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Nov 28 2013

City of Cape Town Municipality Vs. South African Local Authorities Pen ...

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: Western Cape High Court, Cape Town (Griesel J sitting as court of first instance): The appeal is dismissed with costs JUDGMENT Mthiyane AP (Bosielo, Wallis, Pillay JJA and Zondi AJA concurring): [1] This is an appeal against a judgment and order of the Western Cape High Court (Griesel J) in which the court a quo dismissed an appeal in terms of s 30P of the Pension Funds Act 24 of 1956 (the Act) against a determination of the Acting Pension Funds Adjudicator (the Adjudicator). The appeal is with the leave of the court a quo. Section 30P of the Act provides that a party who is aggrieved by a determination of the Adjudicator may apply to the division of the high court which has jurisdiction, for relief, and the high court may then consider the merits of the complaint made to the Adjudicator under s 30A(3) and may make any order it deems fit. [2] The appellant (the City) lodged a complaint with the Adjudicator in terms of s 30A of the Act, against the conduct and administration of the first respondent (the fund).[1] The complaint arose from a dispute betweenthe City and the fund, concerning increased employer contributions from the City (at a rate of 20.78 per cent of members salaries) on an on-going, indefinite basis. The fund claimed that it was entitled to exact increased employer contributions from the City. The City contended that it was only obliged to pay the increased contributions for a 5 year period between July 2003 and July 2008, whereafter the ...

Nov 28 2013

Bothma-Batho Transport (EDMS) BPK Vs. S Bothma and Seun Transport (EDM ...

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: Free State High Court (Hancke AJP sitting as court of first instance): The appeal is dismissed with costs. JUDGMENT WALLIS JA (concurring) Introduction [1] The respondent, S Bothma and Seun Transport (Edms) Bpk (Bothma and Seun), was originally a family company established by a father and handed on to his sons, Louis, Pelham and Tertius. Louis died, and in 2005 Pelham and Tertius went their separate ways. Pelham retained Bothma and Seun and Tertius established the appellant, Bothma-Batho Transport (Edms) Bpk (Bothma-Batho). In dividing the original business between them they had to deal with a tank farm situated in Standerton, which Bothma and Seun were hiring from Omnia Kunsmis Bpk (Omnia) under a contract executed in 1999, but pre-dating that date. In 2005 a new lease agreement was concluded with Omnia to which both Bothma and Seun and Bothma-Batho were parties. It provided for Bothma and Seun to have the use of three tanks, numbers 1, 2 and 3, with a total capacity of some 15 000 cubic metres and for Bothma-Batho to have the use of six tanks, numbers 4 to 9, having a total capacity of some 11 800 cubic metres. In return they became obliged to pay rental to Omnia on a monthly basis. [2] Although both Bothma and Seuns and Bothma-Batho were parties to the lease, Omnia only wished to deal with one of them. Accordingly the lease provided that Omnia would invoice Bothma-Batho for the entire rental due under the lease in respect of all nine tanks, and that Bothma ...

Nov 28 2013

Solidarity Obo Mrs R.M. Barnard Vs. South African Police Service and A ...

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: The Labour Appeal Court, Johannesburg sitting as court of appeal (Mlambo JP (Davis and Jappie JJA, concurring). The following order is made: 1. The appeal is upheld with costs including the costs of two counsel. 2. The order of the Labour Appeal Court is set aside and substituted as follows: The appeal is dismissed with costs. JUDGMENT Navsa ADP, (Ponnan, Tshiqi and Theron JJA and Zondi AJA concurring): [1] This appeal, which deals with the application of the Employment Equity Act 55 of 1998 (EEA) and an Employment Equity Plan (EEP) devised in terms thereof, is a peculiarly South African tale. It demonstrates the difficulties we face in forging a future in which everyone ultimately will have a place in the sun. In our journey towards that end we have in juxtaposition those who were previously denied opportunities and those who had them. In redressing the skewed situation created by our racist past, and to recalibrate and achieve a balanced society, there has to be an accommodation and a scrupulous adherence to fairness. It is that exercise that has as a consequence difficult, awkward and even acrimonious moments for those who find themselves in contestation and for society as a whole. Sometimes we get it right and sometimes we get it wrong. We are, of course, dealing with the legacy of an institutionalised racially divisive past, the effect of which continues to haunt us as a nation recently come to democratic values. Put simply, we are experiencing ...

Nov 28 2013

Born Free Investments 364 (PTY) Limited Vs. Firstrand Bank Limited

  • Decided on : 28-Nov-2013

Court : South Africa - Supreme Court of Appeal

On appeal from: South Gauteng High Court, Johannesburg (Wepener J sitting as court of first instance): The appeal is dismissed with costs, such costs to include those consequent upon the employment of two counsel. JUDGMENT PONNAN JA (BOSIELO and PILLAY JJA, VAN DER MERWE and ZONDI AJJA CONCURRING): [1]The appellant, Born Free Investments 364 (Pty) Limited (Born Free), sued, the respondent, Firstrand Bank Limited (FRB), as the cessionary of two claims from the liquidators of two companies in liquidation. The two companies, Summer Season Trading 49 (Proprietary) Limited (Summer Season) and Central Lake Trading 256 (Proprietary) Limited (Central Lake), had borrowed moneys from FRB and at the time of their liquidation owed the latter R49.2 million and R25.1 million, respectively. FRB, whose claims were admitted by the liquidators, is a major creditor in each insolvent estate. Born Free alleges that FRB repudiated the loan agreements that had been concluded by it (FRB) with each of Summer Season and Central Lake and that as a result those companies suffered losses of R109.2 million and R69.1 million, respectively. It is those claims that Born Free, pursuant in each instance to the cession to it from the liquidators of those companies, asserts against FRB. [2] Born Free accordingly instituted action against FRB in the South Gauteng High Court. It alleged in its particulars of claim: '3.1 On 6 June 2009 and at Pretoria, Summer Season Trading 49 (Proprietary) Limited ("Summer Season ...

Nov 27 2013

B.Thirumal Vs. Ananda Sivakumar & Ors

  • Decided on : 27-Nov-2013

Court : Supreme Court of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 10660-10662 OF2013(Arising out of S.L.P. (C) Nos.31761-31763 of 2009) B. Thirumal Appellant Versus Ananda Sivakumar and Ors. Respondents JUDGMENT T.S. THAKUR, J.1. Leave granted.2. These appeals arise out of a judgment and order dated 4th August, 2009 whereby a Division Bench of the High Court of Judicature at Madras has allowed Writ Appeals No.1155, 1156 and 1346 of 2008 setting aside the order passed by the learned Single Judge and dismissed Writ Petitions No.25871 of 2006 and 8925 of 2007 filed by the appellant.3. The appellant was, at the relevant point of time, working as a Junior Engineer (Electrical) in the Tamil Nadu Public Works Department. He was appointed to the said post by direct recruitment through the Tamil Nadu Public Service Commission in the year 1984-85 and was governed by the Special Rules applicable to Tamil Nadu Engineering Subordinate Service (hereinafter referred to as the Subordinate Engineering Service). Aggrieved by the prevalent practice of Assistant Engineers (Electrical) being empanelled for promotion to the post of Assistant Executive Engineer (Electrical) against 25% quota reserved for members of the Subordinate Engineering Service, the appellant filed a representation to the Engineer- in-Chief, Public Works Department, praying for discontinuation of the said practice on the ground that such empanelment and consideration of Assistant Engineers (Electrical) ...

Nov 27 2013

Noida Entrepreneurs Assocn. Vs. N O I D a & Ors

  • Decided on : 27-Nov-2013

Court : Supreme Court of India

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) No.150 OF1997NOIDA Entrepreneurs Association ....Petitioner versus New Okhla Industrial Development Authority and others ....Respondents ORDER G.S. SINGHVI, J.1. The legislature of Uttar Pradesh enacted the U.P. Industrial Area Development Act, 1976 (hereinafter referred to as the 1976 Act) for planned development of industrial and residential areas in the State. For achieving that object, the State Government constituted New Okhla Industrial Development Authority (NOIDA). Thereafter, a new township was established near the capital of the country. Unfortunately, allotment of land and plots in the new township have become subject matter of innumerable controversies and generated huge litigation in the Allahabad and Delhi High Courts and this Court.2. NOIDA Entrepreneurs Association filed the above noted writ petition under Article 32 of the Constitution by way of public interest litigation (PIL) for enforcement of their rights guaranteed under Articles 14, 19 and 21 of the Constitution. It pleaded that the very object of creating NOIDA has been defeated because of major land scandals and prayed that a thorough probe be ordered into the allotment of land and plots and the abuse of power by the functionaries of NOIDA.3. On 7.4.1997, this Court gave liberty to the petitioner to file amended writ petition and to place before the Court facts on the basis of which the writ petition could ...

Nov 27 2013

K.C. Bajaj and Ors Vs. Union of India and Ors

  • Decided on : 27-Nov-2013

Court : Supreme Court of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.10640-46 OF2013(Arising out of SLP(C) Nos. 3358-64 of 2011) K.C. Bajaj and others Appellants versus Union of India and others Respondents WITH CIVIL APPEAL NOS. 10647-48 OF2013(Arising out of SLP(C) Nos. 3367-68 of 2011) CIVIL APPEAL No.10649 OF2013(Arising out of SLP(C) Nos. 6596 of 2011) CIVIL APPEAL No.10650 OF2013(Arising out of SLP(C) No.6597 of 2011) CIVIL APPEAL NOS.10652-56 OF2013(Arising out of SLP(C).36318-22/13 CC Nos. 6086-6090 of 2012) JUDGMENT G.S. SINGHVI, J.1. Leave granted.2. Whether final result of a case filed by a public servant with regard to his service conditions is dependent on the arbitrary choice of the State and/or its agencies/instrumentalities to prosecute the matter before the higher Courts is one of the questions which would require consideration in these appeals filed against order dated 16.10.2010 of the Division Bench of the Delhi High Court whereby the writ petitions filed by the appellants questioning the correctness of order dated September 12, 2008 passed by the Central Administrative Tribunal, Principal Bench (for short, the Tribunal) were dismissed. The other question which calls for determination is whether Non Practising Allowance (NPA) payable to the doctors employed in Central Health Services, the Railways and other Departments of the Government, who retired from service prior to 1.1.1996 is to be added to their basic pay for calculation of ...

Nov 27 2013

Lakha Ram Sharma Vs. Balar Marketing P.Ltd.& Ors.

  • Decided on : 27-Nov-2013

Court : Supreme Court of India

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.10679-10680/2013 [Arising out of Special Leave Petition (Civil) No.28967-28968 of 2012]. Lakha Ram Sharma ...............Appellant vs. Balar Marketing Private Limited & Ors. ...........Respondents JUDGMENT A.K. SIKRI,J.1. Leave Granted.2. Before adverting to the core issue it would be apposite to note down the genesis of the dispute.3. The appellant herein is the proprietor of a concern by the name of Kundan Cables which is engaged in the manufacture of electric accessories and fittings including electrical switches, main switches, fuse units, wires and cables and electrical irons. Since 1980 the petitioner has been using the trademark Kundan/ Kundan Cab and the trade name Kundan Cables India in respect of the said goods. The appellant has also been supplying the said goods under the aforesaid trade marks and names to Respondent No.1.4. Sometime in the year 1994, the appellant came to know that Respondent No.1 was using the Trade Mark 'KUNDAN'. The appellant immediately filed a suit for injunction in the District Court at Delhi which was registered as Suit No.102 of 1994. During the pendency of the said suit, Respondent No.1 obtained registration of the said Trade Mark in its favour. The registration was obtained by Respondent No.1 by virtue of an assignment deed executed by Respondent No.2 in respect of a pending application for registration. This prompted the appellant to file an ...

Nov 27 2013

U.O.I. & Ors. Vs. S.C.Karmakar & Ors.

  • Decided on : 27-Nov-2013

Court : Supreme Court of India

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.6888 OF2008U.O.I. & ORS. Appellant(s) VERSUS S.C.KARMAKAR & ORS. Respondent(s) ORDER Heard Mr. Paras Kuhad, learned Additional Solicitor General in support of this appeal and Mr. Debasis Misra, learned counsel appearing for the respondents.2. This appeal seeks to challenge the judgmnent and order dated 10.10.2007 rendered by a Division Bench of the Delhi High Court in Writ Petition (C) No.7475/2007 whereby the High Court left undisturbed the order dated 1st May, 2007 passed by the Central Administrative Tribunal in O.A. No.377/2006 which was filed by the respondents. The Central Administrative Tribunal has directed the appellants to grant the Office Superintendents in the Central Bureau of Investigation (C.B.I.) the non-functional grade of Rs.8000-13500/- on par with the Section Officers of the Central Secretariat with effect from 3.10.2003 with consequential benefits.3. The submission of the respondents was that for good time earlier, the Section Officers working in the Central Secretariat were invariably posted in the C.B.I. and the work discharged in both these positions is similar. Mr. Paras Kuhad, learned Additional Solicitor General has however pointed out that this was much earlier, and that the parity in the pay-scales between the employees in the Central Secretariat and attached offices like C.B.I. has been only upto the level of Upper Divisional Clerks, and not from the position of ...

Nov 27 2013

Mona Computer Systems (S) Pte Ltd Vs. Singaravelu Murugan

  • Decided on : 27-Nov-2013

Court : Singapore Supreme Court

Chao Hick Tin JA (delivering the grounds of decision of the court): 1 This appeal concerned an assessment of account of profits for breach of fiduciary duty on the part of the Respondent. The Respondent was an officer of Mona Computer Systems (S) Pte Ltd, the Appellant in this appeal The Appellant appealed against the order of the High Court which had excluded from the account of profits the commissions which the Respondent had obtained from his newly-incorporated company, MN Computer Systems (S) Pte Ltd ("MN"), a company whose line of business was in direct competition with that of the Appellant. The High Court order also permitted the Respondent to retain the director's fees which he obtained from MN. After hearing oral submissions we allowed the appeal, and ordered the Respondent to account to the Appellant the full amount of the commissions which he obtained from MN but permitted him to retain the director's fees from MN. Costs, here and below, which we fixed at $20,000 were awarded in favour of the Appellant. We now give our reasons for the substantive decision. Facts Parties to the dispute 2. The Appellant was a company incorporated in Singapore by the Respondent's late brother-in-law, one Chandran Dharani ("Dharani"). Its business was the provision of software engineers on contract to third party clients. Its clients included the Housing Development Board ("HDB") and the Central Provident Fund Board ("CPF"). After Dharani's death, his wife, one Issac Rathi ("Rathi"), ...

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