South Africa Case Law

O.B v L.B.D.S (20540/2018)

O.B v L.B.D.S (20540/2018) [2021] ZAWCHC 43; [2021] 2 All SA 527 (WCC); 2021 (6) SA 215 (WCC) (9 March 2021)

Court

Western Cape High Court, Cape Town

Case number

20540/2018

Judges

Saldanha, Henney, Cloete

The majority held that the appellant established, on a balance of probabilities, that she was domiciled within the Western Cape High Court's jurisdiction at the time the divorce summons was issued. The court interpreted section 1(2) of the Divorce Act to mean that the relevant date for jurisdiction is the date of issue, not service. The appellant's evidence showed she intended to settle in Caledon indefinitely, had made arrangements to live and work there, and only decided to return to Russia after the summons was issued. The court adopted a flexible approach to the domicile requirement, cons…

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• Divorce Jurisdiction
• Domicile Of Choice
• Civil Union Act
• Deeming Provision
• Forum Shopping

Chief of the South African National Defence Force v Masinga and Others (A336/2019, 27234/2019)

Chief of the South African National Defence Force v Masinga and Others (A336/2019, 27234/2019) [2020] ZAGPPHC 238 (19 June 2020)

Court

North Gauteng High Court, Pretoria

Case number

A336/2019, 27234/2019

Judges

Mlambo JP, Francis J, Hughes J

The Full Court held that the termination of the respondents' services was effected by operation of law under section 59(3) of the Defence Act, not by an administrative decision, and therefore was not susceptible to review. The jurisdictional requirements for dismissal under section 59(3) were met, as the respondents were absent without permission for more than 30 days. The court found that the operative date of dismissal was 26 March 2019, when the decision was communicated to the respondents, not 25 February 2019. The requirement for a board of inquiry under section 103(1) was misapplied by…

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• Defence Act Section 59
• Defence Act Section 103
• Deeming Provision
• Military Dismissal
• Review Of Administrative Action

Diageo South Africa (Pty) Ltd v Commissioner for the South African Revenue Service (330/2019)

Diageo South Africa (Pty) Ltd v Commissioner for the South African Revenue Service (330/2019) [2020] ZASCA 34; 82 SATC 351 (3 April 2020)

Court

Supreme Court of Appeal

Case number

330/2019

Judges

Petse, Swain, Mbha, Makgoka, Mbatha

The Supreme Court of Appeal held that section 8(15) of the Value Added Tax Act 89 of 1991 is a deeming provision that applies to a single supply comprising both goods and services, where, if charged separately, different VAT rates would apply. Diageo's supply to non-resident brand owners included both advertising and promotional services and goods (such as branded giveaways and samples) consumed in South Africa. Although invoiced as a single fee, the goods portion was not exported and was consumed locally. The jurisdictional requirements of section 8(15) were satisfied: there was a single sup…

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• Value Added Tax
• Deeming Provision
• Zero Rating
• Standard Rating
• Single Supply
• Interpretation Of Statutes

Minister of Police v Nkabenyane (A174/2019)

Minister of Police v Nkabenyane (A174/2019) [2020] ZAGPPHC 245 (21 February 2020)

Court

North Gauteng High Court, Pretoria

Case number

A336/2019

Judges

Mlambo JP, Francis, Hughes

The Full Court held that the dismissal of the respondents was effected by operation of law under section 59(3) of the Defence Act, not by discretionary decision. The jurisdictional facts for the deeming provision were met when the respondents absented themselves from duty for more than 30 days without permission. The requirement for a board of enquiry under section 103(1) is not a jurisdictional prerequisite for dismissal under section 59(3); its function is limited to verifying continued absence and whereabouts of kit, not the reasons for absence. The operative date of dismissal is when the…

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• Military Dismissal
• Deeming Provision
• Audi Alteram Partem
• Operation Of Law
• Review Of Administrative Action

Taxpayer v Commissioner for the South African Revenue Service (VAT1558)

Taxpayer v Commissioner for the South African Revenue Service (VAT1558) [2018] ZATC 3; 81 SATC 390 (5 December 2018)

Court

Tax Court

Case number

VAT 1558

Judge

K M Savage

The Tax Court held that section 8(15) of the VAT Act applied to promotional goods supplied as part of a single A&P service, confirming the additional VAT assessments.

• Value Added Tax
• Zero Rating
• Deeming Provision
• Supply Of Goods And Services
• Apportionment
• Interpretation Of Vat Act

ABC (Pty) Ltd v Commissioner For The South African Revenue Service (VAT 1558)

ABC (Pty) Ltd v Commissioner For The South African Revenue Service (VAT 1558) [2018] ZATC 7 (5 December 2018)

Court

Tax Court

Case number

VAT 1558

Judge

K M Savage

Tax Court held that promotional goods distributed as part of an advertising service could be separated under VAT s 8(15) and taxed at the standard rate.

• Value Added Tax
• Zero Rating
• Composite Supply
• Deeming Provision
• Supply Of Goods
• Supply Of Services

NUMSA v Assign Services and Others (JA96/15)

NUMSA v Assign Services and Others (JA96/15) [2017] ZALAC 44; (2017) 38 ILJ 1978 (LAC); [2017] 10 BLLR 1008 (LAC) (10 July 2017)

Court

Labour Appeal Court

Case number

JA96/15

Judges

Waglay, Tlaletsi, Phatshoane

The Labour Appeal Court held that section 198A(3)(b) creates a sole-employer relationship: once the threshold is met, the client becomes the employer for LRA purposes.

• Temporary Employment Services
• Deeming Provision
• Sole Vs Dual Employment
• Section 198a Interpretation
• Vulnerable Worker Protection
• Statutory Employment Relationship

Khulong v Minister of Health and Others (59211/2009)

Khulong v Minister of Health and Others (59211/2009) [2013] ZAGPPHC 97 (11 April 2013)

Court

North Gauteng High Court, Pretoria

Case number

59211/2009

Judge

MH Mabena

The High Court held that the applicant’s discharge from the Public Service was unlawful, set it aside, and ordered reinstatement with full back pay.

• Public Service Act
• Deeming Provision
• Jurisdiction
• Unlawful Discharge
• Reinstatement
• Back Pay

Grootboom v National Prosecuting Authority and Another (CA 7/11)

Grootboom v National Prosecuting Authority and Another (CA 7/11) [2012] ZALAC 28; (2013) 34 ILJ 282 (LAC); [2013] 5 BLLR 452 (LAC) (21 September 2012)

Court

Labour Appeal Court

Case number

CA 7/11

Judges

Tlaletsi JA, Davis JA, Hlophe AJA

The Labour Appeal Court held that the appellant's discharge from public service was effected by operation of law under section 17(5)(a)(i) of the Public Service Act, as he was absent from duty for over a calendar month without permission. The evidence showed that the appellant did not have authorisation for paid study leave and attempted to change the conditions of the provisional permission granted. His absence met the jurisdictional requirements for the deeming provision to apply. The court found that no administrative decision was taken by the employer; the discharge was automatic and not…

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• Public Service Act Dismissal
• Precautionary Suspension
• Review Of Administrative Action
• Deeming Provision
• Unfair Dismissal

MEC for Education & Culture v Mabika and Others (D547/2003)

MEC for Education & Culture v Mabika and Others (D547/2003) [2005] ZALC 89; [2006] 1 BLLR 6 (LC); (2005) 26 ILJ 2368 (LC) (28 September 2005)

Court

Labour Court

Case number

D547/2003

Judge

Gush AJ

The court held that the discharge of the first and second respondents occurred by operation of law under section 14(1)(a) of the Employment of Educators Act, as they had been absent without permission for more than 14 consecutive days. The deeming provision automatically terminates employment without requiring a hearing or the exercise of discretion by the employer, unless the employer directs otherwise before the period elapses. The so-called ultimatum letter did not constitute an exercise of discretion or compliance with the proviso. The arbitrator and council lacked jurisdiction to enterta…

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• Unfair Dismissal
• Deeming Provision
• Procedural Fairness
• Employment Of Educators Act
• Jurisdiction Of Arbitrator