The 16-page report

South African case Law Reports

July 2015 (4) South African Law Reports (pp 1 – 328); [2015] 2 All South African Law Reports June no 1 (pp 517 – 656); and no 2 (pp 657 – 744); [2015] 3 All South African Law Reports July no 1 (pp 1 – 130); and no 2 (pp 131 – 254)

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Heinrich Schulze BLC LLB (UP) LLD (Unisa) is a professor of law at Unisa.

This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them: Readers should not rely on a judgment discussed here without checking on that possibility – Editor.

Abbreviations:

CC: Constitutional Court

GJ: Gauteng Local Division, Johannesburg

GP: Gauteng Division, Pretoria

KZD: KwaZulu-Natal Local

Division, Durban

SCA: Supreme Court of Appeal

WCC: Western Cape Division, Cape Town

Administrative law – damages

Administrative action exercised negligently: In Trustees, Simcha Trust v De Jong and Others 2015 (4) SA 229 (SCA); [2015] 3 All SA 161 (SCA) the court was asked to consider under which circumstances an aggrieved party will be entitled to compensation in terms of s 8(1)(c)(ii) of the Promotion of Administrative Justice Act 3 of 2000 (the Act).

The facts were as follows: The appellant, the trust, submitted building plans for a hotel for approval to the City of Cape Town (the city), which was the 18th respondent in the present appeal. After the plans were approved and the trust started with the construction work, the first 17 respondents, who were the immediate neighbours of the site where the construction work took place, successfully interdicted the trust from proceeding with the construction work. It was trite that the building control officer who approved the building plans, did not perform his duties properly and that the plans should not have been approved.

In the court a quo the trust’s claim for damages against the neighbours and the city in terms of s 8(1)(c)(ii) of the Act was dismissed.

On appeal, Navsa ADP held that parties who are aggrieved by an administrative action must adhere to the procedure and the remedies provided for in s 8(1) of the Act, before they consider instituting a claim in terms of s 8(1)(c)(ii). It explained that a court will only consider a claim for compensation in terms of s 8(1)(c)(ii) once the alternative remedies (for example, remittal of the matter for reconsideration to the relevant administrative body) have been exhausted.

The court will further only consider a claim for compensation in terms of s 8(1)(c)(ii) in exceptional cases. In this regard the court in Simcha Trust referred with approval to the decision in Gauteng Gambling Board v Silver Development Ltd 2005 (4) SA 67 (SCA) where the court explained the concept of ‘exceptional cases’ as ‘upon a proper consideration of all the relevant facts, a court is persuaded that a decision to exercise a power should not be left to the designated functionary’.

Finally, the court held that the law of delict remains at the disposal of the affected party.

The appeal was accordingly dismissed with costs.

Auctions

Vendor bidding: The decision in Hansa Silver (Pty) Ltd and Others v Obifon (Pty) Ltd t/a The High Street Auction Co 2015 (4) SA 17 (SCA) concerns the validity of sale agreements entered into pursuant to vendor bidding at a public auction.

The third to fifth appellants, the sellers, were the owners of a game lodge. The respondent, High Street, conducted business as an auction house. In 2011 the sellers gave a written mandate to High Street to sell the lodge by public auction or private treaty. In terms of the mandate a reserve price of R 25 million was fixed. In terms of the mandate the sellers appointed High Street or its agent to bid on their behalf at a public auction, up to the reserve price. The mandate was to endure until 1 January 2012.

The lodge was offered for sale at an auction held in November 2011. The auction was conducted on behalf of High Street by one Van Reenen (the auctioneer). High Street’s rules of the auction were contained in a document signed by the auctioneer. The document stated that the rules complied with s 45 of the Consumer Protection Act 68 of 2008 (the CPA) and the regulations promulgated under the Act. The following rules of the auction are of specific significance for purposes of the present discussion: ‘Unless otherwise announced, all lots are sold subject to a reserve price and to a five day acceptance period in favour of the seller ; [and] … unless otherwise announced, [High Street and the auctioneer] are entitled to bid on behalf of the seller up to the reserve price.’

The auction was advertised in The Auctioneer where the above-mentioned rules of the auction were published, including that the auctioneer had the right to bid on behalf of the owner.

Source: www.derebus.org.za
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