Latest / Spartan Caselaw Podcast / 21 August 2026 – Acting Sheriffs

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21 August 2026 – Acting Sheriffs · Spartan Caselaw Podcast

• 0:00
  [SPEAKER_00]: Welcome to the case law podcast this Friday 21 August from the Supreme Court of Appeal It's all about sheriffs and Fidelity fans and the Vickets in the South African board for sheriffs versus Cebocca.
• 0:13
  [SPEAKER_00]: Now Cebocca and funvague.
• 0:15
  [SPEAKER_00]: had served for many years as sheriffs in Praetoria and Pachavstrum, after reaching retirement, however, they were repeated the re-appointed as acting sheriffs.
• 0:25
  [SPEAKER_00]: So in the deputy minister of justice intended to re-appoint him further, a newly constituted South African board for sheriffs, however resolved not to recommend retired sheriffs and declined to indicate whether it would issue fidelity funds to make it.
• 0:40
  [SPEAKER_00]: It eventually issued certificates valid for one month only, not much helpful, is it?
• 0:45
  [SPEAKER_00]: Suboccurred for vague obtained high-court orders, compelling the board to indicate its position and later declaring that they could act without certificates after paying prescribed contributions.
• 0:55
  [SPEAKER_00]: Now the board appealed against the full court judgment which had dismissed its appeals from the order of Ali and Fanzell AJ.
• 1:02
  [SPEAKER_00]: By the time the full court hearings, a blockhead from vacant ceased acting at sheriffs, running a dispute between the parties, the board nevertheless contended that it wanted clarity because conflicting high court judgments concerning the interpretation of the sheriffs act.
• 1:17
  [SPEAKER_00]: Now, although courts ordinary declare academic issues, a mutual appeal may be entertained, where the discrete issue of public importance is likely.
• 1:27
  [SPEAKER_00]: And here, the section of the Act makes the Minister's appointment of an acting share of subject to a written confirmation from the board that it is prepared to issue a Fidelity
• 1:39
  [SPEAKER_00]: So, Ali J had correctly intervened when the board simply refused to communicate, whether it was prepared to issues the targets.
• 1:46
  [SPEAKER_00]: So, the board's failure to make a decision constituted reviewable minister of action, because it prevented the Deputy Minister's intended appointments from coming effective.
• 1:56
  [SPEAKER_00]: So Judge Ali's order did not as zip the board's power to issues двигates.
• 2:00
  [SPEAKER_00]: Re-in-context required the board to perform its statutory function.
• 2:04
  [SPEAKER_00]: Now acting judge Fanzail however, erred in holding that the acting sheriffs could perform their functions without futility funds двигates.
• 2:11
  [SPEAKER_00]: merely because they had paid the prescribed contribution, acting sheriffs, perform the same functions as permanent sheriffs, including managing trust accounts, and the statutory certificate and indemnity requirements protect the public and the board against financial loss.
• 2:26
  [SPEAKER_00]: The definition of sheriffs includes an acting sheriff for the relevant chapters of the act.
• 2:31
  [SPEAKER_00]: So, if our delity funds civic is therefore required before an acting share of may perform, now the appeal was upheld in part and the full court's order said aside, and the appeal against Judge Ali's order dismissed the appeal against acting judge Finsel's order upheld.
• 2:46
  [SPEAKER_00]: Now a great case on Business Rescue here is packed with interesting issues, by Hirschensson acting judge, to force Lundhut in Business Rescue versus Axe's back, so to force Lundhut conducted a diverse agricultural enterprise over many hectares entered Business Rescue.
• 3:05
  [SPEAKER_00]: its practitioner is published a business rescue plan, now Axe's bank deforses larger secured creditor, helps to continue in coverage and mortgaging bonds over six properties, and acclaim accepted at 25 million.
• 3:20
  [SPEAKER_00]: So at the creditors meeting, 53% of voting interests supported the plan and 47% opposed it, so the statutory majority was not achieved.
• 3:30
  [SPEAKER_00]: Now, Axe's bank held 32% and was one of seven independent dissentians.
• 3:35
  [SPEAKER_00]: So, um, Al-Mubri Agree, as her to the claim of what 23 million resating to the bullford-tain properties on approximately 6,400 sheep, they'd receive no voting interest and were admitted from the plan.
• 3:48
  [SPEAKER_00]: So the practitioner's applied and the section 153-7 of the company's act, to set aside accesses bank vote as inappropriate, containing that the plan would then be regarded as adopted.
• 4:00
  [SPEAKER_00]: However, access bank proposed maintaining that its votes reflected legitimate commercial considerations, and then raised non-joined rule the other dissentians, lovely cases for business rescue.
• 4:12
  [SPEAKER_00]: Now, under President's section 153.7 entails a single value judgment, whether it is reasonable and just to set aside a dissenting vote.
• 4:22
  [SPEAKER_00]: So once the relevant negative vote is set aside, adoption follows by operation of law without a revote.
• 4:28
  [SPEAKER_00]: Now that consequence made non-joined a material.
• 4:32
  [SPEAKER_00]: So, unfortunately, the non-joined row of the other dissenting creditors was fatal.
• 4:36
  [SPEAKER_00]: Then, erect and substantial interest would be prejudicially affected by a cause adoption, would bind them, notwithstanding their votes against the plan.
• 4:44
  [SPEAKER_00]: And me a notice to not cure non-joineder.
• 4:47
  [SPEAKER_00]: In any event, the application also failed on the merits.
• 4:50
  [SPEAKER_00]: They're continuing covering bonds, supporting accesses bank's contention, that both facilities were secured, and that version had to be accepted under plus-con events.
• 5:00
  [SPEAKER_00]: Defors also failed to establish that access bank would receive more under the plan.
• 5:04
  [SPEAKER_00]: On accesses bank's version, derived from Defors' own liquidation account, it would be paid in full on liquidation.
• 5:11
  [SPEAKER_00]: Axia's banks decision followed repeated payment defaults and unforephold undertakings, and constituted their irrational commercial assessment not an inappropriate vote.
• 5:21
  [SPEAKER_00]: The plan had, moreover, been rejected by seven independent creditors, while much of its support came from connected creditors.
• 5:29
  [SPEAKER_00]: So that practitioners, therefore, fail to discharge the owners under section 153.7.
• 5:34
  [SPEAKER_00]: So the section 157 application was dismissed.
• 5:39
  [SPEAKER_00]: Now, really important case here.
• 5:41
  [SPEAKER_00]: We know that there's lots of predators are their sexual predators.
• 5:46
  [SPEAKER_00]: And our children are at risk in schools and various other places.
• 5:50
  [SPEAKER_00]: So have a look at this case.
• 5:51
  [SPEAKER_00]: It's a TVF foundation versus the Minister of Woman and Youth by Judge Neati.
• 5:56
  [SPEAKER_00]: So that any bare foundation instituted proceedings concerning the functioning maintenance and utilisation of the National Child Protection Register, established under the Children's Act.
• 6:05
  [SPEAKER_00]: Now, part B records persons found unsuitable to work with children and operates at a statutory mechanism preventing such persons from obtaining access to children through employment or otherwise.
• 6:17
  [SPEAKER_00]: Now the foundation alleged the steemic failures by organs of state, which impede the effectiveness of this register.
• 6:24
  [SPEAKER_00]: Now before the hearing concluded, it settled with a minister of basic education, leaving the principal dispute with a minister and direct to general of social development.
• 6:33
  [SPEAKER_00]: Other foundation sought declarations that failures concerning the maintenance and functioning of the register were unlawful and consistent with the constitution.
• 6:42
  [SPEAKER_00]: Together with structural relief designed to ensure effective statutory compliance.
• 6:47
  [SPEAKER_00]: Now, the section of the children act requires the director general to keep and maintain this register.
• 6:52
  [SPEAKER_00]: That phrase had to be interpreted in its statutory context and a latter-the-ex-dominant purpose of protecting children.
• 6:59
  [SPEAKER_00]: Now, it was argued that this responsibility was essentially custodial and that its obligation was met once properly compliant and information reached it.
• 7:08
  [SPEAKER_00]: Now, the foundation, contended that such an interpretation was too narrow because the statutory mechanism could not function effectively if the custodian remained passive in the faces of systemic failures presenting qualifying findings from reaching the register.
• 7:24
  [SPEAKER_00]: Now, the department's understanding of its obligations was unduly narrow.
• 7:28
  [SPEAKER_00]: It's duty to keep and maintain the register was not exhausted, but passively capturing information received and technically compliant form.
• 7:36
  [SPEAKER_00]: The strategy purpose would be frustrated if the custodian could remain indifferent to systemic defect allowing the flow of qualifying information into the register.
• 7:46
  [SPEAKER_00]: The evidence disclosed long-standing reporting failures across institutions, including a case in which a perpetrator was entered only after prolonged delay and repeated intervention.
• 7:56
  [SPEAKER_00]: Another identified perpetrators were absent to spite qualifying findings, so it places our children at risk.
• 8:02
  [SPEAKER_00]: Now, although the apartment had implemented notable improvements that could not be blamed for every upstream failure, those measures did not erase the historical and systemic deficiencies.
• 8:12
  [SPEAKER_00]: Declareatory relief would clarify that reasonable measures were required to ensure that Part B remained an effective child protection instrument.
• 8:20
  [SPEAKER_00]: Now, given the persistence and breadth of the failures and the dependence of the education sector obligations on a reliable register, a limited structural index was justified without impermeously requiring the court to administer the department.
• 8:35
  [SPEAKER_00]: So that draft order was made of a court, ad or court order, and it's so well worth a read, nice wind there.
• 8:42
  [SPEAKER_00]: Now we have had cases of dwellings, put in long railway lines and that's because there's a huge problem now that we're trying to get our railway networks back on track.
• 8:52
  [SPEAKER_00]: Now this is an eviction matter not with a railway track but with a road that's planned.
• 8:57
  [SPEAKER_00]: Have a look at how tank transport department versus occupiers of the road reserve.
• 9:02
  [SPEAKER_00]: So the Houting Provincial Department of Rhodes owns the road reserve in Mammalodi.
• 9:07
  [SPEAKER_00]: Now it's required by a proclamation, not numerous business structures had been erected on the road reserve, construction works, including a cycle path, with scheduled to commence.
• 9:17
  [SPEAKER_00]: Now the occupiers represented in the proceedings had established businesses on the reserve.
• 9:22
  [SPEAKER_00]: Now interestingly now what happens in this country?
• 9:24
  [SPEAKER_00]: They are established these businesses after former Ward Council Mogadlotsi prepared a to grant permission for temporary occupation, and inspection and local confirmed that all of the instructions are encroached on the road reserve.
• 9:37
  [SPEAKER_00]: Now, Nandisputed that occupation had be understood to be temporary until the reserve was required for construction.
• 9:43
  [SPEAKER_00]: So, the department applied under section 222 of the Kharting Transport Infrastructure Act for orders declaring the businesses' occupiers and lawful and declaring them to advocate.
• 9:54
  [SPEAKER_00]: So that section, authorised the MEC to approach the appropriate court for an order permitting demolition or removal.
• 10:01
  [SPEAKER_00]: Now that apartment established a clear statutory right to clear the road reserve, Morgan Lotzy had no authority to allocate occupational rights over property owned by the province rather than the city of swine emancipality.
• 10:14
  [SPEAKER_00]: his elected office did not make him custodian a provincial land in any lawful temporary occupation required engagement and agreement between the city and the department.
• 10:24
  [SPEAKER_00]: His asserted good faith could not excuse conduct country to the rule of law and his actions were the root cause of the large scale encroachments.
• 10:32
  [SPEAKER_00]: The occupiers, however, had acted under the ostensible authority of their ward council and were not simply lawless invaders.
• 10:39
  [SPEAKER_00]: What a tricky balance for the court.
• 10:41
  [SPEAKER_00]: Now, the occupation was nevertheless temporary, they had received repeated notices to vacate, and their compensation claim was opportunistic.
• 10:48
  [SPEAKER_00]: Because the construction remained some distance from their particular structures, immediate removal was unnecessary, that's unfair.
• 10:55
  [SPEAKER_00]: So the vacation and demolition timetable should therefore be staggered so the department's clear right was protected without requiring removal substantially before construction reached the affected areas.
• 11:06
  [SPEAKER_00]: So there's a nice order tailored here to vacate the reserve by 15th of January 2027 and the department was authorized to demolish business structures and coaching from a certain date and sheriff also authorized to demolish structures.
• 11:22
  [SPEAKER_00]: Now, a nice change of tact here, a family case, about contact, so it's a H versus M. Now, H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H H
• 11:51
  [SPEAKER_00]: but then it authorized unsupervised conduct and later increased it from three to five hours.
• 11:57
  [SPEAKER_00]: Now A8 repeatedly requested investigation by the family advocate or social worker before unsupervised contact wasn't introduced.
• 12:04
  [SPEAKER_00]: I mean this child is very young.
• 12:07
  [SPEAKER_00]: She relied on ML's tender agent breastfeeding and alleged past violence, M's repeated failure to use a child's car seat in appropriate feeding incidents, and further allegations concerning M's conduct and sexual preferences.
• 12:19
  [SPEAKER_00]: Now the latter allegations had not been placed before the magistrate.
• 12:23
  [SPEAKER_00]: Now, approaching the high court, her urgently sought suspension of the portions of the children's court order, preventing unsupervised conduct.
• 12:31
  [SPEAKER_00]: And the child's best interest of course remained paramount while the high court is upper guardian had an independent responsibility to protect the child without lightly substituting its view for that of a specialised children's court.
• 12:44
  [SPEAKER_00]: Now a very tricky case this one and there's no general rule requiring every care or contact dispute to be receded by psychological social work or family advocate evidence.
• 12:54
  [SPEAKER_00]: Now this is a really handy case for child contact and whether expert
• 13:01
  [SPEAKER_00]: Now, whether expert assistance is necessary, is itself a discretionary judicial decision, depending on the allegations, the child's age and developmental stage, the complexity of factual disputes, available reliable evidence, and whether specialized expertise is required.
• 13:17
  [SPEAKER_00]: Now review, concerns the legality of the decision making process, not merely with another court, will be exercised the discretion differently.
• 13:24
  [SPEAKER_00]: So A.H. established a efficient urgency because enforcement through content proceedings could compel implementation of unsupervised contact before her concerns had been professionally investigated.
• 13:35
  [SPEAKER_00]: The review was not necessarily disguised appeal.
• 13:38
  [SPEAKER_00]: It narrates an arguable question whether the magistrate had sufficient information to discharge the constitutional obligation to determine the young child's best interests.
• 13:48
  [SPEAKER_00]: Although not every allegation required expert investigation, the magistrates' persistent refusal to obtain professional assistance concerning a breastfed child of 10 to years, coupled with safety concerns arising from transport without a car seat and in appropriate feeding, established a prima-farky basis for review.
• 14:06
  [SPEAKER_00]: The increase of contact for 5 hours after age had followed the written order rather than the magistrate's earlier oral direction, also appeared punitive and insufficiently direction at the child's best interests.
• 14:18
  [SPEAKER_00]: So the balance of convenience favoured supervised conduct which preserved the parenting child relationship, while guarding against harm that might later prove irreversible, a reasonable apprehension of irreparable harm as therefore established pending proper investigation.
• 14:36
  [SPEAKER_00]: pending part B, the portions of the children's court order, authorizing and supervised conduct with suspended and supervised conduct was restored on the previous terms, and a suitably conduct for forensic or clinical psychology, and the family advocate were directed to investigate and report within 90 days.
• 14:54
  [SPEAKER_00]: Now, there's an enduring problem with criminal appeals and missing or incomplete records.
• 15:00
  [SPEAKER_00]: It's just a starving in this modern day with all of our technology that we've got here that these records just go missing or they can't be reconstructed properly.
• 15:09
  [SPEAKER_00]: The OECJ really needs to get its act together.
• 15:12
  [SPEAKER_00]: Have a look at Zulu versus the state.
• 15:15
  [SPEAKER_00]: It's Plani Zulu, was convicted in the regional court of robbery with aggravating circumstances
• 15:23
  [SPEAKER_00]: Now, when the appeal came before the high court, the record was materially incomplete.
• 15:27
  [SPEAKER_00]: Now, this happens a lot out there.
• 15:30
  [SPEAKER_00]: Someone should get the statistics.
• 15:32
  [SPEAKER_00]: The magistrate subsequently recorded minimal recollection of the matter, the clock confirmed that the recordings contained no sound, and the prosecutor had neither records nor recollection sufficient to assist.
• 15:42
  [SPEAKER_00]: The absence of a reconstructable trial record meant that the appeal could not properly be considered, and the conviction and sentence had to be said aside.
• 15:51
  [SPEAKER_00]: This is horrifying.
• 15:52
  [SPEAKER_00]: Now, section 3 to C, however, did not justify remittal.
• 15:56
  [SPEAKER_00]: Now, this section of the criminal procedure act, but amidst fresh proceedings where a conviction and sentence are set aside on appeal because of a technical irregularity or defect in procedure.
• 16:06
  [SPEAKER_00]: Now, nothing before the court established a technical irregularity or defect in the actual proceedings before the regional court.
• 16:12
  [SPEAKER_00]: So, Zulu's constitutional rights to affair appeal had been compromised through no fault of his own.
• 16:18
  [SPEAKER_00]: He was not the custodian of the record, and not be cowled responsible for its loss.
• 16:22
  [SPEAKER_00]: It would therefore not be in the interest of justice to suspect him, to a trial of fresh trial.
• 16:28
  [SPEAKER_00]: A day-no-vote prosecution could encounter a plea of utter foe, convict.
• 16:32
  [SPEAKER_00]: The appeal was upheld and the conviction and sentence imposed by the regional court was set aside lucky man here.
• 16:40
  [SPEAKER_00]: Now, my Africa hotels versus often more properties, there's a defense that was struck out in the Magicalt for Discovery Non-compliance, in that case here, it's my Africa hotels who list premises from even more properties, which later sued for unpaid rentals, and damages arising from a while Africa's continued occupation.
• 17:00
  [SPEAKER_00]: Now, even more sought discovery of documents, but my Africa did not produce them to even more satisfaction.
• 17:07
  [SPEAKER_00]: Now, the magistrate correctly found that the disputed categories of documents were relevant and that compliance remained incomplete.
• 17:14
  [SPEAKER_00]: The error lay and moving directly from noncompliance to striking out the defence, quite a drastic.
• 17:20
  [SPEAKER_00]: So my Africa had not refused discovery altogether.
• 17:23
  [SPEAKER_00]: Extensive discovery had been made, supplementary discovery followed the consent order, and further documents were produced.
• 17:30
  [SPEAKER_00]: The magistrate gave no meaningful consideration to why the list drastic remedy would not adequately protect Evan Moore.
• 17:37
  [SPEAKER_00]: So, my Africa's rental remission defense was not for averless or manifest the unsustainable, and striking it out would effectively determine the action without a trial.
• 17:46
  [SPEAKER_00]: The threshold for such a sanction continued non-compliance making a fair trial impossible or demonstrating deliberate and persistent disregard of the court's authority was not established in this case.
• 17:58
  [SPEAKER_00]: The orders tracking out my Africa's defense was replaced with an order directing it to comply fully with the discovery required.
• 18:06
  [SPEAKER_00]: And we'll see you Monday for more case law.
• 18:08
  [SPEAKER_00]: Ever really good weekend.