SYSCON Case summaries
Cases:
1) Bhe and Others v Khayelitsha Magistrate and Others 2005
2) Shilubana and Others v Nwamitwa Case CCT 3/07
3) Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)
4) BANK OF LISBON AND SOUTH AFRICA LTD v DE ORNELAS AND ANOTHER 1988 (3) SA 580 (A)
5) Barkhuizen v Napier [2008] JOL 19614 (CC)
6) Mohamed’s Leisure Holdings v Southern Sun 2017 (SCA)
7) Halliwell v Johannesburg Municipal Council 1912
8) Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A)
9) Minister of Police v Ewels 1975 AD
10) Municipality of Cape Town v Bakkerud 2000 (SCA)
11) Minister of Safety & Security v Van Duivenboden 2002
NB
**These are key points taken from Prof. R Evans-Jones and Prof Baase’s PowerPoint presentations and
course reader. SOME parts are directly quoted, others have been simplified by me. I have issued
information from multiple online sources as well. I do not take credit for any knowledge expressed in
this document, only the summary of notes and easy access to key points that I found important.
Bibliography and links at the end**
, Barkhuizen v Napier [2008] JOL 19614 (CC)
issue:
- Constitutional challenge to a time limitation clause in a short-term insurance contract. o
The clause required the claimant to institute court proceedings within 90 days after the
insurance company had rejected the claim.
Facts:
This was an appeal from the SCA concerning the constitutionality of the clause in the
contract of insurance which prescribed a three month time frame within which to the
claimant should issue summons to the insurance company for any ensuing action arising out
of the contract failure which will prevent the claimant from instituting legal action.
Decision
The applicant failed to provide reasons why would the time limitation clause be declared to
be against public policy. There are also no reasons given as to why the applicant failed to
comply with the terms of the contract which he voluntarily entered into. This makes it more
difficult for the court to determine whether public policy is affected by the time clause as
this determination is dependent on the reasons advanced for lack of compliant with the
contract. Further that why did the applicant wait for two years after the insurer has declined
the claim before instituting the action.
The conclusion, performance and object of the contract must be lawful. The point of
departure is that for the contract to be valid, its conclusion, performance and object must
be legal.
Points To Take Away:
- FREEDOM OF CONTRACT & AGREEMENTS MUST BE KEPT
- Court described the pacta sunt servanda (agreements must be kept) as a profoundly moral
principle, on which the coherence of any society relies.
- Ngcobo J: the principle, gives effect to the central constitutional values of freedom, dignity,
self-autonomy or the ability to regulate one’s own affairs (even to one’s detriment), is the
very essence of freedom and a vital part of dignity.
- BUT obviously, the court said that the agreements could not be immoral or contrary to
public policy, as discerned from the values embodied in the Constitution and particularly the
Bill of Rights.
Significance
Barkhuizen remains fundamental in modern South African contract law, however, since it
Cases:
1) Bhe and Others v Khayelitsha Magistrate and Others 2005
2) Shilubana and Others v Nwamitwa Case CCT 3/07
3) Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC)
4) BANK OF LISBON AND SOUTH AFRICA LTD v DE ORNELAS AND ANOTHER 1988 (3) SA 580 (A)
5) Barkhuizen v Napier [2008] JOL 19614 (CC)
6) Mohamed’s Leisure Holdings v Southern Sun 2017 (SCA)
7) Halliwell v Johannesburg Municipal Council 1912
8) Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA 69 (A)
9) Minister of Police v Ewels 1975 AD
10) Municipality of Cape Town v Bakkerud 2000 (SCA)
11) Minister of Safety & Security v Van Duivenboden 2002
NB
**These are key points taken from Prof. R Evans-Jones and Prof Baase’s PowerPoint presentations and
course reader. SOME parts are directly quoted, others have been simplified by me. I have issued
information from multiple online sources as well. I do not take credit for any knowledge expressed in
this document, only the summary of notes and easy access to key points that I found important.
Bibliography and links at the end**
, Barkhuizen v Napier [2008] JOL 19614 (CC)
issue:
- Constitutional challenge to a time limitation clause in a short-term insurance contract. o
The clause required the claimant to institute court proceedings within 90 days after the
insurance company had rejected the claim.
Facts:
This was an appeal from the SCA concerning the constitutionality of the clause in the
contract of insurance which prescribed a three month time frame within which to the
claimant should issue summons to the insurance company for any ensuing action arising out
of the contract failure which will prevent the claimant from instituting legal action.
Decision
The applicant failed to provide reasons why would the time limitation clause be declared to
be against public policy. There are also no reasons given as to why the applicant failed to
comply with the terms of the contract which he voluntarily entered into. This makes it more
difficult for the court to determine whether public policy is affected by the time clause as
this determination is dependent on the reasons advanced for lack of compliant with the
contract. Further that why did the applicant wait for two years after the insurer has declined
the claim before instituting the action.
The conclusion, performance and object of the contract must be lawful. The point of
departure is that for the contract to be valid, its conclusion, performance and object must
be legal.
Points To Take Away:
- FREEDOM OF CONTRACT & AGREEMENTS MUST BE KEPT
- Court described the pacta sunt servanda (agreements must be kept) as a profoundly moral
principle, on which the coherence of any society relies.
- Ngcobo J: the principle, gives effect to the central constitutional values of freedom, dignity,
self-autonomy or the ability to regulate one’s own affairs (even to one’s detriment), is the
very essence of freedom and a vital part of dignity.
- BUT obviously, the court said that the agreements could not be immoral or contrary to
public policy, as discerned from the values embodied in the Constitution and particularly the
Bill of Rights.
Significance
Barkhuizen remains fundamental in modern South African contract law, however, since it
