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Citation
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Judgment date
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| December 2023 |
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Applicant’s delictual claim against an organ of state not prescribed; late statutory notice condoned.
Prescription — s 12(3) Prescription Act: a debt is not due until creditor knows identity of debtor and facts giving rise to debt; mere suspicion insufficient; Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 s 3 — notice requirement and condonation (good cause, non-extinction by prescription, no unreasonable prejudice); application of Truter v Deysel, Minister of Finance v Gore, and Lakay.
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5 December 2023 |
| November 2023 |
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Arrest and four-day detention unlawful where police failed to prove reasonable suspicion or justify arrest; R160,000 awarded.
* Criminal procedure – Arrest without warrant – s 40(1)(b) and (g) CPA – jurisdictional facts: peace officer, suspicion, offence in Schedule 1/Stock Theft Act, reasonable grounds for suspicion.
* Stock theft – possession (corpus and animus) and requirement to give a satisfactory account under Stock Theft Act s 2.
* Constitutional law – right not to be arbitrarily deprived of freedom (s 12(1)) – unlawful arrest and detention.
* Evidence – onus shifts to state to justify arrest once arrest admitted; failure to call arresting officer may attract adverse inference.
* Remedies – damages for unlawful arrest and detention; assessment of quantum for infringement of personal liberty.
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28 November 2023 |
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Application for mandament van spolie dismissed; lack of peaceful possession negates spoliation claim.
Civil Procedure – Mandament van spolie – Requirement of peaceful and undisturbed possession – Tacit hypothec.
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14 November 2023 |
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Applicant failed to establish mandament van spolie where respondent retained goods under asserted tacit hypothec after lease termination.
Mandament van spolie – requirements for restoration of possession; lease and tacit hypothec; locus standi; retention of movable property to recoup arrear rentals; opposed urgent application.
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14 November 2023 |
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A warrantless arrest under s40(1)(a) and subsequent detention were lawful; the applicant's claim dismissed.
Criminal procedure – Arrest without warrant – s40(1)(a) CPA – honest and reasonable belief of offence in presence of officer; Delict – unlawful arrest and detention – onus on state to justify interference with liberty; Section 50 CPA – bringing arrested person to court within reasonable time; Credibility and probabilities in resolving conflicting versions.
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14 November 2023 |
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Section 112(2) statements that omit essential elements and notice of common-purpose sentencing render plea proceedings unfair and convictions unreliable.
Criminal procedure – section 112(2) statements – must admit factual and mental elements of offences; Magistrate obliged to question under s112(1)(b) to ensure admissions legally sustain conviction; Charge sheet must disclose reliance on common purpose to attract s51(1) minimum sentence; Defective s112(2) statements and failure to clarify omissions = unfair plea proceedings and miscarriage of justice; Convictions and sentences set aside and matter remitted for compliant plea proceedings.
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14 November 2023 |
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Arrest unlawful where suspicion relied on unverified warning statements and interpreter verification was not obtained; post-appearance remand not the defendants’ liability.
Criminal procedure – arrest without warrant – reasonable suspicion – reliance on co-accused warning statements – duty to verify and obtain interpreter for deaf/mute suspect; detention – distinction between pre-appearance detention (lawfulness depends on arrest) and post-appearance remand (determined by court orders and causation); liability – police liable for unlawful arrest/detention pre-appearance; NDPP not jointly liable for remand resulting from court processes.
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7 November 2023 |
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Appellate court reduced excessive damages for unlawful arrest, stressing necessity of detailed evidence to quantify non‑patrimonial loss.
Unlawful arrest and detention — quantification of non‑patrimonial damages — pleadings cannot substitute for oral or expert evidence — prior awards for guidance not as fixed benchmarks — appellate reduction of excessive award.
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7 November 2023 |
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A geographic regulation criminalising unauthorised coastal development in the former Transkei is rational, not unfairly discriminatory, and remains valid.
Constitutional law – Equality (s 9) – Challenge to s 39(2)(c) of Environmental Conservation Decree – Harksen test applied – Differentiation between coastal conservation area and elsewhere found rationally connected to legitimate environmental purpose and not unfair discrimination; Decree remains applicable in former Transkei; decision to prosecute not reviewable. Costs – Biowatch principle – each party to pay own costs.
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1 November 2023 |
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Appellants failed to prove exceptional circumstances under section 60(11)(a); bail refusal upheld.
* Criminal procedure – Bail – Section 60(11)(a) – Onus on accused to prove exceptional circumstances for release on Schedule 6 offences. * Bail – Consideration of strength of State’s case, likelihood of evasion or interference with witnesses. * Confessions and pointing out – admissibility disputes do not by themselves constitute exceptional circumstances. * Personal circumstances (employment, address, surrender) are ordinarily insufficient to justify bail.
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1 November 2023 |
| October 2023 |
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Applicants failed to prove contractual entitlement to 1.5x Sunday/public-holiday pay; genuine dispute of fact — appeal dismissed with costs.
Labour law — contractual entitlement to allowance for Sunday/public-holiday work — proof of employment contract required; motion proceedings inadmissible where genuine dispute of fact exists; Basic Conditions of Employment Act s33 (information about remuneration) — no relief where substantive entitlement not established; costs — ordinary costs despite abuse of process finding.
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31 October 2023 |
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Appellant failed to show exceptional circumstances for bail on Schedule 6 charges; magistrate’s refusal was upheld.
Criminal procedure – bail on new facts – section 60(11)(a) exceptional circumstances required for release on Schedule 6 offences – appellate review under section 65(4) – new facts must be considered cumulatively with old facts – striking of related matter from roll does not preclude future prosecution – witness safety and possibility of recall relevant to bail risk assessment – right to choose counsel not absolute.
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31 October 2023 |
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Applicant established unlawful police dispossession of 70 goats; mandament van spolie ordered and goats to be restored within 72 hours.
* Mandament van spolie – requirement of peaceful and undisturbed possession and unlawful dispossession – possession protected irrespective of title.
* State Liability – executive head of department as nominal respondent; non-joinder of station commissioner unnecessary where no necessity shown.
* Criminal Procedure Act (ss 20, 22) – seizure under colour of law must comply with statutory requirements; non-compliance renders seizure unlawful.
* Urgency – applicant relying on livelihood may establish urgency under Rule 6(12)(b).
* Burden on state to produce corroborative evidence when alleging third-party claims of ownership.
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19 October 2023 |
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Reported
Arrest and two-day detention unlawful where police suspicion lacked reasonable grounds and discretion was exercised for an improper purpose.
• Criminal procedure — lawful arrest — s 40(1)(g) CPA — reasonable suspicion of possession of stock suspected to be stolen; • Exercise of discretion by arresting officer — mala fide or improper purpose v bona fide/rational exercise; • Unlawful arrest renders ensuing detention unlawful unless justified; • Onus on state to justify arrest and detention; • Quantum for unlawful arrest and detention — compensation for deprivation of liberty and indignity.
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19 October 2023 |
| September 2023 |
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Appellant’s condonation for pervasive procedural defaults refused; appeal dismissed for inadequate explanations and no demonstrated prospects of success.
Civil procedure — Rule 49 — condonation for procedural non-compliance — late notice of appeal, late record, late affidavits — explanation must be full, detailed and candid; attorney’s death/neglect not automatically excusing delay; prospects of success and finality relevant in exercise of discretion.
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26 September 2023 |
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An arrest executed under a warrant that fails to comply with s43(1)(a) is invalid, rendering ensuing detention unlawful.
* Criminal procedure – Warrant of arrest – statutory requirements under s43(1)(a) – warrant must set out the offence; non‑compliance renders warrant invalid.
* Arrest and detention – lawfulness – arrest under invalid warrant unlawful and detention consequent thereon unjustified if State fails to discharge onus.
* Proof and onus – State bears onus to justify arrest and detention; mere execution of a magistrate’s form does not cure statutory defects.
* Quantum – damages for unlawful detention assessed on compensatory basis, taking into account seriousness of charge and conduct of police.
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19 September 2023 |
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The assistant Master’s appointment of a co-executor was unlawful and procedurally unfair and is set aside.
Administration of estates – section 18(1) Administration of Estates Act – limits on Master’s power to appoint executors where sole executor already appointed; review under section 95 – PAJA – procedural fairness (failure to afford right to consult legal advisor and make representations) – statutory interpretation (Endumeni, Cool Ideas) – counter-application to remove executor (section 54) dismissed.
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14 September 2023 |
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Applicant’s arrest and detention held unlawful; respondent liable and ordered to pay R650,000 damages.
Police law – unlawful arrest and detention – duty to investigate exculpatory evidence before forming reasonable suspicion – effect of struck‑out defence and non‑appearance – liability for post‑hearing detention – assessment of non‑patrimonial damages.
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5 September 2023 |
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A genuine dispute whether the land is allotment 47 or 26 made the eviction application unsuitable for resolution on affidavit.
Rural land tenure; permission to occupy; dispute as to allotment no. 47 v 26; motion proceedings—real, genuine dispute of fact; inadmissibility of unauthenticated community meeting minutes/hearsay; necessity for oral evidence or trial direction when central facts are disputed; PIE Act considerations.
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5 September 2023 |
| August 2023 |
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Accused convicted of premeditated, common‑purpose murders; prescribed life sentences imposed and no substantial and compelling circumstances found.
Criminal law – Murder and arson – Pre‑meditation and common purpose – Application of section 51(1) Minimum Sentences Act; Section 51(3) – substantial and compelling circumstances – mitigation evidence and credibility; Sentencing triad – crime, offender and society; Firearms Control Act section 103 – unfitness to possess firearms.
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30 August 2023 |
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Failure to comply with disclosure orders does not alone justify striking out a defence; deliberate contempt must be proven.
Civil procedure – Rule 30A – remedy for non‑compliance with discovery orders; striking out of defence as a drastic remedy; contempt/contumacy requirements (order, service, non‑compliance, wilfulness and mala fides); wasted costs as alternative sanction.
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23 August 2023 |
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Failure to comply with discovery orders does not automatically justify striking out a defence; deliberate contempt must be proven.
Civil procedure – Rule 30A – failure to comply with discovery order – striking out defence as drastic remedy – high threshold requiring deliberate, contemptuous disobedience – once order, service and non-compliance shown respondent bears evidential burden on wilfulness/mala fides – appropriate alternative remedy: costs order.
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23 August 2023 |
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Employer must show agreed 6% shift-allowance rate on payslips; courts will not re-determine salaries governed by collective agreements.
Labour law; BCEA s33(1)(g) – employer’s duty to give written pay particulars; payslips must state shift-allowance rate; collective agreements and staff establishment determine salaries and limit judicial interference; doctrine of legality and administrative transparency.
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22 August 2023 |
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Warning statement and confession excluded for voluntariness concerns; insufficient evidence, accused acquitted and discharged.
Criminal procedure – admissibility of incriminating statements (warning statement s219A; confession s217 CPA) – voluntariness and constitutional safeguards; police procedure and record‑keeping; trial‑within‑a‑trial; section 174 discharge for lack of prima facie case.
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21 August 2023 |
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Whether the applicant was validly married by customary law and entitled to the homestead — court confirmed the customary marriage and relief.
Customary marriage — Recognition of Customary Marriages Act s3(1) — requirements: age, consent, negotiation/celebration (lobola, umendlaliso/utsiki) — proof on preponderance of probabilities; Credibility assessment — corroboration by elder family members; Interim relief — confirmation of rule nisi and eviction order; Spouses’ equal status under s6 and consequences for estate.
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15 August 2023 |
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Assault claim dismissed: plaintiff provoked brawl; defendant’s intervention amounted to self‑defence; each party bears own costs.
Civil liability for assault – conflicting versions – credibility and probabilities – self‑defence and necessity to restore order on commercial premises – failure to call material witnesses – costs awarded on no‑order basis.
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8 August 2023 |
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Arrest and detention lawful where officer had reasonable suspicion from child and medical evidence.
Criminal procedure — Arrest without warrant (s40(1)(b) CPA) — Reasonable suspicion formed from child’s statement and J88 medical report — Hearsay/commissioning of child statements — Use of less invasive methods versus arrest — Detention and bail discretion (s60(11)(a)).
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1 August 2023 |
| July 2023 |
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Whether arrest under s40(1)(b) and subsequent prosecution were unlawful and whether absolution should be granted.
* Criminal procedure – arrest without warrant – s40(1)(b) – reasonable suspicion and jurisdictional facts for Schedule 1 offences; * Exercise of discretion – must be shown to be arbitrary, in bad faith or improperly exercised to succeed; * Detention – separable from lawfulness of arrest; * Malicious prosecution – elements require setting law in motion, lack of probable cause, malice, and failure of prosecution; plaintiff failed to adduce prima facie evidence; * Ministerial liability – no basis shown to hold Minister of Justice and Correctional Services liable.
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18 July 2023 |
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Applicant’s self-review of an acting municipal manager’s withdrawal of charges dismissed for lack of merit and undue delay.
Administrative law; legality review by employer of its own decision; Systems Act s55 — municipal manager powers to maintain discipline; disciplinary procedure — whether functus officio once panel constituted; collective agreement (DC Code) and silence on withdrawal of charges; forum shopping and appropriate forum (Labour Court v High Court); condonation for delay in review applications; requirements of candid pleadings and calling decision-maker.
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16 July 2023 |
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Leave granted to appeal legal questions about defective arrest warrants and lawfulness of arrest and detention under the CPA.
* Criminal Procedure Act ss 44 and 50(1)(a) — warrant of arrest — prescribed form — omission of place to which arrestees must be taken — effect on lawfulness of arrest and detention.
* Legality of police conduct — obligation to take detainees to police station as soon as possible versus detention elsewhere for interrogation.
* Discretion to arrest — execution of warrant versus police discretion not to effect arrest.
* Constitutional protections — right not to be deprived of freedom arbitrarily; right to dignity and freedom from violence and torture.
* Leave to appeal — prospects of success or compelling reasons under s 17(1) Superior Courts Act.
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11 July 2023 |
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Review of Provincial House decision dismissed for lack of pleaded facts, compliance with audi, and failure to place record before court.
Traditional leadership disputes – review of Provincial House decision – whether internal remedies must be exhausted; audi alteram partem in investigatory inquiries; role of ad hoc investigative committees (non‑binding recommendations); duty to place relevant record portions before court in motion review proceedings; requirement to plead factual basis for declaratory and reinstatement reliefs.
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4 July 2023 |
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A prior massed will is invalid where the joint estate was dissolved by divorce and the survivor failed to adiate; executor removed.
* Succession law – Massed (mutual) wills – requirements for statutory massing and adiation – massing requires consolidation of assets and valid adiation by survivor. * Divorce/deed of settlement – dissolution and division of joint estate may invalidate prior massed will if no consolidated massed estate remains. * Evidence – failure to produce original will permits presumption of revocation; defective/undated adiation documents insufficient. * Interpretation – ambiguity in mutual wills attracts presumption against massing. * Executors – appointment based on invalid will is invalid; Master to remove executrix.
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4 July 2023 |
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A customary marriage was valid despite lack of formal bride handover; symbolic delivery and lobola negotiations suffice under s 3(1)(b).
Customary marriages – Recognition of Customary Marriages Act s 3(1)(b) – validity where lobola negotiations and celebratory rites occurred; handing over not strictly required; living customary law; emissaries may represent family; mental capacity requires evidence.
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4 July 2023 |
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The High Court lacks jurisdiction over the applicant’s dismissal dispute, which falls within the Labour Court’s exclusive jurisdiction.
Employment law; jurisdiction — BCEA s77 and LRA s157; exclusive jurisdiction of Labour Court for employment disputes; repudiation of contract not established or properly pleaded; substance over form in jurisdictional analysis.
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4 July 2023 |
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Court finds urgency and Rule 34A satisfied and orders R3.2m interim payment for minor’s urgent medical needs.
* Rule 34A – interim payment for future medical costs and loss of earnings – requirements satisfied where merits established and documentary/ expert evidence of immediate needs exist. * Urgency – Rule 6(12) – best interests of the child and ongoing prejudice justify condonation of non-compliance. * Public healthcare defence/amendment to plea affects form (cash or in-kind) of ultimate award but does not preclude interim cash relief. * Interim payment should be a reasonable proportion of likely quantum, not the full claimed amount.
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4 July 2023 |
| June 2023 |
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A young claimant’s future loss award based on a teaching career reduced by a 35% contingency; R7,967,860 awarded.
Road Accident Fund – quantum — past and future loss of income and earning capacity — selection of pre-morbid career scenario — application of Kerridge approach to contingency deductions — 35% deduction for youthful claimant with uncertain earnings proof and residual capacity — costs on attorney-and-client scale including two counsel.
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27 June 2023 |
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PAJA extension refused where challenge to Premier's recognition was unreasonably delayed and s21 internal remedies were inapplicable.
* Administrative law – PAJA s 7(1), s 9 – 180‑day time limit and condonation for judicial review of administrative action; undue delay and interests of justice.
* Traditional leadership – Framework Act s 21 – scope of internal remedies; s 21 remedies inapplicable where dispute challenges Premier’s recognition/delegate decision.
* Delay – when internal remedies do not exist, the 180‑day PAJA period runs from awareness of the administrative action.
* Condonation – factors: extent and cause of delay, explanation covering entire period, prospects of success, prejudice and public interest in finality.
* Costs – Biowatch principle: bona fide constitutional litigation against the state warrants each party bearing its own costs.
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20 June 2023 |
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The plaintiffs’ arrests and detention were unlawful; defective warrant execution and assault led to vicarious liability and damages.
Criminal procedure – Arrests and warrants (s 43–44 CPA) – Execution of warrants and officer’s discretion to arrest – s 50 CPA compliance (bringing arrested person to station/court and 48‑hour rule) – Vicarious liability of Minister for police delicts – Assault/torture in custody – Pleading adequacy for alternative grounds of unlawfulness.
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20 June 2023 |
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Omission of a stated hearing day and failure to serve set-down on a municipal manager renders default judgment ineligible and rescindable.
Civil procedure – default judgment – Uniform Rule 6(5)(b)(iii) (Form 2(a)) – omission of stated day for hearing is material, implicates audi alteram partem and may render judgment erroneously granted; Eastern Cape Rule 23(m) – applies to municipalities as organs of state; notice of set down must be served on municipal manager or State Attorney; rescission under Rule 42(1)(a).
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13 June 2023 |
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The defendant has no reasonable prospect to appeal awards for loss of income, caregiver/domestic and architectural services.
Civil procedure – application for leave to appeal – section 17(1) Superior Courts Act – elevated threshold; Evidence – evaluation of expert opinion – necessity of logical reasoning and factual basis; Damages – loss of income (educational prognosis and actuarial computation); Damages – caregiver/domestic services (agreement on need; dispute limited to cost); Damages – architectural modifications (SABS compliance; factual adequacy of dwelling).
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13 June 2023 |
| May 2023 |
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Substandard foetal monitoring and delayed C‑section caused intrapartum hypoxic brain injury; joint expert minutes proved causation.
• Medical negligence – obstetric care – substandard fetal heart‑rate monitoring and delayed caesarean section – causation of intrapartum hypoxic ischaemic encephalopathy.
• Expert evidence – joint minutes between parties’ experts binding on issues agreed and decisive for causation absent timely repudiation.
• Procedural – Uniform Rule 49 non‑compliance may attract costs sanctions but court may exercise discretion to hear merits.
• Sentinel event defence – sudden maternal collapse after spinal anaesthesia insufficient to displace causation established by joint expert opinion.
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11 May 2023 |
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Court dismissed application to validate ambiguous codicil under s2(3) for lack of proof of the testator’s intention.
Wills Act s2(3) — intention to be will — formalities and authentication of codicils — handwriting and signature identification — interested witness/spouse and s4A implications — onus on applicant to prove testamentary intention.
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10 May 2023 |
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Reported
An applicant should ordinarily serve a Rule 30A notice before a Rule 35(7) application; failure may affect costs.
Civil procedure — Discovery — Uniform Rule 35(7) remedy to compel discovery — Interaction with Uniform Rule 30A — Sound practice requires prior Rule 30A notice before application to compel — Non‑compliance with Rule 30A does not automatically preclude relief but affects exercise of discretion and costs.
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9 May 2023 |
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Applicants' failure to prove parental locus standi warranted dismissal of their challenge to the school's teacher advertisement.
* Administrative law – locus standi – parental standing to challenge SGB decisions – burden to aver particulars when locus standi challenged.
* Schools Act – section 38 – budgetary authority and SGB decision-making; advertising of teacher vacancies pending resolution of budgetary/legal issues.
* Civil procedure – application proceedings – where assertions are challenged in answering affidavit, applicant must plead or annex additional facts or documents to establish standing.
* Evidence – disputes of fact on standing resolved on respondents' version where applicant fails to discharge evidentiary burden.
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9 May 2023 |
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Rescission refused: applicant failed to show error or good cause and advanced no prima facie defence.
* Civil procedure – rescission of default judgment – Uniform Rule 42(1)(a) – requirement that judgment be erroneously sought or granted in absence of affected party. * Civil procedure – rescission under common law – good cause requires reasonable explanation for default and bona fide defence with prima facie prospects. * Discovery non-compliance and striking of defence – consequences for defendant. * Costs follow result; negligent conduct of State Attorney fatal to rescission.
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9 May 2023 |
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Contingency fee agreements must strictly comply with the Act; non‑compliance renders them invalid and limits recoverable fees.
* Contingency Fees Act 66 of 1997 – strict compliance required with sections 2, 3 and 4; agreements must be with a legal practitioner and in prescribed form.
* Section 4(1) – mandatory filing of affidavits and judicial approval before accepting settlement where matter is before court.
* Non‑compliance – renders contingency fee agreement invalid; practitioner entitled only to reasonable fees assessed via taxation.
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4 May 2023 |
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Whether evasive manoeuvres in a sudden emergency constitute contributory negligence — court held none, awarding full liability and costs.
Road Accident Fund – negligence and contributory negligence – sudden emergency doctrine – evasive manoeuvres justified where oncoming vehicle overtook unsafely – apportionment under Apportionment of Damages Act – costs of two counsel allowed.
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2 May 2023 |
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Sentence set aside where trial court misdirected itself and imposed a disproportionate sentence for minimal involvement in stock theft.
Stock Theft Act – sentencing appeal – misdirection by trial court relying on extraneous material and over‑emphasis of prevalence; Zinn triad applied; mitigation (age, serious ill‑health, first offender, minimal role) – sentence substituted; Firearms Control Act s103 – erroneous declaration of unfitness to possess firearm.
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2 May 2023 |
| April 2023 |
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25 April 2023 |
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Where genuine disputes of fact exist, court accepted respondent’s version and dismissed applicant’s claim for return of vehicle.
Motion proceedings — disputes of fact — Plascon‑Evans rule; Motion vs oral evidence — failure to seek viva voce where disputes known; Agency/authority to bind owner — owner’s authorisation to daughter to agree retention of vehicle; Possession/retention of vehicle after collision; Costs following unsuccessful motion proceedings.
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21 April 2023 |