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Citation
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Judgment date
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| December 2020 |
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The applicant failed to prove unjustified enrichment; scandalous allegations struck out and the claim dismissed with costs.
Civil procedure – striking out – scandalous and vexatious allegations – paragraphs struck where no factual basis for linking respondent to Ghavalas scheme.* Civil procedure – dismissal for delay – exceptional remedy – not granted where matter not dormant and public interest in pension claims justified resolution on merits.* Restitution/unjustified enrichment – plaintiff must prove respondent’s enrichment at plaintiff’s expense – failure to trace proceeds to respondent and inadequate investigation fatal to claim.* Abuse of process – refusal to refer to trial where applicant pursued inconsistent causes of action and persisted despite foreseeable disputes of fact.
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10 December 2020 |
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State entities may review unlawful procurement decisions via legality review; unlawful contracts are void and profits must be disgorged.
Judicial review; state self-review and SIU intervention – legality versus PAJA; undue delay in self-review – when to overlook; procurement law – unconstitutional/irregular contracts; s 172(1)(b) remedies – disgorgement of profit, retention of reasonable expenses; public interest in procurement integrity.
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8 December 2020 |
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Applicants failed to establish a genuine factual dispute about policy terms; motion dismissed and costs (including three counsel) awarded.
Insurance law – business interruption and Infectious Diseases Extension – motion proceedings – dispute of fact – when referral to viva voce evidence is appropriate; affidavits – requirement to set out substantive version and to deal with detailed denials; procedural remedy – withdraw and pursue action versus supplementing motion papers.
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4 December 2020 |
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Whether purchaser-issued bank guarantees suffice as Rule 32 security and whether summary judgment should be postponed pending property transfer.
Civil procedure – Summary judgment – Rule 32(3)(a) – Adequacy of security: bank guarantees provided by purchaser may be insufficient where material does not permit evaluation of real risk of sale failing. Civil procedure – Summary judgment – Discretion to postpone or suspend order under Rule 45A – postponement appropriate where defendant has no defence but demonstrates bona fide steps to realise funds and delay not attributable to defendant (including COVID-19 related municipal delays). Costs – attorney and client costs awarded for costs to date.
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1 December 2020 |
| November 2020 |
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The applicant may seek insurers' winding-up despite provisional curatorships where confirming curatorship is not desirable.
Insurance law – curatorship under FIPF/Insurance Act – interpretation of s54(5) regarding winding-up while under curatorship Regulatory powers – Prudential Authority’s locus to apply for winding-up (s57/s58 of Insurance Act) Curatorship confirmation – desirability test under s5(4) FIPF where curator reports insolvency Insolvency and policyholder protection – where liquidation gives certainty and allows proper claims administration Costs – adverse costs for unsuccessful opposition to liquidation
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30 November 2020 |
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Whether the auctioneer was contractually obliged to account and pay under the agreed pricing factor; quantification awarded.
Contract — joint venture/agency — three‑party agreement for sale of imported stock; auctioneer’s contractual obligation to account and pay; pricing mechanism (factor 6 reduced to 4.9) and quantification of damages; evidential weight of unpacking sheets and master spreadsheet; directors’ duties (s76(3) Companies Act) and causation for personal liability.
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19 November 2020 |
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A non-party contractor may interdict payment under a demand guarantee if the demand fails strict URDG and guarantee requirements.
Performance guarantees – Demand requirements – Strict compliance with guarantee terms and URDG required; supporting statement of breach, statement that amount is due and payable, and warranty of authority necessary; non-party to guarantee may interdict payment to protect contractual/financial interest; URDG Rule 24(e) notice of non-compliance entitles guarantor to refuse payment; counterclaims subject to arbitration and dismissed where factual disputes exist.
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16 November 2020 |
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Business rescue moratorium does not bar creditor from suing a guarantor; rescission and condonation dismissed for lack of reasonable explanation and prospects of success.
Civil procedure — Rescission of default summary judgment — requirements: reasonable explanation for default, bona fides and prima facie defence with prospects of success. Company law — Business rescue — moratorium does not extinguish or bar claims against a guarantor; guarantor’s primary obligation unaffected. Guarantees — suretyship — creditor entitled to proceed against guarantor notwithstanding business rescue of principal debtor. Condonation — factors: degree of lateness, explanation, prospects of success, prejudice.
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9 November 2020 |
| September 2020 |
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Default judgment after strike-out was erroneous where no evidence supported PAJA extension, review or damages.
Civil procedure – rescission under Rule 42(1)(a) – order erroneously granted where default judgment entered without evidence. Uniform rules – interplay between Rule 35(7) (strike-out for discovery non-compliance) and Rule 31 (default judgment procedures). Default judgment – Rule 31(2)(a) requires hearing of evidence where claim is not for debt or liquidated demand. Administrative law – PAJA s7/s9 – extension of review period is discretionary and requires evidentiary justification of interests of justice. Remedies – judicial review and consequential damages (including s8 PAJA) are not ordinarily liquidated claims and demand proof of unlawfulness/exceptional circumstances.
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15 September 2020 |
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Leave to appeal dismissed; sale in execution valid where lien was not asserted and eviction date varied to 2 October 2020.
Condonation for late appeal; eviction and sale in execution; Alienation of Land Act s22; res litigiosa/lis pendens; improvement (builder’s) lien — requirement to assert lien at attachment; test for leave to appeal under s17(1)(a) Superior Courts Act; variation of eviction date under COVID‑19 Disaster Management regulations.
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4 September 2020 |
| August 2020 |
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Creditor validly terminated debt review and was entitled to interim return of vehicle pending vindicatory action.
Interdict — interim return of vehicle pendente lite — prerequisites: prima facie right, irreparable harm, balance of convenience, no alternative remedy; National Credit Act — s86(10) termination of debt review validly effected by notice in terms of credit agreement; s129 notice unnecessary where debt review initiated; development credit agreements — s107(4) exemption from s108 periodic statement requirement; costs on attorney-and-client scale.
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28 August 2020 |
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Provisional sequestration granted where unpaid levies and municipal charges established insolvency; Rule 37A did not bar decision.
Insolvency — provisional sequestration — unpaid body-corporate levies and municipal charges; Rule 37A — judicial case management does not preclude final determination absent a case management conference; Supplementary affidavits — permissible where right of action unchanged; Act of insolvency / factual insolvency — established by prolonged non-payment, default judgments, writs and failure to identify attachable assets.
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26 August 2020 |
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Leave to appeal dismissed: consolidation did not require stay, recusal unjustified, Rule 46/46A and costs orders correctly applied.
Civil procedure – consolidation applications – pending consolidation does not automatically stay related proceedings; court may consider consolidation as a factor in recusal or postponement applications. Civil procedure – lis alibi pendens and postponement – requirements and judicial discretion; replication and same cause of action required to pend proceedings. Recusal – test of reasonable apprehension of bias; prior adverse procedural rulings do not, without reasonable grounds, disqualify a judge. Execution – Rule 46 and Rule 46A – conjunctive reading of subrules only where indigence and risk of homelessness warrant protection; executability may be ordered where protections are not engaged. Appeals – new evidence – must be explained and supported by affidavit; absence fatal to admission. Costs – attorney-and-client costs permissible where unsubstantiated serious allegations justify protection of attorney's interests.
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19 August 2020 |
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Court declares deceased unmarried for burial purposes; son entitled to conduct burial and respondent interdicted from removing corpse.
Family law – status of deceased – question whether deceased was in a customary marriage – effect of post-death declarations contradicting marriage claim. Succession/burial rights – who is entitled to determine burial – rights of surviving children versus purported spouse claims. Urgent interim relief – determination on papers where documentary evidence contradicts a respondent’s assertion.
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19 August 2020 |
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CPA claim premature for failure to exhaust remedies; delict claim excipiable for not pleading duty, wrongfulness, and necessary particulars.
Delict – omission-based liability – necessity to plead wrongfulness, nature and source of legal duty, and to whom duty owed; Consumer Protection Act – section 69 – exhaustion of statutory remedies is a jurisdictional fact before High Court may be approached; Pleadings – vagueness and contradiction (product identity, roles of defendants, basis for vicarious liability) may render particulars excipiable; Rule 18(10) – particulars of personal injury/damages required but some defects may be curable by amendment.
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13 August 2020 |
| May 2020 |
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Applicant entitled to R5m judgment, costs, and special execution; lis pendens, Rule 46A and NCA defences dismissed.
Civil procedure – money judgment and special execution – lis pendens; Uniform Rules 46 and 46A – execution against immovable property and primary residence; National Credit Act – applicability to suretyships; de bonis propriis costs – unsubstantiated allegations of unethical conduct.
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10 May 2020 |
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Court grants final winding‑up where suspensive‑condition defence failed and section 345 demand remained unpaid.
Companies — winding‑up — jurisdictional requirements — creditor, indebtedness and inability to pay; Companies Act s 345 — demand and deemed inability to pay; Contract interpretation — disbursement conditions vs true suspensive conditions; Clause 4.3 allowing advance before compliance inconsistent with suspensive effect; Certificate of balance — prima facie proof of indebtedness; Badenhorst rule — bona fide dispute must be substantiated to resist winding‑up.
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10 May 2020 |
| January 2020 |
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The applicant obtained business rescue for the financially distressed respondent state-owned airline, finding reasonable prospects of rescue.
Companies Act – s131(1), (2) and (4) – business rescue – jurisdictional requirements – urgency; Financial distress and commercial insolvency – disclosure obligations of directors; Abuse of process – disputed invoices, arbitration clause and procurement irregularities insufficient to bar business rescue; Appointment of interim business rescue practitioners – subject to ratification; Joinder of directors to show cause re: personal costs liability; Alternative relief – liquidation inappropriate at this stage.
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6 January 2020 |