 20 October 2018 to place him on parole. He served day parole from 4 March to 3 June 2019 and was released on lifelong parole on 4 June 2019. Classen did not challenge the decision to release him on parole, but objected to the fact that parole would continue for life rather than for a finite period followed by unconditional release. He initially approached the Equality Court, was directed in March 2023 to institute review proceedings, obtained Legal Aid assistance in January 2024 and launched the review in April 2024.

Application: Classen sought review and setting aside of the decision placing him on lifelong parole, together with a declaration that the decision unfairly discriminated against him and that policies supporting such discrimination, including Circular 8 of 2019, were invalid. He contended that the applicable parole regime under the Correctional Services Act 8 of 1959 did not authorise lifelong parole, that the respondents had misinterpreted relevant decisions, and that other life prisoners in comparable circumstances had been released from parole after specified periods. He relied particularly on Janusz Walus, who had been placed on parole for a limited period. The respondents opposed the review and maintained that Classen’s parole dispensation expressly contemplated lifelong parole.

Discussion: It was common cause that Classen’s parole fell to be determined under the 1959 Act and the policies preserved under the successor legislation. The decisive provision was section 65(3)(a), which provided that placement on parole extended from the date of placement until expiration of the term of imprisonment imposed. Thus, a prisoner serving a determinate sentence would remain on parole only for the unexpired portion of that sentence, while a prisoner serving life imprisonment would remain on parole for life. The applicable policy similarly provided that “life” meant the duration of the offender’s natural life under community supervision. The respondents explained that different parole dispensations applied to prisoners sentenced to life imprisonment in different periods, and that Walus fell under an earlier dispensation permitting a limited parole period.

Findings: Section 65(3)(a) itself authorised lifelong parole for a prisoner serving life imprisonment. The parole board’s discretion concerned whether Classen should be placed on parole; the duration followed from the statutory scheme. Even if the policy relied upon were invalid or inapplicable, the statutory provision independently sustained the lifelong condition. Lifelong parole was also consistent with the principle that parole remains a form of serving the sentence outside prison under supervision. Objectively viewed, the decision was rational and authorised by the applicable legislation. Classen’s discrimination case likewise failed because he provided no particulars enabling comparison with other prisoners allegedly treated differently. Walus was not comparable because he fell within a different parole dispensation. Although Classen raised serious complaints about how correctional officials treated him during supervision, those complaints fell outside the scope of the review. Condonation was nevertheless warranted because he had been self-represented for much of the delay, had attempted to ventilate his grievance, and instituted review proceedings after obtaining legal assistance.

Order: Condonation for the late institution of the review application was granted. The application was dismissed. No order was made as to costs.

Facts: Zenobia Abrahams commenced employment with the National Student Financial Aid Scheme (NSFAS) in November 2006 and, at dismissal, was employed as Accountant: Budgeting and Expenditure and served as a Public Servants Association shop steward. Between March and October 2022 she forwarded or blind-copied nine work emails containing NSFAS information to her personal Gmail account. NSFAS charged her with “Gross Negligence / Intentional Disclosure of privileged and confidential information”, alleging that she had, without authorisation, blind-copied confidential emails outside the NSFAS network and thereby exposed NSFAS to reputational, financial and organisational risk. The charge relied particularly on the Information Security Policy prohibition against forwarding work-related emails to personal accounts. Following a disciplinary hearing, she was dismissed on 14 September 2023.

Application: The Commission for Conciliation, Mediation and Arbitration commissioner found the dismissal procedurally fair but substantively unfair and ordered retrospective reinstatement with back pay of R1,045,000. NSFAS applied under section 145 of the Labour Relations Act 66 of 1995 to review and set aside the award. It contended that the commissioner misconceived the enquiry by asking whether confidential information had been disclosed to an external third party and whether harm from the conduct was probable. NSFAS maintained that the misconduct charged was the intentional forwarding of confidential material from its controlled environment to a personal account, conduct potentially falling under item 15 of its disciplinary code, for which dismissal was prescribed on a first occurrence.

Discussion: It was common cause that Abrahams had blind-copied the nine confidential emails to her personal account and thereby breached the relevant policies. The real dispute concerned the proper characterisation of that conduct and its sanction. The charge particulars identified the misconduct as unauthorised removal of confidential information from the NSFAS network and expressly invoked the policy prohibition against forwarding work emails to personal accounts. A separate policy provision prohibited sending confidential information to unauthorised persons. The commissioner nevertheless reasoned that there had been “no disclosure” because Abrahams already knew the information, was not an external party and NSFAS had not shown that access by “hackers and the like” was probable rather than merely possible.

Findings: The commissioner asked the wrong question. The charge did not require proof that Abrahams transmitted information to an external third party; its gravamen was the intentional and repeated movement of confidential material to a personal platform outside NSFAS’s control. The label used in the charge could not displace its particulars, and “disclosure” in the disciplinary code was not confined to transmission to an outsider. The commissioner further introduced a requirement that harm be probable, although probability of harm formed no element of the charged misconduct. These errors materially distorted the classification of the conduct. Having found “no disclosure”, the commissioner treated the misconduct as a mere failure to follow policy under item 40, carrying a final written warning for a first offence, rather than considering item 15, which prescribed dismissal. His sanction finding was therefore the direct product of the misconceived enquiry. The award could not be sustained on alternative reasoning concerning breakdown of trust because the commissioner had made no such finding. Proper classification, Abrahams’s knowledge and explanations, and the appropriate sanction required fresh evidential evaluation.

Order: The arbitration award dated 29 April 2025 was reviewed and set aside. The dispute was remitted to the CCMA for arbitration afresh before a commissioner other than the second respondent. There was no order as to costs.

Facts: CAB and IKB married in May 1996 out of community of property with the accrual system. After their marriage broke down, they concluded a settlement agreement on 20 August 2019 and instituted divorce proceedings. An initial decree of divorce incorporating the agreement was later rescinded. IKB attacked the settlement agreement on grounds including alleged misrepresentation and failure to account for substantial accrued assets. During judicial case management in August 2022, the parties agreed to an order under Rule 33(4) separating the issue whether IKB was entitled to have the settlement agreement set aside from their accrual claims. The settlement agreement issue had to be decided first, with the accrual issue stayed. The parties further agreed that oral evidence would be led.

Appeal: When the separated issue was set down for trial in May 2023, IKB sought a postponement because his counsel was engaged elsewhere and replacement senior counsel could not adequately prepare at short notice. Twala J refused the postponement. IKB’s attorney subsequently withdrew and IKB did not attend despite the matter being stood down twice. CAB then testified only about the breakdown of the marriage and identified the signatures on the settlement agreement. Twala J dismissed IKB’s claim and granted a decree of divorce incorporating the settlement agreement. The Full Court set those orders aside, holding that the trial court had exceeded the Rule 33(4) separation order. CAB obtained special leave to appeal, but her appeal lapsed when the record was not filed timeously. She applied for condonation and reinstatement.

Discussion: Parties who agree to limit the issues for determination at trial are bound by that agreement. The Rule 33(4) order confined the trial court to determining the settlement agreement issue before the accrual dispute and required the stayed issues to remain unresolved meanwhile. CAB nevertheless contended that the orders made after IKB’s non-attendance were default orders susceptible to rescission under Rule 42(1)(a), rather than appeal. Rescission under that provision requires both absence in the relevant sense and an order erroneously sought or granted. IKB had been legally represented when the postponement application was argued and thereafter deliberately did not attend despite opportunities to do so. His absence therefore did not satisfy Rule 42(1)(a). The substantive effect and finality of Twala J’s orders also bore directly on appealability.

Findings: Twala J was aware of the Rule 33(4) order but nevertheless proceeded contrary to it. He did not determine the settlement agreement issue in the agreed manner by receiving the contemplated viva voce evidence, and additionally granted a decree of divorce incorporating the settlement agreement, an issue not before him for adjudication under the separation order. This was not a rescindable procedural error but a substantive error of law. The resulting orders were final and definitive, made after evidence had been led, and were appealable. More fundamentally, by deciding issues outside those lawfully separated for determination, the trial court exceeded its powers and acted outside its jurisdiction; the orders were therefore nullities. The Full Court correctly set them aside, restoring the parties to the position in which the Rule 33(4) order remained operative. CAB’s prospects of success on further appeal were consequently remote. Her explanation for the late filing of the appeal record was also deficient, including an unexplained delay after she knew the appeal had lapsed. Finality and the prejudice to IKB reinforced refusal of condonation.

Order: The application for condonation and reinstatement of the appeal was dismissed with costs.

Facts: Tracey Amanda Dicker N.O., acting as curator ad litem for a medically vulnerable wife in defended divorce proceedings, obtained interim relief under Rule 43 against the wife’s husband. The husband had failed timeously to oppose the Rule 43 application and, shortly before the hearing on 9 March 2026, sought a postponement to prepare a condonation application and answering affidavit. The postponement was refused after argument. On 10 March 2026 the High Court granted interim maintenance, accommodation and ancillary relief, including a R1 million contribution towards legal costs, and ordered attorney-and-client costs in respect of the unsuccessful postponement. The husband’s attorneys thereafter persisted in seeking leave to appeal, notwithstanding repeated correspondence warning that section 16(3) of the Superior Courts Act 10 of 2013 rendered Rule 43 orders non-appealable.

Application: The husband applied for leave to appeal against the refusal of the postponement and aspects of the Rule 43 order, principally the costs contribution and punitive costs. He contended that refusal of the postponement was appealable because section 16(3) did not expressly refer to postponement applications, and that past legal expenses fell outside a contribution towards costs under Rule 43(1)(b). The curator opposed and sought an attorney-and-client costs order de bonis propriis against Theron & Partners/Vennote, Stellenbosch, submitting that the attorneys had persisted with a legally incompetent application despite repeated warnings and binding authority.

Discussion: Section 16(3) provides that no appeal lies from any judgment or order in proceedings “in connection with” applications for interim matrimonial relief corresponding with Rule 43. Recent Constitutional Court and Supreme Court of Appeal authority confirmed that the provision constitutes a statutory bar to appeals from Rule 43 orders. The words “any judgment or order in proceedings in connection with” were sufficiently wide to encompass refusal of a postponement sought for purposes of a Rule 43 hearing. A postponement application did not exist independently from the Rule 43 proceedings. Decisions in the Western Cape Division also recognised that past legal costs may form part of a contribution under Rule 43(1)(b). The Rule 43 costs contribution, including past legal expenses, was therefore likewise non-appealable.

Findings: The leave to appeal application was legally incompetent. Neither the postponement refusal nor the Rule 43 costs contribution was capable of appeal. The attorneys’ conduct warranted exceptional personal costs consequences. They had been alerted repeatedly to section 16(3), and to Constitutional Court and Supreme Court of Appeal authority confirming the statutory bar, yet refused to withdraw the application. They delayed compliance with practice requirements, insisted on allocation of a hearing date, attempted irregularly to introduce an affidavit after the Rule 43 hearing, and failed properly to brief newly instructed counsel with the transcribed ex tempore judgment despite having received it. The result was protracted proceedings, escalated costs and wasted judicial and administrative time. This was not an ordinary legal mistake, administrative oversight or isolated procedural default. Persisting with a hopeless application in the face of clear legislation and authority constituted reckless litigation, inadequate legal research and unreasonable conduct towards the opposing party and the Court. The husband, who relied upon his attorneys’ advice, should not bear the resulting costs.

Order: The application for leave to appeal was dismissed. Theron & Partners/Vennote, Stellenbosch, were ordered to pay the costs of the leave to appeal application de bonis propriis on the attorney-and-client scale, including the costs of senior counsel.