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Citation
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Judgment date
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| December 2022 |
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Interim maintenance orders against a trustee discharged where material disputes of fact require oral evidence; each party bears own costs.
Trusts – testamentary trust – beneficiaries seeking maintenance from trustee; urgent motion proceedings – suitability where material disputes of fact exist – Plascon‑Evans rule; Uniform Rule 41A non‑compliance – condonation in appropriate urgent cases; investment held by trustee for trust’s benefit – not ipso facto misconduct; maintenance relief may be pursued in Maintenance Court.
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29 December 2022 |
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The defendant cannot rely on disclaimers to avoid liability for gross negligence causing the applicant’s injury.
Delict – occupier’s liability and negligence – gross negligence/recklessness where an uncordoned man‑made hole caused injury; contractual disclaimers/exclusion clauses – visibility, assent and CPA formalities; public policy limit on exclusion of liability for gross negligence; adverse inference from defendant’s silence.
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23 December 2022 |
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Whether contractual restraints and confidentiality are enforceable where joint suspensive conditions, including agreed payment and employment, were not fulfilled.
Sale of business – suspensive conditions – joint suspensive conditions (employment/remuneration and insurance) prevent contract becoming perfecta; simulated transaction – nominal purchase price disguised true price (R100 vs R7.8m); reciprocal obligations and breach – purchaser’s failure to pay bars enforcement of restraint of trade, confidentiality and goodwill; Plascon‑Evans rule applied to affidavits; mootness of expired restraint.
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22 December 2022 |
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Urgency not established: delay and unsubstantiated expert report defeat application for interim supervised sleepover contact.
Family law – Contact and interim relief – Urgency and self-created urgency – Applicant failed to explain three‑month delay; psychologist's report recommended family advocate investigation before sleepover contact; supplementary expert note unsubstantiated; child's wishes relevant but not determinative; best interests paramount.
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20 December 2022 |
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Prescription claim failed due to alleged permission, but servitude by necessity granted and registration ordered.
Servitudes – acquisitive prescription under s 6 Prescription Act – requirement nec vi, nec clam, nec precario – effect of perfunctory permission (precarium). Motion proceedings – Plascon-Evans rule: disputed facts on affidavits must be accepted where not untenable. Servitude by necessity – landlocked dominant tenement; shortest route and least damage principles; equitable balance. Registration and compensation – court may authorize registration and accept tendered compensation for expropriation-like interference
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15 December 2022 |
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A time‑limited interim interdict became moot; confirmation refused and litigating parties ordered to bear their own costs.
Interim interdict — Rule Nisi confirmation — Mootness where time‑limited order expired; Court discretion to refuse confirmation of moot orders; Application of factors in Normandien Farms to decide whether to entertain moot matters; Costs — Biowatch principle: parties defending constitutional rights in good faith should not be penalised; where matter moot and both sides acted in good faith each party to bear own costs.
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14 December 2022 |
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Leave to appeal refused because the applicants lacked reasonable prospects of success; costs awarded against applicants.
Civil procedure – leave to appeal – application under Rule 16.5 – requirement of reasonable prospects of success – dismissal for lack of prospects; costs awarded.
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14 December 2022 |
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Application for leave to appeal dismissed; brief late Heads of Argument condoned but applicant ordered to pay costs.
Appeal procedure – application for leave to appeal – assessment of reasonable prospects of success and compelling reasons to grant leave. Civil procedure – condonation – brief four‑day delay in filing Heads of Argument – no prejudice, condoned. Judicial conduct – allegation of judge’s close relationship with third party – recusal not warranted where allegation lacks substance
Costs – applicant ordered to pay costs of condonation and of the application for leave to appeal
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14 December 2022 |
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A section 317 special entry is inappropriate where the alleged irregularity appears on the record and particulars are sufficient.
Criminal procedure – section 317(1) special entry – procedure reserved for irregularities not appearing on record; grounds to refuse: not bona fide, frivolous/absurd, abuse of process – where irregularity is on record raise on appeal – adequacy of indictment and particulars to prepare for trial.
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14 December 2022 |
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Court found arrest and prosecution supported by reasonable grounds; plaintiff failed to prove unlawful arrest or malicious prosecution.
Criminal procedure – Arrest without warrant – s 40(1)(b) CPA – objective test of reasonable suspicion; possession of complainant's statement and J88 report can constitute reasonable grounds. Criminal procedure – Detention consequent on lawful arrest
Delict – Malicious prosecution – requirements: institution of proceedings, absence of reasonable and probable cause, malice, and failure of prosecution; onus on plaintiff to prove lack of cause and malice. Prosecutorial discretion – exercised bona fide where prosecutor applies mind to police docket and reasonable possibility of conviction exists
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13 December 2022 |
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Reported
Court dismissed appeal: magistrate's interventions did not render trial unfair; child witnesses' evidence credible; sentences confirmed.
Criminal law — Evaluation of child witness evidence; judicial intervention and impartiality — when questioning by presiding officer vitiates trial; contradictions between police statements and viva voce evidence; credibility and probabilities; sentencing for sexual offences against minors (life imprisonment).
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13 December 2022 |
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Court confirmed removal of child to protect him, ordered supervised contact and appointed curator ad litem with rehabilitation conditions.
Children — Children's Act — child in need of care and protection — removal from caregiver justified where credible evidence of neglect, developmental neglect and exposure to harm — Family Advocate report relevant but not binding — appointment of curator ad litem — supervised contact and rehabilitation conditions for restoration of care.
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7 December 2022 |
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An interim payment certificate under a construction contract is a liquid document enforceable absent limited grounds of attack.
Construction law — Interim payment certificate under JBCC — Certificate treated as liquid document/acknowledgement of debt — Limited grounds to attack liquidity (fraud, collusion, agent exceeding authority) — CPAP base month fixed by contract — Court may order payment despite internal budgetary/treasury processes or absence of final account.
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7 December 2022 |
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Unlawful municipal manager appointment; municipality ordered to pay costs and council must consider recovering costs from responsible office-bearers.
Local government – Appointment of municipal manager – Procedural and substantive irregularities – Speaker and Mayor’s conduct held unlawful, deliberate and grossly negligent – Interim interdict and referral back to council – Costs ordered against municipality; council to investigate recovery from office-bearers under s176(2) MFMA – Compliance with court orders and accountability of councillors.
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6 December 2022 |
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Court awards limited (10%) diminution for future loss of earnings; capital award R1,318,266.40 after interim payment.
Delict — Motor vehicle collision — Future loss of earnings and earning capacity — Causal link between injury and termination of prior employment — Evaluation and weight of expert reports — Actuarial computation and judicial discretion on contingencies — Deduction of interim payment.
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5 December 2022 |
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Contract void for lack of consensus on inventory; rectification and specific performance refused; cancellation and restitution ordered.
Sale of business — rectification — parol/integration rule — unsigned annexure — absence of consensus (ad idem) on merx — calculation-dependent obligations — contract void for vagueness/mutual mistake — cancellation and restitution ordered.
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2 December 2022 |
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Review to compel registration dismissed as time-barred under PAJA due to unreasonable delay and no condonation.
Administrative law — Promotion of Administrative Justice Act (PAJA) — timing of review proceedings — section 7(1) 180-day limit begins when person becomes aware of administrative action — absence of section 9 condonation/extension fatal — review for failure to register applicants on provincial transport register time-barred.
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2 December 2022 |
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High Court dismisses application to remove prosecutor: wrong forum and allegations unproven, costs on attorney-and-client scale.
Criminal procedure — Recusal of prosecutor — Proper forum is trial court; motion to High Court inappropriate where trials are advanced — Applicant must prove substantive unfairness or bias; mere allegations unsubstantiated on papers insufficient — Motion proceedings: Plascon‑Evans principle applies — Abuse of process and punitive costs where allegations are spurious and delay prejudicial.
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2 December 2022 |
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Applicant granted pendente lite maintenance, medical aid retention, vehicle use, cell-phone costs and legal-costs contribution.
Rule 43 – spousal maintenance pendente lite; antenuptial agreement waiving post-divorce maintenance does not necessarily bar interim maintenance; assessment by marital standard of living, applicant’s needs and respondent’s means; ancillary relief (medical aid, vehicle, cell phone, legal costs); exclusion of vague or unsupported claims.
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2 December 2022 |
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Applicant awarded R35,100 monthly pendente lite maintenance, medical aid retention, vehicle use, cell phone payments and R10,000 toward legal costs.
Family law – Rule 43 – spousal maintenance pendente lite – entitlement depends on marital standard of living, applicant’s reasonable needs and respondent’s capacity to pay; antenuptial waiver of post‑divorce maintenance does not necessarily preclude pendente lite relief
Maintenance – quantum – court may allow periodic payments based on a reasonable budget and reject unproven or excessive claims (relocation, gardener, vague allowances)
Orders – retention on medical aid, vehicle use, cell phone costs and contribution to legal costs may be appropriate pendente lite relief
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2 December 2022 |
| November 2022 |
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Whether the taxing master was clearly wrong to depart from the tariff when taxing attorney-and-own-client costs; court held he was not.
Costs — Taxation and review — Whether taxing master properly exercised discretion to depart from tariff when taxing attorney-and-own-client bills — Requirement that review court be satisfied taxing master was 'clearly wrong' before interference — Penal costs de bonis propriis to prevent burden on insolvent estate.
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30 November 2022 |
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A taxing master’s discretionary departure from the tariff was upheld where an abortive urgent application and attorney misconduct justified attorney-and-own-client indemnification.
Costs — Taxation — Attorney-and-own-client scale — Taxing Master's discretion to depart from tariff in extraordinary/exceptional cases — Review standard: Taxing Master "clearly wrong" — Conduct of attorney and abortive urgent application as justifying departure from tariff.
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30 November 2022 |
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Eviction set aside where estate misrepresentation and long occupation by vulnerable occupiers made eviction not just and equitable.
PIE Act – eviction – requirement to show owner status, unlawful occupation and that eviction is just and equitable – consideration of duration of occupation and vulnerability (disabled occupier)
Succession/Administration of Estates – misrepresentation of marital status when reporting death – effect on validity of alienation by estate representatives. Property law – RDP/housing subsidy property – rights of surviving spouse in community of property and intestate succession
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30 November 2022 |
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The applicant failed to prove exceptional circumstances for bail; the magistrate’s refusal was upheld.
Criminal procedure – Bail – Schedule 6 sexual offences – Exceptional circumstances required for release – Onus on accused to prove probable acquittal – Credibility and reliability assessments for trial, not bail – Court may consider propensity, risk of evasion and witness interference – Allegations of investigatory misconduct and judicial bias must be substantiated.
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30 November 2022 |
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Applicants entitled to interdict respondents from operating a frail-care business on residentially zoned property; pending rezoning is no defence.
Town planning and zoning – enforcement of zoning scheme – unlawful commercial use of residentially zoned property – entitlement to final interdict. Civil procedure – non-joinder – joinder required only where direct substantial interest may be prejudiced
PIE Act – not applicable where eviction is not sought and relief is only to restrain unlawful use. Locus standi – neighbouring owners entitled to enforce zoning scheme. Re-zoning application – pending application does not justify continued illegal use. Characterisation of activities – non-profit label does not preclude finding of business where operations have business attributes
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28 November 2022 |
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Material procedural irregularities in taxation justified setting aside the allocatur and referring the bill for re-taxation before a different taxing officer.
Civil procedure – Taxation of costs – Rule 70 and Rule 48 – procedural compliance with notice, inspection and certification requirements – requirement that taxing officer exercise discretion judicially and keep records when hearing evidence
Review – grounds for setting aside taxed bill – reliance on another judge during taxation, lack of record, hearsay, conflict of interest, late filings, misinterpretation of court order
Remedy – setting aside allocatur and referral for re-taxation before different taxing officer; no order as to costs given evidentiary uncertainty
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28 November 2022 |
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Reported
Conviction for armed robbery upheld: single-witness identification credible, alibi rejected, but trial conduct and unexplained sentence deviation criticised.
Criminal law – Robbery with aggravating circumstances – Identification evidence – single identifying witness; cautionary rule applied
Evidence – Prior acquaintance, daylight, proximity, scuffle and corroboration can render single-witness identification reliable
Procedure – Improper judicial conduct (excessive questioning, suggestion to change plea) may warrant reproach but does not necessarily vitiate trial fairness
Sentence – Departure from prescribed minimum sentence requires recorded substantial and compelling reasons
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25 November 2022 |
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Appeal upheld and convictions set aside because absence of any trial record made rehearing impossible.
Criminal procedure – Missing or incomplete trial records – inability to rehear appeal where no transcript or notes exist – conviction set aside and substituted with acquittal. Evidence preservation – digital court recording system (DCRS) failures and custodial responsibilities of court officials and practitioners. Appeal procedure – consequences of delay in applying for leave to appeal and cautions against condonation as of right
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25 November 2022 |
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Condonation for late reply granted for attorney negligence; purported sale invalid because seller lacked title; appeal dismissed.
Civil procedure – condonation for late filing – five-day delay due to attorney’s negligence – good cause established. Motion proceedings – replying affidavit containing new material – respondent permitted to file triplication. Property law – alleged sale of land where seller lacked title – requirement of s2(1) Alienation of Land Act – sale unenforceable. Resolution of factual disputes on motion – Plascon-Evans / Wightman principles applied; disputes decided against applicant. Prescription and non-joinder issues relevant to relief for transfer of property
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24 November 2022 |
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Court ordered targeted Rule 35(3) discovery, including limited bank statements and specified WhatsApp messages, costs in the action.
Rule 35(3) discovery – relevance determined by pleadings – reluctance to go behind discovery affidavit unless probability of error – overbroad requests to be narrowed – non-existent or unavailable documents cannot be compelled – WhatsApp messages may be discoverable if limited to relevant content.
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24 November 2022 |
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Applicants failed to show a reasonable prospect of success on appeal from dismissal of their insurance indemnity claim; leave refused.
Application for leave to appeal — Superior Courts Act s17(1) — elevated test requiring prospect that another court would reasonably reach a different conclusion — insured’s duty of full disclosure — interpretation of insurance contract — no reasonable prospects shown; leave refused with costs.
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22 November 2022 |
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Administrative understatement penalties and criminal tax‑evasion prosecutions are distinct; their combination does not breach double jeopardy.
Tax law – Constitutional challenge to sections 222 and 235 TAA – Whether administrative understatement penalties and criminal tax‑evasion prosecution constitute double jeopardy. Criminal procedure – Double jeopardy (section 35(3)(m)) – distinction between administrative/regulatory penalties and criminal punishment. Civil procedure – Res judicata/issue estoppel – whether prior criminal plea hearing precludes constitutional challenge
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21 November 2022 |
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Whether an arbitration agreement can oust the maintenance court’s jurisdiction to enforce a maintenance order.
Arbitration Act s2(a) – exclusion of "matrimonial cause or matter incidental thereto"; enforcement of maintenance orders and arbitrability; kompetenz‑kompetenz – arbitrator’s competence to decide own jurisdiction; party autonomy to agree forum for disputes arising from settlement agreements.
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17 November 2022 |
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Applicant failed to prove Fidelity Fund paid defendant or that defendant misapplied funds; claim dismissed.
Fidelity Fund claims – proof of payment; mandate and disbursement – attorney duty to pay approved claimant; repudiation of claim by Fidelity Fund; insufficiency of plaintiff's evidence; Rule 13 indemnity dismissed.
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17 November 2022 |
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Court found serious cervical and back injuries, accepted expert evidence and applied the initial actuarial contingencies for loss of earnings.
Road Accident Fund – Quantum only – Serious cervical and thoracolumbar injuries (C1–C2 ligamentous instability; probable C2–C3 fractures) – expert evidence accepted – hospital records insufficient to rebut – contingencies in loss of earnings (actuarial calculation preferred to post-morbid 70% increase).
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17 November 2022 |
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Conviction set aside because the trial record is missing; re‑prosecution may follow under section 324(c).
Criminal procedure – missing trial record/transcripts – inability to reconstruct proceedings – absence constitutes technical irregularity – conviction and sentence set aside – matter referred to DPP for consideration under s324(c) of Criminal Procedure Act.
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17 November 2022 |
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Intervening negotiations severed causation between an attorney's advice and spoliation; attorney not personally liable for costs.
Spoliation – unlawful deprivation of possession – restoration of status quo and withdrawal of opposition
Lien/retention – subcontractor’s right to retain premises for unpaid work. Attorney conduct – whether advice to client causing spoliation creates personal liability for costs de bonis propriis
Causation – intervening events and correspondence breaking causal link between legal advice and subsequent unlawful act
Costs – discretionary award where primary relief became moot; successful party entitled to costs for period of opposition
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16 November 2022 |
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Eviction refused pending a section 2 Conversion Act inquiry to determine the lawful owner of the erf.
Property/PIE — Eviction application dismissed where title dispute exists; Conversion of Certain Rights into Leasehold or Ownership Act s2 — Director-General must hold inquiry to determine rightful owner; Administrative law/PAJA — not every post-decisional act is reviewable; Conversion Act inquiry may be prerequisite to relief.
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14 November 2022 |
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Universal partnership creates personal claims but is not a defence to eviction of trust‑owned property; eviction granted with six months to vacate.
Property law; eviction under PIE s 4(7) — occupier in place for more than six months — just and equitable enquiry; Universal partnership — confers personal contractual rights, not real rights in third‑party owned property, and is not a defence to eviction by registered owners; Eviction relief — reasonable implementation period; sheriff and SAPS authorised; costs reserved to parties to bear own costs.
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11 November 2022 |
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Whether the applicant’s failure to complete required subcontracting information rendered its tender non‑responsive.
Procurement law; Preferential Procurement Regulations (2017) — subcontracting as pre-qualification requirement; responsiveness of tenders; requirement to complete returnable schedules; Plascon‑Evans rule; contractual requirement for written communications; review of tender award.
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7 November 2022 |
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Arrests based on uncorroborated oral information were unlawful; plaintiffs awarded damages for detention until first appearance.
Criminal procedure – s 40(1)(b) CPA – reasonable suspicion an objective test – arrests based on uncorroborated oral confession insufficient; police must investigate exculpatory explanations – detention authority flows from arrest and is exhausted at first court appearance – legal causation limits liability for continued judicial detention.
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4 November 2022 |
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On the papers the court found the vehicles were instrumentalities in organised diesel theft and ordered their forfeiture to the State.
POCA – forfeiture under s 50 – requirement to prove on a balance of probabilities that property is an instrumentality of a Schedule 1 offence. Preservation orders – ex parte disclosure obligations; return of property during investigation does not necessarily preclude preservation/forfeiture. Civil procedure – Plascon-Evans rule – rejection of palpably implausible or uncreditworthy versions on the papers. Constitutional law – proportionality and arbitrary deprivation of property; significant disproportionality standard considered
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4 November 2022 |
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Court upheld conviction, finding the complainant credible and the appellants' explanation inherently improbable.
Criminal law – robbery with aggravating circumstances; single-witness evidence – cautionary approach and sufficiency; identification – identity admitted and confirmed at parade; cross-examination on prior police statement – basis must be laid or evidence unreliable; appellate review – deference to trial court on credibility findings.
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3 November 2022 |
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Indictment and State particulars sufficiently informed accused; exhaustive evidentiary particulars not required pre‑trial.
Criminal procedure – s 87 Criminal Procedure Act – requests for further particulars; right to be informed of charge (s 35(3) Constitution); sufficiency of indictment and statement of facts; distinction between required particulars and evidentiary/inferential matters; charges: PFMA contravention, fraud and money‑laundering.
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3 November 2022 |
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Leave to appeal granted on both defences to avoid piecemeal adjudication; appeal directed to the Full Bench.
Appellate procedure — leave to appeal; Finality of orders — whether exception-based striking of defences is final and appealable; Avoidance of piecemeal adjudication — interest of justice; Appeal to Full Bench; Costs to follow appeal.
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1 November 2022 |
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Court applies 5%/32.5% contingency to applicant’s loss of income claim and refers actuarial recalculation for court order.
• Quantum – loss of earnings – contingency deductions for pre-morbid future loss; expert and actuarial evidence as guide to court discretion; appropriate percentage for young claimant with limited pre-accident experience but total post-accident unemployability. • Admitted liability – RAF Act claims; referral to actuary to compute amounts with ordered contingencies.
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1 November 2022 |
| October 2022 |
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Reported
Whether a COIDA-based special plea should be separated under Rule 33(4) and how COIDA payments affect common-law damages.
Civil procedure – Rule 33(4) – separation of issues – convenience and expedition; piecemeal litigation to be avoided COIDA – s 36 – interaction between statutory compensation and common-law damages; "compensation paid" v "paid or payable"; recovery and set-off issues Whether an employee can elect to terminate COIDA benefits and claim full common-law damages from a third party Overlap of expert evidence and risk of duplicative trials and appeals militating against separation
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31 October 2022 |
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Court awards R700,000 pre-apportionment for general damages to deceased claimant’s estate, applying conservative transmissibility principles.
Personal injury – Quantification of general damages for deceased claimant; transmissibility of claim to estate (Nkala); conservative approach where award benefits heirs (Du Bois); reliance on medico-legal reports where defendant concedes; assessment guided by comparable awards.
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31 October 2022 |
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Whether a financier may vindicate and repossess movable assets from a company under business rescue.
Companies Act – business rescue – sections 133 and 134 moratorium on proceedings and protection of property in lawful possession; Instalment sale – ownership passes on payment per individual agreement; Interim interdict – prima facie right, balance of convenience, enforcement against assets in business rescue; Procedural points – jurisdiction, urgency, joinder, notice to creditors.
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28 October 2022 |
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Auction terms reserved seller discretion; no contract arose and urgent interdict dismissed with costs.
Auction law – conditions of sale – effect of a seller’s reserved right to confirm sale; highest bid may amount only to an option if seller’s confirmation is required. Contract law – pactum de contrahendo/option – requirement that underlying offer be capable of creating a valid contract; Brandt and Withok principles applied. Interim interdict – quasi‑vindicatory relief – limitations where no clear prima facie right exists and applicant’s conduct indicates acquiescence
Urgency – self‑created delay defeats urgent relief. Res judicata / lis pendens – prior dismissal in magistrate’s court and pending appeal relevant to duplicative proceedings
Costs – attorney‑and‑client and wasted costs awarded
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27 October 2022 |