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Citation
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Judgment date
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| August 2011 |
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A mechanical s50(1) remand without informed prosecutor or judicial inquiry cannot cure an earlier unlawful arrest.
Delict – unlawful arrest and detention; section 50(1) Criminal Procedure Act – limits of Magistrate’s detention order; Reception Court remand; prosecutor and investigative failures; constitutional rights to freedom and prompt judicial inquiry (s12, s35); Isaacs distinguished; quantum for contumelia and unlawful detention.
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12 August 2011 |
| July 2011 |
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Reported
Requester entitled to Schedules of parliamentary travel claims; privacy refusal overturned and public‑interest override applied.
Promotion of Access to Information Act — s11, s25, s34(1), s46, s78(2), s82 — access to records of public bodies — personal information vs official conduct — public‑interest override — requester’s standing where internal appeal succeeded by third parties.
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28 July 2011 |
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Appellant’s personal circumstances were insufficient to constitute substantial and compelling reasons to deviate from prescribed minimums; appeal dismissed.
Criminal law – sentencing – minimum sentences (s 51 Criminal Law Amendment Act 105 of 1997) – substantial and compelling circumstances – first offender and personal/financial mitigation – cumulative effect of sentences – abuse of sentencing discretion.
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14 July 2011 |
| June 2011 |
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A former business owner was interdicted from operating a sushi bar in breach of a restraint of trade clause after selling a restaurant.
Restraint of trade—Sale of business—Restaurant—Whether operation of sushi bar by seller in same area constitutes breach of restraint clause—Definition of 'restaurant'—Goodwill—Waiver of restraint by purchaser—Reasonableness and enforceability of restraint.
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24 June 2011 |
| May 2011 |
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Reported
Mandatory 15‑year firearm minimum upheld; cumulative sentence reduced by ordering concurrency and antedating sentence.
Criminal law – Sentence – Minimum sentences – 15‑year prescribed sentence for possession of an automatic/semi‑automatic firearm – application of 'substantial and compelling' test (Malgas) – cumulative effect of sentences – concurrency to avoid excessive aggregate sentence.
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27 May 2011 |
| April 2011 |
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Defective fax service does not terminate a debt review; magistrate cannot reduce contractual interest rates; rescission granted.
National Credit Act – debt review – referral and service requirements – effect of defective service by fax; rescission of default orders – bona fide defence and good cause; Magistrates’ Court powers under s86(7)(c)(ii) – may extend period and reduce payment amounts accordingly but may not reduce contractual interest rates; interplay between s86(8)/s86(10) termination rights and referral.
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28 April 2011 |
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Court refuses to compel signing of suretyship and bond where only an agreement to agree existed and s6 requirements unmet.
General Law Amendment Act s6 – suretyship requires written document signed by surety; letters to enter into future agreements (pactum de contrahendo) do not constitute enforceable suretyship; absence of consensus on material terms defeats enforcement; court cannot compel post hoc execution or authorise sheriff to sign where statutory formalities are lacking.
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15 April 2011 |
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Summary judgment granted: written suretyships and mortgage bonds valid; defendants failed to show bona fide defence or s26 infringement.
Civil procedure – summary judgment – defendant must disclose bona fide and good defence with sufficient particularity; Suretyship – validity of written deeds covering present and future indebtedness – s 6 General Law Amendment Act and caveat subscriptor; Property execution – interplay with constitutional right of access to adequate housing (s 26) – Jaftha and Saunderson; Mortgaged property may be declared executable absent particularized showing that execution would deprive defendant of adequate housing.
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7 April 2011 |