Last week in commercial law: SCA stats, service on trusts, and much ado about nothing the test for leave to appeal

As promised last week, here are your summarist’s latest SCA stats for January to August this year (see here for the first quarter and second quarter):

• 112 judgments

• Caseload (based on written judgments) is overwhelmingly civil, with only 12 judgments on criminal/criminal-adjacent issues (or about 90% civil).

• 14 judgments on reconsideration—or about 12% of all its judgments so far this year (!).

• 81% unanimous.

• Average time from hearing to judgment: 114 days.

• Most judgments: Makgoka with 10 (7 majority, 1 concurrence, 2 dissents), followed by Matojane with 9 (8 majority, 1 dissent) and Smith with 9 (8 majority, 1 dissent).

• Highest workload: Koen (participated in 24 judgments) ('workload' is probably unfair because not all appeals involve the same amount of work).

• Most dissents: Mocumie and Norman (3).

• Most appealed Division: Gauteng, Pretoria (35 appeals: 20 affirmed, 15 overturned).

• Best performing Division (at least 3 appeals): Western Cape—16 appeals: 13 affirmed (81%), 3 overturned (19%).

• Worst performing Division (at least 3 appeals): North West—6 appeals: 1 affirmed (17%), 5 overturned (83%).

• Not much to infer from appearances, but repeat appearances remain rare (G Naude SC has the most so far with 5).

A trust hires builder. Builder builds a bit, issuing payment certificates as it goes along, which the trust does not pay. Builder cancels the contract in 2014 and issues summons against the trust in 2016. Builder serves the summons only on one of the two trustees. Builder gets default judgment, which the trust later gets rescinded in 2017 because it wasn’t properly served. In 2019, builder serves summons on both trustees. Gauteng Division, Pretoria, majority: service on one of the trustees in 2016 was not enough to interrupt prescription, so the claim is now prescribed; dissent: the return of service shows there was service on the second trustee, and in any event the first trustee should have told the second trustee about the summons.

Particulars of claim cites the plaintiffs as “the trustees for the time being” of the trust without citing each trustee. Defendant: the particulars of claim is excipiable [observant readers will note the use of “is” excipiable not “are” excipiable: your summarist is of the firm view that particulars of claim is a single document so it’s a singular noun]. Western Cape Division: it’s long been the law that you can cite a trust like that without citing the trustees, and your attorneys should have known better so they can’t recover any fees for the exception.

Bakubung Minerals contracts with China Coal Construction to do some building at a mine. China Coal Construction refers a dispute to adjudication. The adjudicator delivers an award in favour of China Coal Construction. China Coal Construction applies to enforce the award. Bakubung Minerals counter-applies for a stay of enforcement of the award pending a review, arguing that China Coal Construction is a shell with no presence in South Africa, and so Bakubung Minerals fears it will not be able to recover what it pays China Coal Construction if the review later succeeds. Gauteng Division, Johannesburg: counter-application dismissed—pay now, argue later.

Gauteng Division, Johannesburg: the test for leave to appeal is now definitely, definitely, definitely stricter [your summarist sides with the persuasive view to the contrary, but a few months ago the SCA held that it is “trite” that the test is now stricter, without engaging with the split in the High Court—though your summarist has yet to come across a case where a judge would have granted leave on the old test but not on the new test].

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