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Citation
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Judgment date
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| December 2022 |
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Partial demolition ordered for outbuilding unlawfully encroaching building line, subject to engineer’s safety certificate.
Building law – building line encroachment – National Building Regulations – absence of proven written consent by neighbouring owner – prescription inapplicable to demolition declarations – discretionary and proportionate remedy: partial demolition subject to engineer’s certificate; costs.
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15 December 2022 |
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Execution pending appeal requires exceptional circumstances, irreparable harm to applicant and absence of irreparable harm to respondent.
Superior Courts Act s 18 – suspension pending appeal is norm – execution pending appeal is exceptional; applicant must prove (1) exceptional circumstances, (2) on a balance of probabilities irreparable harm to applicant if not executed, and (3) absence of irreparable harm to respondent if executed; mere assertions insufficient; prospects of success relevant but do not replace statutory twofold test.
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14 December 2022 |
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Applicant failed to establish a prima facie right to interim relief suspending his party suspension; application dismissed with costs.
Disciplinary law – internal party disciplinary cascade – NDCA and NEC jurisdiction; Interdictory relief – Setlogelo test applied to intra-party disciplinary suspension; Interpretation – contextual approach to ANC constitution; Interim relief – prima facie right, irreparable harm, balance of convenience; Costs – ordinary rule with allowance for two counsel in complex urgent litigation.
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14 December 2022 |
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Applicant’s urgent interdict failed: sale agreement was cancelled, urgency self-created and conduct amounted to abuse of process.
Interdict pendente lite — requirements: prima facie right, irreparable harm, absence of ordinary remedy, balance of convenience; Sale agreement cancelled — purchaser cannot claim specific performance where cancellation is undisputed; Urgency — must not be self-created; Abuse of process — repeated meritless litigation justifies punitive costs; Costs — attorney-and-own-client, taxable immediately.
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13 December 2022 |
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Rescission refused: applicants failed to prove delay explanation, service or locus standi defects, or prima facie defence.
Civil procedure — rescission under Rule 42(1) — requirements: reasonable explanation, good faith, bona fide defence with prima facie prospects — service of process and sheriff’s jurisdiction — locus standi of lessee/trust where letters of authority and lease exist — permission to occupy lapses on death.
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13 December 2022 |
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Application for rescission of an order restraining alleged unlawful occupation dismissed due to lack of a bona fide defense.
Civil Procedure – Rescission of Order – Jurisdiction of Sheriff – Locus Standi – Service of Court Process – Rule 42 of Uniform Rules.
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13 December 2022 |
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13 December 2022 |
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Leave to appeal to the SCA granted in a review of an exploration right raising PAJA, consultation and language issues.
Administrative law — judicial review of administrative action — exploration right and seismic survey — meaningful consultation with affected communities — language and notice obligations — undue delay — PAJA ss 3 and 4 interplay — exhaustion of internal remedies — leave to appeal to Supreme Court of Appeal granted due to statutory-interpretation and public-importance considerations.
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13 December 2022 |
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Under amended rule 32, an evasive plea and unsupported oral compromise cannot defeat summary judgment for a secured loan.
* Civil procedure – Summary judgment under amended rule 32 – plaintiff must engage with the plea to show defence not bona fide. * Pleadings – Rule 18(5) – bald denials and evasive pleas impermissible. * Defence – requirement of bona fide and good defence: full disclosure of nature, grounds and material facts. * Contract – compromise/novation requires prior dispute; oral variation invalid where express non-variation clause requires written variation. * Execution – ancillary rule 46A sale in execution application may be deferred pending summary judgment.
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12 December 2022 |
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Acquittal where prosecution failed to prove accused subjectively foresaw complainant’s incapacity to consent.
Sexual offences — incapacity to consent — definition of "person with a mental disability" under Sexual Offences Act; mens rea in rape — subjective foresight and honest belief in consent; inferential reasoning — only the sole reasonable inference may establish subjective foresight; testimonial competence of persons with intellectual disabilities — role of expert evidence and reasonable accommodations.
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12 December 2022 |
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Main seat of Eastern Cape High Court has concurrent jurisdiction; lis pendens failed because causes of action differ.
* Civil procedure — rescission of judgment — distinction between quantification proceedings and rescission proceedings — lis pendens not established where causes of action differ. * Superior Courts Act s6 — main seat (Makhanda) has concurrent jurisdiction over local seats in Eastern Cape. * Jurisdiction — rescission may be heard at main seat despite judgments granted at local seat. * Plea of appeal disguised as rescission — court will examine cause of action to determine genuine rescission.
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6 December 2022 |
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Court upheld a section 65A payment order, finding the appellant's life-insurance premiums may be used to satisfy respondents' judgments.
Magistrates' Court Act s65A — inquiry into financial position of judgment debtor — discretion to make just and equitable payment orders — life insurance premiums not a basic necessity and may be redirected to satisfy judgment debts — enforcement of default judgments by monthly instalments.
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2 December 2022 |
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Leave to appeal granted where reasonable prospects exist that a joint‑venturer may enforce its pro rata contractual rights independently.
* Civil procedure – exception for vagueness and embarrassment – failure to plead basis to enforce rights arising from joint‑venture contract. * Contract/partnership law – joint venture co‑creditor rights – whether a joint‑venturer may claim pro rata share independently. * Leave to appeal – section 17(1)(a)(i) Superior Courts Act – reasonable prospects of success required.
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2 December 2022 |
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Leave to appeal granted against general damages award due to reasonable prospects of a materially higher award on appeal.
Civil procedure – leave to appeal – quantum of damages – trial court’s wide discretion in assessing general damages – appellate interference where reasonable prospects exist of materially higher award.
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1 December 2022 |
| November 2022 |
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Attesting a forged signature in the signatory’s absence constitutes misconduct warranting suspension, though dishonesty must be proved for striking off.
Professional misconduct — attestation of signatures — witness attesting in absentia to forged signature — balance of probabilities establishes misconduct though dishonesty not proved — appropriate sanction: suspended suspension — regulator’s investigatory duties.
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29 November 2022 |
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Police who merely act on prosecutorial instructions do not necessarily 'set the law in motion' nor are they liable absent proof of malice.
Malicious prosecution — requisites: setting the law in motion, absence of reasonable and probable cause, malice, and failure of prosecution; investigating officer acting on prosecutor's instruction does not necessarily ‘set the law in motion’; withdrawal of charges/absence of prima facie case insufficient to establish malice; distinction between unlawful arrest and malicious prosecution and respective onuses.
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29 November 2022 |
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Leave to appeal granted because encroachment/expropriation issues raise compelling constitutional and public-law importance.
Leave to appeal — s 17(1) Superior Courts Act — test requires reasonable prospects of success or compelling reasons — leave granted where matter raises public importance relating to encroachment/expropriation, municipal competence and property rights; costs of leave application to be costs in appeal.
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29 November 2022 |
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A reliable DNA match can alone support conviction if, on the facts, it excludes every reasonable alternative inference.
DNA evidence — expert and circumstantial evidence; admissibility and probative value determined by chain of custody, sample quality, STR match and statistical frequency; no general requirement for corroboration; inferential reasoning under Blom; alibi assessed against totality of evidence.
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29 November 2022 |
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Board unlawfully repudiated a Fidelity Fund claim by relying on a belated time-bar after requesting further proof.
* Sheriffs Act s 35, s 36(2)(a) & (b), s 36(3) — time for lodging Fidelity Fund claims; election to require proof under (b) removes reliance on (a).
* Administrative law — review for irrationality, ulterior purpose and failure to consider relevant considerations (PAJA s 6(2)).
* Requirement to exhaust remedies against sheriff (s 37) — scope and application vis-à-vis Fund claims.
* Conduct of statutory bodies — obligation to act fairly, assist claimants and not rely on inconsequential technicalities.
* Costs — punitive attorney-and-client costs where respondent’s conduct obstructs deserving claimants.
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22 November 2022 |
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Appellants held in civil contempt for refusing to pay reinstated status quo ante fuel price; appeal dismissed.
Civil contempt – standard of proof on a balance of probabilities where committal not sought; Interpretation of orders – orders must be read with the reasons to ascertain intention; Reinstatement of status quo ante in urgent relief includes price where intended by reasons; Procedural non‑compliance and condonation – lapsed appeal and refusal to reinstate; Costs – punitive attorney and client scale with costs of two counsel.
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22 November 2022 |
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Identification and accomplice evidence were unreliable; recent-possession and alibi issues meant convictions could not stand.
* Criminal law – identification evidence – dock and CCTV-based identifications after significant lapse of time require caution and corroboration.
* Criminal procedure – section 204 accomplice discharge – irregular to discharge before conclusion of case; accomplice evidence requires close scrutiny.
* Evidence – doctrine of recent possession – requires proof that property found was the stolen property; absent identification, doctrine inapplicable.
* Criminal law – alibi – State must disprove alibi beyond reasonable doubt; failure to do so undermines conviction.
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15 November 2022 |
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Rescission granted: acceptable explanation for default and a prima facie defence as to game-count justified setting aside default judgment.
Rescission of default judgment; common law "sufficient cause" requires reasonable explanation for default and a bona fide defence with some prospect of success; wilful/default conduct relevant but not determinative; sale of property including game — dispute as to game-count (Annexure A1) can found prima facie defence; statutory permits and fencing compliance not established as prima facie defence.
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8 November 2022 |
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A magistrate’s cumulative courtroom interventions gave rise to a reasonable apprehension of bias, warranting review and retrial.
* Criminal procedure — Recusal and review — Reasonable apprehension of bias — Leading/questioning by presiding magistrate potentially augmenting State case may found objective apprehension of bias under s 22(1)(b) Superior Courts Act; * Review of lower court proceedings — High Court intervention justified where refusal to recuse risks grave injustice; * Delay/condonation — multi‑factor enquiry, merits may outweigh delay; * Relief — setting aside refusal, referral to DPP for re‑arraignment and de novo trial before another magistrate.
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8 November 2022 |
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Leave to appeal refused — no reasonable prospect another court would reach a different conclusion.
Appeal — Leave to appeal — s17(1) Superior Courts Act — test whether another court may reasonably reach a different conclusion; Procedural non-compliance — whether non-compliance excused where no prejudice — Miller v Natmed distinguished; Costs — no order where respondents did not oppose leave application.
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8 November 2022 |
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Interim interdict refused where applicants failed to show a prima facie right, urgency was self‑created, and balance of convenience favoured respondents.
Interim interdict – requirements for interim relief – prima facie right, irreparable harm, alternative remedy, balance of convenience; urgency and self‑created urgency; enforceability of joint venture/co‑operation agreements vis‑à‑vis Marine Living Resources Act and small‑scale fishing policy; departmental discretion to allocate permits.
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2 November 2022 |
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An executrix cannot plead rei vindicatio or seek transfer absent clear allegation of full ownership; particulars were excipiable.
Succession law – executor’s locus standi and administration of estate; Property law – rei vindicatio requires allegation of full dominium; Civil procedure – pleadings must comply with Rule 18(4) and not be vague or embarrassing; Eviction – PIE relief dependent on competent ownership pleading.
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1 November 2022 |
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Service at the applicant's chosen domicilium was effective; she failed to show good cause or a prima facie bona fide defence.
* Civil procedure – rescission – application to rescind judgment dismissing earlier rescission application – requirements under common law for good cause (reasonable explanation and bona fide defence). * Service – domicilium citandi et executandi – service on occupant at chosen domicilium effective under rule 4(1)(a)(iv). * Uniform rule 42(1)(a) – rescission only where order was erroneously sought or granted in absence of affected party; alleged rule 18 non-compliance not ordinarily a basis for rule 42 relief. * Condonation – balance of finality and interests of justice; slender explanation insufficient.
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1 November 2022 |
| October 2022 |
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Accused convicted of armed robbery-related offences and murder of a co-perpetrator under common purpose and dolus eventualis.
* Criminal law – Common purpose and joint liability – armed entry and attempted robbery – imputation of possession of firearm and ammunition to co-perpetrator. * Criminal intent – dolus eventualis established where accused subjectively foresaw potentially fatal resistance during armed attack. * Evidence – credibility and physical evidence (footprints, ballistic, photographs) fatal to accused’s inconsistent version. * Firearms – unlawful possession proven where accused took, hid and attempted to dispose of a semi-automatic pistol with erased serial number.
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28 October 2022 |
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Applicant failed to show proper execution of movables; unreliable nulla bona return precluded ordering execution against respondent’s home.
Execution — Uniform Rules 45 and 46 — requirement to attempt and properly record execution against movables before ordering immovable (primary residence) executable — reliability and impeachment of sheriff's nulla bona return — evidentiary weight of returns of service.
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25 October 2022 |
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Warrantless arrests require an objective reasonable suspicion; some assault findings overturned and damages substantially reduced.
Criminal procedure – warrantless arrest under s 40(1)(b) – reasonable suspicion is an objective, fact-specific test based on information available to arresting officer; no general duty to verify suspects’ exculpatory statements; credibility of arresting officer and quality of informer’s information critical. Delict – actio iniuriarum and unlawful arrest/detention – quantum assessed against duration, nature of infringement, presence of assault and comparable awards. Costs follow result.
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25 October 2022 |
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Contractor lawfully suspended works under FIDIC for non‑payment; applicant’s urgent plea to compel resumption was dismissed.
Contract law; FIDIC DBO contract – clauses 14.8 (payment of interim certificates) and 16.1 (contractor’s entitlement to suspend); validity and sufficiency of contractual notices; interim relief and specific performance pending dispute resolution; urgency and public interest in water supply; effect of subsequent DAB decision on payment certificates.
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25 October 2022 |
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Section 18 execution application struck from the roll for self-created urgency and an unreasonable, prejudicial timetable.
Urgency — section 18 Superior Courts Act — whether section 18 proceedings automatically justify extreme urgency — self-created urgency — unreasonable timetable — striking application from roll — wasted costs — case flow management by Judge President.
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25 October 2022 |
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Court refuses interlocutory intervention, finding fraud and forgery charges sufficiently particular and no gross irregularity.
Criminal procedure – interference in unterminated proceedings – review in medias res – exceptional relief only where gross irregularity or grave injustice threatens; Criminal procedure – particularity of charge – s84(1) CPA and s35(3)(a) Constitution – fraud and forgery charges held sufficiently particular; Forgery – prosecutor may state identity unknown under s84(2) without rendering charge defective; Mandamus to compel particulars not granted where no exceptional prejudice shown.
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21 October 2022 |
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A final fraud conviction renders the respondent unfit to practise; section 40(8) does not bind the Council.
Professional misconduct – conviction for fraud as prima facie proof of unfitness to remain on roll; Legal Practice Act s40(8) – does not make disciplinary committee’s recommended sanction final or preclude Council from seeking different relief; High Court retains ultimate supervisory disciplinary jurisdiction; Procedural points (s40(3)(a)(i), Uniform Rule 7, deponent authority) dismissed.
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20 October 2022 |
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Accused on parole failed to discharge onus for bail due to unlawful firearm possession and risk of Schedule 1 reoffending.
Bail — Schedule 5 — onus on accused (s60(11)(b)) to show interests of justice permit release; s60(4)(a) likelihood of committing Schedule 1 offence; s60(5) factors (violence/disposition to reoffend); parole status and unlawful possession of a (stolen) firearm; appeal court will not interfere absent demonstration that lower court was wrong.
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19 October 2022 |
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Surrendered suspect was forcibly manhandled; court found use of force unlawful and awarded damages and costs.
* Police law – use of force – section 27(1) Criminal Procedure Act – force must be reasonably necessary to overcome resistance; surrendered suspect cannot be lawfully subjected to unnecessary force.
* Evidence – adverse inference – test for drawing inference from failure to call witnesses; availability and evidential value must be considered.
* Civil liability – assault and actio iniuriarum – causation of injuries by police conduct and award of damages.
* Appellate review – misdirection by trial court allows re-evaluation of credibility and probabilities.
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18 October 2022 |
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A restraint of trade clause was enforced against a former business owner joining a rival, but not against the new employer absent unlawful competition.
Restraint of trade – Interpretation and enforceability – Comparable businesses operating in same sectors and regions – Requirements for final interdict – Burden for interdicting non-contracting competitor employer – Proof of competitive overlap and potential harm – Absence of evidence of unlawful competition by third party employer.
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18 October 2022 |
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The 14‑day DEO decision limit in Regulation 19.4 is a procedural time‑bar and may be extended for good cause.
Education law – School Governing Body elections – Regulation 19.4 – 14‑day period for DEO decisions – procedural (extendable) time‑bar, not substantive; purposive interpretation to avoid absurdity.
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18 October 2022 |
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Default judgment prematurely granted — constitutes good reason for rescission; appeal upheld and judgment set aside.
Magistrates' Courts — Rescission of default judgment — Rule 49 requires good cause or separate "good reason" — Court must consider reasonable explanation for default and bona fide defence — Default judgment prematurely sought/granted before expiry of notice period constitutes good reason to rescind — Costs awarded against party who prematurely sought default judgment.
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18 October 2022 |
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Applicants must exhaust the section 30 regulatory remedy before seeking judicial review under PAJA.
PAJA – s7(2) mandatory exhaustion of internal remedies; Electricity Regulation Act – s30 as internal remedy; administrative review – non‑exhaustion bars PAJA review; no discretion to postpone where s7(2)(b) applies; exceptional circumstances under s7(2)(c) not established.
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18 October 2022 |
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Court upheld prescribed minimum sentence for robbery; no substantial and compelling circumstances to deviate.
Criminal law – sentencing – robbery with aggravating circumstances – prescribed minimum sentence; sentencing discretion on appeal – test for interference; consideration of pre-trial custody and concurrent sentences; aggravating effect of weapon use even without physical injury.
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18 October 2022 |
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An appellate court will not disturb a prescribed-minimum murder sentence absent material misdirection or demonstrable substantial and compelling circumstances.
* Criminal law – Murder – Minimum sentences under Criminal Law Amendment Act – whether substantial and compelling circumstances justify deviation from 15 years. * Sentencing – appellate review – Malgas test; deference to trial court absent material misdirection. * Mitigation – alleged jealousy/‘crime of passion’ and diminished responsibility must be placed on record by accused; courts will not speculate. * Comparative authorities distinguished where factual bases for mitigation existed.
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18 October 2022 |
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Applicant entitled to R15,000 monthly pendente lite credit‑card payments; trust obligations cannot be enforced in Rule 43 against a non‑party.
* Civil procedure – Rule 43 pendente lite relief – limits of Rule 43 where obligations are those of a trust not a party to the proceedings; * Interim maintenance – entitlement to interim personal payments during divorce proceedings; * Interim legal costs – assessment of reasonableness and reduction where mediation likely; * Costs – usual order that costs follow main proceedings.
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11 October 2022 |
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Applicant’s urgent bid for free access to a former matrimonial home to collect belongings dismissed; items already packed and ordinary remedies available.
Family law – access to former matrimonial home barred by domestic violence interdict – applicant’s right to collect personal effects – Plascon-Evans approach to disputed facts in motion proceedings – availability of rei vindicatio or damages as ordinary remedies – costs.
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11 October 2022 |
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Applicant was refused urgent access to the former matrimonial home after the respondent had already packed and made his belongings available for collection.
Family law – Divorce – Access to former matrimonial home – Collection of personal property – Rights of access where personal belongings already packed and made available for collection – Urgent interdictory relief – Availability of alternative remedies.
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11 October 2022 |
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Failure to properly consider correctional supervision and a deficient report vitiated the sentence, requiring remittal for fresh sentencing.
* Sentencing – Correctional supervision – s 276(1) – trial court must give proper consideration to correctional supervision and its possible conditions (house arrest, community service, district restriction).
* Sentencing – Adequacy of correctional supervision report – deficient or perfunctory reports may vitiate sentencing discretion.
* Sentencing – Serious violent offences – gravity and deterrence are relevant but do not absolve court from considering non-custodial options and the offender’s personal circumstances.
* Appeal – interference justified where trial court committed material irregularity in exercising sentencing jurisdiction.
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5 October 2022 |
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Unilateral cessation of consent‑order maintenance was wilful contempt; appeal and rescission/new‑evidence applications dismissed.
Family law – maintenance – enforcement of consent maintenance order – civil contempt proceedings – requisites: order, service/notice, non‑compliance, wilfulness and mala fides (Fakie test); consent order enforceability; rescission/new evidence applications under Rule 42 and s 19(b)/s 173 – inadmissible where evidence available earlier and no explanation; inability to pay defence – evidential burden on defaulter; appellate interference only for misdirection of fact.
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4 October 2022 |
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Arrest under s40(1)(b) was lawful; interest on delictual damages runs from judgment; cross-appeal dismissed.
Criminal Procedure Act s40(1)(b) – arrest without warrant – objective reasonable suspicion – exercise of discretion to arrest must not be arbitrary, irrational or mala fide and must be properly pleaded; continued detention – lawfulness assessed on pleaded grounds and factual evidence; delictual non-pecuniary damages assessed at date of judgment — interest runs from judgment (or a short period thereafter); appellate interference with trial court costs order limited to misdirection or absence of grounds.
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4 October 2022 |
| September 2022 |
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Cellphone, ballistic and similar-fact evidence proved conspiracy to steal rhino horn and unlawful firearm possession.
* Environmental/criminal law – Rhino poaching and theft – statutory conspiracy to steal rhino horn.
* Evidence – Similar-fact evidence – admissibility of cellphone tower data, prior poaching incidents and ballistic linkage.
* Forensic evidence – Ballistics linking weapon to prior killings as circumstantial proof.
* Firearms law – Unlawful possession of a large-game rifle and ammunition; common purpose and associative liability.
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30 September 2022 |
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Writ and attachment set aside where attorneys acted without valid mandate; post-dated resolution invalid and punitive costs awarded.
Civil procedure – application to set aside writ of execution and notice of attachment – authority to act for company – validity of post-dated board resolution – intervention/joinder – punitive costs (attorney and client) for counsel acting without valid mandate.
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27 September 2022 |