Facts: Makasela Consulting and Projects (Pty) Ltd (Makasela) was initially appointed by Mopani District Municipality (the Municipality) to a pool of approved suppliers of professional engineering services for 2017/18 to 2019/20. The pool appointment established a general framework under which professional fees would not exceed rates approved and determined by the Municipality with reference to Engineering Council of South Africa Guidelines, but did not itself appoint Makasela to any particular project. On 28 May 2018 the Municipality separately appointed Makasela, on a risk basis, to conduct a feasibility study for the Lulekani Water Scheme. The appointment provided that Makasela would receive nothing if the study was not approved but, if approved, its inclusive professional fee would be calculated at 17.5% of construction costs, apportioned across six stages. Makasela completed the work and obtained approval of the technical report on 13 May 2019, culminating in a municipal infrastructure grant.

Application: Makasela applied for reconsideration under section 17(2)(f) of the Superior Courts Act 10 of 2013 after two judges of the Supreme Court of Appeal refused special leave to appeal. It had unsuccessfully claimed in the High Court and before the full court the balance of its remuneration under the 17.5% formula. The Municipality had subsequently instructed Makasela to submit an invoice calculated at an 8% upper limit. Makasela accordingly invoiced R4,395,508.59, which the Municipality paid, but later claimed the balance of R5,219,665.55. The Municipality contended that the earlier pool appointment and Guidelines imposed an 8% cap and that the later instruction and invoice displaced Makasela’s entitlement under the risk-based appointment.

Discussion: The successive contractual documents had to be construed as a whole while keeping distinct three questions: what remuneration governed the risk-based appointment; whether the later instruction altered or extinguished that entitlement; and whether payment pursuant to the later invoice constituted a compromise. The pool appointment and risk-based appointment were separate contracts serving different purposes. The former established a general framework for future project appointments, while the latter specifically governed the feasibility study, its risk allocation, stages and remuneration. The Guidelines themselves stated that their fee approach was merely a guideline and that client and consultant remained free to negotiate an appropriate fee. No 8% limitation applied to feasibility studies. Variation, waiver and compromise each depended upon objectively established consensus and could not be conflated.

Findings: The risk-based appointment expressly fixed Makasela’s inclusive professional fee at 17.5% of construction costs and constituted the contractual basis for remuneration. The Municipality had no unilateral power subsequently to substitute an 8% fee. Its later instruction concerned payment and did not constitute a new agreement, variation, novation, waiver or compromise. Makasela’s invoice for R4,395,508.59 and receipt of that payment established only that the amount was claimed and paid; they did not establish abandonment of the balance due under the agreed fee formula or acceptance in full and final settlement. The full court also erred in treating Makasela’s failure to replicate as an admission of the Municipality’s positive allegations. Where no replication is delivered, issue is joined on the plea and allegations constituting a special defence are taken to be denied. The Municipality bore the burden of proving alteration or extinguishment of the debt and failed to do so. The pleaded balance of R5,219,665.55 was arithmetically unchallenged and proved.

Order: The reconsideration application was granted and the previous refusal of special leave was set aside. Special leave to appeal was granted with costs. The appeal was upheld with costs on Scale C. The Municipality was ordered to pay Makasela R5,219,665.55, together with interest at 8.75% per annum a tempore morae from 27 May 2020 to date of payment, and costs on Scale C.

Facts: Amy Denise Dean (Dean) had been employed by Cape Town City Ballet (CTCB) as a full-time dancer since 2015. The prohibition on live theatre performances during the COVID-19 pandemic caused CTCB serious financial difficulties. Although CTCB had been considering retrenchments from at least June 2020, it issued a section 189(3) notice only on 21 August 2020, proposing thirteen retrenchments and “fit for purpose” as the selection criterion. Dean had qualifications in dance teaching and proposed redeployment to teaching and outreach work. CTCB nevertheless continued using ad-hoc teachers, male dancers and choreographers. After four dancers accepted voluntary retrenchment, compulsory retrenchments proceeded. Dean was assessed under a skills matrix by four panellists and dismissed for operational requirements on 15 September 2020.

Application: Dean referred an unfair dismissal dispute under section 191(5)(b)(ii) of the Labour Relations Act 66 of 1995 (the LRA), seeking a declaration that her dismissal was procedurally and substantively unfair, twelve months’ compensation calculated on her unreduced remuneration, correction of her severance and notice pay, and costs. CTCB maintained that retrenchment was a necessary and fair response to its financial circumstances. A further issue was whether section 189A applied because CTCB employed more than fifty employees. Dean relied on the SAFT loan calculation and the employment of apprentices; CTCB maintained that it employed only thirty-seven staff.

Discussion: The available evidence made it probable that CTCB employed more than fifty employees and that section 189A applied. The source of funding for apprentices’ stipends did not determine whether they were employees. CTCB nevertheless chose to defend the retrenchment on the basis that section 189A did not apply and did not rely on it to exclude adjudication of procedural fairness. Substantive fairness required fair and objective selection criteria where none had been agreed. CTCB’s matrix included “open-mindedness to film”, “coachability”, “career path possibilities”, “visitor impressions” and “company culture fit”. Unlike skills matrices based predominantly on objective historical appraisals or measurable tasks, these criteria involved substantial subjective judgment. Dean also contended that redeployment to teaching could have avoided dismissal while CTCB continued paying outside contractors.

Findings: CTCB established a legitimate general need to reduce staff because live performances had ceased and revenue had collapsed. It did not, however, prove that Dean’s selection was fair and objective. None of the four assessors, nor the manager who collated the scores, testified. The evidence supporting the assessment process was therefore hearsay and did not establish how consistently or reliably the matrix had been applied. Dean demonstrated anomalies including an assessment dated before the assessment period commenced, missing scores, assessors simultaneously engaged in teaching, arithmetic errors, incorrect service dates and striking discrepancies in experience ratings. The matrix amounted in effect to a novel and subjective performance appraisal without moderation or an effective opportunity to challenge the outcome. CTCB also failed adequately to justify rejecting redeployment while retaining outside contractors. Procedurally, consultation was unnecessarily compressed into approximately one week despite retrenchment having been contemplated months earlier. Requests for postponement and information were inadequately accommodated, and the final skills matrix was disclosed immediately before assessments began. Dean’s alternative matrix was rejected only after assessments had concluded. The process did not constitute meaningful joint consensus-seeking consultation. The dismissal was therefore substantively and procedurally unfair.

Order: Dean’s dismissal was declared procedurally and substantively unfair. CTCB was ordered to pay compensation equal to twelve months’ remuneration calculated at her pre-13 July 2020 gross salary of R13,250 per month, totalling R159,000, within fifteen days. It was further ordered to recalculate and pay the shortfall in her severance and notice pay using the same unreduced salary, and to pay half of Dean’s costs on the party and party scale.

Facts: The Beachwood property comprised a little over 42 hectares in Durban North, bounded by Virginia Airport, the Beachwood Mangrove Nature Reserve and the sea. A golf course had operated there since the 1930s. Beachwood Investments (Pty) Ltd (Beachwood Investments) purchased the property in 2017 for R108 million. Its development potential was restricted by conditions of title and its zoning as private open space. Much of the land was environmentally sensitive and development required environmental authorisation from the KwaZulu-Natal provincial authorities and planning approval from eThekwini Municipality (the Municipality). Friends of Beachwood and James Te Reile participated as interested and affected parties in Beachwood Investments’ environmental authorisation process, appealed unsuccessfully against that authorisation, objected to its municipal planning application and unsuccessfully appealed against the planning approvals.

Application: The applicants sought judicial review and setting aside of the Province’s environmental authorisation under section 24 of the National Environmental Management Act 107 of 1998 (NEMA), the MEC’s dismissal of their appeal, subsequent amendments to the authorisation, and several municipal planning decisions permitting development of the northern portion of the property. Alternatively, they contended that the provincial decisions were inchoate and invalid. They also challenged the removal of restrictive title conditions, subdivision, rezoning, servitude changes and the creation of “Special Zone: Beachwood Coastal Estate”, and sought declaratory and interdictory relief concerning the Municipality’s “Catalytic Projects Procedure”. The Province and Municipality opposed the review, while Beachwood Investments participated as an interested party.

Discussion: The provincial appeal decisions constituted internal remedies for purposes of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), requiring review proceedings to be instituted without unreasonable delay and within 180 days. The applicants’ delay was about two and a half years concerning the principal provincial decisions and about one year and nine months concerning the amendments. Their contention that the environmental authorisation was inchoate was inconsistent with the express decision that Beachwood Investments could “forthwith” commence development north of Beachwood Place. Unlike the approvals considered in Minister of Forestry, Fisheries and the Environment and Others v Badenhorst NO and Others, no further suspensive conditions had to be satisfied before development could commence. Concerning the municipal decisions, the applicants principally attacked removal of restrictive title conditions, alleging that those conditions created municipal assets which could not be disposed of without compliance with the Municipal Finance Management Act. They also alleged inadequate consideration of sewerage, stormwater and road infrastructure and unlawfulness in the catalytic projects process.

Findings: The provincial environmental decisions were final administrative decisions capable of immediate implementation and susceptible to review under PAJA. The applicants gave no reasonable and acceptable explanation for failing to institute review proceedings within 180 days, and the substantial delay, poor prospects of success and prejudice to Beachwood Investments meant that an extension was not in the interests of justice. As to municipal approvals, restrictive conditions benefiting other properties created servitudal rights held by the owners of those dominant properties; they were not municipal property or capital assets requiring compliance with the Municipal Finance Management Act before removal. Although the open space had environmental value, that did not render the Municipality owner of rights in it. The applicants also failed to identify evidence demonstrating that specialist assessments concerning sewerage, stormwater and roads were inadequate or outdated. Nor was there evidence that classification of Beachwood as a catalytic project affected the administrative adjudication of the development application. Municipal development policy was not unlawful merely because it sought to promote social and economic development; evidence was required that policy, rather than law, had dictated the impugned decisions.

Order: The period for reviewing the Municipal Council’s decision was extended to 9 May 2024, with the Municipality ordered to pay the applicants’ costs relating to that condonation application, subject to specified exclusions. The application to extend time for reviewing the provincial decisions was refused, with the applicants ordered to pay the Provincial Respondents’ costs of that condonation application. The application for declaratory relief and to review and set aside the decisions of the first to fifth respondents was dismissed, with no order as to the costs of the review itself.

Facts: Bergstan South Africa Consulting and Development Engineers (Pty) Ltd (Bergstan) had provided infrastructure services to the City of Cape Town (the City) since 1980. In May 2025 the City invited tenders for four teams of built-environment professionals to provide planning, design, procurement and construction-monitoring services for human settlements. Bergstan submitted a responsive bid and ranked highest among ten responsive bids. Rain Chartered Accountants, appointed to provide assurance concerning the tender, initially identified no reputational risk and considered Bergstan capable of performing the required services. The Bid Evaluation Committee (BEC), however, raised concerns about performance issues recorded under two existing contracts. Concerns regarding one were resolved, leaving Tender 266C, the Ebenezer Safe Space Project. Bergstan had issued a variation order without prior approval from the City’s contract manager, causing the tender cap to be exceeded by approximately R193,000. The BEC considered this conduct to present a material risk, and the Bid Adjudication Committee (BAC) accepted its recommendation not to appoint Bergstan.

Application: Bergstan applied to review and set aside both the procurement decision and the subsequent dismissal of its internal appeal under section 62 of the Local Government: Municipal Systems Act 32 of 2000. It contended that the BEC acted irrationally because it had not obtained information which it had itself considered necessary, particularly from the relevant project manager, and had failed properly to determine whether the poor performance was isolated or systemic. It also challenged the Appeal Authority’s interpretation and application of clause 106.2.3 of the City’s Supply Chain Management Policy (SCM Policy). Bergstan sought, among other relief, substitution directing that the tender be awarded to it.

Discussion: Clause 106.2.3 reserved to the City the right not to award a tender where implementation of the contract may present a risk arising from poor performance issues known to the City. The BEC had before it poor performance notices, Bergstan’s responses and its clarification response. Although it had not obtained the project manager’s further response, the existing material was capable of supporting its conclusion. The amount of the overspend was relevant but not decisive; the BEC’s concern extended to the circumstances in which the variation was issued and the resulting exposure to the City. Section 62 provided for an appeal in the wide sense, involving a rehearing on the grounds advanced. The Appeal Authority was therefore required to determine whether Bergstan should have succeeded upon a proper application of clause 106.2.3.

Findings: The BEC and BAC decisions were not arbitrary, irrational or unreasonable. Bergstan had been afforded an opportunity to address the City’s concerns and procedural unfairness was not established. Systemic poor performance was not a jurisdictional prerequisite under clause 106.2.3; the question was whether identified poor performance presented the contemplated risk. The Appeal Authority, however, materially misconstrued the SCM Policy. He treated known poor performance as automatically precluding an award and accordingly considered it unnecessary to determine Bergstan’s remaining grounds concerning the causes, context and significance of the poor performance. Clause 106.2.3 required an evaluative assessment of whether the identified poor performance gave rise to risk in implementing the tender under consideration. The Appeal Authority’s error determined the enquiry he undertook and caused him to omit matters material to that assessment. His decision was therefore materially influenced by an error of law under section 6(2)(d) of PAJA. That conclusion did not mean that Bergstan’s internal appeal ought to succeed. Substitution was not justified because the merits of the internal appeal remained for the Appeal Authority to determine.

Order: The review of the BEC and BAC decisions was dismissed. The decision dismissing Bergstan’s internal appeal was reviewed and set aside, and the appeal was remitted to the Appeal Authority for reconsideration within 30 days. Pending determination of the remitted appeal, the City was prohibited from concluding or implementing any contract pursuant to the tender with the successful respondents. Each party was ordered to pay its own costs.

Facts: Lebra Development (Pty) Ltd (Lebra) and the other appellants appealed against relief granted by the Gauteng Division of the High Court, Pretoria, in proceedings under section 163 of the Companies Act 71 of 2008. The High Court had ordered, among other things, the appointment of an independent chartered accountant to conduct a forensic audit into Lebra’s financial affairs and determine the fair value of its authorised and issued share capital. Leave to appeal was granted on 3 June 2022 and Lebra timeously filed its notice of appeal on 1 July 2022. It failed, however, to apply to the Registrar within 60 days for a hearing date as required by Rule 49(6)(a), and did not comply with Rule 49(7). The appeal accordingly lapsed on 26 September 2022. Despite a CaseLines request from the Registrar in October 2022 and correspondence from the respondents’ attorneys in February 2023, no steps were taken to obtain an appeal date until June 2023, after the respondents applied for the costs of the lapsed appeal.

Appeal: Lebra applied to the full court for condonation and reinstatement of the lapsed appeal. It attributed the default to its former attorney, Mr Fouche, who allegedly believed that an April 2018 practice directive had superseded the Uniform Rules and required the appeal record, heads of argument and practice note to be filed before an appeal date could be sought. The full court dismissed the condonation and reinstatement application with costs. On special leave, Lebra appealed to the Supreme Court of Appeal, contending that its non-compliance was minor, that it had acted on its attorney’s advice and that its prospects of success and prejudice if reinstatement were refused justified condonation.

Discussion: Condonation is an indulgence and the applicant bears the onus of establishing good cause. Relevant considerations include the degree of lateness, explanation for it, prospects of success, importance of the case and prejudice, with the overarching enquiry being the interests of justice. Where non-compliance is time-related, a detailed, accurate and satisfactory explanation must cover the entire period of delay, enabling the court to understand how the default occurred, why it continued and where responsibility lay. A satisfactory explanation for the initial default does not suffice where later inactivity remains unexplained. Although courts are reluctant to visit an attorney’s mistakes upon an innocent litigant, there comes a point when a litigant cannot escape the consequences of its attorney’s lack of diligence. Attorney error constitutes good cause only when assessed in all the circumstances, including the litigant’s involvement and the steps taken after the default became apparent.

Findings: The explanation did not account satisfactorily for the entire delay. Mr Fouche merely provided a confirmatory affidavit although the explanation depended almost entirely upon his conduct. He did not explain the basis for believing that the practice directive superseded the Rules, why he ignored the Registrar’s CaseLines note and the respondents’ attorneys’ letter, whether he attempted to file heads of argument, or what he communicated to Lebra. The practice directive was, in any event, not inconsistent with Rule 49: Rule 49(15) required heads to be delivered “not later than” 15 days before the appeal, permitting compliance with both the directive and Rule 49(6)(a) within the 60-day period. Lebra’s claimed prejudice from the forensic audit and disclosure of confidential material to professional accountants did not justify overlooking the flagrant disregard of the Rules. Most importantly, refusal of condonation involved the exercise of a true judicial discretion. An appellate court could interfere only upon a material misdirection, application of a wrong principle, disregard of relevant considerations, consideration of irrelevant matters, or an unsustainable conclusion. The full court had properly considered the facts and applicable law and had not materially misdirected itself.

Order: The appeal was dismissed with costs, including the costs of two counsel.

Facts: The applicant and respondent were the father and mother of a minor child and were married but separated and engaged in an acrimonious defended divorce action. On 22 May 2025 the Limpopo Division, Polokwane, granted a pendente lite order under Uniform Rule 43 in terms of which both parties retained full parental rights and responsibilities, while the minor child’s primary care and residency were placed with the respondent and the applicant was afforded specified contact. The order also provided for the appointment of a clinical psychologist to determine the child’s best interests. On 31 July 2026 the child was delivered to the applicant for contact but was not returned on 2 August 2026 as required. The applicant retained the child and transferred him to the paternal grandfather, who had no court-ordered parental rights or responsibilities. The paternal grandfather concealed himself and the child from police seeking to enforce the Rule 43 order.

Application: In an urgent application under Uniform Rule 43(6), the applicant sought variation of the Rule 43 order so that the minor child’s primary care and residency would vest in him and the respondent’s contact would be directed by experts. He also sought termination of the mandate of the appointed clinical psychologist, Ms Nandhi Du Plooy, appointment of another clinical psychologist to conduct a forensic investigation, play therapy for the child and appointment of a curator ad litem. The applicant sought to justify retaining the child by alleging that he had been abused while in the respondent’s care and that the respondent had engaged in intimidation and manipulation, including bribery of police officials and fabrication of criminal charges. The respondent denied the allegations, contended that the applicant had resorted to unlawful self-help and sought the child’s immediate return to her care and custody.

Discussion: Rule 43(6) permits variation where a material change takes place in the circumstances of either party or a child, or where newly discovered facts unavailable at the time of the original application come to light. Mere dissatisfaction with the original order, or reliance upon evidence previously available but not used, does not justify variation. The applicant’s retention of the child after 2 August 2026 was in direct contravention of the operative order and he had not sought urgent judicial relief before implementing his preferred outcome. His allegations of abuse centred on minor scratches and abrasions to the bridge of the child’s nose and a healing mark on his thigh dating from August 2025. The respondent provided an explanation for those injuries. A Family Advocate’s report dated 24 July 2026 recommended that primary residence remain with the respondent. The applicant further alleged bias against Ms Du Plooy, arising principally from her questioning him about the child’s whereabouts and non-return, and relied on a dispute concerning her fees.

Findings: The respondent’s explanation for the minor injuries was eminently reasonable and acceptable. The allegations of abuse, although serious, were without merit and unsupported by credible evidence; they rested on speculative inferences from unproven facts and had not been established through any completed fact-finding process. The applicant had acted unlawfully, created a new factual status quo through self-help and exposed the child to circumstances in which his grandfather was evading the police and the child was hidden beneath blankets. Such conduct was fundamentally inconsistent with the stability, emotional security and protection to which the child was entitled and could not be countenanced. No falsification of evidence, dishonest methodology or improper financial interest on Ms Du Plooy’s part had been identified. Her questioning of the applicant did not establish bias, while the fee dispute before the HPCSA did not justify terminating her mandate. The child’s best interests, which were of paramount importance under the Constitution and Children’s Act 38 of 2005, required his immediate return to a lawful, judicially regulated care arrangement, restoration of the status quo ante and continuation of the independent investigations into his best interests. The application accordingly failed.

Order: The urgent application was dismissed with costs. The parties were directed to comply fully with the Rule 43 order of 22 May 2025 and the applicant was ordered immediately to return the minor child to the respondent’s care and custody. Every person exercising physical control over the child was directed to cooperate, with the Sheriff authorised, if necessary, to obtain assistance from the South African Police Service. Ms Du Plooy was directed to continue and complete her forensic investigation, with both parties required to cooperate fully. The Office of the Family Advocate was directed to investigate and report on the child’s best interests, particularly his primary residence, care and contact. The applicant was ordered to pay the respondent’s costs, including counsel’s charges on Scale C.

Facts: SCAW South Africa (Pty) Ltd (SCAW), a steel manufacturer, underwent corporate restructuring between 2016 and 2018 and issued employees in its corporate divisions letters of appointment on terms no less favourable than those previously applicable. In October 2019 SCAW contemplated closing its wire rod corporate division and commenced consultations under section 189A of the Labour Relations Act 66 of 1995. As an alternative to retrenchment, it proposed that 58 employees be retrenched, that remaining employees accept a phased 13% wage reduction, a temporary wage freeze and specified later increases. The National Union of Metalworkers of South Africa (NUMSA) and its members rejected the proposal. SCAW thereafter retrenched the employees and declined to pay severance, stating that they had unreasonably refused alternative employment. Their letters of appointment contained clause 15 recording SCAW’s practice, precedent and policy of paying severance calculated at two weeks per completed year of service, one month’s notice and specified ex gratia payments.

Appeal: NUMSA and the employees instituted proceedings in the High Court claiming payment of the severance amounts stipulated in clause 15, alleging breach of their contracts of employment. They contended that section 41 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) was irrelevant because their claims were contractual and exceeded the statutory minimum. SCAW relied on section 41(4), which provides that an employee who unreasonably refuses an employer’s offer of alternative employment is not entitled to severance pay in terms of section 41(2). The High Court held that section 41 applied but dismissed the claims on the basis that the entitlement dispute had to be referred under section 41(6). NUMSA and the employees appealed.

Discussion: Section 41(2) imposes both a general obligation to pay severance when employment terminates for operational requirements and a prescribed minimum of at least one week’s remuneration for each completed year of service. Basic conditions imposed by the BCEA are incorporated into contracts of employment except where a more favourable contractual term applies. The question was whether agreed severance exceeding the statutory minimum ceased to be severance “in terms of subsection (2)” and therefore escaped section 41(4). The Court also considered whether the High Court could determine SCAW’s statutory defence and whether the reasonableness of the employees’ refusal could be resolved on the papers.

Findings: The fact that employees contracted for severance exceeding the statutory minimum did not exclude section 41(4). Section 41(2) creates the general obligation to pay severance and fixes only the minimum amount; an agreement to pay more does not remove the payment from the statutory scheme. A contrary interpretation would undermine section 41(4)’s purpose of encouraging alternative employment and discouraging employees from unreasonably rejecting such employment merely to obtain severance. Clause 15 did not itself impose an independent obligation to pay severance upon operational-requirements dismissal; that obligation arose from section 41(2), with clause 15 regulating the amount. SCAW could therefore rely on section 41(4). The High Court had concurrent jurisdiction over the contractual claim and necessarily had jurisdiction to determine the statutory defence. It erred in treating section 41(6) as preventing adjudication. However, whether refusal of alternative employment was reasonable was a fact-based enquiry applying an objective standard. SCAW alleged unreasonableness but pleaded no primary facts supporting that conclusion, while the employees did not advance facts showing their refusal was reasonable. There was accordingly no evidential basis upon which the High Court could determine the section 41(4) issue. Dismissal of the application improperly amounted to a decision in SCAW’s favour; the appropriate result was the equivalent of absolution from the instance.

Order: The appeal succeeded in part. The High Court’s order was set aside and replaced with an order making no order on the application, with the applicants to pay SCAW’s costs jointly and severally. The appellants were ordered to pay the costs of the appeal, including the costs of two counsel.

Facts: MUM shot and killed his wife, TM, at their home in Stonehenge residential estate, Mbombela, on 14 May 2020 in the presence of their three children. He thereafter shot himself three times in the chest. During trial he admitted intentionally causing her death but denied premeditation. His stepson, KM, testified that M and the deceased first spoke outside near the garage. M then returned to the house, went to a guest room, emerged with a firearm, cocked it while walking back and returned towards the garage. Shortly thereafter K heard gunshots. The deceased’s attorney, Tersia Marshall, testified that the deceased had instructed her to institute divorce proceedings, that M knew of the intended divorce and that the deceased had expressed fear for her safety. On the evening of the shooting the deceased telephoned Marshall crying and reported that M had tried to assault her; Marshall then heard her scream followed by two gunshots.

Appeal: M was convicted in the Mpumalanga Division of the High Court of premeditated murder under section 51(1) of the Criminal Law Amendment Act 105 of 1997 and sentenced to life imprisonment. After leave to appeal was refused by the High Court and initially by the Supreme Court of Appeal, the President of the Supreme Court of Appeal referred the refusal for reconsideration under section 17(2)(f) of the Superior Courts Act 10 of 2013. M contended, among other grounds, that the murder was committed on the spur of the moment after he believed the deceased was speaking to a romantic partner, that premeditation had not been proved and that life imprisonment was inappropriate.

Discussion: The enquiry into premeditation did not require proof of prolonged planning. A formed intention to kill may arise within a short period, provided there was sufficient time for deliberate resolve before the killing. M’s version required acceptance that, upon hearing the deceased on the telephone, he spontaneously went to another room, retrieved a firearm, armed and cocked it, walked back through the house and shot her without intervening reflection. That account had to be assessed against K’s evidence, the deceased’s impending divorce, her expressed fear for her safety and Marshall’s evidence concerning the telephone call immediately before the shooting. The Court also considered M’s reliance on emotional disturbance and his status as a first offender in relation to sentence.

Findings: The evidence did not support a spontaneous killing. M left the deceased, went to fetch a firearm from a separate room, cocked it and returned before shooting her. Those intervening acts demonstrated deliberate and formed resolve. The period of reflection need not be lengthy; even a few minutes may suffice for premeditation. The surrounding context reinforced that conclusion: M knew of the intended divorce, the deceased had expressed serious fear for her safety and she was on the telephone with the attorney instructed to obtain the divorce when she was shot. The High Court therefore committed no misdirection in finding premeditated murder. As to sentence, no psychiatric or psychological evidence established diminished responsibility or impaired cognitive functioning. Anger or emotional disturbance arising from the marriage did not, without more, amount to diminished responsibility. M’s status as a first offender was mitigating but did not by itself constitute a substantial and compelling circumstance. The aggravating features included the premeditated killing of his wife in her home and in the presence of their children after she had expressed fear for her life. No basis existed to interfere with life imprisonment.

Order: The reconsideration application was granted. The previous order refusing leave to appeal was set aside and replaced with an order granting leave to appeal to the Supreme Court of Appeal. The appeal against conviction and sentence was dismissed.

Facts: Tshepiso Clifford Seetseng was arrested without a warrant on 7 December 2013 on charges of rape and robbery with aggravating circumstances. He appeared in court on 9 December 2013 and was thereafter remanded in custody until the charges were withdrawn on 12 February 2015, 431 days after his arrest. In March 2016 he instituted action against the Minister of Police (the Minister) and the National Director of Public Prosecutions (NDPP), claiming damages for unlawful arrest and detention and malicious prosecution respectively. His amended particulars of claim expressly attributed the detention from 7 to 9 December 2013 to the Minister and the further detention from 9 December 2013 to 12 February 2015 to the NDPP.

Appeal: The trial court initially dismissed both the unlawful arrest and detention claim and the malicious prosecution claim. On appeal, a full court held that Seetseng’s arrest and subsequent detention were unlawful, but dismissed his appeal against the NDPP on malicious prosecution. The full court did not determine which party was liable for the different periods of detention. When the matter later returned to the High Court for quantum, with the Minister as the only remaining defendant, the Court held the Minister liable only for the period from 7 to 9 December 2013 and awarded Seetseng R60,000. He appealed, contending that the full court’s declaration that his arrest and subsequent detention were unlawful rendered the Minister liable for the entire 431-day period and that the quantum court was not entitled to revisit liability.

Discussion: The principal issue was the period for which the Minister was liable to compensate Seetseng. The unlawfulness of the arrest and detention was no longer disputed. The Court considered the effect of the full court’s general declaration of unlawfulness and the manner in which liability had been pleaded. An unlawful arrest does not, without more, render the arresting authority liable for all subsequent detention. Once an arrested person is brought before court within the period contemplated in section 50(1)(c)(ii) of the Criminal Procedure Act 51 of 1977, liability for detention thereafter requires a separate enquiry. Depending upon the pleaded and proved case, different parties may be liable for different periods. Pleadings define the issues between the parties and determine the case a court is called upon to decide. A litigant remains bound by the case pleaded and cannot plead one case and later seek to establish another.

Findings: Seetseng’s amended particulars of claim were decisive. They expressly alleged that the Minister’s unlawful conduct caused his detention only from 7 to 9 December 2013, while his further detention for 429 days was attributed to the conduct of the NDPP. There was therefore no lis between Seetseng and the Minister concerning the period after his first court appearance. The dismissal of the malicious prosecution claim against the NDPP did not automatically transfer liability for that period to the Minister. Nor could the general terms of the full court’s earlier order enlarge the case Seetseng had chosen to plead. The quantum court was therefore correct to confine the Minister’s liability to the two-day period from arrest until Seetseng’s first court appearance. Seetseng’s counsel conceded that, if liability was so confined, the award of R60,000 was just and reasonable. There was accordingly no basis for interference with either the period of liability or the amount awarded.

Order: The appeal was dismissed with costs.

Facts: Breede Valley Onafhanklik (BVO), a political party represented in the Breede Valley Municipal Council (the Council), challenged the appointment of its councillors to committees established to assist the Executive Mayor. On 1 December 2021 the Council resolved to establish committees under section 80, read with section 79, of the Local Government: Municipal Structures Act 117 of 1998 (the Act), and invited each political party represented on the Council to nominate one councillor by 10 December 2021. BVO declined to nominate councillors. In August 2022 the Council considered a proposal identifying four BVO councillors for specified committees. BVO objected that the 2021 resolution required nominations by political parties and did not authorise the Municipality to nominate on its behalf. On 23 August 2022 the Council nevertheless adopted resolution C100/2022 and appointed the identified BVO councillors to the committees. BVO maintained that its councillors would not participate and instituted review proceedings.

Appeal: BVO appealed against the Western Cape Division of the High Court’s dismissal of its application to review and set aside the Council’s decision. Its challenge reduced to three issues: whether the appointment decision constituted administrative action reviewable under the Promotion of Administrative Justice Act 3 of 2000 rather than executive action reviewable under the principle of legality; whether the Council had acted ultra vires by appointing BVO councillors without party nominations or consent; and whether the decision was irrational. BVO contended that the 2021 resolution prescribed the nomination process and that section 160(8) of the Constitution conferred an entitlement to participate which councillors could elect not to exercise. The municipal respondents contended that sections 79 and 80 vested the appointing authority in the Council and that elected councillors were obliged to perform the duties attached to public office.

Discussion: The appointment of councillors to section 80 committees concerned the Council’s internal organisational structure and constituted executive action reviewable under the principle of legality. The Council’s power derived from section 160(1)(c) of the Constitution, read with sections 79 and 80 of the Act. Section 79(1)(b) expressly empowered a municipal council to appoint committee members from among its members, while section 80 permitted such committees to assist the executive committee or Executive Mayor. The distinction between review under PAJA and legality was of no practical consequence because lack of statutory authority and irrationality were grounds encompassed by both regimes. Section 160(8) required fair representation in municipal proceedings and committees. That entitlement protected minority parties from exclusion and promoted inclusive and deliberative decision-making, but elected councillors also assumed the public duties and obligations attached to office.

Findings: The Council had acted within its statutory powers. Party nomination was not a mandatory jurisdictional prerequisite to the exercise of the Council’s power under sections 79 and 80. The 2021 resolution merely created a procedure for nominations and could not circumscribe, override or fetter a statutory power conferred by national legislation. Once the nomination period expired without nominations from BVO, the Council was not rendered powerless to constitute its committees; otherwise a minority party could paralyse the statutory committee system simply by refusing to participate. The Council was exercising its own statutory power, not acting on behalf of BVO. The contention that participation under section 160(8) was voluntary misconceived the duties of elected public officials. Councillors were elected to undertake the work of the Council on behalf of the citizenry and could not choose which statutory duties to perform while holding public office. The appointment decision was also rational: it sought to ensure that five committees dealing with important municipal directorates were fully constituted, operational and representative, and appointing elected BVO councillors by majority vote was directly connected to that purpose. BVO demonstrated neither a procedural flaw nor any lack of competence by the appointed councillors; their unwillingness to serve did not render the resolution irrational.

Order: The appeal was dismissed with costs, including the costs of two counsel.

Facts: The Western Cape Department of Health (the Department) invited tenders in July 2020 to modernise the Tygerberg Central Laundry over three years by supplying, installing, testing and commissioning new laundry equipment, followed by maintenance and warranty periods. The laundry served Tygerberg Hospital and 37 other health institutions. Tullis Laundry Solutions Africa (Pty) Ltd (Tullis) and Amlazi Equipment Services (Pty) Ltd (Amlazi) tendered. Although both held Level 2 B-BBEE status, Amlazi’s bid was approximately R27 million higher. The Department awarded the tender to Amlazi. Tullis promptly sought reasons and information concerning internal remedies but received no substantive response. It instituted review proceedings. The High Court held that the bid evaluation was procedurally flawed because functionality had been used without compliance with the applicable procurement requirements, declared the award and contract invalid, directed the procurement process to commence afresh without unreasonable delay and suspended invalidity to ensure continuity of the essential laundry service.

Appeal: Despite the invalidity order, the Department continued implementing the Amlazi contract and installing new equipment. Tullis later sought contempt and declaratory relief concerning the proper meaning of the High Court order. Ndita J declared that the order covered the entire scope of works but, because two washing lines had already been installed, directed that fresh procurement proceed only for the third line. Tullis appealed that limitation, while the Member of the Executive Council for Health, Western Cape (MEC) cross-appealed the interpretation of the original suspension order. In separate proceedings, after further evidence established that all three washing lines had been installed, the MEC appealed against the refusal to vary the original just and equitable remedy to reflect the completed contract.

Discussion: The original High Court order had to be interpreted from its language, reasons and background. Its manifest purpose was to preserve an essential service while restoring legality through an expeditious fresh procurement process. The suspension of invalidity was therefore conditional and temporary. It permitted continued performance only pending the fresh procurement process and did not operate independently as authority to complete the unlawful contract. The MEC’s interpretation would render the recommencement order nugatory. In considering the later appeal, however, section 172(1)(b) of the Constitution empowered a court to fashion a just and equitable remedy responsive to changed circumstances. The remedial power was not dependent upon “exceptional circumstances” except in the distinct category of cases involving threatened systemic or constitutional crisis. Ordinarily the enquiry remained flexible and directed by justice and equity, practicality, public interest and the consequences of invalidity.

Findings: Ndita J had not been entitled mero motu to limit fresh procurement to the third washing line; neither party had sought that relief. The MEC’s cross-appeal nevertheless failed because the original suspension order was not a licence to accelerate and complete an unlawful contract. By the time of the later appeal, however, the factual position had fundamentally changed. Amlazi had successfully installed all three washing lines at a total cost of R124 million, and they would not require replacement for approximately 15 to 20 years. A fresh procurement for the same equipment had consequently become practically futile and economically wasteful. Amlazi was not implicated in fraud, corruption or the defective bid evaluation, had performed the contract in good faith and had delivered value to the State. Reversing completed performance would expose the Department and public purse to substantial waste and threaten continuity of the provincial healthcare system. The full court therefore erred by failing to reconsider the practical implementation of the original remedy in light of the completed contract. Justice and equity required preservation of Amlazi’s contractual entitlements notwithstanding the declaration of invalidity. A maintenance-only tender would likewise be futile because Amlazi was the sole local supplier of the installed machinery.

Order: In case 472/2023, Tullis’ appeal succeeded to the extent that the order limiting fresh procurement to the third washing line was deleted; the MEC’s cross-appeal was dismissed, with costs including two counsel. In case 634/2025, the MEC’s appeal succeeded, but she was ordered to pay Tullis’ costs, including two counsel. The full court order was replaced so that the invalidity order did not divest Amlazi of rights to which it would have been entitled under the contract.

Facts: Nala Local Municipality (the Municipality) had previously obtained an order setting aside the enforcement and execution of an arbitration award dated 5 December 2025. In that judgment, the Labour Court provisionally ordered that the Municipality’s costs be paid de bonis propriis by Qhali Attorneys Inc and Advocate Feni, jointly and severally. The urgent application had become necessary because Thulo Majoe’s legal representatives persisted in execution despite the arbitration award having been satisfied. They thereafter opposed the urgent application. The Court afforded the legal representatives seven court days to make submissions as to why the provisional costs order should not be confirmed. They filed submissions contending that a personal costs order would not be in the interests of justice.

* See Nala Municipality v Thulo [2026] ZALCJHB 296.

Application: The issue was whether Qhali Attorneys Inc and Advocate Feni should personally bear the Municipality’s costs of the urgent application. Their explanations addressed two matters criticised in the earlier judgment: persistence with execution and opposition to the urgent application without proper regard to the Income Tax Act or applicable authorities, and the inadequacy of the heads of argument. They submitted that they had not acted on a frolic of their own, that Majoe had conducted his own research and independently decided to pursue the matter, and that they were effectively carrying out his instructions. Advocate Feni further stated that he regarded himself as obliged to accept the brief absent a sound reason to refuse it.

Discussion: Legal practitioners are officers of the court and their role is not that of mere messengers, hirelings or mouthpieces. An attorney must understand the client’s problem, investigate the facts and legal issues, and exercise independent professional judgment. The duty is owed not only to the client but also to the court, opponents and the administration of justice. Practitioners enjoying a right of appearance are obliged to refrain from pursuing hopeless cases and to place the interests of justice and efficient dispute resolution ahead of partisan instructions. Advocate Feni’s second explanation was that, before the writ was issued, he had “surfed the internet”, found articles suggesting that compensation awards did not attract tax or PAYE, and obtained similar views from colleagues. No legislation or authority was identified as having been considered. Legal research required, at minimum, consideration of primary sources including case law, statutes and regulations. The legal representatives accepted the Court’s criticism of the heads of argument, with Advocate Feni apologising and attributing their shortcomings to time constraints.

Findings: The explanations did not mitigate the conduct. The legal representatives should have advised Majoe against execution irrespective of his own research and instructions. Their paramount duty was to exercise independent judgment and ensure that litigation was legally sustainable. Reliance on unverified internet articles and informal opinions, without considering relevant legislation or authorities, was incompatible with the standard expected where legal advice was sought on a novel issue. The shortcomings were not caused merely by urgency or time pressure; the failure to conduct proper research preceded the urgent application itself. Persisting with execution after the award had been satisfied, and opposing the urgent application without knowing or properly investigating the applicable legal position, went beyond a bona fide mistake, incorrect procedure or error of judgment. It constituted a material departure from the responsibilities of legal office. A de bonis propriis order is exceptional, but was justified where the practitioners’ conduct caused unnecessary urgent litigation and reflected negligence of the requisite seriousness. Personal costs also served to ensure that decisions to litigate in the Labour Court were taken with due consideration of the law and applicable authorities.

Order: The Municipality’s costs were ordered to be paid de bonis propriis on the party and party scale by Qhali Attorneys Inc and Advocate Feni, jointly and severally, the one paying, the other to be absolved.

Facts: Madibeng Local Municipality (the Municipality) had been subject to intervention under section 139(5) of the Constitution since 2021 because of a persistent financial crisis. A Financial Recovery Plan (FRP) was developed, and revised Terms of Reference published in June 2026 appointed Katlego Terrell Gabanakgosi as Provincial Executive Representative (PER). They authorised him to assume executive functions necessary to implement the FRP, fiscal and banking functions, and disciplinary functions under section 67(1)(h) and Schedule 2 of the Local Government: Municipal Systems Act 32 of 2000. The PER gave Municipal Manager Quiet Kgatla notice of intended precautionary suspension, considered his representations and suspended him on full pay on 4 September 2026. Kgatla rejected the suspension and stated that he would continue exercising municipal-manager powers. Concerns had also arisen about transactions of R1,9 million and R20 million submitted for payment on his approval without the PER’s required concurrence.

Application: The Municipality and the PER brought an urgent ex parte application and obtained a rule nisi restraining Kgatla from acting as Municipal Manager and Accounting Officer pending finalisation of disciplinary proceedings. The order also barred access to municipal premises and contact with staff, councillors, service providers and bankers without authorisation, required return of municipal property and permitted appointment of an acting Municipal Manager. Kgatla anticipated the return day and opposed confirmation, principally contending that only the Municipal Council could suspend a senior manager under Regulation 6 of the Local Government: Disciplinary Regulations for Senior Managers, 2010 and that the PER lacked that power.

Discussion: Section 139(5) imposes a mandatory provincial intervention where a municipality, because of a financial crisis, is in serious or persistent breach of service-delivery or financial obligations. Under section 139(5)(c), where the Council is not dissolved, the provincial executive may assume responsibility for implementation of the recovery plan to the extent that the municipality cannot or does not implement it. The PER relied not on section 139(5)(c) alone but on the published Terms of Reference. Clause 1.1(a) conferred executive functions necessary for FRP implementation and clause 1.1(d) disciplinary functions. Regulation 6 therefore had to be read together with those specific powers. The Court rejected the contention that the ex parte procedure was vitiated by non-disclosure: the alleged omission concerned a legal argument about Regulation 6, not an undisclosed fact.

Findings: The Terms of Reference authorised the PER to place Kgatla on precautionary suspension. Section 139(5)(c) did not reduce the provincial executive to an advisory role; it permitted assumption of responsibility for executive implementation of the FRP while the Council retained its legislative role. The disciplinary authority in clause 1.1(d), read with clause 1.1(a), extended to Regulation 6 powers where necessary for FRP implementation. The Court preferred the view that a council and an administrator or representative may operate concurrently under section 139(5)(c) where responsibilities are clearly allocated, and distinguished authority concerning wholesale transfer of municipal power. The Terms of Reference had legal effect on publication and remained binding pending any successful review. The applicants established a prima facie right, irreparable-harm risk, absence of an adequate alternative remedy and a favourable balance of convenience. Kgatla’s rejection of the suspension and continued assertion of authority, coupled with concerns over major payments without PER concurrence, created a real risk of conflicting instructions and further financial harm. His prejudice was limited because the suspension was on full pay and subject to regulatory time limits.

Order: The rule nisi granted on 9 September 2026 was confirmed. Kgatla was ordered to pay the application costs, including the costs occasioned by the hearings on 9, 11 and 15 September 2026, including the costs of two counsel on Scale B.

Facts: 92 Harpuisbos LBN CC (Harpuisbos) owned residential property at 92 Harpuisbos Street, Langebaan. Marksmen Arms and Firearm Training CC (Marksmens) and associated occupiers took occupation in August 2025 and paid only the deposit and first month’s rental of R17,500, thereafter paying neither rental nor municipal charges. Harpuisbos cancelled the month-to-month lease in December 2025 and instituted eviction proceedings under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998. Despite two court orders directing delivery of answering affidavits, the respondents filed none. An unopposed eviction order was granted on 8 June 2026. Leave to appeal was refused on 27 August 2026, with findings that the respondents’ conduct was directed at delaying and frustrating eviction. They then petitioned the Supreme Court of Appeal and indicated further intended proceedings.

Application: Harpuisbos applied under section 18(3) of the Superior Courts Act 10 of 2013 for the eviction order to operate and be executed notwithstanding pending or further appellate proceedings. It contended that exceptional circumstances arose from the respondents’ abuse of process, that continued suspension caused irreparable harm, and that the respondents would suffer no irreparable harm if eviction proceeded. The respondents opposed, relying principally on the contention that Harpuisbos bore the onus throughout and had failed to discharge it.

Discussion: Section 18(3), read with section 18(1), requires proof of exceptional circumstances, irreparable harm to the successful party if execution is withheld, and absence of irreparable harm to the opposing party if execution is permitted. Although the onus remains on the applicant, a respondent may bear an evidentiary burden where facts concerning its own prejudice lie peculiarly within its knowledge. Exceptional circumstances are fact-specific and the three requirements are not hermetically sealed enquiries. Prospects of success on appeal remain relevant. The respondents’ history included repeated defaults, failure to explain non-compliance, failure to disclose any defence on affidavit, reliance on appeal procedures for their suspensive effect, and announcements that every available appellate step would be taken.

Findings: Exceptional circumstances were established. The respondents had deliberately used procedural steps to postpone eviction, despite never properly defending the original application and despite the lease, even on their own version, having expired by effluxion of time on 31 July 2026. The petition, proposed rescission application and contemplated further appeal were directed at the same objective of delay. The appeal had no reasonable prospects of success. Harpuisbos was suffering continuing and cumulative harm because it remained deprived of possession, use, letting, sale and control of its property while municipal charges continued to accrue. A damages claim was not an adequate remedy, particularly where the respondents had paid nothing for almost fourteen months and had not answered the allegation that recovery against them would be worthless. Conversely, the respondents placed virtually no facts before the Court establishing irreparable harm. The later assertion that a 17-year-old child lived at the property did not establish indigence, homelessness, lack of alternative accommodation or other circumstances showing irreparable prejudice. The evidentiary burden resting on the respondents was therefore not met. Their continued reliance on the applicant’s onus could not substitute for factual engagement with matters within their own knowledge.

Order: The eviction order of 8 June 2026 was put into operation and declared executable notwithstanding any application for leave to appeal or appeal. The respondents and all persons holding under them were ordered to vacate within 14 days of service, failing which the sheriff was authorised to evict them. They were also directed to return all keys, fixtures and fittings belonging to Harpuisbos. The first to third respondents were ordered to pay the application costs, including wasted postponement costs, on the attorney-and-client scale.