High Court of South Africa Eastern Cape, Grahamstown - 2015 November

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4 judgments

Citation	Judgment date
November 2015
Rickshaw Trade and Invest 49 (Pty) Ltd and Another v Meyers Rental (Pty) Ltd (CA 42/2013) [2015] ZAECGHC 141 (26 November 2015) Condonation for a late appeal refused and summary judgment upheld where defendants failed to disclose a bona fide defence. Civil procedure – summary judgment – defendant must disclose nature and grounds of defence with sufficient detail to show bona fides; failure warrants summary judgment. Civil procedure – condonation for late appeal – ex tempore judgment date controls timing; applicants must explain delays and show prospects of success. Evidence – settlement negotiations – communications during unsuccessful negotiations privileged and inadmissible. Contract – arrear rental and holding-over claims may be pleaded in hybrid form but facts must establish cause of action.	26 November 2015
S v Booysen (CA&R 39/2015) [2015] ZAECGHC 135 (25 November 2015) Reported A magistrate’s prior hearing of a bail application ordinarily creates a reasonable suspicion of bias and vitiates the trial. Criminal procedure – Bail proceedings – Prior involvement by trial magistrate in bail application – Bail hearings often expose magistrate to prejudicial facts (previous convictions, character, manner of offence) – Apparent bias/ reasonable-suspicion test applies – Failure to recuse renders trial a nullity; s 116 certification must be correctly applied. Retrial permitted under s 324 CPA.	25 November 2015
Kwane Capital (Pty) Ltd v Port St Johns Municipality (CA&R 38/2013) [2015] ZAECGHC 134 (19 November 2015) A duplicate application is barred by lis pendens where the same cause between the same parties has already been heard and judgment reserved. Civil procedure – lis alibi pendens / sub judice – second application identical to earlier pending application – duplicative proceedings barred. Civil procedure – discretion to stay or remove from roll – interest of justice to allow first-hearing judge to finalise reserved judgment. Costs – punitive costs (attorney-and-client) appropriate where applicant institutes duplicative litigation.	19 November 2015
Ebhayi Charter Air CC v Smith and Others (CA 43/2015) [2015] ZAECGHC 132 (10 November 2015) Appeal dismissed: appellant failed to prove altered contractual terms; counterclaim for PAYE recoverable and not prescribed. Contract — oral variation of terms — burden and proof on balance of probabilities; Evidence — without‑prejudice/negotiations privilege — documents generated in settlement inadmissible and jointly waivable; Tax — Fourth Schedule employees’ tax (PAYE) — employer absolutely liable; Statutory recovery — paragraph 5(3) right arises once employer pays SARS; Prescription — debt due and prescription runs when employer has paid and creditor has requisite knowledge.	10 November 2015