SOUTH AFRICAN LAW REPORTS – NOVEMBER 2021

Community property association

Community property association: when ‘just and equitable’ to place under administration

Under s 13(1) of the Communal Property Associations Act 28 of 1996, a communal property association (CPA) may be placed under administration, inter alia, ‘when it was just and equitable to do so’. The applicant, one Mr Dawson, citing the continued maladministration of the respondent CPA’s affairs by its executive committee, contended that it would be ‘just and equitable’ that the respondent association be placed under administration.

The Northern Cape Division, Kimberley, considers the meaning of ‘just and equitable’; and of ‘maladministration’ as a factor in deciding whether it would be just and equitable to place the association under administration or not. Dawson v Sydney on Vaal CPA and Another 2021 (6) SA 167 (NCK)

Municipal rates

Municipal rates : penalty tariff for illegal or unauthorised use of property

The appellant municipality imposed a higher ‘penalty tariff’ on the respondents, owners of certain immovable property within its area, when they used the property as a ‘student commune’—contrary to the property’s zoning classification as ‘residential property’. In doing so, the Municipality purportedly acted in terms of the rates policy it has adopted and implemented in terms of s 8 of the Local Government: Municipal Property Rates Act 6 of 2004. The policy listed a number of categories of rateable property in respect of a penalty tariff would apply, the list including all properties used for a purpose not permitted by the zoning thereof in terms of any applicable Town Planning Scheme or Land Use Scheme.

The Supreme Court of Appeal considers whether the municipality’s levying of a penalty in respect of the use of any property within its jurisdiction, is ultra vires its powers. City of Johannesburg v Zibi and Another 2021 (6) SA 100 (SCA).

Contract

Contract: enforcement of a pactum de non petendo

The applicant (Capitec) applied for an order enforcing an agreement not to sue (the covenant). This agreement was part of a consent agreement under which the applicant, Capitec, waived various rights that would have prevented an adjacent transaction for the transfer of shares from taking place. Capitec was not a central party to that transaction and its consent was required purely to allow it to proceed.

The covenant stated that the respondents would not rely on the transaction to sue Capitec; and that any dispute arising out of the transaction would be resolved by arbitration. When Capitec refused to grant a waiver to enable a transfer of certain shares, the respondents sued Capitec. In response Capitec raised, as a shield, the covenant, requesting court to order the withdrawal of the respondents’ suit and a referral to arbitration.

The Western Cape High Court, Cape Town, considers whether public policy requires a departure from the pactum sunt servanda principle. Capitec Bank Holdings Ltd v Coral Lagoon Investments 194 (Pty) Ltd and Another 2021 (6) SA 121 (WCC)

Social Welfare

Rape of older person constituting aggravating circumstance

A 59-year-old man raped his 65-year-old neighbour and was sentenced to the prescribed minimum of 10 years’ imprisonment. In rejecting his appeal against the sentence, the court noted that the rape was serious, and that the complainant’s advanced years remained an aggravating circumstance as provided for in s 34 of the Older Persons Act 13 of 2006. The appellant’s details were also to be entered into the Register of Abuse of Older Persons held by the Department of Social Welfare. S v IT 2021 (2) SACR 494 (GP)

Retired Magistrates

Recently retired magistrates to complete part-heard trials

A criminal trial had advanced to the stage where five state witnesses had testified before the magistrate retired. Due to the reluctance of the magistrate to continue with the trial, the matter was submitted for review. The review court held that only special cases rendered the resumption of such trials impossible, and, since there was nothing in the case indicating that the former magistrate was absolutely unavailable, the trial was to continue before same. S v Rakimana 2021 (2) SACR 531 (LP)

Destruction of court records

Destruction of court records leading to setting-aside of conviction and sentence for rape of minors

The record for proceedings of a trial taking place some eight years earlier, in which the appellant had been sentenced to life imprisonment for six counts of rape of underage children, was destroyed on the instruction of the court manager. It was unknown why this was done and there were no prospects of finding or reconstructing the missing records. The court set aside the entire proceedings on appeal. S v Moyeng 2021 (2) SACR 538 (GP)