Director of Public Prosecutions: Gauteng Division, Pretoria v Moabi (959 of 2015) [2017] ZASCA 85 (2 June 2017)

Appeal – application for special leave – dismissal of – reconsideration in terms of 17(2)(f) of Superior Courts Act – such to be considered by ‘court’ constituted in terms of s 13(1), not by two judges of appeal who initially
dismissed it.

Appeal – application for special leave – need for special circumstances – applicant not having reasonable prospects of success – even if he had such, no special circumstances justifying grant of special leave. Prescription – meaning of ‘debt’ – such includes obligation by contracting party to make restitution of money or property following cancellation for repudiation. Prescription – semble – if prescription adjudicated on assumption that plaintiff’s pleaded allegations correct, permissible to decide matter with reference to plaintiff’s primary factual allegations, disregarding alternatives. Prescription – s 13(1)(d) of Prescription Act – relationship between co-shareholders in company not one of ‘partnership’.

Family law – divorce – accrual – asset donation to trust – whether value thereof should be considered as part of donor spouse’s estate for purpose of calculating accrual.

Civil procedure – application for leave to lead further evidence on appeal – condonation – late prosecution of appeal – principles restated.

Criminal procedure – appeal in terms of s 311 of Criminal Procedure Act 51 of 1977 – constitution of trial court in terms of s 93ter(1) of Magistrates’ Courts Act 32 of 1944 –– whether peremptory requirements of s 93ter(1) satisfied – duties of magistrate when accused represented– appeal upheld – conviction and sentence reinstated

Company law – section 163 of the Companies Act 71 of 2008 – whether the applicant established any act or omission having a result that is oppressive or unfairly prejudicial to, or that unfairly disregards her interests

Appeal in terms of s 311(1) of the Criminal Procedure Act 51
of 1977 – s 311(1) provides for an appeal as of right, without leave – the
high court’s findings that s 51(1) of the Criminal Law Amendment Act 105
of 1997 is not applicable, that the regional court did not have jurisdiction to
impose a sentence of life imprisonment, are questions of law – appeal
upheld - sentence imposed by the regional court reinstated.

Magistrates’ Court Act 32 of 1944 – s 58 – default
judgment – Magistrates’ Court Rules – Rules 49(1), (3) and (8) – rescission of
judgment – failure to set out bona fide defence – liability acknowledged –
procedural error in proceedings – rescission refused.

Civil procedure – rescission of default judgment – interlocutory in nature and thus not appealable – application for condonation and special leave to appeal – condonation of the late filing of the record of appeal and reinstatement of appeal – principles re-stated

Sentence – Appeal by the State in terms of s 311(1) of the Criminal
Procedure Act 105 of 1977 – whether the issue raised is a question of law or fact
– whether sentence disproportionate to the crime – sentence imposed by Regional
Court reinstated