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Citation
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Judgment date
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| May 2023 |
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Interim interdict confirmed where protest organisers admitted violent, unlawful conduct and failed to comply with Gatherings Act notice requirements.
Constitutional law – Freedom of assembly (ss 17–19) – right to peaceful, unarmed protest limited where protests become violent or criminal; Regulation of Gatherings Act – statutory written notice to local authority required; interim interdict – confirmation where admitted unlawful conduct and real threat of repetition; ex parte relief and costs – failure to notify known interested parties may reduce costs award.
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23 May 2023 |
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Applicant proved insured driver’s negligence but was 10% contributorily negligent; respondent liable for 90% of damages and costs.
* Road Accident Fund Act s17(1) – liability for bodily injury caused by driving of motor vehicle – proof of negligence required.
* Apportionment of Damages Act s1 – contributory negligence and reduction of damages; apportionment permissible where plaintiff’s fault is put in issue.
* Civil evidence – burden of proof on balance of probabilities; credibility and absence of contrary evidence.
* Negligence – foreseeability and reasonable precautions when driving at night and in wet conditions.
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23 May 2023 |
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Refusal of absolution is interlocutory and not appealable; the costs order made was erroneous and set aside.
* Civil procedure — Absolution from the instance — Refusal to absolve is interlocutory and ordinarily not appealable.
* Costs — Costs ordered on refusal of absolution ordinarily stand over until trial; erroneous costs orders influenced by wrong principles are liable to be set aside.
* Malicious arrest — Distinction between unlawful arrest (burden on arrestor) and malicious arrest (onus on plaintiff) relevant to correctness of costs order.
* Appeals — Condonation for late prosecution may be granted in interests of justice; merits of absolution should generally be decided by court a quo at trial.
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23 May 2023 |
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Appellate court upheld conviction and life sentence, finding credible child and medical evidence and no trial misdirection.
Criminal law – rape of a child – credibility of child complainant and single witness caution; medical corroboration of vaginal penetration; appellate review of factual findings and deference to trial court; sentencing discretion and life imprisonment where offender has prior rape and shows no remorse.
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23 May 2023 |
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Court upheld rape and kidnapping convictions; life sentence for repeat rape affirmed absent substantial and compelling circumstances.
Criminal law – Rape (repeat rape) and kidnapping – evaluation of single-witness evidence and corroboration – onus and assessment of accused’s version – mandatory minimum life sentence under s 51(1) CLAA – substantial and compelling circumstances test (Malgas/Dodo).
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23 May 2023 |
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Final protection order set aside where prohibitions and communication restrictions lacked pleaded facts or evidentiary support.
Domestic Violence Act – final protection order requires proof on a balance of probabilities; relief must be supported by pleadings and evidence; courts must not grant unpleaded relief; historic allegations without evidence of present risk do not justify protection orders; procedural requirements for postponement and sufficiency of medical certificate.
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23 May 2023 |
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Applicant’s failure to plead and attach the cession (and its conditions) defeated locus standi; summary judgment refused and costs awarded to respondent.
Summary judgment — Rule 32(2) — competency of deponent who has custody of documentation; Rule 18(6) — obligation to plead and attach cession and material conditions; Rule 32(4) — evidential limits of summary‑judgment affidavits; locus standi — cessionary must plead transfer and fulfilment of preconditions; failure to comply renders particulars excipiable and summary judgment inappropriate.
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23 May 2023 |
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Rescission of default judgment refused for lack of reasonable explanation and absence of a bona fide defence.
* Civil procedure – Rescission of default judgment – Applicant must show reasonable explanation for default and a bona fide defence. * Failure to file appearance to defend or to explain awareness of proceedings undermines rescission. * Where applicant admits indebtedness and offers no factual defence, rescission will be refused. * Court discretion exercised to dismiss rescission and award costs.
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19 May 2023 |
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Inadequate, non‑self‑contained financial disclosure defeats a costs claim; child maintenance pendente lite awarded on respondent’s evidence.
* Civil procedure – Rule 43 applications – requirement that proceedings be concise, expeditious and self-contained; avoidance of prolix affidavits and referral to separate voluminous files.
* Obligation of full financial disclosure in Rule 43 affidavits – failure permits adverse inference against applicant.
* Maintenance pendente lite – parents’ joint duty to support minor child; quantum and sharing of medical aid, medical expenses, schooling and extracurricular costs may be ordered where supported by evidence.
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18 May 2023 |
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Court imposed life imprisonment for rape of a ten‑year‑old stepdaughter; no substantial and compelling circumstances to reduce sentence.
* Criminal law – Rape of a child – Mandatory minimum sentence (life imprisonment) where victim under 16 and accused knew he was HIV positive and had unprotected intercourse (s51(1) Criminal Law Amendment Act).
* Sentencing – Substantial and compelling circumstances – application of Malgas and assessment of personal mitigation versus overwhelming aggravating features (position of trust, familial context, physical injury, psychological harm).
* Victim impact – Severe psychological trauma, family disruption; court requests investigation into counselling and psychotherapeutic support.
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18 May 2023 |
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Whether the respondent was maliciously arrested and detained and entitled to damages, interest and punitive costs.
* Delict – Malicious arrest and detention – elements: instigation, absence of reasonable and probable cause, animus iniuriandi – police vicarious liability. * Assault by police – unlawful use of force and contumelia. * Evidence – proper approach to credibility, reliability and probabilities where versions conflict. * Costs – punitive (attorney-and-client) costs and interest from date of demand for unliquidated claims.
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11 May 2023 |
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Rescission granted: applicants proved reasonable default explanation and raised prima facie defences, including triable public-policy and cession issues.
* Civil procedure – rescission of default judgment – common-law rescission – requirements: reasonable explanation for default and bona fide defence with prima facie prospects of success.
* Contract law – cession and deed of settlement – whether creditor assumed duty to collect municipal payments and thus absolved debtor.
* Contract law – public policy – challenge to contractual clause imposing liability for an organ of state’s non-payment (Beadica principles).
* Pleading and procedure – court below misdirected by treating common-law rescission as rule 42(1) and determining merits rather than triability.
* Delay – Covid-related difficulties considered in assessing reasonableness of delay.
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9 May 2023 |
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Plaintiff entitled to recover past medical expenses including amounts paid by her medical aid from the defendant.
Road Accident Fund — past medical expenses — recoverability of amounts paid by medical aid — payments by medical aid are res inter alios acta — plaintiff’s locus to claim medical-aid payments — subrogation and indemnity — stare decisis.
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9 May 2023 |
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Appeal dismissed: reliable eyewitness identification and corroboration established guilt; alibi rejected as not reasonably possibly true.
Criminal law – murder; identification evidence and corroboration; alibi – assessment of accused’s version; onus of proof – Tshiki v The State principles applied.
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4 May 2023 |
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Appeal reinstated and upheld: no valid sale concluded where altered purchase price lacked acceptance; condonation granted.
Property law – offer and acceptance – multiple offers and counter‑offers – no consensus ad idem where altered purchase price not accepted; Procedural law – appeal lapsing under Uniform Rules 49(6) and 49(7) – condonation and reinstatement appropriate where appeal has reasonable prospects of success; Alienation of Land Act s 2(1) – deed of alienation must be signed by parties or agents with written authority.
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2 May 2023 |
| April 2023 |
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Youth and first-offender status can constitute substantial and compelling circumstances to depart from prescribed life sentence for child rape.
Criminal law – rape of a child – Minimum Sentences Act (Part I, Schedule 2) – whether substantial and compelling circumstances justify departure from life sentence; sentencing triad; victim impact; ancillary statutory consequences (sex-offender register; child protection register; firearm disqualification).
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28 April 2023 |
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Child complainant’s credible identification, supported by medical evidence, can suffice for a rape conviction despite reporting delay.
Criminal law — Rape — Identification by young child witness — Cautionary approach to child testimony; medical evidence of sexual penetration as corroboration; delay in reporting — s 59; evaluation of probabilities and rejection of accused’s inconsistent version.
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28 April 2023 |
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Appeal court substituted inadequate RAF general damages award, raising it to R1,200,000 and ordering interest from 14 days after 8 October 2021.
• Road Accident Fund – Narrative test/RAF4 – acceptance of serious injury and WPI ratings as jurisdictional basis for general damages.
• Quantum – assessment of general damages – trial court discretion; appellate interference where discretion not judicially exercised or award is strikingly disparate.
• Traumatic brain injury and psychological sequelae – consideration in whole person impairment and quantum.
• Valuation date – general damages valued at currency values as at trial; substituted awards retrospective with interest under RAF s17(3)(a).
• Costs – including costs of two counsel where appropriate.
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25 April 2023 |
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Applicant awarded damages for unlawful police search, arrest and assault; State held vicariously liable and ordered to pay costs.
Constitutional and delictual liability – unlawful search, unlawful arrest and assault by police; corroboration by J88 medical report; single‑witness evidence; absolution from instance refused; vicarious liability of State for police misconduct.
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25 April 2023 |
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A lease clause making the applicant’s certified account prima facie proof suffices to establish the respondent’s arrear rental if unchallenged.
* Contract/Lease – recovery of arrear rental – certified account as contractual prima facie proof of indebtedness – effect where certificates unchallenged. * Evidence – reconciliations and certification by finance manager sufficient to prove indebtedness on a balance of probabilities where no rebuttal. * Costs – contractual provision for attorney-and-client costs enforceable. * Interest – contractual interest clause (clause 38.1) enforceable on awarded amounts.
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25 April 2023 |
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An 8‑year‑old pedestrian was presumed doli incapax; insured driver held 100% liable for damages and costs.
Road Accident Fund – motor vehicle collision involving an eight‑year‑old pedestrian – presumption of doli incapax (7 to puberty) – scholar transport driver’s supervisory duty – contributory negligence and apportionment – insured driver negligent – 100% liability and costs.
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21 April 2023 |
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Failure to inquire about legal representation and ensure understanding of a guilty plea rendered the conviction and sentence unfair.
Criminal procedure – automatic review under s302 – unrepresented accused – duty of magistrate to inquire about legal representation and ensure understanding of plea under s112(1)(a) – conviction and sentence set aside where proceedings unfair.
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21 April 2023 |
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Unsoundness of unsworn child testimony rejected; admonishment satisfied s164 and conviction and life sentence affirmed.
* Criminal procedure – Child witness competence and admissibility – sections 162–164 Criminal Procedure Act – admonishment in lieu of oath.
* Evidence – unsworn child testimony – role of intermediary; requirement is appreciation of truth vs falsehood, not abstract understanding of oath.
* Corroboration – medical J88 and testimony of relatives corroborating child’s account.
* Sentencing – prescribed-minimum life sentence for rape of a child; application of Zinn triad and absence of substantial and compelling circumstances.
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18 April 2023 |
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11 April 2023 |
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Family Advocate’s inquiry limited to relocation; recent primary-caregiver determination will not be reopened absent good reason.
* Children — Best interests and paramountcy principle — Stability of placement and reluctance to reopen recent primary-caregiver determinations without good cause.
* Family Advocate — Scope of inquiry — Limited to relocation and whether permanent removal is in the child’s best interests; not to revisit primary-caregiver status absent valid reasons.
* Interim relief — Urgent interdict preventing relocation pending Family Advocate investigation and report.
* Family law — Parenting plans, prior court orders and properly conducted Family Advocate reports carry substantial weight.
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4 April 2023 |
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Unlawful arrest/detention without malice: legal‑costs claim dismissed; R80,000 awarded for general damages.
Unlawful arrest and detention; actio iniuriarum; malice and honest belief; causation for legal costs; admissibility of evidence of detention conditions despite limited pleadings; assessment of solatium for brief but humiliating detention.
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4 April 2023 |
| March 2023 |
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Homeowners' association constituted as a universitas is not a "juristic person" under s13(1)(e), so prescription was not delayed.
Prescription — Prescription Act 68 of 1969 s13(1)(e) — whether a home owners' association constitutes a "juristic person" for delay of prescription; interpretation of statutory "body corporate" under LUPO; unincorporated association (universitas) versus juristic person; onus to prove date debt due; effect of absence of governing‑body resolution evidence.
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30 March 2023 |
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Court ruled accused no.1’s confession and pointing out admissible and, on cumulative circumstantial evidence, convicted all three of arson and three murders.
Confession and pointing out — admissibility — voluntariness — trial within a trial; Circumstantial evidence — Blom principles — cumulative assessment; Doctrine of common purpose — liability for co-perpetrated arson and murder; Right to silence and procedural safeguards when recording confessions; Cross‑examination on confession content permissible where accused alleges police coaching or fabrication.
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29 March 2023 |
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Court awarded R2,146,575 for loss of earning capacity, applying 10% pre-morbid and 15% post-morbid contingency deductions.
* Road Accident Fund – assessment of capitalised loss of earning capacity – general contingency deductions – application of Quantum Yearbook guidance – discretion of court in fixing pre-morbid and post-morbid percentage deductions. * Evidence – parties agreed expert reports and special case – no viva voce evidence required. * Costs – successful applicant awarded party-and-party costs including counsel and specified consultation expenses; interest awarded.
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28 March 2023 |
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A circuit court qualifies as a "seat" under s27(1)(b), but applicants’ transfer to East London was refused for lack of convenience.
Superior Courts Act s27(1)(b) – statutory interpretation of "seat of the Division" – circuit courts as courts of the Division – transfer of civil proceedings for convenience – discretionary approach; requirements for removal (balance of convenience, pleadings, witness locations).
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24 March 2023 |
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Applicant’s condonation for late statutory notice refused: most claims prescribed, s12 arguments rejected, good cause and prejudice not established.
Proceedings Act s3(2)(a), s3(4)(b) – condonation for late statutory notice; Prescription Act ss12(3),12(4) – knowledge and tolling; prescription accrual for unlawful arrest, detention and malicious prosecution – discrete causes of action; good cause and prejudice assessments; evidence preservation and delay.
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23 March 2023 |
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Leave to appeal refused where applicant failed to establish section 18 exceptional circumstances and attacked reasons, not the operative order.
• Civil procedure – execution pending appeal – requirements of s18(1) Superior Courts Act – exceptional circumstances and irreparable harm
• Appeals – appeal lies against the operative order, not reasons for judgment
• Discretion – no discretion to grant execution absent factual establishment of s18 requirements; even if met, court must exercise discretion
• Costs – unsuccessful leave to appeal application attracted costs including two counsel
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23 March 2023 |
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Lis alibi pendens upheld because the pending divorce's accrual determination substantially affects the vehicle ownership dispute.
* Civil procedure – lis alibi pendens (lis pendens) – requirements: pending litigation, same parties, same cause of action or substantially determinative issue, same subject matter. * Family law – matrimonial property – accrual system – inter-spousal donations and s 5(2) of the Matrimonial Property Act. * Discretion to stay proceedings – appellate restraint where lower court exercised discretion judicially. * Ownership dispute of asset during pending divorce – connection between accrual determination and rei vindicatio claim.
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22 March 2023 |
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Rescission refused: effective service established and no bona fide defence to set aside the default judgment.
Civil procedure – rescission of default judgment – Uniform Rule 42(1)(a) (error) and Rule 31(2)(b)/common law (good/sufficient cause); service of process – effectiveness of sheriff’s return at registered address; written contract variation clause vs alleged oral agreement; National Credit Act s129 inapplicable to juristic person; referral of sheriff’s conduct to Board for Sheriffs.
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17 March 2023 |
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A settlement agreement paying arrear salary without reserving interest or costs bars subsequent claims for those heads.
Compromise/Settlement agreement – effect as a contract – extinguishes cause of action (res judicata) unless rights reserved; Settlement negotiations – when silence in agreement implies compromise of ancillary claims (interest and costs); Review of court a quo – error in awarding interest after parties reached settlement; Costs – refusal to allow costs of two counsel where matter not complex.
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14 March 2023 |
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Leave to appeal refused: the applicant failed to show reasonable prospects; alleged defects were merits issues, not reviewable irregularities.
• Civil procedure – Leave to appeal – section 17 Superior Courts Act – reasonable prospects of success test as developed by SCA.
• Judicial review v appeal – distinction between attacking result (appeal) and method (review); application to criminal proceedings.
• Interim review of unterminated proceedings – scope of court’s power under section 22 of the Superior Courts Act.
• Criminal procedure – sufficiency of charge sheet and particulars; requirements to inform accused of actus reus and enable defence.
• Requirements for establishing gross irregularity or other compelling reasons to justify in medias res intervention.
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9 March 2023 |
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The court dismissed an application to remove trustees of an employee trust, finding no basis for automatic disqualification under the Trust Deed.
Trust law – Trust deed interpretation – qualification and removal of beneficiaries and trustees – Section 20 Trust Property Control Act – automatic disqualification – locus standi in related litigation.
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7 March 2023 |
| February 2023 |
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Applicant entitled to further particulars about respondent’s finances and trust assets; accrual may be litigated within the divorce action.
Family law – Divorce and accrual – Accrual vests on dissolution but may be claimed and quantified in same action; rule 21(2) particulars – relevance of trust and financial particulars pre-divorce – duty of full and frank disclosure.
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28 February 2023 |
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Police lawfully arrested the plaintiff under s40(1)(h) CPA based on reasonable suspicion from discovered marijuana and flight.
Criminal procedure – Arrest without warrant – s40(1)(h) CPA – reasonable suspicion must be objectively sustainable based on specific and articulable facts (discovery of suspected drugs and flight); police discretion to arrest; onus on police to justify deprivation of liberty; credibility and probabilities in civil factual disputes; costs — two counsel not allowed where not reasonably necessary.
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28 February 2023 |
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Insufficient pleadings and evidence, and absence of undue benefit or substantial misconduct, justify refusal to order forfeiture under s9(1).
Divorce Act s9(1) – forfeiture of patrimonial benefits; two‑stage enquiry (benefit and undue benefit) per Wijker; evidentiary burden to prove nature and value of benefits; factors: duration of marriage, circumstances of breakdown, substantial misconduct; pleadings must properly plead and quantify relief sought.
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24 February 2023 |
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Disconnecting electricity at the registered owner’s request was contractual, not administrative action, so interim relief was refused.
Administrative law – PAJA and s 33 – distinction between contractual exercise of power by an organ of state and administrative action – municipality disconnecting electricity at account-holder’s instruction not administrative action; non-joinder where water disconnect attributed to district municipality; interim interdict requiring prima facie right and prospects of success.
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23 February 2023 |
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Whether the respondent proved lawful ownership and innocent-owner status to resist forfeiture under POCA.
* Prevention of Organised Crime Act (POCA) -- civil forfeiture of property used as instrumentality of crime; innocent owner exclusion (s54(8A)); locus standi under s39(3); proportionality in confiscation; costs and s57(5) funding of forfeiture-related expenses.
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21 February 2023 |
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Applicant failed to prove a material change or make full financial disclosure to warrant variation of maintenance pendente lite.
Family law – Maintenance pendente lite – Application to vary Rule 43 order under Rule 43(6) – Requirement of material change in circumstances; full and frank financial disclosure; credibility of alleged loss of income; impact of child attaining majority on maintenance obligations.
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16 February 2023 |
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Appellants unlawfully detained from 14:00 on 25 July to 12:00 on 27 July; each awarded R60,000 in damages.
* Administrative detention and processing – lawfulness and duration – detention for processing of multiple arrested persons under Covid-19 measures.* Unlawful deprivation of liberty – when detention becomes unlawful and foreseeability of court attendance.* Quantum of damages for unlawful arrest/detention – appellate interference where trial court misdirected and awards strikingly disparate.* Costs – discretionary orders in respect of abandoned claims not lightly interfered with on appeal.
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8 February 2023 |
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The appellate court increased the applicant’s general damages for humiliating unlawful arrest and detention from R10,000 to R30,000.
Unlawful arrest and detention – assessment of general damages – appellate interference where trial court misdirected or award palpably inadequate – importance of surrounding circumstances (public humiliation, arrest in pyjamas, filthy cells) – Rule 34 offers must be on record to be considered for costs.
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7 February 2023 |
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Ambiguous pre‑trial admission of drought insufficient to extinguish obligations; leave to appeal refused; counsel criticised for intemperate conduct.
Contract — Alleged vis major: ambiguous pre‑trial admission of drought does not, without clear evidence, amount to an admission that obligations were extinguished; divisibility and foreseeability arguments depend on finding objective impossibility; intemperate conduct by counsel may attract criticism and submissions for personal costs.
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7 February 2023 |
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Employee acted under superiors’ instructions and did not personally set the disciplinary prosecution in motion, so malicious prosecution claim failed.
Delict — malicious prosecution — requirement that defendant set the law in motion; vicarious liability where employee acts within course and scope of employment; distinction between initiating authority and subordinate acting under instruction; causation in malicious prosecution claims.
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7 February 2023 |
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Leave to appeal granted on quantum and costs where quantum was sustained but the court misdirected itself in exercising its costs discretion.
• Civil damages – assessment of general damages – discretion in quantum; globular awards may include contumelia.
• Contumelia – may be incorporated in a single solatium award rather than made separately.
• Costs – exercise of judicial discretion; seriousness of rights violations, public interest and witness conduct relevant to scale.
• Leave to appeal – Superior Courts Act s 17(1) (higher threshold); s 16(2)(a) (exceptional circumstances for costs appeals).
• Appeal practice – appellate deference to trial court’s factual findings; new evidence/authorities not adduced at trial weakens prospects of appeal.
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6 February 2023 |
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Forensic evidence linking a device to the respondent's home justified confirming rei vindicatio and rejecting an implausible theft claim.
Property — rei vindicatio — ownership established; possession at time of demand — forensic evidence showing device usage near respondent's residence and connection to home Wi‑Fi; disputes of fact on affidavit — bald, implausible allegations insufficient; court may reject improbable versions and decide on papers.
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2 February 2023 |
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Tender awards set aside because the procuring department unlawfully relaxed mandatory UIF certificate requirement and had no power to condone non-compliance.
Administrative law; Procurement law; PPPFA and "acceptable tender" threshold; Mandatory tender requirements (UIF certificate) — no discretion to condone; PAJA review; Doctrine of legality; Remedy — set aside awards and remit to re-tender.
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2 February 2023 |