Facts: TM Chauke Inc (the appellant), acting as attorneys for the Road Accident Fund (RAF), briefed Sandile Sunday Lubisi (the respondent), an advocate, to render legal services in various matters. The briefs expressly stated that payment of counsel’s fees would be made only after the appellant had received payment from the RAF, and that acceptance of the brief constituted acceptance of these terms. The respondent performed the work and submitted invoices, but the appellant did not pay, alleging that the RAF had not yet paid it. The respondent instituted action to recover the outstanding fees, whereupon the appellant defended and raised a special plea of non-joinder of the RAF and pleaded that the debt was not yet due and payable. The Regional Court rejected the appellant’s defence and held that the appellant was liable to pay the respondent’s fees.

Appeal: The appellant appealed against the entire judgment, contending that the court a quo erred by holding it liable for payment despite the express terms of the agreement. It maintained that the obligation to pay was subject to a suspensive condition, namely receipt of payment from the RAF, and that since this condition had not been fulfilled, no enforceable debt existed. The respondent argued that the appellant was liable to pay upon invoicing, that the agreement was not binding, and that standard rules governing payment between attorneys and counsel applied.

Discussion: The dispute centred on whether a valid agreement existed governing payment terms and whether the respondent’s claim was enforceable. The court considered section 34(2)(a)(i) of the Legal Practice Act, which permits advocates to render services upon instruction from attorneys, as well as the General Council of the Bar rules and the Code of Conduct for Legal Practitioners. These authorities recognise that attorneys and advocates may regulate payment terms by agreement. The respondent contended that such agreements were invalid or not sanctioned, relying on standard payment rules. The court examined the principle of tacit agreement, noting that acceptance of a brief containing specified payment terms, coupled with performance, constitutes acceptance of those terms. The central issue was whether the suspensive condition—payment by the RAF—had been fulfilled, as this determined whether the debt was due and payable.

Findings: The court held that the court a quo misdirected itself by focusing on who was liable to pay rather than whether the debt was due and payable. The correct enquiry was whether the suspensive condition had been fulfilled. The respondent accepted the briefs with full knowledge of the payment terms and thereby entered into a binding agreement. The Legal Practice Act and Code of Conduct do not prohibit such agreements, and contractual terms take precedence over standard payment rules. The respondent bore the onus of proving fulfilment of the suspensive condition, which he failed to do. In the absence of evidence that the RAF had paid the appellant, the condition remained unfulfilled, and the obligation to pay had not arisen. Consequently, the respondent’s claim was premature and lacked a complete cause of action.

Order: The appeal is upheld with costs. The order of the court a quo is set aside and substituted with the following: "The plaintiff’s claim is dismissed with costs."

Facts: Bergrivier Boerdery (Pty) Ltd (the appellant) is the registered owner of erf 162 Koringberg, which it purchased from Lynol Julius Pieterson and Le-Anze Catherine Pieterson (the respondents) in 2017 and transferred into its name in 2018. After the sale, the parties concluded a written lease allowing the respondents to remain in occupation of their former home, initially for two years and thereafter on a month-to-month basis. The relationship between the parties was intertwined with a broader business arrangement involving the Lynol Pieterson Family Trust (LPFT), through which a water use licence was obtained under the National Water Act 36 of 1998 for the benefit of the appellant’s farming operations. Disputes arose regarding the promised allocation of shares in the appellant to LPFT, the use of water rights, the alleged coercion and misrepresentation surrounding the sale of the respondents’ home, and the failure to remunerate LPFT. The appellant ultimately sought eviction after selling the property to a third party and requiring vacant possession, which the respondents resisted.

Appeal: The appeal concerns the dismissal by the court a quo of an eviction application brought under section 4(1) of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The appellant contended that the respondents were unlawful occupiers and that it had complied with all procedural requirements entitling it to eviction. It further argued that the court a quo erred in resolving disputes of fact in favour of the respondents, in failing to determine the respondents’ unlawful occupation, and in making findings on issues beyond the scope of the eviction application. The respondents opposed the appeal, maintaining that eviction would not be just and equitable due to the circumstances surrounding the acquisition of the property, including alleged misrepresentation, unequal bargaining power, and the unresolved disputes relating to the LPFT and water use licence.

Discussion: The central enquiry was whether the respondents were unlawful occupiers and, if so, whether eviction would be just and equitable as required by PIE. The court considered the proper approach to factual disputes as articulated in Stellenbosch Farmers Winery Group Ltd v Martell et Cie and the limited scope for appellate interference under R v Dhlumayo and S v Monyane. It accepted that the respondents became unlawful occupiers once their lease was terminated, but emphasised that unlawfulness is not decisive of eviction. The court examined the broader factual matrix, including the role of LPFT in securing a water use licence, the failure to transfer shares or provide compensation, and the manner in which the appellant allegedly exploited the respondents’ vulnerability to acquire the property below market value. Reliance was placed on Port Elizabeth Municipality v Various Occupiers to underscore that the “just and equitable” enquiry requires courts to consider fairness, equity, and social context beyond strict legal rights, and to undertake an active, balanced assessment of competing interests.

Findings: The court found no material misdirection in the factual findings of the court a quo and upheld its acceptance of the respondents’ version on key issues. It held that although the respondents were unlawful occupiers as defined in PIE, the circumstances surrounding their dispossession—marked by misrepresentation, inequality of bargaining power, and the appellant’s failure to honour obligations arising from the water use licence arrangement—rendered immediate eviction unjust and inequitable. The appellant’s reliance on ownership under section 25 of the Constitution was insufficient in light of its own conduct and the broader equities involved. At the same time, it was recognised that the respondents could not occupy the property indefinitely. A balance had to be struck that preserved the appellant’s property rights while affording the respondents an opportunity to vindicate their claims and resolve outstanding disputes.

Order: An eviction order was granted against the respondents, but its operation was suspended for 180 days subject to conditions that the parties engage in bona fide negotiations, failing which the respondents must institute legal proceedings within specified timeframes, failing which eviction will be effected by the sheriff.

Facts: Communicare NPC (Communicare), a non-profit property owner, sought the eviction of EAK (Mr K) and all occupants of a residential unit in Brooklyn, Western Cape. Mr K had concluded a written lease agreement in 2022 at a monthly rental of R3,500, but failed to make consistent payments, resulting in escalating arrears exceeding R34,000 by May 2026. The lease expired in September 2024 and was not renewed. Communicare cancelled the lease in January 2025 due to breach. Mr K admitted arrears, attributed this to instability in the film industry, and expressed a desire to remain and pay off the debt. The City of Cape Town (the City) submitted a report indicating that Mr K did not qualify for emergency housing due to his income, but the report was incomplete and failed to comply with prior court directions.

Application: Communicare applied in terms of the Prevention of Illegal Evictions from and Unlawful Occupation of Land Act 19 of 1998 (PIE) for eviction of Mr K and other occupants. Mr K opposed the application not on the basis of a legal entitlement to remain, but on equitable considerations, seeking indulgence to settle arrears and avoid relocation. The City’s role was to provide a report relevant to the just and equitable enquiry under section 4(7) of PIE, including information about alternative accommodation and the personal circumstances of the occupiers.

Discussion: The court considered the statutory framework under PIE, particularly sections 4(7) and 4(8), and the balancing exercise required between the property rights of owners and the housing rights of occupiers under section 26 of the Constitution. Authorities such as City of Johannesburg v Changing Tides 74 (Pty) Ltd, Ndlovu v Ngcobo, Government of the Republic of South Africa v Grootboom, and Occupiers of 51 Olivia Road v City of Johannesburg were considered. These emphasise that eviction must be just and equitable, with particular regard to the risk of homelessness and the role of the municipality. The court criticised the City for failing to comply with its obligation to meaningfully report and engage, noting that its report was inadequate and ignored key information required by the court’s earlier order.

Findings: It was common cause that Mr K materially breached the lease and that the lease had expired. His willingness to settle arrears did not constitute a legal defence, particularly as arrears continued to accumulate and no realistic plan existed to remedy them. Communicare, as a private entity, was not obliged to provide indefinite free housing. In terms of section 4(8) of PIE, once compliance with requirements and absence of a valid defence are established, an eviction must follow. However, the absence of a proper report from the City required a cautious approach to the timing of eviction. Given the presence of children, the likelihood of hardship, and uncertainty regarding alternative accommodation, the court determined that a delayed eviction date was just and equitable to mitigate the risk of homelessness.

Order: The first and second respondents are ordered to vacate the property by 30 November 2026, with provision for service of the order, authorisation of eviction by the sheriff if necessary, and restoration or storage of belongings, while the City is directed to provide temporary emergency accommodation if the occupiers cannot secure alternative housing and to file a report by 30 September 2026 detailing such arrangements, failing which further relief including potential personal liability of officials may be sought, and the respondents are ordered to pay the costs of the application jointly and severally.

Facts: HMM (the applicant) and DM (the respondent) were in a relationship for approximately seven years, during which their son, O, was born in 2021. After their separation in 2022, O remained primarily in DM’s care. DM later relocated with O from Johannesburg to the Eastern Cape due to financial hardship and lack of accommodation, and they had lived there for about eighteen months at the time of the application. HMM, who remained in Johannesburg, sought to secure primary residence of O. Reports were obtained from a psychologist, Dr D, and subsequently the Family Advocate, both recommending that O be removed from DM’s care and reside with HMM. DM opposed the application, raising issues of jurisdiction and challenging the rationality of the reports.

Application: The application before the High Court sought to make the Family Advocate’s recommendation an order of court, effectively transferring O’s primary residence to HMM in Johannesburg. DM opposed the relief on two principal grounds: that the court lacked jurisdiction because O was ordinarily resident in the Eastern Cape, and that the Family Advocate’s recommendation was not rationally connected to the facts. The central issue evolved into whether O’s primary residence should change, with both parties ultimately inviting the court to determine that question in O’s best interests.

Discussion: The court first considered jurisdiction under sections 23 and 29 of the Children’s Act 38 of 2005, holding that section 29 establishes a jurisdiction of convenience rather than an exclusive territorial rule, allowing a court to exercise jurisdiction beyond the child’s place of residence where it is in the child’s best interests. The court then analysed the expert reports, emphasising that it is not bound by such recommendations and must independently assess whether conclusions are supported by the underlying facts. The court identified material deficiencies in Dr D’s report, including its failure to consider the context of DM’s economic vulnerability and its reliance on outdated observations made prior to O’s relocation. Greater weight was attached to a later report by an Eastern Cape family counsellor, which depicted O as happy, settled, and well cared for in a stable environment with DM and her extended family. The Family Advocate’s recommendation was criticised for failing to engage with these current circumstances and for overlooking the significance of O’s established life in the Eastern Cape.

Findings: The court found that O is settled, secure, and developing appropriately in his current environment, and that DM is a capable and attentive primary caregiver. The proposed relocation to Johannesburg would separate O from his primary caregiver and disrupt his stable living circumstances without any identifiable benefit. HMM’s superior financial position did not outweigh the importance of continuity, emotional stability, and O’s best interests as the paramount consideration under section 28(2) of the Constitution. The expert reports relied upon by HMM were found not to support the conclusion that relocation was justified. Accordingly, it would not be in O’s best interests to change his primary residence.

Order: The application to make the Family Advocate’s recommendation an order of court is dismissed. O’s primary residence remains with DM in the Eastern Cape. The parties are directed to agree on a contact regime, failing which they must submit proposals, and each party must pay their own costs.

Facts: Fleet Africa (a division of Supergroup Africa (Pty) Ltd) (Fleet Africa) sought the provisional sequestration of Mahmood Khatib (Khatib). The claim arose from an arbitration award of R5,999,706.44 granted in Fleet Africa’s favour against Khatib and MK Exotics CC, for which Khatib had bound himself as surety. The award was made an order of court in 2024. A writ of execution was issued, but the Sheriff could not find sufficient assets to satisfy the debt, and Khatib ultimately informed the Sheriff that he owned no assets. Subsequent transactions showed that Khatib’s property and movables had been transferred to a company, raising concerns about asset concealment. A central issue emerged regarding Fleet Africa’s citation as “a division” rather than a juristic person.

Application: Fleet Africa applied in terms of sections 9 and 10 of the Insolvency Act 24 of 1936 for the provisional sequestration of Khatib’s estate. Khatib opposed the application on technical and substantive grounds, contending that Fleet Africa lacked locus standi because a “division” is not a juristic person and therefore could not be a creditor. He further denied committing an act of insolvency and argued that sequestration would not advantage creditors, suggesting that Fleet Africa was effectively the sole creditor.

Discussion: The matter centred on whether Fleet Africa had established the jurisdictional requirements under section 10 of the Insolvency Act, namely the existence of a claim, an act of insolvency, and advantage to creditors. The principal debate concerned the proper citation of a litigant described as a “division” of a company, with reference to authorities such as Spoornet v Watson, Volkskas Bank v Pietersen, Two Sixty Four Investments v Trust Bank, and Ford v Alphera Financial Services. The question was whether such citation negated Fleet Africa’s status as creditor. The court also considered section 8(b) of the Insolvency Act concerning acts of insolvency, as well as case law such as Meskin & Co v Friedman and Dunlop Tyres (Pty) Ltd v Brewitt regarding advantage to creditors.

Findings: It was found that Fleet Africa had established a valid claim based on the judgment debt. The objection to its citation was rejected, with preference for a pragmatic approach recognising that Supergroup Africa traded under the name Fleet Africa and that there was no prejudice to Khatib. The court held that Khatib committed an act of insolvency under section 8(b), as he failed to satisfy the judgment and disclosed no assets. Despite Khatib’s contention, the circumstances surrounding the transfer of assets raised a reasonable prospect that a trustee could uncover recoverable assets, thereby satisfying the requirement of advantage to creditors. Fleet Africa accordingly met all requirements for provisional sequestration.

Order: The first respondent’s estate is placed in provisional sequestration in the hands of the Master of the High Court, a rule nisi is issued calling upon the respondents and interested persons to show cause on 6 August 2026 why a final sequestration order should not be granted and costs be included in the estate, and the provisional order must be served on the respondents, the South African Revenue Service, and the first respondent’s employees or trade unions in the manner directed.

Facts: SID (Pty) Ltd (SID) and David Israel Lieberman (Lieberman) applied to rescind part of an order granted in January 2026 which made an arbitration award an order of court, declared SID indebted to BCO Construction (Pty) Ltd (BCO) for approximately R21,164,328, and placed SID under final winding-up. The rescission application was confined to the winding-up component only, not the monetary or arbitration aspects. The order had been granted in SID’s absence. The main issue concerned whether the winding-up order was erroneously granted due to defective service. BCO opposed the application and raised a preliminary objection that only liquidators could seek such relief.

Application: SID and Lieberman relied on Rule 42(1)(a) of the Uniform Rules of Court to rescind the winding-up order on the basis that it had been erroneously sought or granted in their absence due to materially defective proof of service. BCO contended that the application was misconceived and should have been brought under section 354 of the Companies Act 61 of 1973, requiring engagement with the substantive merits of the winding-up. It further argued that service had in fact been effected and that any defects were cured by subsequent explanations from the sheriff, and that broader considerations of insolvency and commercial justice should justify upholding the order.

Discussion: The matter centred on the relationship between Rule 42(1)(a) and section 354 of the Companies Act, and the legal requirements for rescission versus discretionary setting aside of winding-up proceedings. Authorities such as Storti v Nugent, Blue Bulls Company (Pty) Ltd v Mega Burst Oils and Fuels (Pty) Ltd, and Dr WAA Gouws (Johannesburg) (Pty) Ltd v HR Computek (Pty) Ltd were considered to confirm that rescission remains available outside section 354 where an order ought never to have been granted. The court also considered Bakoven Ltd v G J Howes (Pty) Ltd and First National Bank v Jurgens in relation to Rule 42, emphasising that rescission is confined to errors apparent on the record. The dispute thus turned on whether the service relied upon to obtain the winding-up order was reliable and sufficient to justify relief granted in SID’s absence.

Findings: The preliminary objection on locus standi was dismissed, as both SID (through residual powers) and Lieberman as member had standing to seek rescission. The court found that two returns of service before the court at the time of granting the order were mutually destructive, recording service at two different places at the same time. This rendered the evidentiary foundation unreliable and deprived the return of its prima facie probative value. As proper service is foundational in winding-up proceedings, the court was not procedurally entitled to grant final winding-up relief in SID’s absence. The defect appeared from the record itself and was not cured by later explanations. Considerations of insolvency or commercial justice could not remedy a foundational procedural defect. The winding-up order was therefore erroneously granted within the meaning of Rule 42(1)(a).

Order: Paragraphs 4 and 5 of the prior order placing SID under winding-up and directing that the costs be costs in the winding-up are rescinded and set aside, and BCO Construction (Pty) Ltd is ordered to pay the costs of the application, including the costs of two counsel on the High Court scale C.

Facts: Mogaditswe David Tumelo Mohau and others (the applicants), members of the South African Police Service within the Directorate for Priority Crime Investigation, were arrested and granted bail without conditions by the Randburg Magistrates’ Court. The Director of Public Prosecutions, Johannesburg (the State), appealed the bail decision in terms of section 65A of the Criminal Procedure Act 51 of 1977. The High Court (per Karam AJ) upheld the appeal, revoked the bail, and ordered the applicants to surrender themselves by 23 January 2026. Instead of surrendering, the applicants launched an urgent application seeking to suspend the operation of that order pending their intended appeal against the bail appeal decision.

Application: The applicants sought an order suspending or holding in abeyance the operation and execution of the order revoking their bail. They contended that the noting of an application for leave to appeal automatically suspended the order, alternatively that the Court could suspend it under its inherent jurisdiction in section 173 of the Constitution. They further sought declaratory relief challenging the constitutionality of the Criminal Procedure Act (CPA) for failing to provide expressly for such suspension. The State opposed the application, contending that urgency was self-created, that section 18 of the Superior Courts Act 10 of 2013 did not apply to criminal proceedings, and that the Court lacked authority to suspend the order granted under section 65A of the CPA.

Discussion: The issues were whether the noting of an application for leave to appeal automatically suspended the bail appeal order, whether the Court could grant suspension under its inherent jurisdiction, and whether exceptional circumstances warranted such relief. The applicants relied on the common-law rule articulated in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd (1977 (3) SA 534 (A)) and provisions of the Superior Courts Act. The Court considered the relationship between the CPA and the Superior Courts Act, noting that while the latter may supplement criminal procedure in some instances, bail proceedings are governed by a distinct statutory regime focused on balancing liberty and public safety. The Court also considered the scope of section 173 of the Constitution, as interpreted in cases such as Phillips v National Director of Public Prosecutions and Molaudzi v S, which emphasise that inherent powers must be exercised sparingly and cannot override clear legislative schemes. The constitutional challenge was also examined procedurally.

Findings: The applicants failed to establish that the noting of an application for leave to appeal automatically suspended the operation of the bail appeal order. The common-law rule applicable to civil matters does not extend to criminal bail proceedings governed by the CPA. The CPA contains no provision for automatic suspension, and such a consequence could not be implied. The Court further held that the inherent power under section 173 does not extend to creating substantive rights inconsistent with legislation, and that the applicants had not demonstrated exceptional circumstances justifying intervention. Their prior compliance with bail conditions and liberty interests did not override the statutory scheme, particularly where they had not complied with the surrender order. The constitutional challenge was not properly before the Court due to procedural defects and insufficient development.

Order: The application is dismissed. The constitutional relief sought is dismissed. There is no order as to costs.

Facts: The appellant, SIS (the plaintiff), instituted a claim against the Road Accident Fund arising from the death of Mr NM (the deceased), who died from injuries sustained in a motor vehicle accident in 2018 caused by the negligence of an insured driver. The plaintiff claimed damages for loss of support in her personal capacity and on behalf of her minor child, SM. It became common cause that the deceased was the father of the minor child and had a duty to support him, leaving only the quantum of the child’s claim in dispute. The Fund, however, disputed that the plaintiff was married to the deceased and thus denied any spousal duty of support toward her. The trial therefore focused primarily on whether a valid marriage existed between the plaintiff and the deceased.

Appeal: The appeal lies against the High Court’s dismissal of the plaintiff’s claim for loss of support. Although the High Court found that the plaintiff had failed to prove a marriage, it nevertheless accepted that the deceased had supported her and owed her a duty of support. However, the High Court proceeded to dismiss both claims on the basis that the deceased’s income was derived from unlawful activity, namely an unregistered money-lending business. The plaintiff contended on appeal that this issue of illegality was never pleaded or canvassed at trial and that the High Court erred in deciding the matter on an unpleaded issue, thereby causing prejudice and infringing her right to a fair hearing. The Fund argued that the illegality of the income was a legal issue that could be raised by the court of its own accord.

Discussion: The appeal turned on whether it was permissible for the High Court to determine the case on an issue not raised in the pleadings or explored during trial. The record demonstrated that the only issues litigated were the existence of a marriage and the dependent status of the minor child. While there was incidental evidence that the deceased engaged in money-lending, its legality was never investigated or put in issue by the Fund. The principle that parties must be alerted to the case they are required to meet, as articulated in South African Police Service v Solidarity obo Barnard and Fischer v Ramahlele, was central. Although courts may raise a pure question of law arising from the evidence, this is permissible only where it causes no prejudice. The High Court failed to alert the parties that it intended to rely on the alleged illegality of the deceased’s income as decisive, thus depriving the plaintiff of the opportunity to address the issue. The reliance on pre-constitutional authority such as Dhlamini v Protea Assurance and Santam v Ferguson without considering the constitutional context, particularly the rights of the minor child, was also questioned. The fleeting and untested evidence regarding the deceased’s business did not justify a finding of illegality.

Findings: The High Court committed a material misdirection by deciding the matter on an unpleaded and untested issue. This resulted in prejudice to the plaintiff and the minor child, undermining the right to a fair trial protected by section 34 of the Constitution. The High Court further failed to consider its own findings and concessions regarding the minor child’s claim, including the Fund’s admission of a duty of support. It also neglected to consider the paramountcy of the best interests of the child under section 28(2) of the Constitution. There was insufficient evidence to determine the legality of the deceased’s income, and the High Court ought not to have dismissed the claims on that basis. Given these defects, the matter could not be finalised on appeal, and it was appropriate to remit it for reconsideration of quantum.

Order: The appeal is upheld. The matter is remitted to the High Court, differently constituted, to determine the quantum. The Road Accident Fund is ordered to pay the costs of the appeal.

Facts: This matter concerns an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria, in respect of sections 36 to 40 of the National Health Act 61 of 2003. The applicants comprise Solidarity Trade Union, several professional associations representing private health practitioners, individual health care practitioners, and the Hospital Association of South Africa. The respondents are the Minister of Health, the President of the Republic of South Africa, and the Director-General of the National Department of Health. The impugned provisions establish a “certificate of need” scheme requiring health establishments, health agencies and health care providers to obtain a certificate from the Director-General before establishing, operating, expanding or continuing to provide prescribed health services, failing which criminal sanctions apply. The stated purpose of the scheme is to promote equitable geographic distribution of health services and to enforce norms and standards within the health sector.

Application: The applicants approached the High Court seeking a declaration that sections 36 to 40 of the National Health Act are unconstitutional. The High Court upheld the challenge and declared the provisions invalid in their entirety, severing them from the Act. That declaration required confirmation by the Constitutional Court in terms of section 167(5) of the Constitution. Before this Court, the applicants sought confirmation of the High Court’s order, alternatively suspension of invalidity with referral to Parliament. The Minister and Director-General opposed confirmation and lodged a cross-appeal, contending that the challenge was abstract and premature, that the scheme served a legitimate transformative purpose, and that any limitations on rights were reasonable and justifiable. The President did not oppose.

Discussion: The Court first addressed whether the matter constituted an impermissible abstract challenge, given that the impugned provisions had not been brought into operation and no regulations had been promulgated. Applying established constitutional principles, it was found that the challenge was ripe, concerned facial constitutional defects, raised a genuine dispute, and warranted determination. Turning to the merits, the Court analysed the rationality of the certificate of need scheme, emphasising that all exercises of public power must be rationally connected to a legitimate government purpose. While the purpose of addressing inequitable access to health care was accepted as legitimate, the Court found no rational connection between that purpose and the means adopted. The scheme failed to define its scope, left critical matters to ministerial discretion through regulations, omitted any requirement to consider the rights and interests of affected health providers, and vested sweeping discretionary powers in the Director-General without adequate safeguards. The scheme was further found not to advance the enforcement of norms and standards, given existing regulatory mechanisms, and to regulate location rather than quality of care. The Court also considered the impact of the scheme on the constitutional right in section 22 to choose a trade, occupation or profession freely.

Findings: The Court concluded that sections 36 to 40 of the National Health Act are irrational and inconsistent with the principle of legality under section 1(c) of the Constitution. In addition, the provisions were found to impose severe and unjustifiable limitations on the section 22 right to choose a trade, occupation or profession freely, in that they empower the Director-General to prevent persons from entering or remaining in the provision of health services, subject to criminal sanction, without proportionate safeguards or rational justification. The limitations could not be justified under section 36 of the Constitution. Having found an unjustifiable infringement of section 22, it was unnecessary to determine the alleged infringement of other constitutional rights or issues of provincial and local government competence. The High Court’s reasoning and conclusions were upheld.

Order: The cross-appeal is dismissed. The order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria is confirmed. Sections 36 to 40 of the National Health Act 61 of 2003 are declared inconsistent with the Constitution and invalid, and are severed from the Act. The first and third respondents are ordered to pay the applicants’ costs in this Court, including the costs of two counsel where so employed.

Facts: The Standard Bank of South Africa Limited (the Bank) instituted proceedings against Moses Jethro Diphare and Lesley Ann Theresa Goodyal (the respondents) arising from their breach of a home loan agreement secured by a mortgage bond over their primary residence. The respondents fell significantly into arrears, with arrears of approximately R500,000 and no meaningful payments made for about 46 months. The Bank sought accelerated repayment of the outstanding debt and an order declaring the immovable property specially executable. The first respondent appeared in person and opposed the application, raising concerns about the fairness of the process, disputing the reliability of the Bank’s figures, and challenging the execution against their home. No plea was filed, although the first respondent alleged that one had been delivered.

Application: The Bank applied for default judgment on the outstanding debt, an order declaring the property specially executable, and relief in terms of Rule 46A of the Uniform Rules of Court. The respondents opposed the application on several grounds, alleging procedural unfairness, disputing the Bank’s calculations and valuations, and asserting constitutional protection of their home under section 26 of the Constitution of the Republic of South Africa, 1996. The respondents also contended that execution should not proceed because they had attempted to defend the matter and because the Bank’s documentation was unreliable.

Discussion: The matter remained one for default judgment, as no plea was properly before the court. However, given that execution was sought against a primary residence, the court was required to consider the respondents’ submissions in light of Rule 46A and constitutional safeguards. The court examined the alleged procedural irregularities, including the claim that a plea existed, the demand for insurance documents, and allegations of document fabrication. It also considered the updated valuation submitted by the Bank, as well as the extent of the respondents’ arrears and their payment history. The court further undertook the proportionality inquiry required under Rule 46A, drawing on authorities such as Jaftha v Schoeman; Van Rooyen v Stoltz and Gundwana v Steko Development, which require judicial oversight where execution against a home is sought.

Findings: The respondents’ defences were without merit. No plea was produced, and the matter properly proceeded as a default judgment. The respondents failed to provide evidence challenging the indebtedness or demonstrating that the Bank’s figures were incorrect. Allegations of document manipulation were unsupported. The court found that the respondents were in substantial default and had no realistic plan to settle the debt. Applying Rule 46A, the court held that execution against the property was justified, as the prejudice to the Bank outweighed that to the respondents and no viable alternative means of satisfying the debt existed. The limitation of the respondents’ right to housing was therefore reasonable and justifiable. The reserve price was determined with reference to the forced-sale value and adjusted for expected municipal charges in line with section 118 of the Local Government: Municipal Systems Act 32 of 2000.

Order: Payment of the amount of R337,081.17, together with interest at 10% per annum from 27 August 2018; the immovable property is declared specially executable; a writ of execution is authorised; the reserve price is set at R580,000; the purchaser is liable for municipal charges for the two years preceding transfer; and costs are awarded on party-and-party scale B.

Municipal debt:

[17] The updated figures before me indicate a market value of R900,000 and a forced sale value of R630,000. The municipal indebtedness is approximately R185,000. It has become customary for courts in this division to use the forced sale value as a starting point in setting a reserve price, usually by deducting the rates, taxes and levies from the forced sale value, as these will have to be paid, usually in these instances by the buyer, before a clearance certificate can be obtained. However, in terms of section 118 of the Local Government: Municipal Systems Act read with Jordaan and Others v City of Tshwane Metropolitan Municipality, a distinction is drawn between the municipality’s right under section 118(1) to insist upon payment of the amounts due for the two years preceding the application for a clearance certificate and, on the other, the remedies in relation to historical debt under section 118(3), which require their own enforcement steps.

[18] Section 118(1) explicitly mentions the amounts owed in the two years before applying for the certificate. In such cases, a sale in execution should not require the purchaser to assume unlimited historical municipal debt prior to transfer. Doing so would artificially reduce the reserve price. According to the municipal statement, the average debt is approximately R2,000 per month. Rounding up, R50,000 appears to be a reasonable estimate to cover expected charges at transfer. Consequently, a fair reserve price would be the forced sale value of R630,000 minus R50,000, which totals R580,000.

[19] To avoid uncertainty in the process, the order will specify that, for transfer purposes under the sale in execution, the purchaser is responsible only for municipal charges from the two years prior to the application for the clearance certificate, excluding any older historical debt.

Facts: Afrimat Iron Ore (Proprietary) Ltd (Afrimat) is an iron ore mining company operating in the Northern Cape whose Demaneng Mine is nearing the end of its productive life. To sustain its operations and secure continued access to rail capacity on the Iron Ore Export Corridor, Afrimat concluded an agreement in 2025 with Ochre Shimmer Trade and Invest 78 (Pty) Ltd (Ochre Shimmer) for the acquisition of a mining right over the farm Doornfontein No 446. The mining right, granted to Ochre Shimmer in 2021 under the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRD Act), was an asset held by the company. A dispute arose when Ms Lungile Mlotshwa, the widow of a former shareholder of Ochre Shimmer, asserted that she retained an interest in the mining right arising from her former 34% shareholding in Ochre Shimmer and that ministerial consent was required for the disposal of that interest before the mining right could lawfully be transferred to Afrimat.

Application: Afrimat approached the High Court on an urgent basis seeking review relief under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) arising from the failure of the Minister of Mineral and Petroleum Resources, acting through the Director-General, to take a decision on Afrimat’s application for consent under section 11 of the MPRD Act for the transfer of the mining right. Afrimat contended that the delay of approximately nine months was unreasonable, jeopardised its ability to bid for rail capacity, and caused severe commercial and employment-related prejudice. Ms Mlotshwa intervened, contending that the transfer of her former shares in Ochre Shimmer without ministerial consent rendered subsequent transactions void and that her consent was required before the mining right could be transferred.

Discussion: The issue concerned the interpretation of section 11(1) of the MPRD Act and whether Ms Mlotshwa held an “interest” in the mining right requiring ministerial consent. The Court analysed the distinction between a mining right held by a company and the interests held by shareholders in that company. Reliance was placed on Mogale Alloys (Pty) Ltd v Nuco Chrome Bophuthatswana (Pty) Ltd and Others and Vantage Goldfields SA (Pty) Ltd v Arqomanzi (Pty) Ltd and Others, which make clear that section 11 regulates the disposal of a controlling interest in a company holding a mining right. The evidence showed that Ms Mlotshwa never held a controlling interest in Ochre Shimmer, as the remaining shareholders together held control both before and after her disposal of shares. The Court further considered the prolonged failure by the Minister to decide Afrimat’s application and the requirements of sections 6(2)(g) and 6(3) of PAJA governing unreasonable delay.

Findings: It was found that Ms Mlotshwa’s interest was purely qua shareholder and that she held no direct interest in the mining right itself. Her disposal of a minority shareholding did not constitute the disposal of a controlling interest and therefore did not require ministerial consent under section 11(1) of the MPRD Act. The Regional Manager’s notice suggesting otherwise was based on a misinterpretation of the Act. The Minister’s failure to take a decision on Afrimat’s section 11 application for an extended period constituted an unreasonable delay reviewable under PAJA. Given the urgency, the absence of any substantive impediment to consent, and the serious economic and employment consequences of further delay, it was just and equitable for the Court to substitute the administrative decision.

Order: The matter was heard as urgent. Ms Mlotshwa was granted leave to intervene. The failure of the Director‑General to take a decision on Afrimat’s section 11 application was reviewed and set aside. The Minister, alternatively the Director‑General, was directed to grant consent for the transfer of the mining right to Afrimat and to execute the necessary notarial deed of cession within specified time periods. The Director‑General was ordered to pay Afrimat’s costs, including the costs of two counsel on scale C, with no order as to costs in respect of Ms Mlotshwa’s intervention.

Facts: Andre Carl Neethling (the applicant) is an independent creditor of Louis Group (SA) (Pty) Ltd (LGSA), holding a proven claim of approximately R24 million. LGSA is a holding company placed under business rescue by a board resolution in May 2023 in terms of the Companies Act 71 of 2008. Its only meaningful operational asset is an indirect shareholding in Smartsurv Wireless (Pty) Ltd (SSW). Prior business rescue proceedings had failed, and a second plan was proposed in March 2024 by the business rescue practitioner, Stuart Nicolaas Robinson (the practitioner). The plan depended almost entirely on future dividend flows from SSW and offered creditors a return significantly higher than liquidation. Independent creditors, however, raised serious concerns regarding the absence of audited financial information for SSW and the questionable recoverability of loan claims exceeding R170 million. The plan was rejected on 5 April 2024 by all independent creditors who voted.

Application: The applicant sought to set aside the business rescue resolution and have LGSA placed in liquidation, alternatively to replace the practitioner. The practitioner and LGSA brought a counter-application under section 153(7) of the Companies Act seeking to set aside the creditors’ rejection of the proposed business rescue plan as “inappropriate”. The determination of the counter-application was dispositive: if unsuccessful, liquidation would follow. Ancillary applications included a joinder application, which was unopposed, and a striking-out application alleging scandalous and vexatious material in the applicant’s affidavits.

Discussion: The issue was whether it was “reasonable and just” under section 153(7) of the Companies Act to set aside the creditors’ rejection of the business rescue plan. The statutory scheme requires a single objective value judgment, taking into account the interests of creditors, the provisions of the plan, and a comparison with liquidation returns, as articulated in cases such as FirstRand Bank v KJ Foods CC and Ferrostaal GmbH v Transnet SOC Ltd. The proposed plan relied entirely on SSW’s projected financial performance over several years, yet independent creditors were denied access to verified financial information necessary to assess those projections. The practitioner contended that SSW’s financial statements later substantiated the forecasts and that loan claims were largely irrecoverable, but provided limited and inconsistent substantiation. The applicant challenged both the viability of SSW’s forecasts and the practitioner’s treatment of loan accounts, as well as concerns regarding continued Louis family involvement and lack of transparency.

Findings: It was not demonstrated that the creditors’ rejection of the plan was inappropriate. Their insistence on substantiated financial information was reasonable, given that the plan depended entirely on SSW’s uncertain future performance and the practitioner’s limited control over it. The liquidation dividend was likely understated, while the business rescue dividend remained speculative. The practitioner failed to provide sufficient, credible evidence to justify the plan’s viability or to rebut concerns about recoverability of loan claims. The objective enquiry required by section 153(7) did not support setting aside the vote, and there was no indication that creditors acted irrationally or in bad faith. The cumulative effect of uncertainty, lack of substantiation, and distrust justified the rejection of the plan. As agreed by the parties, the failure of the counter-application necessitated the success of the main application and conversion to liquidation.

Order: The joinder application is granted; the striking-out application is dismissed. The application to set aside the creditors’ vote rejecting the business rescue plan is dismissed. The business rescue proceedings are converted into provisional liquidation of Louis Group (SA) (Pty) Ltd, with a rule nisi issued and costs awarded on Scale C.

Facts: The applicant, Centaur Mining South Africa (Pty) Ltd (Centaur Mining), became embroiled in litigation arising from the liquidation of Trillian Management Consulting (Pty) Ltd (TMC) and related Trillian entities. The first and second respondents, Sivalutchmee Moodliar N.O. and Ndumiso Senzosenkosi Sibiya N.O., were the joint liquidators of TMC. The third to eighth respondents comprised several Trillian companies that were incorporated and used as part of a single economic enterprise, with their affairs intermingled and controlled by common directors, and utilised to channel large sums of state-owned entity funds through fictitious invoices and sham transactions. Following investigations by the South African Revenue Service and forensic auditors, TMC was placed in final liquidation. The liquidators then successfully obtained an order under section 20(9) of the Companies Act 71 of 2008 declaring that the Trillian companies were deemed not to be separate juristic persons and purporting to collapse them into TMC, with their liquidation deemed to have commenced on the same date.

Application: Centaur Mining was not a party to the section 20(9) proceedings but was later sued by the liquidators to recover alleged voidable dispositions under the Insolvency Act 24 of 1936 arising from loan agreements concluded with certain Trillian companies. Centaur Mining applied in the High Court for rescission of the section 20(9) order in terms of rule 42(1)(a) of the Uniform Rules of Court, section 354 of the Companies Act 61 of 1973 and the common law, contending that section 20(9) does not empower a court to liquidate a company and that the order had been granted in its absence and to its prejudice. The High Court dismissed the application and the Supreme Court of Appeal upheld that decision. Centaur Mining then sought leave to appeal to the Constitutional Court, challenging the competence of the liquidation aspects of the section 20(9) order and the refusal to rescind it.

Discussion: The main issue before the Constitutional Court was the proper scope of section 20(9) of the Companies Act 71 of 2008, which permits a court, upon a finding of unconscionable abuse of juristic personality, to disregard a company’s separate legal existence and to make further orders to give effect to that declaration. Centaur Mining argued that section 20(9) allows only for the relocation of specific rights, obligations or liabilities and does not confer power to liquidate companies, which is governed by distinct statutory regimes. The liquidators contended that once companies are deemed not to be separate juristic persons from a company in liquidation, their liquidation necessarily follows. The Court also considered whether Centaur Mining had standing as an affected party, whether the order had been erroneously granted in its absence, and whether rule 42(1)(a) was the appropriate procedural mechanism.

Findings: The Court held that Centaur Mining had a direct and substantial legal interest and was prejudicially affected by the section 20(9) order, and therefore had standing. It found that the High Court order was granted in Centaur Mining’s absence and was procedurally irregular, rendering it rescindable under rule 42(1)(a). On the interpretation of section 20(9), the Court accepted that the Trillian companies’ incorporation and use constituted an unconscionable abuse of juristic personality and that it was competent to deem them not to be separate juristic persons and to relocate their rights, obligations and liabilities to TMC in liquidation. However, the Court held that section 20(9)(b) does not authorise, nor did it require in this case, the liquidation of the subject companies. The purported liquidation orders went beyond what was appropriate to give effect to the veil‑piercing declaration and were therefore incompetent. The liquidation aspects of the order were unnecessary and inappropriate.

Order: Leave to appeal was granted and the appeal was upheld in part. The order of the Supreme Court of Appeal was set aside and replaced with an order setting aside the portions of the High Court order that purported to liquidate the Trillian companies, while confirming that they are deemed not to be separate juristic persons and that all their rights, obligations and liabilities are relocated to Trillian Management Consulting (Pty) Ltd (in liquidation). Each party was ordered to pay its own costs.

Facts: This is an application for the provisional sequestration of James Openshaw Zervas, launched by Frederick Christoffel Greeff in the High Court of South Africa, Western Cape Division. The applicant relied on a default judgment granted in 2021 for R590,384.67, which remained unpaid. The applicant alleged that the respondent committed an act of insolvency under section 8(b) of the Insolvency Act 24 of 1936 by reason of a nulla bona return, and alternatively that the respondent was factually insolvent. The respondent opposed the application, disputing both the validity of the nulla bona return and the allegation of factual insolvency, and raised a preliminary objection concerning the absence of a Master’s certificate.

Application: The applicant sought a provisional sequestration order, asserting locus standi based on the unpaid judgment debt, the commission of an act of insolvency under section 8(b) of the Insolvency Act, factual insolvency, and advantage to creditors. The respondent denied committing any act of insolvency, challenged the sheriff’s return as defective and executed at the wrong address, denied factual insolvency on the basis that he earned a substantial income, and contended that sequestration would not be to the advantage of creditors. The respondent also raised a point in limine concerning non-compliance with section 9(3)(b) of the Insolvency Act.

Discussion: The preliminary objection relating to the Master’s certificate was rejected. The bond of security sufficed, alternatively condonation was granted as the certificate was filed before judgment and no prejudice was shown. Turning to the merits, the legal requirements for sequestration were restated. In relation to section 8(b), the Court held that a nulla bona return must reflect that no disposable property of any nature was found, not merely movables. The sheriff’s return in this matter referred only to movable property, relied on an unsigned certificate containing irregular alterations, and was unsupported by an explanatory affidavit from the sheriff. Accordingly, neither limb of section 8(b) was satisfied and no act of insolvency was established. The Court then considered factual insolvency. The respondent admitted that he owned no immovable property and had failed to satisfy the judgment debt for several years. His rescission application had been dismissed and leave to appeal refused. His bare assertions of earning R150,000 per month and being able to pay his debts were unsupported by any documentary evidence, notwithstanding that his financial affairs lay peculiarly within his knowledge. Applying the principles in ABSA Bank Ltd v Rhebokskloof (Pty) Ltd and Wightman t/a JW Construction v Headfour (Pty) Ltd, the respondent failed to rebut the prima facie inference of insolvency.

Findings: On advantage to creditors, reliance on Stratford v Investec Bank Ltd and Meskin & Co v Friedman made clear that the test is broad and forward-looking. The respondent’s involvement as director of multiple companies and trustee of various trusts justified the appointment of a trustee with investigative powers, and sequestration would provide superior machinery for uncovering assets or impeachable transactions. The Court found that no act of insolvency had been established under section 8(b) of the Insolvency Act due to the defective nulla bona return. However, factual insolvency was established on a balance of probabilities by reason of the long-standing unpaid judgment debt, the failure of rescission proceedings, and the respondent’s inability to rebut the inference that his liabilities exceeded his assets. The Court further found that there was reason to believe that sequestration would be to the advantage of creditors, given the respondent’s complex financial affairs and the need for investigation by a trustee.

Order: The estate of the respondent is placed under provisional sequestration. The respondent and all interested persons are called upon to show cause on a date to be allocated by the Registrar why the estate should not be finally sequestrated and why costs should not be costs in the insolvent estate. The provisional order is to be served on the respondent, published in the Cape Times and the Government Gazette, and served on employees, trade unions (if any), and the South African Revenue Service in accordance with section 9(4A) of the Insolvency Act 24 of 1936.