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Citation
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Judgment date
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| October 2015 |
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Reported
Conditional re-zoning subject to removal of title restrictions and special consent granted without required procedure are unlawful.
Land use planning — LUPO ss 36, 39, 42 — re-zoning — permissibility of conditional re-zoning subject to removal of restrictive title condition — s 42 conditions as recorded departures — re-zoning vests immediate use rights — restrictive title conditions prevail and must be considered; zoning scheme procedure — special consent — mandatory application, notice and advertising requirements; delegation — municipal manager authorised to institute review.
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20 October 2015 |
| August 2015 |
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Reported
High Court lacked Rule 43 jurisdiction while divorce proceedings remained pending in the Regional Court; application dismissed.
Family law – Rule 43 (High Court) and Rule 58 (Magistrates’/Regional Court) – Rule 43 relief competent only in the court where main lis pending. Inherent jurisdiction – High Court as upper guardian – may intervene for minor’s protection but only in exceptional and urgent cases; distinct from Rule 43. Jurisdictional conflict – court will decline to exercise inherent jurisdiction to avoid multiplicity of proceedings. Withdrawal of Magistrates’/Regional Court proceedings – Rule 22 preserves costs determination; tender from the Bar ineffective to terminate proceedings. Abuse of process – prolix, incompetent relief and forum-shopping warrant dismissal and punitive costs.
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13 August 2015 |
| July 2015 |
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Reported
Challenges to property ratings based on valuation/categorisation must be pleaded as PAJA review claims; particulars failed to disclose a cause of action.
Municipal law – Rates Act – distinction between legislative act (rates policy and council resolution to levy rates) and administrative action (valuation, categorisation and compilation of valuation roll by municipal valuer). Administrative law – PAJA – challenges to valuation and categorisation must be pleaded and pursued under PAJA, observing the 180‑day time limit or alleging facts for extension. Civil procedure – exception – particulars failing to plead required review grounds do not disclose a cause of action; collateral challenge inappropriate where review remedies available. Statutory procedure – s 49 notice, objection and appeal processes and s 55 adjustments central to challenging assessed rates.
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28 July 2015 |
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Court awarded R14,000 monthly maintenance recognising substantial non‑financial contributions to spouse’s business under s7(2) of the Divorce Act.
Family law – Divorce – Maintenance – section 7(2) of the Divorce Act – court to consider existing/prospective means, earning capacities, needs, duration of marriage, standard of living, conduct and any other relevant factors. Family law – Non‑financial contributions – substantial administrative and managerial contributions to spouse’s business may justify maintenance despite antenuptial contract excluding accrual. Civil procedure – Costs – costs consequences for withdrawn counterclaim, amendments and exceptions ordered against the defendant by agreement.
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2 July 2015 |
| June 2015 |
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Applicant’s review deemed withdrawn and struck from the roll for late filing contrary to the practice manual.
Practice manual – consolidated practice manual – directives issued by Judge President – binding effect. Civil procedure – review of arbitration award – filing record within prescribed 60 days – clause 11.2.2/11.2.3. Meaning of 'deemed' – conclusive effect – deemed withdrawal for non-compliance. Remedy – striking review from roll; right to seek reinstatement and condonation preserved.
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17 June 2015 |
| May 2015 |
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An express contractual warranty against political interference was breached, entitling the municipal manager to damages.
Contract/employment – Municipal manager’s fixed-term contract – Clause warranting no undue political interference – Undue interference by executive mayor and deputy – Material breach rendering performance impossible – Resignation and damages; Defendant failed to call evidence or cross-examine; Court allowed amendment to particulars and awarded damages and costs.
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19 May 2015 |
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Accused charged under Schedule 6 failed to show exceptional circumstances for bail; untested affidavit insufficient.
Criminal procedure – Bail – Schedule 6 offences – Section 60(11)(a) requires accused to adduce evidence of exceptional circumstances to justify bail. Evidentiary procedure – Affidavit alone insufficient where State leads conflicting oral evidence and accused does not testify or face cross-examination. Appeal review – Under section 65(4) appellate court will not set aside lower court's bail refusal unless satisfied it was wrong.
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19 May 2015 |
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Rule 4(9) does not permit State Attorney service where a public official is cited; service was ineffective.
Uniform Rules of Court — rule 4(9) — meaning of "the State" — does not include officers/servants or general organs of state; service on State Attorney ineffective where public official cited in official capacity; service must comply with rule 4(1); application struck off roll.
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7 May 2015 |
| March 2015 |
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A child's wholly suspended imprisonment sentence is a 'form of imprisonment' and is subject to automatic review under the Child Justice Act.
Child Justice Act s85(1) – meaning of 'any form of imprisonment' – wholly suspended sentence included – automatic review under Chapter 30 Criminal Procedure Act; Jaga precedent applied; statutory purpose to protect children.
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4 March 2015 |
| December 2014 |
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Oral sex with a third party constitutes adultery; plaintiff proved adultery and suffered loss of consortium and iniuria.
Adultery — definition — whether voluntary oral sex with a third party constitutes adultery; loss of consortium; actio iniuriarum; evidentiary credibility; equality considerations.
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17 December 2014 |
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Court accepted a handwritten note as a codicil under s2(3) Wills Act and ordered estate to pay costs on attorney-and-client scale.
Wills Act s2(3) — acceptance of non-compliant document as will or amendment; codicil principles. Testamentary intention — admissibility of evidence to establish intention to make a will or codicil. Multiple contemporaneous testamentary documents — reconciliation rule; if irreconcilable and same date, both may be invalid. Testamentary capacity — intoxication considered but not ultimately pursued as ground of invalidity. Costs — special costs orders in estate litigation; ordering costs from estate on attorney-and-client scale.
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11 December 2014 |
| October 2014 |
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Applicant entitled to return of movable items and engagement ring; respondent failed to prove donations and par delictum did not bar recovery.
Property law – donation versus retention of ownership – onus to prove donation; Family law – engagement ring as an impliedly conditional gift; Contract/morals – effect of contra bonis mores and in pari delicto on recovery of conditional gifts; Civil procedure – jurisdictional note on magistrate’s court where value below R100,000.
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8 October 2014 |
| September 2014 |
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The plaintiff failed to prove the defendants acted wrongfully or negligently; absolution from the instance granted.
Delict — wrongfulness and negligence distinct; prima facie test for absolution at close of plaintiff’s case (Claude Neon); municipal duty to provide reasonable security for public access to facilities; adequacy of perimeter fencing and temporary repairs as factor in foreseeability and wrongfulness; assessment of credibility and possible collusion in evidentiary determination.
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4 September 2014 |
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Reported
Whether the correctional medical practitioner’s refusal to recommend the applicant for medical parole was reviewable under PAJA.
Correctional Services Act s79 – medical parole requirements; s79(2)(b) – written medical recommendation prerequisite; PAJA – review for arbitrariness, irrelevant consideration or bad faith; standard of review for technical/medical administrative decisions; motion proceedings – acceptance of respondent’s version on material factual disputes.
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4 September 2014 |
| August 2014 |
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Applicant failed to show jurisdiction or a prima facie reckless-credit cause of action; application dismissed with costs de bonis propriis.
Class actions – Certification requirements – Children’s Resource Centre Trust v Pioneer Food – identifiable class; cause of action raising triable issue; common issues; suitable representative. Jurisdiction – Superior Courts Act s 21(1) – corporate residence and causes arising within court’s area; declaratory jurisdiction limited. Prima facie case – evidential threshold for certification; allegations of fact required, not conjecture. National Credit Act – allegations of reckless credit under ss 80 and 83; unsupported by evidence. Costs – adverse costs including costs de bonis propriis where litigation instigated and promoted by instructing attorneys.
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21 August 2014 |
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A final, binding expert/arbitral determination under a settlement agreement precludes re‑litigation except on narrow Arbitration Act grounds.
Settlement agreement providing for final and binding expert/arbitral determinations — substitute directors’ determination equated to arbitration/expert determination — review limited to Arbitration Act s33 (misconduct, gross irregularity, excess of powers) and s33(2) six‑week time limit — failure to follow Rule 53/Arbitration Act procedure is abuse of process — courts reluctant to condone procedural non‑compliance.
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7 August 2014 |
| July 2014 |
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Reported
Prosecutorial interference with a defence witness violated the accused’s fair‑trial rights and warranted setting aside those proceedings.
Criminal procedure – Gross irregularity – Prosecutorial interference with defence alibi witness – Non‑disclosure of witness statement – Right to a fair trial (s34) – Separation of trials – Exclusion of improperly obtained State evidence.
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17 July 2014 |
| June 2014 |
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Reported
Municipality failed to ensure meaningful public participation in the budget process; budget not set aside due to MFMA s27(4).
Local government — Participatory democracy — duty to facilitate meaningful public participation under Constitution and Systems Act (ss16–18, s29) — budget process under MFMA (ss21–25) — notice-and-comment and publication obligations — reasonableness standard — scope of s27(4) MFMA (non-compliance does not ipso facto invalidate budget) — Structures Act s30(5) and s160 constitutional voting requirements — remedies and discretionary limitation of retrospective relief.
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3 June 2014 |
| March 2014 |
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Ordinary joint ownership is not a partnership; pre-existing contribution claims prescribed, and co-ownership was judicially terminated.
Property law – Co-ownership (actio communi dividundo) – Distinction between ordinary joint ownership and partnership – co-ownership does not automatically equal partnership. Prescription Act 68 of 1969 – s11(d) prescription of debts – s13(1)(d) partnership exception – application where co-owners are not partners. Relief on termination of joint ownership – valuation, sale, accounting between co-owners, distribution of net proceeds.
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25 March 2014 |
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Reported
Trustees recover repayments as voidable preferences; illegal pyramid scheme precludes 'ordinary course of business' defence.
Insolvency Act s29 – voidable preferences; ordinary-course-of-business test is objective and wide; illegality/pyramid-scheme activity negates ordinary-course defence; burden on recipient to prove ordinary course; s32(3)/SCA authority limits mora interest to run from judgment.
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25 March 2014 |
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Reported
An expired tender cannot be revived by selective post-expiry extensions; award set aside but suspension granted for fresh procurement.
Public procurement – tender validity period – expiry terminates tender process; post-expiry extensions or selective revival invalid – PAJA review of procurement decisions – mandatory compliance with supply-chain prescripts – remedy: award set aside but suspension permitted to allow fresh competitive procurement.
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25 March 2014 |
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Application to review revocation of school prefecture dismissed as moot and the decision found not unreasonable.
Administrative law – review of school disciplinary decision – revocation of prefecture. Mootness – whether relief is academic where applicant has left school. Reasonableness review – court will not substitute its discretion unless decision is grossly unreasonable or in bad faith. Evidence assessment – Plascon-Evans approach to contradictory affidavits. Disciplinary record – absence of formal record relevant to prejudice from sanction.
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13 March 2014 |
| September 2013 |
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Reported
Victims may intervene in POCA s26(6) proceedings; applicant failed s26(6) disclosure and inability-to-pay tests, so funds not released.
POCA s26(6) — High Court has discretion to permit intervention by victims (not confined to creditors) Intervention — prima facie sufficient interest, school governing body may litigate to protect school’s interests s26(6) preconditions — full disclosure under oath of all interests in restrained property; inability to meet expenses from unrestrained property Failure to disclose origin/nature of restrained funds and insufficient evidence of financial inability bars release of funds Application dismissed; costs awarded to respondents
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19 September 2013 |
| August 2013 |
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Late request for reasons and appeal rendered urgent interdict irregular; application dismissed and costs awarded on attorney-and-client scale.
Civil procedure – appeals from Magistrate’s Court – Rule 51(1) request for reasons – requirement to request within 10 days or seek extension under Rule 60(5) – irregular late notice of appeal – self-created urgency – interdict refused – punitive costs order (attorney-and-client).
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8 August 2013 |
| July 2013 |
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Reported
Mandament van spolie granted; respondent’s vague claim of agreement rejected and PIE held inapplicable as house was not her 'home'.
Mandament van spolie – possession and dispossession; dispute of fact in motion proceedings (Plascon‑Evans/Wightman); PIE applicability – statutory eviction protects ‘homes’ with habitual/permanent occupation; mandament available between spouses.
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9 July 2013 |
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Whether detention under s 34 Immigration Act was lawful after asylum refusals and whether police/prison cells qualify as places of detention.
Immigration law – s 34(1) Immigration Act – arrest, detention and deportation of illegal foreigners – scope and meaning of "manner and at a place determined by the Director‑General" – prisons and police cells permissible places of detention. Refugee/Asylum – temporary asylum‑seeker permits lapse on final rejection of asylum application; applicants become illegal foreigners liable for deportation. Detention standards – conditions that amount to denial of fundamental personality rights may render detention unlawful; factual findings required. Procedural rights – communication of rights "when possible, practicable and available" in a language understood; interpreters’ credibility assessed. Administrative discretion – immigration officers retain and must exercise discretion before arresting for deportation.
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9 July 2013 |
| June 2013 |
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Applicant proved respondents wilfully breached a restraint order; suspended sentence activated, fines and suspended sentences imposed.
Contempt of court – motion proceedings – need to prove terms of order, knowledge thereof and contravention beyond reasonable doubt. Restraint of trade – enforcement – trading under different name or alleged change of control does not evade restraint order. Evidence – uncontested affidavits, documentary evidence and prior contempt finding justify activation of suspended sentence. Remedies – activation of suspended sentence, additional suspended imprisonment, fines and punitive costs (attorney-and-client).
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18 June 2013 |
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Plaintiff failed to prove common intention for rectification; defendant succeeded on counterclaim for defective dam workmanship.
Contract — Rectification — Onus on party seeking rectification to prove common intention/mistake on balance of probabilities; contemporaneous correspondence critical. Contract — Performance — failure to prove compliance with written specifications (capacity and SABS standards) bars claim. Delict/contract remedial claim — defective workmanship: expert report accepted; damages awarded for repair costs. Costs — successful defendant awarded costs, expert and inspection costs, with interest.
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11 June 2013 |
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The applicant suffered common assault and an unlawful, ulterior-motivated arrest by a police officer; damages and costs awarded.
Criminal procedure – arrest without warrant – legality – arrest effected for improper/ulterior purpose – onus on state to justify arrest.* Police misconduct – use of force and common assault – infringement of bodily integrity.* Evidence – credibility of witnesses, contemporaneous investigating officer’s statement outweighing later inconsistent testimony.* Remedies – damages for assault and unlawful arrest; interest and costs on High Court scale.
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4 June 2013 |
| April 2013 |
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Reported
Court corrected a patent date error in its order to reflect the universal partnership’s true commencement year without altering the judgment.
Practice — correction of judgments and orders — patent clerical/typographical errors; Rule 42(1)(b); tenore substantiae perseverante — court may correct wording to give effect to true intention. Family/Common‑law partnerships — universal partnership (societas omnium bonorum) — includes all present and future property (Hi‑Tech business included).
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23 April 2013 |
| February 2013 |
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Reported
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14 February 2013 |
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Applicant’s recusal and special‑entry claims based on hearsay and alleged conflict dismissed as contrived.
Criminal procedure – recusal – apprehended bias – objective test requiring reasonable apprehension by an informed, fair‑minded person – hearsay allegations insufficient. Criminal procedure – s 317(2) application for special entry – alleged conflict of interest and denial of cross‑examination – must be supported by record and credible evidence. Evidence – hearsay and late affidavits – not admitted where opportunistic, untested and aimed at delaying trial.
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4 February 2013 |
| 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 |
| August 2011 |
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A bus passenger is entitled to damages for physical and psychiatric injuries, including probable future surgery and therapy.
Delict – Road accident – quantum assessment of general damages for physical and psychiatric injury; Psychiatric injury – bystander/non-relative can claim for chronic PTSD where harm reasonably foreseeable and proved; Future medical expenses – award based on probabilistic expert opinion of likely future surgery; Causation – expert evidence preferred over speculative pre-existing causes.
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16 August 2011 |
| July 2011 |
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Disciplinary proceedings were instituted on reasonable and probable cause; malicious prosecution and personality-rights claims dismissed.
Delict – Malicious prosecution and abuse of civil proceedings – requirement of a prosecution for malicious criminal prosecution; disciplinary proceedings examined under reasonable and probable cause test (subjective honest belief and objective reasonableness) – circumstantial evidence and investigator onduct – claims for invasion of privacy, dignity and fama inadequately pleaded or proved.
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5 July 2011 |
| June 2011 |
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Applicant proved multiple contempts: using confidential designs and circumventing an interdict via intermediaries; suspended sentences and fines imposed.
Contempt of court – civil contempt for disobedience of interdict – requisites: existence of order, service, non-compliance and wilfulness/mala fides – onus and evidentiary shift where knowledge and non-compliance proved. Use of confidential information and designs – manufacture and supply of similar products despite cosmetic differences constitutes breach. Circumvention – interposition of intermediaries and participation in inspections constitute indirect contact/solicitation in breach of interdict. Legal advice defence – equivocal or post hoc advice insufficient to negate dolus eventualis. Remedies – suspended imprisonment for individuals, fine for close corporation, and adverse costs (including attorney-and-client).
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15 June 2011 |
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Eviction by an organ of state dismissed for procedural defects, factual disputes and being not just and equitable under section 26.
Eviction — s26 Constitution & PIE — just and equitable inquiry (elderly, children, alternative accommodation); Motion proceedings — genuine dispute of fact (Plascon‑Evans) defeats final relief; Procedural compliance — Rule 6/Rule 17(4)(b) requires description/authority of juristic applicant; Contract — eviction not an express remedy, implications only if necessary; Organ of state landlord considerations.
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14 June 2011 |