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Citation
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Judgment date
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| December 2012 |
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An attorney’s false s4 Contingency Fees Act affidavit led to a court order of settlement and referral to regulatory and prosecuting authorities.
Practice Rule 3(a) – non‑compliance and dilatory conduct; Contingency Fees Act s 4 – statutory affidavit obligations; false or perjurious affidavits by attorneys; professional misconduct — referral to Law Society; criminal referral to Director of Public Prosecutions; court’s power to make settlement an order and to protect clients’ interests.
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6 December 2012 |
| September 2012 |
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Reported
Court found an organised abalone-trafficking enterprise proved; interceptions, accomplice evidence and searches admissible, resulting in multiple convictions.
• POCA – existence of an enterprise; pattern of racketeering activity – requirements and proof.• Admissibility of intercepted communications – validity of judge’s directive and probative value of monitored calls and identifications.• Accomplice evidence (s 204) – application of cautionary approach and corroboration.• Search and seizure – warrantless search justified by consent and urgency; admissibility of seized documents.• Criminal liability for organised wildlife trafficking (abalone) through coordinated logistics and concealment.
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27 September 2012 |
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Reported
A conviction triggers automatic licence suspension; only sworn evidence can justify deviation when the accused elects not to testify.
National Road Traffic Act s35(1)–(3) – automatic suspension of licence on conviction – section 35(3) requires evidence under oath to avoid suspension – submissions from the bar insufficient – right to silence preserved but consequences of electing not to testify – review and substitution of magistrate’s order.
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17 September 2012 |
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The Revised ROD required a strategic plan but did not obligate respondents to fund or provide infrastructure for the rehabilitation centre.
Environmental law – Record of Decision – Interpretation of conditions 2.8 and 2.48; whether EIR recommendations become binding conditions; administrative deference and review; obligation to fund seabird/marine mammal rehabilitation centre; scope of parties bound by ROD.
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6 September 2012 |
| August 2012 |
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Reported
Applicant may not claim a s7(7) pension share after the joint estate was already divided; application dismissed with costs.
• Family law – Divorce Act s 7(7) – pension interest deemed part of patrimonial benefits – availability depends on joint estate not yet being divided.
• Family law – Division of joint estate – effect of subsequent settlement agreement precludes later s7(7) relief.
• Civil procedure – necessary parties – executor of deceased estate required where deceased’s prior agreement is impugned.
• Pension funds – payment of death benefits and delay in prosecution relevant to discretionary costs order.
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28 August 2012 |
| June 2012 |
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A fiduciary who fails to render or substantiate an account must pay the unaccounted funds with interest.
Fiduciary duty to account; action for account and debatement; onus on fiduciary to provide clear explanation and vouchers; inadequate oral evidence and documentary proof; order for payment where account fails; interest and costs.
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21 June 2012 |
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Attachment ad confirmandam jurisdictionem granted; prior Magistrates' judgment void for unsworn affidavits, res judicata rejected.
Practice — attachment ad fundandam/ad confirmandam jurisdictionem — requirements: prima facie cause, peregrine defendant, property within jurisdiction — court must grant attachment where requirements met; Magistrates' Court application fatally defective where affidavits not sworn — judgment nullity; res judicata cannot be founded on void proceedings; prescription and other merits defences must be raised by special plea.
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1 June 2012 |
| May 2012 |
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A defendant may compel a second Rule 36 medical/psychological exam despite claimant's privacy objections.
Rule 36 – medical/psychological examinations; second/final examination at requesting party's instance; privacy limitations; Rule 36 venue and procedural safeguards; costs; s19 Road Accident Fund Act.
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31 May 2012 |
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The accused convicted of coordinated VAT refund fraud, forgery, corruption and money‑laundering; SARS search and investigation upheld.
Tax law – Value‑Added Tax – fraudulent VAT201 returns supported by forged tax invoices; input tax refunds claimed without genuine supplies. POCA – Conducting an enterprise through a pattern of racketeering activities – repeated VAT frauds across related entities satisfy the definition of a pattern. Forgery – Fabrication and submission of false tax invoices and related documents. Corruption – Offering gratifications to SARS officials to influence investigation/processing of VAT refunds. Money‑laundering – Movement of refund proceeds through multiple accounts to conceal/disguise origin. Evidence/Procedure – Search warrants lawful; State investigations by SARS authorised by VAT Act; failure to interview alleged fabricated third parties did not vitiate trial.
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17 May 2012 |
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Applicant failed to establish prima facie partnership, co-ownership or pre-emption; purported subdivision void under agricultural land law.
Property law – interlocutory interdict – requirement to show prima facie right, risk of irreparable harm and balance of convenience. Partnership law – alleged partnership asset: burden and timing of proof where transfer predates alleged partnership. Co-ownership/rectification – improbability of rectification where documentary and timing evidence contradict joint acquisition. Agricultural land – Subdivision of Agricultural Land Act 70 of 1979 – prohibition on subdivision or transfer of portions without Ministerial consent; effect on purported sale and right of pre-emption (annexure V4).
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2 May 2012 |
| March 2012 |
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Reported
Section 85(1) CJA requires automatic review of specified child sentences even when the child was legally represented.
Child Justice Act s85 – automatic review of certain child sentences – applies irrespective of legal representation; interaction with Criminal Procedure Act s302 and Schedule 4; best interests of the child; High Court as upper guardian.
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30 March 2012 |
| February 2012 |
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Reported
Prison liable where failure to segregate and guard during medical treatment allowed fellow inmate to attack plaintiff.
Prison law – duty to ensure safe custody – negligent omission – foreseeability of violence – failure to segregate/supervise prisoner during medical treatment – liability for assault by fellow inmate.
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28 February 2012 |
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Reported
A director cannot avoid personal surety liability by claiming ignorance absent misrepresentation or surprising contractual terms.
Suretyship – iustus error – caveat subscriptor – duty to inform – no misrepresentation – signatory’s business experience – bank entitled to rely on outward appearance of signed surety deeds.
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23 February 2012 |
| January 2012 |
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Reported
An application for debt review does not automatically constitute an act of insolvency for sequestration purposes.
Insolvency Act s8(g) – requirement of deliberate written notice of inability to pay; National Credit Act s86 debt review – does not ipso facto constitute act of insolvency; credit bureau reports insufficient as notice; agent’s communication requires proof of authority or principal consent; provisional sequestration – applicant must prove act of insolvency or actual insolvency.
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17 January 2012 |