South Africa Case Law

North West Provincial Legislature and Another v National Education Health and Allied Workers Union obo 158 Members (JA17/22)

North West Provincial Legislature and Another v National Education Health and Allied Workers Union obo 158 Members (JA17/22) [2023] ZALAC 12; [2023] 8 BLLR 745 (LAC); (2023) 44 ILJ 1919 (LAC) (21 June 2023)

Court

Labour Appeal Court

Case number

JA17/22

Judges

Sutherland, Musi, Savage

Section 34 of the BCEA applies to all deductions from remuneration, including those arising from the no work no pay principle. The employer may withhold remuneration for services not rendered during a strike, but once remuneration is paid, any recovery must comply with section 34, requiring agreement or adjudication. The principle of no work no pay does not constitute a law permitting unilateral deductions under section 34(1)(b). There is no conflict between the BCEA and LRA in this context. The doctrine of set-off does not apply where the extent of indebtedness is disputed and not liquidated…

Source excerpt

• Deductions From Remuneration
• No Work No Pay
• Self Help Prohibition
• Set Off
• Section 34 Bcea
• Strike Action

Ferreira Equestrian Centre (Pty) Ltd v Spies and Another (400/2023)

Ferreira Equestrian Centre (Pty) Ltd v Spies and Another (400/2023) [2023] ZAFSHC 91 (24 March 2023)

Court

Free State High Court, Bloemfontein

Case number

400/2023

Judge

Gusha, AJ

The court found that the applicant had de facto possession and use of the polo fields, as evidenced by its daily activities, presence of equipment, and photographic proof. The respondents' delay in acting and their prior acquiescence undermined their claim that the applicant lacked possession. The WhatsApp messages did not establish lack of possession, and no genuine dispute of fact existed to warrant referral to oral evidence. The respondents wrongfully deprived the applicant of possession by erecting the fence. Both respondents were found to be co-spoliators, as the second respondent instru…

Source excerpt

• Mandament Van Spolie
• Possessory Remedy
• Self Help Prohibition
• De Facto Possession

Aristonas (Pty) Ltd v Veltman (11104/2022)

Aristonas (Pty) Ltd v Veltman (11104/2022) [2022] ZAWCHC 232 (23 August 2022)

Court

Western Cape High Court, Cape Town

Case number

11104/2022

Judge

Nziweni

The applicant established a clear right as owner of the fence and part of the property, and the respondent's threat to remove the fence constituted a reasonably apprehended injury. The applicant had no adequate alternative remedy, as negotiations failed and the respondent refused to provide an undertaking not to remove the fence. The court found that the respondent was not entitled to take the law into his own hands and must seek judicial relief for any alleged encroachment. The requirements for a final interdict were satisfied. The court also held that it was entitled to reconsider and amend…

Source excerpt

• Servitude Encroachment
• Interim Interdict
• Final Interdict
• Self Help Prohibition

Ndudane v Premier of the Eastern Cape & Another (20/2020)

Ndudane v Premier of the Eastern Cape & Another (20/2020) [2021] ZAECBHC 39; (2022) 43 ILJ 439 (ECB) (1 June 2021)

Court

Eastern Cape High Court, Bhisho

Case number

20/2020

Judge

Maswazi

The High Court held that Ndudane’s written appointment became a binding employment contract, and blocked the Premier’s unilateral refusal to let her assume duty.

• Public Service Act
• Employment Contracts
• Disciplinary Proceedings
• Self Help Prohibition
• Declaratory Relief
• Strike Out Application

Obena v Minister of Police and Others (1182/2021)

Obena v Minister of Police and Others (1182/2021) [2021] ZAECMHC 11 (13 April 2021)

Court

Eastern Cape High Court, Mthatha

Case number

1182/2021

Judge

S M Mbenenge

The court found that the applicant was in possession of the motor vehicle and speakers at the time of dispossession, and that her possession was of the kind protected by the mandament van spolie. The fourth respondent's Letters of Authority permitted her to take control of the assets but did not authorise forcible seizure or self-help. The involvement of the police did not render the seizure lawful. The conduct of the fourth respondent and the police constituted unlawful and unconstitutional dispossession, breaching the applicant's rights to dignity, privacy, and property. The applicant was e…

Source excerpt

• Mandament Van Spolie
• Unlawful Seizure
• Deceased Estate Possession
• Constitutional Rights To Property
• Self Help Prohibition
• Restoration Of Possession

Nketoana Local Municipality v Eskom Holdings (SOC) Limited (1222/2018)

Nketoana Local Municipality v Eskom Holdings (SOC) Limited (1222/2018) [2021] ZAFSHC 1 (7 January 2021)

Court

Free State High Court, Bloemfontein

Case number

1222/2018

Judge

P.J. Loubser

The court found that while Eskom was entitled to interrupt electricity supply under the relevant agreements and legislation due to the municipality's breach of payment obligations, such action was subject to constitutional and statutory constraints. Eskom's decision to interrupt supply did not meet the requirements of rationality and reasonableness, as it would not ensure payment of arrears and would cause severe hardship to residents. Furthermore, Eskom's conduct amounted to unconstitutional self-help, as it failed to exhaust available intergovernmental dispute resolution mechanisms. The mun…

Source excerpt

• Interim Interdict
• Municipal Indebtedness
• Electricity Supply Agreements
• Self Help Prohibition
• Intergovernmental Dispute Resolution
• Promotion Of Administrative Justice Act

MEC for Human Settlements and Public Works of the Province of KwaZulu-Natal v Ethekwini Municipality and Others (3329/2013, 9189/2013)

MEC for Human Settlements and Public Works of the Province of KwaZulu-Natal v Ethekwini Municipality and Others (3329/2013, 9189/2013) [2015] ZAKZDHC 69; [2015] 4 All SA 190 (KZD) (20 August 2015)

Court

Kwazulu-Natal High Court, Durban

Case number

3329/2013, 9189/2013

Judge

Mokgohloa

The court found that the interim interdict granted by Koen J deprived the third respondents and other affected persons of their constitutional right to be heard before removal from land they had made their homes. The order contravened section 26(3) of the Constitution and the mandatory requirements of PIE, as it authorised evictions and demolitions without judicial consideration of individual circumstances or proper joinder of affected parties. The applicant's proposed amended order did not cure these defects, as it failed to provide guidance on distinguishing invaders from occupiers and perm…

Source excerpt

• Section 26 3 Eviction
• Prevention Of Illegal Eviction Act
• Joinder Of Parties
• Interim Interdict
• Constitutional Right To Housing
• Self Help Prohibition