Judgments

s 17(2)(f) Superior Courts Act — referral for reconsideration; estate agency — duty to disclose interest and requirement of fidelity fund certificate; misrepresentation; conflict of interest; cession validity under AOS; builder’s lien — absence of disclosure/proof and abuse of juristic personality; representation of juristic persons by lay persons.

Criminal law – sentence – prescribed minimum sentences – substantial and compelling circumstances to deviate; Sentencing – brutality of offence outweighing personal mitigation; Constitutional law – equality challenge to divergent appellate sentencing outcomes; Procedural – desirability that related appeals of co‑accused be heard by same court to avoid inconsistent outcomes.

• Administrative / procurement law – review of emergency procurement contracts – alleged illegality and public-interest investigatory relief • Civil procedure – amendment of pleadings in application proceedings – permissive principle; Evins/Villa Crop/Affordable Medicines authority • Relief sought – debatement of monies, repayment with interest, piercing the corporate veil and monetary orders – requires adequate factual foundation • Costs – amendment disallowed without substantial affidavit would be unfair; applicant ordered to pay costs (scale C, two counsel)

Insolvency — sequestration — extension of provisional sequestration order — test for postponement/extension (prima facie defence and reasonable explanation) — demand guarantee vs suretyship — primary/demand undertaking enforceable despite challenge to underlying debtor’s agreement — waiver of excussion — insurance payments speculative/res inter alios acta — benefit to creditors: reasonable prospect of uncovering concealed assets (nulla bona returns).

* Constitutional and civil procedure – inherent power of Superior Courts (section 173) – courts may regulate their own processes and depart from strict observance of Uniform Rules where interests of justice require; rules exist for courts, not courts for rules. * Procedure – enrollment and postponement of matters on motion roll – Registrar not shown to have exclusive enrollment power under rule 6. * Limits – inherent power confined to procedural matters and subject to prejudice/interests of justice assessment. * Costs – interlocutory costs reserved for determination by the hearing court.

Customs and Excise Act s96(1) – jurisdictional notice requirement; mandament van spolie – requirement of prior peaceful possession; urgency practice – abuse of urgent process; Uniform Rule 7 – authority to represent; costs de bonis propriis and attorney-and-client scale.

* Contract — loan v donation — oral loans during a romantic relationship — role of contemporaneous electronic communications and bank references in proving intention. * Evidence — weight of documentary evidence vis-à-vis witness demeanour; adverse inference from silence where repudiation expected (McWilliams principle). * Civil procedure — absolution from the instance set aside where plaintiffs discharge onus on probabilities.

Local government law – Appointment of municipal manager – Regulation 12(4) applies to senior managers accountable to municipal manager, not municipal managers – Section 54A(7)–(10) LGM: Municipal Systems Act requires MEC notification and allows appointment to be deemed compliant if MEC/Minister do not act – Judicial review – validity of appointment where statutory challenge not pursued by MEC/Minister.

Companies law; corporate authority and bank mandates – whether a sole director had authority to transact; alleged share sale and registration – effect of absent company/CIPC records; fiduciary duties and s75(3) Companies Act – related‑party transactions require shareholder approval; interim restitutionary relief (rule nisi) confirmed; costs limited to party-and-party.

* Legal Practice – Disciplinary procedure – effect of s 40(8) LPA – DC’s ruling and recommended sanction not final or binding on the Legal Practice Council; Council may seek differing court relief. * Professional misconduct – misappropriation of trust funds – fit and proper enquiry – dishonest practitioner generally to be struck from roll absent exceptional circumstances. * Disciplinary proceedings – sui generis; court remains final arbiter whether to suspend or strike off.

Civil procedure — Discovery — Rule 35(12) and court order to produce documents — failure to comply and obstructive late production; Contract and suretyship — Guarantee under COVID‑19 loan scheme — defence of misrepresentation as to State guarantee; Suretyship — Alleged release from suretyship and evidentiary burden to produce documents; Admissibility/weight of affidavits — replying affidavit deposed to by different deponent lacking personal knowledge.

Children’s Act – best interests of the child; Rule 43(6) – competence and material change; phased contact orders; Family Advocate supervision; parenting coordinator; interim variation of access and monitoring.

* Civil procedure – ex parte interlocutory relief – duty of full and frank disclosure – material non-disclosure may vitiate order. * Uniform Rules 6(8) & 6(12)(c) – anticipation and reconsideration/variation of orders granted in absence of a party. * Interim interdict – prima facie right, irreparable harm, balance of convenience, absence of alternative remedy. * Preservation of property pending substantive dispute – suspension of irreversible works and ordering of temporary protective measures. * Costs – costs in the cause where parties achieve partial success in intra-familial/church disputes.

Civil procedure – Rule 35(3) discovery – Whether respondent must discover financial statements, tax returns, insurance claims and CCTV – Court may go behind discovery affidavit where pleadings/documents give reasonable grounds to suppose documents are in possession – Condonation for late affidavit refused – Costs on scale B.

Prescription – Prescription Act s10 and s11 – debt versus cause of action – amendment introducing contractual cause of action did not create new debt where original particulars already raised contract – special plea of prescription dismissed by exception.

Commercial lease — cancellation for non-payment under contractual breach clause; motion proceedings — bare denial insufficient to raise bona fide dispute of fact (Wightman); onus on debtor to prove payment; lawful eviction ordered; contractual attorney-and-client costs upheld.

Lease and ejectment—valid cancellation for persistent rental arrears; urgency—commercial urgency may justify hearing; Fraud and non-disclosure—onus on alleging party, no general duty to disclose pre-contractual facts unless special circumstances; Election on fraud—innocent party must rescind whole contract or affirm it entirely; No partial affirmation permitting unilateral reduction of rent; Costs—attorney and client scale including two counsel awarded for contrived defence.

Procurement law – emergency procurement and Treasury Instruction TN5; Constitution s217 – fairness, transparency and competitiveness; PFMA duties and irregular expenditure; retrospective appointments, backdating and undeclared conflicts of interest; unjustified enrichment and forfeiture of profits; SIU remedial powers under SIU Act.

Criminal law – Murder and attempted murder – credibility and competency of child witness – circumstantial and ballistic evidence – no forced entry – accused’s inconsistent versions – planning/premeditation not proven – convictions under s51(2) of Act 105 of 1997.

Urgent interim relief – condonation of non‑compliance with rules of notice and service – rule nisi – interim interdict directing utility to restore electricity – state directed to ensure compliance.

* Delict — assessment of general damages for non‑disabling gunshot injury; * Quantum — reliance on objective medical evidence and comparable authorities to avoid disproportionate awards; * Default judgment — liability established by lack of defence; * Procedural note — irregular service of process observed but did not alter quantum determination.

Companies Act s69(8)(b)(iv) – director disqualification – suspended prison sentence qualifies as "imprisoned without option of fine"; Companies Act s162(5)(a) – mandatory declaration of delinquent director where person acted while disqualified; statutory interpretation – focus on sentence imposed, not sentence served.

Legal Practice Act s43 – urgent interim suspension – requirements of urgency and proof of misappropriation or other serious misconduct; jurisdiction of High Court; interdicts as preventive remedies not remedies for historical misconduct; costs consequences of unwarranted urgent set-downs.

Eviction (PIE) – declaratory relief where former occupant has vacated; eviction against persons occupying “through or under” a former occupier; service and notice under section 4(2) PIE; audi alteram partem and procedural fairness; just and equitable assessment of eviction (consideration of City report, homelessness risk, alternative accommodation); sheriff authorised to evict; costs against former occupier.

Criminal law — conviction on single witness evidence — cautionary rule — material contradictions — risk of wrongful conviction; Constitutional jurisdiction — whether potential arbitrary deprivation of liberty and breach of fair‑trial rights engages Constitutional Court; Superior Courts Act s17(2)(f) — presidential referral/reconsideration and appealability; Equality and access to courts — disparate outcomes between co‑accused; Remedy — leave to petition High Court (s309C) and consolidation with co‑accused’s appeal.

State Liability Act s3 — execution against State property; whether service required by s3(4) is jurisdictional before issuing writ under s3(6); purpose of s3 to make attachment a last resort; State Attorney duties s3(2) do not relieve judgment creditor of s3(4) obligations; non-joinder of registrar not fatal.

* Company law – Liquidation – Final winding-up order – Where respondent does not dispute indebtedness or insolvency, final winding-up appropriate. * Civil procedure – Condonation – Late notice to oppose – Reliance on commercial negotiations, impecuniosity and health not sufficient to grant condonation. * Service – Compliance with service requirements for rule nisi supports conversion to final order. * Practice – Director appearing in person may be heard but cannot create dispute where none exists in papers.

* State Liability Act s 3 – requirements for satisfaction of monetary judgments against the State; service on executive authority, accounting officer, State Attorney and treasury. * Interpretation – 'may' in s 3(4) is permissive as to election to proceed but mandatory as a precondition if creditor elects to execute. * Execution – writ issued without compliance with s 3(4) unlawful; attachments set aside. * Joinder – non-joinder of registrar not fatal to setting aside writ.

Magistrates’ Courts Act s46 – meaning of “specific performance” – arrear rental claims are monetary (ad pecuniam solvendam) not specific performance; Magistrates’ Courts Act ss28,29,45 – monetary jurisdiction and written consent to magistrate jurisdiction; pre-trial minutes – incorrect legal concessions not binding on court; contractual clause governing mitigation – no duty to mitigate absent lease cancellation.