Facts: Hengdeli Deyesion International Shipping Limited (Hengdeli) chartered MV Argentina from Iron Pasha Incorporated (Iron Pasha). Following disputes concerning the condition and discharge of an iron-ore cargo, hire and the vessel’s withdrawal from service, Hengdeli alleged repudiatory breaches of the charterparty and claimed damages totalling USD5,008,949.61 in London arbitration. Seeking security for that claim, Hengdeli obtained an ex parte arrest of MV Haralambos, owned by Nero Oil Incorporated (Nero Oil), on the basis that she was an associated ship of MV Argentina. A letter of undertaking was furnished and MV Haralambos remained under deemed arrest. The High Court subsequently reconsidered and set aside the arrest, holding that Hengdeli had not established the requisite common control.

Appeal: Hengdeli appealed against the setting aside of the security arrest. The central issue was whether it had proved, on a balance of probabilities, that the companies owning MV Argentina and MV Haralambos were controlled by the same person as contemplated in section 3(7) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the Act). Hengdeli relied on evidence linking Iron Pasha and Nero Oil through Brave Maritime Corporation Incorporated (Brave Maritime), the Vafias family and Harry Vafias. The respondents elected not to file answering affidavits disputing that evidence.

Discussion: Section 3(7)(a)(iii), read with section 3(7)(b), requires identification of the person exercising direct or indirect control over the relevant ship-owning companies. “Control” is expressed in terms of power and concerns the power determining a company’s direction and fate, not merely day-to-day management. Formal proof of shareholding or directorship is not invariably required. Where corporate ownership is opaque, control may be established by an accumulation of credible circumstantial evidence. Vessel-tracing material from Lloyd’s List Intelligence, including Seasearcher reports, could carry evidential weight, particularly because hearsay is expressly admissible in admiralty proceedings. The balance-of-probabilities standard remains applicable on reconsideration. Where facts concerning ownership and control are peculiarly within a respondent’s knowledge, however, less evidence is required from the arresting party, and an accepted, credible prima facie case left unanswered may ordinarily satisfy that standard.

Findings: The evidence cumulatively established a single repository of control. Brave Maritime was described as the dry-bulk arm of the Vafias Group and as controlled by the Vafias family. The Seasearcher material identified the Vafias Group as beneficial owner and Brave Maritime as commercial operator and technical manager of MV Haralambos. Iron Pasha and Nero Oil shared addresses, operational personnel and documentation; both vessels had previously carried the “Brave” prefix; and MV Argentina was referred to as a “sister vessel” of MV Haralambos. Contemporary material identified Harry Vafias as controlling the Vafias Group and Brave Maritime. The respondents placed no countervailing evidence before the court despite the true ownership structure being peculiarly within their knowledge. Hengdeli therefore proved that Harry Vafias, through the Vafias family and Brave Maritime, controlled both Iron Pasha when the maritime claim arose and Nero Oil when the arrest commenced. The statutory association was established.

Order: The appeal was upheld with costs, including the costs of two counsel where employed. The High Court’s order was set aside and replaced with an order dismissing the reconsideration application with costs, including the costs of two counsel where employed.

Facts: Superway Construction (Pty) Ltd (Superway), the main contractor on a hospital refurbishment project, appointed Cape Metal Windows Servicing CC (Cape Metal) to supply and install aluminium windows, doors and shopfronts. Their signed subcontract provided that dispute resolution was to be by mediation. The subcontract also contained manuscript amendments and deletions, including deletion of an adjudication provision. A payment dispute later arose. The Association of Arbitrators purportedly appointed Mark Wyndam Ilbury as adjudicator. Superway did not accept the appointment, maintained that mediation had to occur first, refused to participate in adjudication and proposed three alternative dates for mediation. Ilbury nevertheless proceeded, decided that mediation was not a prerequisite and issued a determination in Cape Metal’s favour.

Appeal: The High Court had enforced the adjudicator’s determination and ordered Superway to comply and make payment. Superway appealed, contending that mediation was a mandatory contractual precondition to any second-stage dispute-resolution process and that the adjudicator could not acquire jurisdiction where no mediation had occurred and Superway had never agreed to dispense with it. Cape Metal contended that the adjudicator could determine his own jurisdiction and that mediation was optional.

Discussion: An adjudicator’s jurisdiction originates in the parties’ contract. It cannot arise merely because a dispute or jurisdictional objection is placed before the adjudicator. The contractual instrument must first be examined to determine how jurisdiction is conferred and what its limits are. The subcontract was the principal agreement and stood at the top of the contractual hierarchy. Its express wording that dispute resolution “is to be by means of mediation”, together with the deletion of adjudication language, showed that mediation was intended as the first stage. Any standard-form agreements incorporated by reference operated only consistently with that principal instrument and concerned later-stage dispute resolution. The termination of the subcontract did not extinguish the dispute-resolution clause, whose purpose was precisely to govern disputes arising from the contractual relationship. The issue was not compulsory mediation imposed by law, but mediation voluntarily and contractually agreed.

Findings: Mediation was mandatory and constituted an indispensable jurisdictional gateway before any adjudication or other second-stage process could commence. It was common cause that no mediation occurred, despite Superway expressly calling for it and proposing dates. The adjudicator therefore lacked jurisdiction. His own determination that mediation was unnecessary could not confer jurisdiction upon himself. This was not a case of an adjudicator making an error within jurisdiction, but of acting without jurisdiction at all. Superway’s conduct also excluded waiver or acquiescence: it consistently objected to adjudication, refused the appointment and insisted upon mediation. The determination was accordingly unenforceable. It was unnecessary to determine the remaining issues concerning incorporation of other standard-form agreements or the adequacy of the adjudicator’s reasons.

Order: The appeal was upheld. The order of the court below was set aside and replaced with an order dismissing Cape Metal’s enforcement application with costs, including the costs of two counsel on Scale C. Cape Metal was also ordered to pay Superway’s appeal costs, including the costs of the application for leave to appeal and the costs of two counsel on Scale C.

Facts: Farida Adams, a Nursing Clinic Manager employed by the City of Cape Town (the City) at Rocklands Clinic, faced disciplinary charges alleging that she sexually harassed colleague Tracey Jones between August 2022 and January 2023. The allegations concerned an alleged request for a kiss, frequent hugging, kiss-blowing gestures and comments that Jones was beautiful, and an incident in which Adams allegedly touched Jones’s buttock and left the room giggling. Evidence from other employees described the clinic as a tactile workplace in which colleagues frequently hugged and used affectionate gestures to express support and appreciation. The external disciplinary chairperson acquitted Adams.

Application: The City applied under section 158(1)(h) of the Labour Relations Act 66 of 1995 to review and set aside the disciplinary finding. It contended that the chairperson’s decision was unreasonable and internally contradictory, particularly because Adams was acquitted but nevertheless advised to discontinue workplace practices that could be regarded as inappropriate. The issue was whether the conduct proved against Adams constituted sexual harassment and whether the acquittal was a decision no reasonable functionary could have reached.

Discussion: Sexual harassment requires unwanted conduct of a sexual nature. A single act may suffice, depending on its nature and context, but touching or gestures cannot be categorised in isolation from the surrounding circumstances. Relevant considerations include the nature of the contact, the body part involved, the complainant’s reaction, the alleged harasser’s explanation, the credibility of the witnesses and any established workplace habits or customs. Physical contact with an intimate body part may readily be sexual, while touching less obviously intimate areas or hugging may be innocent or improper depending on context and intention. The 2022 Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace similarly requires the unwanted conduct to be of a sexual nature.

Findings: The allegation that Adams expressly asked Jones for a kiss was not proved. As to hugging and blowing kisses, the evidence established that Adams regularly behaved in that manner towards other colleagues as a gesture of support, thanks or affection, and that such conduct was not abnormal in the particular workplace. Viewed contextually, those acts were not sexual in nature. Regarding the buttock incident, Adams admitted contact but denied grabbing, pinching or sexually intending it. Jones was initially uncertain who had touched her and later messaged another colleague suggesting that she believed that colleague had done so, supporting the inference that the contact was fleeting and barely noticeable. The evidence did not establish that Adams had planned the contact, harboured sexual intentions or thereafter ran from the room giggling. The event was therefore materially different from an intentional sexual touching of the buttock and did not constitute sexual harassment. Although the disciplinary ruling was terse and should preferably have dealt separately with each allegation, its brevity did not make it irrational. Read as a whole, the later comments merely advised Adams to moderate non-sexual conduct capable of misinterpretation and did not contradict the acquittal.

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

Facts: Bliss Brands (Pty) Ltd (Bliss Brands) marketed Securex hygiene soap in packaging which Colgate-Palmolive (Pty) Ltd and Colgate-Palmolive Company (Colgate) complained imitated the packaging architecture of Colgate’s Protex soap and improperly exploited its advertising goodwill. Bliss Brands, although not a member of the Advertising Regulatory Board NPC (the ARB), voluntarily participated in the ARB process. The Advertising Appeals Committee found the Securex packaging breached the Code of Advertising Practice and ordered its withdrawal, which ruling was confirmed on final appeal. After further litigation, Manoim J on 21 February 2024 ordered Bliss Brands to comply with the ruling within three months. Bliss Brands introduced modified Securex packaging in May 2024 and another iteration in October 2024, while the original offending packaging continued to appear on certain websites.

Appeal: Two appeals and a cross-appeal came before the Supreme Court of Appeal. Bliss Brands challenged findings that it was in contempt of, and later in breach of, the February 2024 order. It contended that the lower courts had compared the wrong packaging and that its modified packaging sufficiently differed from the original. Colgate opposed the appeals and cross-appealed against the limitation in the December 2024 enforcement order restricting withdrawal to media over which the ARB had jurisdiction by virtue of membership.

Discussion: Once breach of a court order is established, wilfulness and mala fides are presumed and the alleged contemnor bears an evidential burden to raise reasonable doubt that non-compliance was neither wilful nor mala fide. The material comparison was between the original offending Securex packaging and the May and October 2024 modifications, not between Securex and Protex afresh. The original comparison had already been finally determined through the ARB process and review proceedings. The May 2024 changes were minor: alterations to shade, font, graphics, variant names and positioning did not materially change the overall appearance. Bliss Brands also continued advertising the old packaging on websites. Its reliance on genuine efforts to comply could succeed only if it placed evidence before the court demonstrating what steps and instructions were undertaken to achieve compliance.

Findings: Bliss Brands failed to discharge the evidential burden. It did not explain its understanding of the order or provide detailed evidence of steps taken to ensure compliance, including instructions to those responsible for redesigning the packaging and removing the original packaging from websites. The May 2024 version very closely resembled the original offending packaging, and the later October 2024 version merely tweaked the same design. Continued exposure of Securex in the offending packaging, together with the delay and absence of a proper explanation, established wilful and mala fide non-compliance. The contempt finding was therefore justified, and the October 2024 packaging constituted a continuing breach. On the cross-appeal, once Bliss Brands voluntarily submitted to the ARB’s jurisdiction, it became subject to binding directions by the ARB; there was no basis to confine enforcement to media belonging to ARB members.

Order: Both appeals were dismissed with costs, including the costs of two counsel. Colgate’s cross-appeal was upheld with costs, including the costs of two counsel. The December 2024 order was replaced with an order directing Bliss Brands, within 15 working days, to withdraw the offending packaging and latest offending packaging from every medium in which they appeared.

Facts: Joleen Geswent commenced employment with Academy Brushware (Pty) Ltd (Academy Brushware) in September 2002 and, from 2013, worked as a computer clerk. Academy Brushware used promotional pop-up images, including one depicting a blonde woman wearing shorts and high heels against a background carrying the company’s branding and products. Geswent posted photographs of herself on social media standing beside the model and adopting a similar pose while also wearing shorts and high heels. Academy Brushware alleged that, after an initial post on 17 March 2017, manager Mr Kingham expressly instructed her not to post such photographs, but that she later posted similar images in direct defiance of that instruction. Geswent disputed that any such instruction had been given. She was dismissed in 2017 after being found guilty of gross insubordination.

Application: Geswent referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The Commissioner found that she had not committed insubordination and that dismissal was not justified. Academy Brushware applied to the Labour Court to review and set aside the award, contending that Geswent had deliberately disobeyed a lawful and reasonable instruction and that the Commissioner’s conclusion was unreasonable.

Discussion: A CCMA award is reviewable only where the decision is one that a reasonable decision-maker could not reach. Insubordination requires an intentional and deliberate refusal to obey a lawful and reasonable instruction. Whether dismissal is warranted depends on the seriousness of the misconduct assessed in context. Not every act of insubordination justifies dismissal, particularly for a first occurrence; the refusal must be sufficiently serious and deliberate, and alternatives such as warnings must be considered. Relevant factors included the absence of any established workplace code regulating social-media posts, the similarity between Geswent’s photographs and the company’s own promotional image, the absence of evidence that the posts caused damage to the business or complaints from customers, and the uncertainty whether Kingham’s discussion with her on 17 March amounted to an express instruction.

Findings: Academy Brushware had not established that a specific and unequivocal instruction was given on 17 March 2017. The evidence did not justify preferring Kingham’s version over Geswent’s regarding their discussion. Nor did it establish a persistent or ongoing refusal to comply with an instruction. When Kingham expressly instructed Geswent on 20 March 2017 to remove the posts, she did so. That conduct militated against a finding of wilful and persistent defiance. Even if some transgression had occurred, the contextual factors did not support dismissal as an appropriate sanction: there was no social-media rule, no proven harm to the employer and no serious or continuing refusal. Although the Commissioner to some extent conflated whether insubordination had occurred with whether dismissal was warranted, that did not render the ultimate result unreasonable. The award therefore fell within the range of decisions a reasonable commissioner could reach.

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

Facts: Helenca Verwey and the other applicants owned or represented interests in three farms within the Steve Tshwete Local Municipality (the Municipality). Long-standing farm occupiers resided on portions of the properties, some having lived there for decades. On 30 June 2026 employees of EMFN Projects (Pty) Ltd (EMFN), acting for the Municipality, sought permission to enter the farms to install sanitation facilities. Permission was refused. On 1 July 2026 EMFN nevertheless entered the properties, excavated holes near the occupiers’ dwellings and commenced erecting biological toilets. No servitude or expropriation order existed and the Municipality conceded that formal written notice contemplated by the Water Services Act 108 of 1997 had not been given. By the hearing, nine toilets had been erected.

Application: The applicants urgently sought spoliatory and vindicatory relief against EMFN and the Municipality, contending that entry onto the farms, excavation and construction without consent amounted to trespass, spoliation and an infringement of their property rights. The Municipality opposed the application, maintaining that the toilets were being provided in fulfilment of its constitutional mandate to meet the basic needs of a vulnerable community whose tenure was legally protected and whose living conditions implicated their dignity. It also raised preliminary objections concerning urgency, the capacity of the trustees, non-joinder of the farm occupiers and non-joinder of a deceased co-owner’s estate.

Discussion: The mandament van spolie required proof of peaceful and undisturbed possession followed by unlawful deprivation. The relevant portions of the farms were occupied by the farm occupiers, with the applicants’ knowledge, and the sanitation facilities were being erected there with the occupiers’ consent. The applicants retained ownership, access and possession of the farms generally. The rights of occupiers under the Extension of Security of Tenure Act 62 of 1997 had to be balanced justly and equitably against those of the owners. Occupiers are entitled to living conditions consistent with human dignity. Owner consent could not be treated as an absolute prerequisite where improvements were required to bring living conditions into conformity with dignity, although the rights of owners could not be disregarded and meaningful engagement remained necessary.

Findings: The applicants had not established spoliation. They were not in peaceful and undisturbed possession of the portions occupied by the farm occupiers where the toilets were being constructed, and had not been unlawfully deprived of possession of the farms. The occupiers’ rights to dignity and secure tenure did not depend upon the owners’ consent. Because the occupiers lacked the means to improve their sanitation themselves, the Municipality, in fulfilment of its constitutional mandate, bore the legal duty to restore their dignity by providing ablution facilities. The applicants’ property rights remained protected, but erection of toilets near the occupiers’ dwellings did not, on the facts, infringe those rights. Meaningful engagement between the owners and respondents was nevertheless required to regulate implementation. The non-joinder objection concerning the occupiers was upheld because they had a direct and substantial interest in the relief sought; the other preliminary objections failed.

Order: The matter was declared not urgent. The objection concerning trustee capacity was dismissed; the non-joinder objection concerning the farm occupiers was upheld; and the objection concerning the deceased estate was dismissed. The application was dismissed. EMFN and the Municipality were authorised to enter the farms, build toilets near the occupiers’ dwellings and store necessary building materials. The parties were ordered to engage meaningfully regarding access, movement of builders, building-plan approval and other implementation issues, with liberty to approach the Middelburg Magistrates’ Court if agreement could not be reached. Each party was ordered to pay its own costs.

Facts: Baseline Civil Contractors (Pty) Ltd (Baseline) and the City of Cape Town (the City) concluded a construction contract on 29 November 2019 incorporating Adjudication Board Rules. After termination of the contract on 30 June 2024, a dispute arose concerning valuation of the completed works. The adjudicator, Dennis Sinkonde, requested clarification from Baseline on 3 April 2025. Baseline responded on 8 April 2025, but the adjudicator overlooked that email and, on 6 May 2025, issued an original decision awarding Baseline R5,148,094.32 while stating that Baseline had not provided supporting documentation. After the error was raised within the seven-day period contemplated in Rule 6.4.10, the adjudicator issued a corrected decision on 22 May 2025 awarding R11,549,644.10 and directing determination of an additional contract price adjustment (CPA).

Application: Baseline sought enforcement of the corrected adjudication decision, the subsequent CPA determination and a claim for materials left on site. The City opposed the application and counter-applied to have the corrected decision and CPA determination declared invalid and set aside. Its principal contention was that the adjudicator became functus officio upon issuing the original decision and that Rule 6.4.10 permitted only correction of clerical or obvious slips, not substantive reconsideration. The City also contended that the CPA and materials-on-site claims fell outside the adjudicator’s jurisdiction.

Discussion: Rule 6.4.10 expressly permits an adjudicator to correct a decision to remove “any clerical mistake, error or ambiguity”, provided the initiative or request occurs within seven days. The wording is disjunctive and the word “any” broadens the correction power beyond merely clerical mistakes. Adjudication is contractual, interim and binding, designed to preserve cash flow and secure immediate compliance, with later arbitration or litigation available. An adjudicator acts as an expert under the contract and differs materially from an arbitrator performing a quasi-judicial and final function. The doctrine of functus officio applicable to judges and arbitrators therefore does not operate with the same rigidity where the contract expressly preserves a post-decision correction power. The enforceability of an adjudicator’s decision depends primarily on whether it remains within the dispute and contractual mandate referred.

Findings: The adjudicator’s failure to consider Baseline’s 8 April 2025 clarification was an “error” within Rule 6.4.10. The corrected decision did not introduce a new dispute but reconsidered the same valuation issue using material already submitted before the original decision. The adjudicator’s earlier email stating that he was functus officio could not override the contractual power expressly retained by Rule 6.4.10. The corrected decision was therefore valid and enforceable. The CPA mandate arose from that corrected decision and was within the adjudicator’s jurisdiction, but the City’s refusal to participate meant that the CPA amount had been determined without submissions from both parties. Fairness required remittal for reconsideration. The materials-on-site claim had never been referred to or determined in adjudication and could not be enforced merely because it arose from the same contract.

Order: The corrected adjudication decision dated 22 May 2025 was declared valid and enforceable. The CPA determination dated 24 June 2025 was set aside and remitted to the adjudicator for reconsideration, with the City directed to deliver submissions within 10 days. The adjudicator was to determine the CPA after receiving both parties’ submissions or expiry of the submission period. The materials-on-site claim and the City’s counter-application were dismissed. The City was directed to comply with the corrected decision within 10 days and to pay Baseline’s costs, including counsel’s costs, on Scale B.

Facts: Ms M H was admitted to Piet Retief Hospital on 17 November 2009 during her first pregnancy, which had proceeded normally. She reached full cervical dilatation at 02h00 on 19 November 2009 and delivered T by forceps at approximately 04h15. It was common cause that maternal and foetal observations were inadequately recorded throughout labour, including no recorded observations during important periods and only two-hourly foetal heart-rate recordings during the active phase instead of the prescribed half-hourly intervals. The mother testified that T did not cry immediately after birth, struggled to suckle, later required nasogastric feeding and displayed abnormal movements. T was subsequently diagnosed with spastic quadriparesis cerebral palsy, profound intellectual disability, microcephaly and epilepsy. MRI findings demonstrated a partial prolonged hypoxic-ischaemic brain injury.

Claim: The mother sued the MEC for Health, Mpumalanga Province, in her personal and representative capacities for damages arising from alleged negligent management of labour and delivery. Merits were separated from quantum under Rule 33(4). The issues were whether T suffered hypoxic-ischaemic encephalopathy and, if so, whether negligent care by hospital staff caused the injury. The plaintiff relied principally on the failure properly to monitor the foetal heart rate and maternal condition, particularly during the prolonged second stage of labour. The defendant accepted deficiencies in record-keeping but denied that monitoring had not occurred or that the child suffered an intrapartum hypoxic injury.

Discussion: The plaintiff’s experts attributed the MRI pattern to a partial prolonged hypoxic-ischaemic insult during labour and regarded the failure to monitor as a significant departure from the required standard of care. The defendant’s experts relied heavily on normal Apgar scores, lack of recorded resuscitation and the contention that the child was clinically normal for approximately 50 hours after birth. They distinguished deficient recording from deficient monitoring and maintained that unrecorded monitoring could have occurred. The Apgar scores could not, however, be used in isolation to exclude birth asphyxia and involved subjective assessment. No umbilical cord blood testing was performed. The mother’s evidence that the child did not cry normally, could not suckle and showed abnormal movements was not displaced by direct contrary evidence. Expert opinion had to withstand logical analysis rather than merely represent a body of professional opinion.

Findings: The defendant’s reliance on reliable Apgar scores and postnatal assessments was inconsistent with the conceded serious deficiencies in the same staff’s monitoring and record-keeping. The court rejected speculation that proper monitoring had occurred but simply had not been recorded. In the absence of evidence demonstrating monitoring, it was safely concluded that monitoring was not performed during the unrecorded periods. A single normal CTG finding shortly before delivery could not establish foetal well-being throughout the preceding critical hours. The plaintiff’s experts presented a coherent sequence: failure to monitor allowed evolving foetal distress during the prolonged second stage to go undetected; earlier detection would probably have led to earlier operative delivery; and that intervention would probably have prevented the prolonged hypoxic-ischaemic injury. On the balance of probabilities, T suffered an intrapartum hypoxic-ischaemic injury resulting in neonatal encephalopathy and cerebral palsy, caused by negligent monitoring and care.

Order: The MEC was declared liable for 100% of the plaintiff’s agreed or proven damages arising from T’s hypoxic-ischaemic brain injury and resultant cerebral palsy. The MEC was ordered to pay the plaintiff’s costs on the merits, including the qualifying, preparation and attendance fees of the plaintiff’s expert witnesses. Determination of quantum was postponed sine die.

Facts: Judith Freda van Schalkwyk, the Chief Magistrate at Kempton Park, faced twenty-four misconduct charges under the Regulations for Judicial Officers in Lower Courts, 1994. Following a misconduct hearing, the presiding officer found her guilty on thirteen charges and recommended her removal from office as contemplated in section 13 of the Magistrates Act 90 of 1993. The Magistrates Commission subsequently supported the recommendation, the Minister of Justice and Constitutional Development referred the matter to Parliament, and Parliament confirmed her removal from office on 8 June 2022. Van Schalkwyk instituted review proceedings challenging the findings of misconduct and the sanction. In the review proceedings the Magistrates Commission did not oppose the setting aside of nine of the thirteen guilty findings, leaving four misconduct findings concerning rude and humiliating conduct, dissemination of a derogatory email, a request to an attorney concerning travel expenses and use of official parking without payment.

Appeal: Van Schalkwyk appealed against the High Court’s refusal to set aside the remaining four misconduct findings and its refusal to interfere with the sanction of removal. She contended that, once nine of the thirteen convictions underpinning the sanction had been set aside, the recommendation that she be removed from office and the consequential decisions of the Commission, Minister and Parliament could not remain intact. She also relied on review grounds including ulterior purpose, bias, procedural unfairness, irrationality, unreasonableness and legality, and sought the setting aside of the remaining findings.

Discussion: The presiding officer’s sanction judgment had attached considerable weight to the fact that Van Schalkwyk had been found guilty of “multiple charges” and expressly relied on the thirteen convictions, their seriousness and the need for a sanction reflecting their cumulative gravity. The court a quo, despite setting aside nine convictions, concluded that the remaining four were sufficiently serious to warrant removal and effectively substituted its own view on sanction. Substitution under section 8 of the Promotion of Administrative Justice Act 3 of 2000 is reserved for exceptional cases. Relevant considerations include whether the court is in as good a position as the administrator, whether the outcome is a foregone conclusion, delay and bias or incompetence. The Magistrates Commission’s own deliberations showed differing views on sanction, including a proposal for demotion, demonstrating that removal was not inevitable. The surviving misconduct findings, however, were reviewable only if the presiding officer’s conclusions were so unreasonable that no reasonable person could have reached them.

Findings: Once nine of the thirteen convictions had been set aside, the substantial foundation on which the sanction rested had disappeared. As a matter of logic, the sanction had either to fall away or, at minimum, be reconsidered by the decision-maker. The court a quo misdirected itself by treating removal as a foregone conclusion and by substituting its assessment for that of the competent administrator without exceptional circumstances. The subsequent decisions of the Magistrates Commission, Minister and Parliament depended for their validity on the antecedent sanction decision and likewise had to be set aside. Remittal to the Magistrates Commission was the appropriate remedy. By contrast, the attacks on the four surviving misconduct findings failed. The allegation that the proceedings were instituted for an ulterior purpose because of Van Schalkwyk’s involvement with the Judicial Officers Association of South Africa was unsupported by sufficient evidence. The bias allegation similarly rested on assertion and supposition rather than proof. A reasonable decision-maker could have reached the findings of misconduct on the evidence.

Order: The appeal succeeded in part. The setting aside of nine misconduct findings was confirmed, while the review of the findings on charges 3, 4, 17 and 20 was dismissed. The presiding officer’s recommendation of removal, the Magistrates Commission’s recommendation, the Minister’s recommendation to Parliament, Parliament’s removal decision and all consequential decisions were reviewed and set aside and the matter remitted to the Magistrates Commission for reconsideration. Each party was ordered to bear its own costs of the review application. The respondents were ordered jointly and severally to pay the costs of the appeal and applications for leave to appeal, including the costs of two counsel, one being Senior Counsel where employed, on Scale C.

Facts: Hasana Mahamad Ali, a Somalian national, first arrived in South Africa in 2009 and was granted refugee status until May 2011. He voluntarily returned to Somalia during 2013 but returned to South Africa in 2015, alleging that he and his family had been threatened by Al-Shabaab to join its fight against the Somalian government or risk being killed. He again applied for asylum and was recognised as a refugee from November 2015 until November 2019. During 2019 to 2022 he unsuccessfully attempted to renew his status at the Gqeberha Refugee Office. After the Cape Town Refugee Reception Office (CTRRO) reopened in 2023, he attended there but was refused entry because he did not have a court order or authorisation from an immigration officer. The Department’s records reflected that he had attended the CTRRO in July 2023 and that an invitation was subsequently generated for him to attend during 2024.

Application: Ali sought interim relief interdicting the Minister of Home Affairs, the Director-General and officials acting under their authority from arresting, detaining, deporting or ordering him to leave South Africa pending an opportunity to attend the CTRRO and regularise his position under the Refugees Act 130 of 1998 (the Act), including by applying for asylum under section 24, and until the applicable process had been finally determined. He contended that he faced a daily risk of arrest and deportation despite repeated attempts to renew his status. The respondents opposed the application, relying on his voluntary return to Somalia, delayed renewal, alleged illegal re-entry and discrepancies in his accounts, and contended that his previous refugee status had ceased.

Discussion: The requirements for an interim interdict were a prima facie right, though open to some doubt, reasonable apprehension of irreparable harm, a balance of convenience favouring the applicant and absence of an adequate alternative remedy. An asylum seeker who has indicated an intention to seek asylum remains protected by the principle of non-refoulement until the claim has been lawfully and finally determined following a proper merits-based procedure. Procedural default, delay or unlawful presence does not in itself extinguish that protection. The court was not asked to determine whether Ali ultimately qualified for refugee status, but to safeguard his opportunity to enter the statutory process. Questions concerning credibility, voluntary repatriation, cessation, delay and compliance with immigration requirements remained matters for the Department to determine when considering the merits.

Findings: Ali had established the required prima facie right. It was common cause that he was an asylum seeker entitled to approach the CTRRO, and his expressed intention to pursue asylum protection engaged non-refoulement until lawful final determination. The respondents’ reliance on voluntary repatriation, delay and illegal entry did not justify deciding the merits at the interim stage. The risk of arrest, detention or deportation before determination of his status constituted irreparable harm, particularly given his allegation of threatened persecution in Somalia and the impact deportation would have on his dependent family. His unsuccessful attempts to obtain assistance from Home Affairs demonstrated the absence of a satisfactory alternative remedy. The balance of convenience favoured him because the respondents suffered no prejudice by receiving and processing him in accordance with their lawful administrative functions.

Order: The respondents were interdicted from arresting or detaining Ali for deportation, deporting or removing him, or directing him to leave the Republic solely because of his present documentation pending completion of the ordered process. Within 10 court days the Director-General was to provide a written appointment for Ali to attend the CTRRO. The respondents were directed to receive and assist him and determine the lawfully applicable process under the Act, including renewal, re-evaluation, cessation or withdrawal, asylum, or another lawful process. Protection would remain until final determination and exhaustion or expiry of applicable internal remedies. The respondents were ordered jointly and severally to pay the costs.

Facts: Robert John Swierstra had instituted motion proceedings against Johannes Kriel and Scandanavian Auto Works (Pty) Ltd (Scandanavian), relying on an alleged oral agreement whose existence Kriel disputed. The main application had earlier been struck from the urgent roll and was later enrolled on the opposed motion roll for February 2027. No order had referred any issue to oral evidence or trial under Rule 6(5)(g), and no order had been granted under Rule 35(13) applying discovery procedures to the motion proceedings. After affidavits had closed, Swierstra procured from the Registrar, without leave of court, a subpoena duces tecum compelling First National Bank (FNB) to produce more than two years of Scandanavian’s banking records, extending across numerous categories of accounts. FNB informed Kriel that it would comply unless presented with a court order setting the subpoena aside.

Application: Kriel and Scandanavian urgently applied for the subpoena to be declared irregular and an abuse of process and to be set aside. They contended that the subpoena had been issued in pending motion proceedings without judicial authorisation, was being used to obtain material to supplement Swierstra’s case after a dispute of fact had emerged, and threatened irreversible disclosure of confidential banking information. Swierstra opposed the relief, contending that the documents were relevant to proving the disputed agreement and that confidentiality could be protected within the litigation.

Discussion: Rule 38 governs the procurement and presentation of evidence at trial and does not ordinarily permit a party in motion proceedings, acting on its own authority, to cause the Registrar to issue a subpoena. In application proceedings the authority to permit a subpoena vests in the court, and exceptional circumstances must be demonstrated. Rule 35 likewise does not automatically apply to motion proceedings; discovery under Rule 35(13) requires a court order. Swierstra was aware of that procedure and had previously threatened an application under Rule 35(13), yet elected instead to procure the subpoena directly. A litigant in motion proceedings is ordinarily required to make out its case in the founding papers and may not use a subpoena to investigate whether material exists with which to supplement or strengthen a case after affidavits have closed.

Findings: The subpoena was procedurally irregular and constituted an abuse of process. Swierstra sought the banking records to prove the alleged oral agreement which Kriel had already disputed in the main application. The necessity of the documents did not cure the procedural defect. No exceptional circumstances had been placed before a court, no leave had been obtained, and no order had applied discovery procedures. The subpoena was also extraordinarily wide, extending to every account held by Scandanavian and potentially encompassing information concerning persons not party to the litigation. Its purpose was not to secure evidence for a trial, but to obtain information for use in supplementing a pending motion case. The court’s inherent power to prevent abuse of its process justified intervention. Kriel and Scandanavian had established a clear right to protect the integrity of the court process and the confidentiality of their banking information, imminent and irreversible prejudice if disclosure occurred, and no adequate alternative remedy because later exclusion of the documents or a damages claim could not restore confidentiality.

Order: Non-compliance with the ordinary forms, service requirements and time periods was condoned and the application was heard urgently. The subpoena duces tecum dated 7 May 2026, issued by the Registrar at Swierstra’s instance and directed to FNB, was declared irregular and an abuse of the process of the court and was set aside. Swierstra was ordered to pay the costs of the application on the attorney-and-client scale.

Facts: Nyiko Fortune Hlekani was involved in a motor vehicle accident on 6 January 2016. She personally lodged a claim with the Road Accident Fund (the RAF) on 12 August 2016 by submitting an RAF 1 form with the assistance of an RAF employee. The claim was captured on the RAF’s system under a claim and link number. Hlekani alleged that, after lodgement and until summons was issued, she repeatedly contacted the relevant claims handler to enquire about progress and was consistently told to be patient because the claim was still under investigation. She was a layperson who had pursued the claim directly without external legal representation. Summons was eventually issued on 31 July 2024.

Claim: Hlekani sued the RAF for damages arising from the accident. The RAF raised a special plea of prescription, contending that because the claim had been lodged under section 24 of the Road Accident Fund Act 56 of 1996 (the Act), section 23(3) required summons to be issued within five years of the accident and that the claim therefore prescribed on 5 January 2021. Hlekani replicated that the RAF had failed to inform her of any outstanding requirements or the risk of prescription and, having undertaken to deal directly with her claim, could not rely on its own inaction.

Discussion: Section 23(3) provides that a claim lodged under section 24 shall not prescribe before expiry of five years from the date on which the cause of action arose. Section 24 prescribes the manner in which a claim must be lodged. The parties did not dispute that Hlekani’s claim was duly lodged and that, absent any other consideration, the five-year period would have expired in January 2021. The RAF bore the onus of proving prescription. Particular significance attached to the fact that Hlekani was a layperson who had lodged a direct claim with the RAF and had been assisted by its employee. Where the RAF represents to a direct claimant that it will assist in processing and settling a claim without external legal advice, a greater duty of care rests upon it to take reasonable steps to prevent prescription, including responding to enquiries, bringing the matter to finality and informing the claimant of rejection or impending prescription.

Findings: There was no evidence that the RAF alerted Hlekani to the possibility that her claim was approaching prescription or that it took reasonable steps to assist her in preventing that result. Instead, she was repeatedly told that the claim remained under investigation. In those circumstances she could not reasonably have been expected, as a lay direct claimant, to appreciate that prescription continued to run notwithstanding the RAF’s ongoing handling of the claim. By assisting her to lodge the claim directly, the RAF assumed responsibilities analogous to those ordinarily performed for a claimant in protecting the claim from prescription. Its duty of care extended beyond merely accepting the lodgement. The RAF failed to provide sufficient information regarding progress, outstanding requirements or the looming prescription period. It accordingly failed to discharge the onus of proving that Hlekani’s claim had prescribed.

Order: The RAF’s special plea of prescription was dismissed. The RAF was ordered to pay Hlekani’s costs on High Court Scale B.

Facts: Tshepo Molefe was arrested on 12 February 2026 and appeared in the Magistrates’ Court on 16 February 2026. At that first appearance, before the same Magistrate who later convicted and sentenced him, the prosecutor purported to comply with section 60(11B) of the Criminal Procedure Act 51 of 1977 (the Act) by disclosing previous criminal history recorded as “2022 Trespassing”, together with information that Molefe had no pending matters, had abandoned bail, was not on parole and was not subject to any orders. The “2022 Trespassing” antecedent was never proved or admitted as a previous conviction and did not appear on the SAP 69 later produced for sentence. Molefe, who represented himself, pleaded guilty to housebreaking with intent to steal and theft, was convicted on 5 June 2026 and sentenced on 3 July 2026 to 24 months’ direct imprisonment.

Application: The proceedings came before the High Court on automatic review under section 302 of the Act. A query was directed to the Magistrate concerning, among other matters, the effect of the pre-conviction disclosure of Molefe’s criminal history, delay in transmitting the review record, failure expressly to consider his pre-sentence detention and an apparent error concerning the number of previous convictions. The Magistrate acknowledged the disclosure and abided the decision of the Review Court on its effect.

Discussion: Sections 89, 197, 211 and 271 of the Act are directed against disclosure of previous convictions before conviction. The established principle is that where a judicial officer acquires knowledge of an accused’s previous convictions before determining guilt and thereafter presides at the trial, an irregularity ordinarily arises which nullifies the proceedings. The enquiry is objective and does not require proof of actual bias. The concern is whether a reasonable, informed observer, knowing that the same judicial officer had been exposed to the accused’s criminal history before conviction, would apprehend a risk to impartiality. The fact that section 60(11B)(a) contemplates disclosure in bail-related proceedings does not remove the difficulty where the same magistrate later determines guilt. Nor does a guilty plea cure the irregularity, because the issue concerns the fairness and appearance of impartiality of the process rather than the correctness of the result.

Findings: The present matter was materially indistinguishable from the authorities establishing that prior disclosure of criminal history to the trial officer is fatal. It was immaterial that the disclosed antecedent was a single undefined item, that it was never proved or admitted, that approximately three and a half months passed before conviction, or that Molefe pleaded guilty and was questioned under section 112(1)(b). The prejudice lay in the prior exposure itself and its effect on the objective appearance of impartiality. The disclosure therefore vitiated the proceedings and was dispositive of the review. The delay in forwarding the record was regrettable but attributable to administrative causes despite the Magistrate’s efforts to expedite it. The Magistrate also acknowledged that Molefe’s period in custody before sentence had not expressly been considered as mitigation.

Order: The conviction and sentence were reviewed and set aside. The Clerk of the Court, Lichtenburg, in consultation with the Senior Public Prosecutor, was directed to secure Molefe’s appearance before a magistrate other than Magistrate C L Wessels and to report to the Registrar once he had appeared. The judgment was to be brought to the attention of the Chief Magistrate.

Facts: Albert Sibusiso Tshabalala was tried in the Specialised Commercial Crimes Court and convicted on several charges. Before sentence, the trial Magistrate disclosed that a person known to him had attempted to bribe him to impose a non-custodial sentence. He indicated that he intended to recuse himself and have sentencing completed by another Magistrate under section 275 of the Criminal Procedure Act 51 of 1977 (the Act). Before the formal recusal, Tshabalala placed an affidavit before him alleging incidents said to create a perception of bias and asked that the matter be sent on special review under section 304A so that the convictions could be set aside. The trial Magistrate did not accede to that request and indicated that Tshabalala should institute review proceedings in the High Court. After his recusal, the matter went to a new Magistrate, before whom Tshabalala repeated the request for special review, but materially altered the allegation concerning when the complainant had allegedly visited the trial Magistrate’s chambers.

Appeal: The new Magistrate referred the matter for special review under section 304A. The Review Court refused to set aside the convictions and directed that sentencing continue before a different Magistrate. Tshabalala appealed after obtaining leave from the Supreme Court of Appeal. The appeal concerned whether section 304A was properly invoked and whether the complaints of bias justified setting aside the convictions before completion of the criminal proceedings.

Discussion: Section 304A permits a Magistrate, after conviction but before sentence, to refer proceedings to the High Court where that Magistrate is of the opinion that the proceedings are not in accordance with justice or entertains doubt whether they are. The section is not a procedural mechanism available to an accused person as of right. An accused wishing to attack proceedings before completion must ordinarily institute review proceedings under Rule 53 of the Uniform Rules. A section 304A referral requires the Magistrate to form an independent opinion and record reasons for that opinion. It is to be used sparingly and only where continuation of the proceedings would result in injustice. High Courts are generally slow to intervene in unterminated criminal proceedings and will do so only in rare cases of grave injustice where justice cannot otherwise be attained.

Findings: The section 304A referral was irregular. The new Magistrate furnished no proper reasons as required by the statute and merely indicated agreement with the defence. More importantly, the opinion upon which the referral rested was influenced by a material misrepresentation that the complainant had privately visited the trial Magistrate before conviction, whereas the earlier affidavit had placed the incident after conviction. The trial Magistrate had also never been afforded an opportunity to respond to the allegations because Tshabalala did not institute the Rule 53 review which the Magistrate had indicated he would answer. No recusal application had been brought during the trial and no ruling or reasons existed for appellate scrutiny. Nor had Tshabalala demonstrated grave injustice requiring intervention before sentence. The possibility of direct imprisonment did not constitute such prejudice, particularly because ordinary appeal or review remained available after finalisation of the proceedings.

Order: The appeal was dismissed. The order of the Review Court was confirmed. The matter was remitted to the Regional Court for further hearing and completion of the sentencing proceedings before a different Magistrate.