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Citation
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Judgment date
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| December 2015 |
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Reported
Applicant entitled to interdict after Facebook evidence (admitted despite unlawful access) proved respondent’s breach of s 42 fiduciary duties.
Close corporation members – fiduciary duties (s 42) – prohibition on competing, soliciting clients and using client data; Unlawfully obtained evidence – Facebook communications – discretion to admit in civil proceedings balancing privacy, nature of evidence and availability of lawful alternatives; Urgency – applicant acted expeditiously after acquiring evidence; Final interdict and costs including two counsel.
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3 December 2015 |
| November 2015 |
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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.
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26 November 2015 |
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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.
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25 November 2015 |
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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.
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19 November 2015 |
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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.
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10 November 2015 |
| October 2015 |
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First appellant’s unpleaded unilateral mistake defence rejected; second appellant, as indemnity surety, not liable until creditor exhausts remedies against debtor.
Contract – dissolution agreement – valuation of finance – alleged unilateral mistake not pleaded at trial; inadmissible to advance new primary defence at trial without amendment. Evidence – credibility and resolution of mutually destructive versions – magistrate’s finding upheld where respondent’s evidence was cogent and appellant’s account inconsistent. Suretyship – indemnity surety – surety liable only for shortfall after creditor exhausts remedies against principal debtor; premature action against surety dismissed.
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14 October 2015 |
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Reported
An arrest was lawful where objective information supported reasonable suspicion of unlawful entry and assault; court dismissed damages claim.
Criminal procedure – section 40(1)(b) arrest without warrant – objective test for reasonable suspicion; Police discretion – exercise must be within range of rationality (Sekhoto); Lawfulness of arrest to be assessed on information available to officer at time, not on subsequent trial evidence; No separate jurisdictional requirement to exhaust less invasive measures before arrest; Facts: unlawful entry through closed security gate and activation of taser justified suspicion of housebreaking/assault.
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8 October 2015 |
| August 2015 |
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Magistrate must provide a written judgment or acceptable transcript; arrest unlawful where police failed to form a reasonable suspicion.
Civil procedure – Magistrates’ Court Rules – Rule 51(1) and (3) – obligation on judicial officer to furnish written reasons on request – transcript of oral judgment acceptable if it meets Rule 51(1) requirements – failure to comply suspends appeal period. Police powers – Arrest without warrant – reasonable suspicion requirement – officer must critically assess quality and reliability of information and check it where feasible; seriousness of charge alone insufficient. Assessment of evidence – trial court’s failure to consider concessions in cross-examination may constitute material misdirection vitiating factual findings. Quantum – compensatory award for unlawful arrest and detention.
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26 August 2015 |
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Reported
Deliberate breach of trustee and governing‑body fiduciary duties by secret profit rendered respondent unfit to practise as an attorney.
Fiduciary duty — trustee and governing‑body member — secret appointment as beneficiary, secret profit, conflict of interest and deceit — breach renders practitioner unfit to practise; hearsay evidence — exclusion under s 3(1)(c) Law of Evidence Amendment Act where admission would be prejudicial and not in interests of justice.
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14 August 2015 |
| June 2015 |
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Reported
The right to basic education can require state-funded scholar transport; arbitrary blanket refusals must be reviewed and remitted for fresh decisions.
Constitutional right to basic education – scope includes scholar transport where distance and inability to pay impede access; Administrative law – PAJA applies to scholar transport decisions; Arbitrary administrative action – blanket refusals without verification set aside; Remittal vs substitution – courts should remit where factual inquiries and policy application require administrative competence; Mandamus – court may compel implementation of an existing administrative decision; Separation of powers – courts will not dictate policy content but may order reporting.
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25 June 2015 |
| May 2015 |
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Appellant's age, intoxication and remorse insufficient to establish substantial and compelling circumstances to avoid prescribed life sentence.
Criminal law – Minimum sentences – Section 51(1) and Part 1 of Schedule 2, Criminal Law Amendment Act 105 of 1997 – murder committed in course of rape attracts prescribed life sentence unless substantial and compelling circumstances exist; Malgas principles reiterated. Sentencing – weight of remorse, guilty plea, youth, intoxication and first‑offender status when considering deviation from prescribed sentences. Appellate review – intervention permissible only for material misdirection or improper exercise of discretion.
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28 May 2015 |
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Reported
Multiple penetrations in one encounter may be charged as a single rape; 15-year sentence upheld despite prescribed life option.
Criminal law – Sexual offences – Rape – Multiple penetrations during a single encounter may be charged as one count – Part I Schedule 2 read with s 51(1) prescribes life where victim raped more than once – adequacy of charge and warning ascertained in open court – substantial and compelling circumstances can justify lesser sentence.
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5 May 2015 |
| March 2015 |
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Reported
A s 212(4) certificate can prima facie prove gas chromatograph calibration and blood-alcohol results unless rebutted by evidence.
Criminal procedure – s 212(4) certificates as prima facie proof; calibration and reliability of measuring instruments; s 212(10) applicable only where Minister prescribes requirements; plea explanations are evidential but do not displace prima facie proof without rebuttal evidence.
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26 March 2015 |
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No appellate interference: exceptional circumstances absent and comparative disparity did not justify reducing appellant's sentence.
Criminal law — Appeal against sentence — deference to trial court’s factual findings on merits; further evidence post‑sentence admissible only in exceptional circumstances; comparative sentencing — interference only for a disturbing disparity where participation and personal circumstances are comparable.
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5 March 2015 |
| February 2015 |
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Whether prescribed life sentence under s 51(1) applies where co‑perpetrators in a gang rape are not convicted.
Criminal law – Sentencing – Prescribed minimum sentences (s 51(1) Criminal Law Amendment Act) – Application to gang rape where not all co‑perpetrators are convicted – Effect of S v Mahlase – Reliance on pre‑sentence report versus plea explanation – Exercise of common‑law sentencing jurisdiction – Backdating of sentence.
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3 February 2015 |