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Citation
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Judgment date
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| November 2013 |
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Reported
Court granted interim relief under s 49 for oppressive member conduct, divesting management and ordering access pending buy‑out valuation.
Close Corporations Act s 49 – oppressive conduct by a member – unfairly prejudicial, unjust or inequitable conduct – interim relief divesting management and compelling access to records and property – postponement to determine fair value for compulsory buy‑out; s 36 considered alternatively.
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7 November 2013 |
| September 2013 |
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Reported
The applicant’s appeal succeeded where the trial court failed to apply prescribed minimum sentences for police fraud.
Criminal law — sentencing — failure to apply prescribed minimum sentence for fraud by a law‑enforcement officer (amounts > R10 000) — misdirection entitling appellate imposition of sentence afresh; substantial and compelling circumstances; Zinn triad; effect of abuse of police trust and harm to innocent persons.
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27 September 2013 |
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Plaintiff awarded damages for unlawful warrantless arrest and detention where police failed to show reasonable suspicion.
Unlawful arrest and detention – warrantless arrest prima facie wrongful – onus on State to prove lawfulness by objective test – s 40(1)(b) CPA (schedule 1 offences) inapplicable where officer lacked reasonable belief – damages for unlawful detention and contumelia.
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19 September 2013 |
| August 2013 |
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Removal from a mayoral committee under s60 is an executive, not administrative, act; audi alteram partem not required.
Local government – Structures Act s60 – mayoral committee appointments and dismissals are executive powers; not administrative action under PAJA; audi alteram partem not automatically required; factual findings on non-performance upheld; executive decisions subject to legality and rationality.
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29 August 2013 |
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A court’s ruling on an application not before it is reviewable and must be set aside and remitted for proper adjudication.
Judicial review – gross irregularity where court decides an application not before it; amendment of particulars versus special pleas; prescription and s 3 notice under Institution of Legal Proceedings against Certain Organs of State Act; duties of State as litigant to act responsibly and in light of constitutional values; remittal for proper adjudication of special pleas.
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23 August 2013 |
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Confirmation of a protection order set aside for gross irregularity and denial of the respondent’s right to give oral evidence.
Domestic Violence Act (s 5(2), s 6(2)) – procedural fairness – right to be heard – gross irregularity – inadmissible reliance on complainant’s demeanour – apparent bias – review and set aside of confirmation of interim protection order – interim order extended pending rehearing before different magistrate – costs to successful reviewer.
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23 August 2013 |
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Reported
Court upheld rape and trafficking convictions after finding the child complainant credible and accuseds’ accounts patently false.
Criminal law – Sexual offences against children – Cautionary rule for single and child witnesses – Holistic evaluation of credibility; corroboration by medical and independent witness evidence; false and contradictory accused testimony as corroborative of guilt. Criminal law – Sexual exploitation and trafficking – distinct elements of offences; where lack of proof conviction must be set aside. Appeal – factual findings and application of cautionary rule not lightly interfered with.
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22 August 2013 |
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Reported
Organ of state unlawfully imported unstated tender criteria; award set aside and applicant substituted as successful bidder.
Procurement law – tender adjudication – importation of extraneous criteria and functionality not stated in tender; joint venture requirements – letters of comfort insufficient; review under PAJA and PPPFA; substitution of successful bidder versus remittal.
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1 August 2013 |
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Reported
Court affirms broad discretion under s7(1) to make divorce settlement agreements orders, rejecting Thutha’s unduly restrictive enforceability rule.
Family law — divorce — consent judgments — section 7(1) Divorce Act — court’s discretionary power to make written settlement on assets or post‑divorce maintenance an order; requirements: free consent, competence of order, not objectionable — Thutha/Mansell approach rejecting wholesale incorporation as unduly restrictive — court may consider wider interests (promotion of settlement, children’s welfare, finality, enforceability) and devise appropriate enforcement measures.
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1 August 2013 |
| June 2013 |
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Failure to perform an invasive cavity search or use a metal detector was not negligent absent reasonable suspicion.
Delict – Negligence – Search of arrested persons; Reasonableness and foreseeability required before invasive cavity/strip-searches; Fundamental rights to privacy, dignity and bodily integrity; Searches incident to arrest; Absence of metal detector not per se negligence.
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18 June 2013 |
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The applicant failed to prove negligence for a retained surgical swab; res ipsa loquitur not applicable and claim dismissed.
* Medical negligence – retained surgical swab – mere presence of swab not conclusive of negligence; res ipsa loquitur inapplicable (Van Wyk v Lewis). * Burden of proof – plaintiff must prove negligence on a balance of probabilities; limited exception where facts are peculiarly within defendant’s knowledge may lighten evidential burden but does not shift onus. * Evidence – need for operative/theatre records or testimony to establish breach of standard of care.
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14 June 2013 |
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An arresting officer executing a magistrate’s warrant has a discretion not to arrest; failure to exercise it rendered this arrest unlawful.
Criminal procedure – arrest under warrant – discretion of arresting officer to refrain from effecting arrest once jurisdictional facts exist; Police Standing Orders and S v Sekhoto authority affirm discretion; failure to exercise discretion renders arrest unlawful; damages for unlawful arrest and detention.
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5 June 2013 |
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Appellate court found the respondent failed to justify a warrantless arrest and awarded damages to the applicant.
Criminal procedure – Arrest without warrant – section 40(1)(b) Criminal Procedure Act – jurisdictional facts for warrantless arrest – discretion of arresting officer – appellate review of trial court factual findings – damages for unlawful arrest.
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5 June 2013 |
| March 2013 |
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Reported
Past intimate relationship with counsel, ended before trial, did not establish reasonable apprehension of bias; review dismissed.
Judicial impartiality — recusal and reasonable apprehension of bias — past intimate relationship between judicial officer and legal representative — requirement that founding papers establish grounds relied upon — Plascon‑Evans approach; constitutional right to fair hearing (s 34).
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14 March 2013 |
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Reported
Conviction overturned where inadmissible hearsay, insufficient proof of offences and unlawful search without rights explanation.
Criminal procedure — Hearsay evidence — admissibility under s3(1) Law of Evidence Amendment Act; criminal proof — insufficiency of evidence to establish fraud or alternative offences; common purpose — requirements of prior agreement or active association and mens rea; constitutional rights — s14 (privacy) and s35(1) (rights of arrested persons) must be explained before searches/detention; unlawfully obtained evidence tainted and cannot sustain conviction.
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11 March 2013 |
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Condonation granted (delay counted from date of knowledge) but rescission refused due to inadequate explanation for State's default.
Civil procedure – default judgment – rescission – condonation under Rule 60(5) and rescission under Rule 49; calculation of delay from date of actual knowledge; requirements for "good cause" and "good reason"; inadmissibility of documents taken from the bar without affidavit proof; State liability – administrative negligence in handling summons; bona fide defence insufficient alone for rescission.
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1 March 2013 |
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Failure to warn under s35 rendered a statement inadmissible, but forensic evidence established guilt beyond reasonable doubt.
* Criminal law – murder – admissibility of evidence – hearsay: out‑of‑court statement by station commander not called to testify inadmissible as hearsay. * Criminal procedure – confessions and admissions – right to remain silent and legal representation (s35 Constitution): State must prove warnings were given before incriminating statements; failure renders statements inadmissible. * Evidence – post‑mortem and expert opinion may suffice to prove cause and exclude self‑infliction hypothesis. * Appeal – exclusion of tainted evidence does not necessarily vitiate conviction where remaining evidence proves guilt beyond reasonable doubt.
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1 March 2013 |
| February 2013 |
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Highly intoxicated, high‑speed red‑light driving causing two deaths justified a four‑year custodial sentence; appeal dismissed.
* Criminal law – Culpable homicide – Motor collision caused by driver running a red robot while highly intoxicated and at excessive speed – Two deaths. * Sentencing – Discretion of trial court – aggravating factors (intoxication, speed, city centre, flight, lack of remorse) outweigh limited mitigation (youth, first offender). * Correctional supervision – s 276(1)(h) – unsuitable where report unsupported and offender denies responsibility. * Appeal – appellate interference with sentence only for material misdirection, irrationality or shockingly disparate outcome; none established. * Argument that prison conditions render imprisonment unconstitutional rejected.
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25 February 2013 |