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Citation
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Judgment date
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| October 2012 |
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Appeal court set aside magistrate’s orders and rescinded default judgment where notice to defend had been filed and procedural irregularities occurred.
Magistrates’ Court – rescission of default judgment – section 36 Magistrate’s Court Act – effect of notice of intention to defend on competence of default judgment; withdrawal of application and withdrawal of attorneys of record – court’s duty to inquire before proceeding in absentia; duty to furnish reasoned judgment; costs allocation on multiple applications and appeal.
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18 October 2012 |
| September 2012 |
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Reported
A medico-legal J88 admitted for factual findings under section 34 did not amount to gross irregularity or an unfair trial.
* Criminal procedure – review under section 24 – grounds: gross irregularity and admission of inadmissible evidence. * Evidence – documentary hearsay – admissibility of medico-legal J88 under section 34(1) Civil Proceedings Evidence Act (s222 Criminal Procedure Act). * Distinction between testimonial hearsay and admissible factual documentary statements. * Fair trial/representation – section 35(3) Constitution – no prejudice established.
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27 September 2012 |
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Amendment allowed where service on defendants’ attorneys constituted service on true debtors, interrupting prescription.
Rule 28 – amendment of pleadings; Prescription Act s15(1) – interruption by service on true debtor; Service on defendant’s attorneys as service on true debtor; Misnomer/amalgamated citation and correction; Prejudice/injustice test for amendments; Estoppel not required where service on true debtor interrupts prescription.
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6 September 2012 |
| July 2012 |
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Reported
Respondents must declare and fill both educator and non-educator school post establishments to protect learners’ right to basic education.
Education law – s100(1)(b) intervention – national executive assumes provincial powers and obligations; Public Service Act and Employment of Educators Act – determination of educator and non-educator post establishments; Schools Act s20 – governing bodies’ role; Norms and Standards – requirement for adequate non-teaching personnel; State duty to respect, protect and fulfil right to basic education; obligation to declare and fill budgeted posts.
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3 July 2012 |
| June 2012 |
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Positive identifications and uncontested DNA chain of custody upheld convictions and life sentences for multiple rapes.
* Criminal law – rape – identification evidence – reliability of dock and on-scene identifications; * Criminal procedure – admissibility of forensic affidavits – section 212(4)(a) Criminal Procedure Act; * Forensic evidence – chain of custody – packing, sealing and laboratory analysis; * Sentencing – life imprisonment – absence of substantial and compelling circumstances; * Evidence law – inadmissibility of a cross-examiner’s assertion against co-accused.
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25 June 2012 |
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Reported
Section 212(4) DNA affidavit is prima facie proof; mere denial insufficient to trigger s212(12); one conviction upheld, one set aside.
Criminal law – Rape – DNA evidence admitted by section 212(4)(a) affidavit as prima facie proof; section 212(12) discretion to call deponent not triggered by mere denial; section 220 admissibility of chain of custody; unsafe conviction based on unclear reasoning set aside.
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25 June 2012 |
| May 2012 |
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Reported
Whether the insurer’s policy-determined retrospective date of disablement governs pensionable salary and lump-sum computation.
Pension fund law; interpretation of fund rules v insurer Group Policy; date of disablement; interaction of temporary and permanent disability provisions; waiting periods (3, 24, 27 months); effect of salary increases during temporary disability.
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23 May 2012 |
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Reported
A sincere belief in witchcraft may mitigate moral blameworthiness and justify departure from prescribed minimum murder sentences.
* Criminal law – Murder – belief in witchcraft as motive – whether belief can be extenuating circumstance in sentencing.
* Sentencing – minimum sentences – when substantial and compelling circumstances justify departure.
* Witchcraft Suppression Act s1(a) – interplay with common law murder sentence and avoidance of double punishment.
* Intoxication and premeditation – evidentiary weight in sentencing for violent familial homicide.
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9 May 2012 |
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Reported
Court has discretion in demolition applications but ordered demolition where unlawful construction showed flagrant disregard and prior orders were binding.
National Building Regulations Act s21 – demolition of unlawfully erected building – court retains judicial discretion exercised by disproportionality-of-prejudice test and legal/public policy; prior binding judicial and administrative decisions; s26(3) constitutional protection against arbitrary demolition considered but not applicable to a substantial non‑indigent residence.
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3 May 2012 |
| April 2012 |
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Reported
Ex parte POCA restraint orders require uberrima fides and evidence of a reasonable possibility of confiscation; unchallenged explanations defeat restraint.
POCA s26(1) – ex parte restraint orders permissible but require uberrima fides; material non‑disclosure may invalidate order. Restraint orders require reasonable possibility of both conviction and confiscation; applicant must show evidence of benefit. Absence of replying affidavit leaves respondent’s explanations uncontradicted. Court should not substitute investigation for adversarial pleadings. Costs of curator bonis may be awarded against the applicant where restraint set aside.
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23 April 2012 |
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Reported
Section 26(7) restoration does not revive debts extinguished by prescription; deregistered entities cannot interrupt prescription by issuing summons.
* Close corporations — deregistration and restoration (s26(7)) — deeming provision restores assets/liabilities but does not revive debts extinguished by prescription. * Prescription — extinctive (strong) prescription extinguishes the debt; extinguished debts cannot be revived by deeming provisions. * Deeming provisions — to be applied only so far as necessary to achieve legislative purpose. * Process issued by deregistered corporation — nullity; cannot interrupt prescription.
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19 April 2012 |
| March 2012 |
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Reported
Sequestration may proceed despite pending criminal proceedings where Insolvency Act safeguards and creditor advantage exist.
Sequestration procedure; effect of pending criminal proceedings on insolvency proceedings; Insolvency Act s65(2) and (2A) — interrogation despite pending criminal charges and protection against self‑incrimination; admission of theft/misappropriation as establishing a liquidated claim; conditional/third‑party tender does not necessarily negate advantage to creditors; advantage to creditors includes investigatory machinery under Insolvency Act.
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12 March 2012 |
| February 2012 |
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Failure to advise on legal-aid rights and charging errors vitiated the trial; conviction and sentence set aside.
Criminal procedure — Right to legal representation — Duty of court to inform and encourage unrepresented accused to seek legal aid (s 73 CPA; s 35(3) Constitution) — Failure may vitiate trial; Charging and conviction — Accused charged with attempted rape may not be convicted of completed rape absent amendment of charge sheet; Sentence — Misleading statements about applicability of section 51 minimum sentences prejudicial; Appeals — Procedural mishandling and delay in processing notice of appeal aggravate miscarriage of justice.
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16 February 2012 |
| January 2012 |
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Reported
Applicant must exhaust the statutory appeal to the MEC under s5(9) SASA before court review of school admission refusal.
Administrative law – schooling admission refusals – section 5(9) South African Schools Act – appeal to MEC is internal remedy to be exhausted before judicial review under PAJA; PAJA s7(2)(a) and (c) – exhaustion of internal remedies and exceptional circumstances; adequacy of reasons for administrative decision; urgency and self-created urgency; costs against attorneys for unnecessary affidavit.
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31 January 2012 |