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Citation
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Judgment date
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| December 2021 |
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Amendment adding a second written agreement did not create a new cause of action; prescription plea dismissed.
Prescription – Amendment of particulars – whether amendment introduces a new cause of action or merely amplifies the original debt – recognisability (kenbaar) test applied (Neon; Sentrachem; Imperial Bank). Civil procedure – late amendment – prejudice and interruption of prescription.
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30 December 2021 |
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Applicant failed to establish a tacit indefinite contract; interim interdict against one‑month termination dismissed.
Contract law – tacit terms – implication only where parties would necessarily have agreed and term is necessary for business efficacy; interim interdict – applicant must establish prima facie right (open to some doubt); commercial negotiations and fixed-term history relevant to characterising post‑expiry arrangement; notice periods – month‑to‑month versus indefinite-term with reasonable notice.
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30 December 2021 |
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Applicant's deportation set aside pending full legal process where visa cancellation and departure order lacked rationality and procedural fairness.
Immigration law – spousal/visitor visa – validity conditioned on existence of a bona fide spousal relationship; Administrative law – requirement of rationality and procedural fairness before visa cancellation and deportation; Procedural fairness – right to meaningful engagement and opportunity to be heard prior to enforcement; Deportation – interim relief where decision is irrational or procedurally unfair.
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30 December 2021 |
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Applicant’s contempt application was not urgent; orders did not freeze payments and applicant failed to show irreparable harm.
• Civil procedure – urgency – contempt – contempt is inherently urgent but does not alone establish entitlement to urgent hearing.
• Interpretation of court orders and undertakings – absence of express freezing provision precludes finding of obligation to hold funds.
• Execution and attachment – writs of attachment are not equivalent to court orders for contempt purposes.
• Remedies – applicant failed to show irreparable harm; urgent relief refused and costs awarded.
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29 December 2021 |
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Leave to appeal refused: nomination did not automatically appoint directors and no reasonable prospect of success.
Companies law — Business rescue — s140 Companies Act — business rescue practitioner assumes management control; Shareholders' agreement — nomination vs appointment of directors; Companies Act s15(7) — MOI prevails over conflicting shareholders' agreement; Director election requirements — s68 and MOI clause requiring election; Leave to appeal — s17(1)(a) Superior Courts Act — reasonable prospect of success standard; Distinguishing Gholke — not authority for automatic appointment on nomination in present statutory regime; Allegations of fraudem legis/bad faith unfounded.
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24 December 2021 |
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A court refused a last‑minute postponement and ordered an independent valuer to complete a court‑ordered valuation within ten days.
Civil procedure – postponement – applicant must furnish full and satisfactory explanation for delay – bona fide requirement – prejudice and balance of convenience – enforcement of arbitration award made court order – order to compel valuer to carry out mandate.
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24 December 2021 |
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Court cannot award general damages absent RAF/HPCSA 'serious injury' determination; earnings claim dismissed for lack of proof.
Road Accident Fund Act – general damages limited to ‘serious injury’ determined administratively by RAF and on appeal by HPCSA tribunal – courts of first instance lack jurisdiction to determine seriousness absent such determination. Submission of RAF4 form, concession on liability or RAF's silence does not equate to administrative acceptance of seriousness. Burden to prove past and future earnings – plaintiff must provide corroborated factual basis for actuarial valuation; uncorroborated self-reports and inconsistent pleadings insufficient. Expert reports based on incorrect or unverified facts may be rejected as unreliable.
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23 December 2021 |
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Claim prescribed and failure to bring a formal ILPACOS s3 condonation application barred the plaintiff's action.
• Prescription — three‑year prescription under Prescription Act; cause of action for wrongful arrest accrued on release from custody.
• ILPACOS Act s3 — six‑month notice requirement and mandatory condonation procedure (s3(4)) where out of time; condonation must be by formal motion supported by affidavit.
• State Liability Act s2(2) — service on State Attorney peremptory in form but non‑compliance not fatal where effective service occurred and no prejudice shown.
• Procedural law — courts cannot entertain condonation in argument; compliance with Uniform Rule 6 required.
• Constitutional interpretation (s39(2)) cannot displace clear statutory time bars absent supporting facts.
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22 December 2021 |
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21 December 2021 |
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Urgent appointment of a curator bonis was ordered to protect trust creditors amid a substantial trust deficit and unresolved misappropriation.
Legal Practice Act s 43 – urgent proceedings where legal practitioner misappropriates trust monies; three-stage enquiry for striking off/suspension; interim relief – appointment of curator bonis to protect trust creditors and investigate trust deficits; duties and powers of curator; credibility and factual disputes requiring oral enquiry.
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21 December 2021 |
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20 December 2021 |
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20 December 2021 |
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20 December 2021 |
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Court forfeited lottery‑derived bank funds to the State but excluded attorneys’ pre‑suspicion fees and directed banks to pay victim’s attorney.
POCA – forfeiture of proceeds of unlawful activities – s50(1)(b) and s53 – innocent‑owner/exclusion claims – s52(2): legal acquisition and knowledge/reasonable grounds to suspect – timing of suspicion (receipt of bank/FIC affidavits) – court’s discretion to dispense with curator bonis and order payment to victim’s attorney – preservation orders and service on absconded accused.
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20 December 2021 |
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Respondents held in contempt for disregarding an order reinstating the applicants and setting aside suspensions.
Civil procedure – contempt of court – non-compliance with interlocutory order – review and setting aside of subsequent disciplinary actions arising from unlawful suspensions; urgency – intertwined with merits; committal proceedings and purge of contempt; costs to be taxed.
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20 December 2021 |
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Respondents remained independently liable under a settlement order; business rescue of the debtor company did not extinguish their joint and several obligations.
Civil procedure – change of parties (Rule 15) – substitution not required where relief pursued against co-principal debtors bound by settlement order; Contract/suretyship – settlement agreement made order of court converts respondents’ obligations into independent joint and several liability; Business rescue – plan affects only debtor company’s obligation and does not extinguish co-principal debtors’ liability; Interest and costs – contractual interest and attorney-and-own-client costs recoverable under settlement order.
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20 December 2021 |
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Leave granted to terminate business rescue and convert to liquidation where no reasonable prospect of rescue and abuse of proceedings.
Companies Act – business rescue – s128, s132, s133 and s140 – conversion of business rescue to liquidation where no reasonable prospect of rescue; abuse or prolongation of proceedings; post‑commencement financing essential to plan; duties of business rescue practitioners as officers of the Court; costs de bonis propriis.
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20 December 2021 |
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Applicant failed to prove wilful, mala fide contempt where third‑party reposting was corroborated by confirmatory affidavit.
Contempt of court – civil committal – elements: existence and service of order; deliberate and mala fide non‑compliance – hearsay and confirmatory affidavits – liability for third‑party social media reposting; sanction proportionality.
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17 December 2021 |
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Purchaser’s valid waiver of a suspensive rezoning condition did not extinguish the payment clause; purchaser entitled to specific performance.
Sale agreement — Waiver of suspensive condition for purchaser’s sole benefit — Waiver removes condition but does not erase payment clause; essentialia of sale preserved. Specific performance — tender of reciprocal performance and ineffectiveness of purported contractual cancellation where prescribed procedure not followed. Conveyancing practicalities — guarantees and bond cancellation/clearance figures to be dealt with post-waiver; sheriff authorised to sign if seller refuses.
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17 December 2021 |
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A spouse occupying the matrimonial home is not an 'unlawful occupier' and cannot be evicted without suitable alternative accommodation.
Customary marriage – validity – lobola negotiation and partial payment can establish a customary marriage under the Recognition of Customary Marriages Act. Motion proceedings – Plascon-Evans rule – unchallenged factual averments accepted; disingenuous founding affidavit undermines applicant's case. PIE – does not apply to convert a spouse occupying the matrimonial home into an 'unlawful occupier' while the marriage subsists. Matrimonial home – spouse's sui generis right to occupy; eviction requires tender of suitable alternative accommodation or means to obtain it.
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15 December 2021 |
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A spouse married in community of property may execute a mutual will with a non‑spouse; testamentary freedom prevails absent unlawful or public‑policy grounds.
Succession law – mutual/joint wills – validity despite invalidity of co‑habitation or alleged marriage; freedom of testation upheld. Family law – spouses married in community of property retain separate testamentary freedom to dispose of their half‑share; no general rule prohibiting mutual wills with non‑spouses. Constitutional law – freedom of testation implicates property, dignity and privacy; judicial interference requires unlawfulness or public‑policy justification. Civil procedure – unpleaded, belated challenges to a will (manuscript amendments) may not be raised at hearing without prior notice.
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15 December 2021 |
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A committee’s ultra vires award of a success fee was set aside and repayment from the executive ordered.
Administrative law – review under principle of legality by organ of state; corporate governance – delegation of authority and limits of board committees; ultra vires acts – GNC lacked power to adopt new policy or authorise success fee; evidence – admissibility of Public Protector/SIU reports under Law of Evidence Amendment Act; lis alibi pendens – not applicable where review determines prerequisite legal question; restitution and remedy – unlawful enrichment and recovery from pension proceeds under s 37D Pension Funds Act; misconduct/dishonesty – gateway for deduction from pension benefits.
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15 December 2021 |
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A court held a divorce-appointed liquidator’s fees must be reasonable absent an agreed tariff; the reported distribution remains payable.
Family law — divorce order appointing receiver/liquidator — remuneration: where divorce order silent, fees governed by agreement or, absent agreement, by reasonableness for actual work; Insolvency Act tariff not automatically applicable. Family law — division of joint estate and pension interests — final/supplementary liquidation account fixes amount payable to non-member spouse; member spouse’s sourcing of funds (including tax consequences) does not reduce that entitlement where section 7(8)/s37D mechanisms were not invoked. Civil procedure — answering affidavit omissions: factual allegations not denied are taken as admitted.
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15 December 2021 |
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A subsequent re-cession can retrospectively re-vest locus standi and may be pleaded in a replication to cure pre-institution defects.
Civil procedure – locus standi – cession in securitatem debiti – re-cession – retrospective re-vesting of rights. Procedural law – replication as appropriate procedure to plead re-cession raised in plea. Contract/secured transactions – re-cession effective despite clause providing for automatic reversion on specified events. Judicial discretion – allowing plaintiff to proceed where re-cession cures pre-institution defect and defendants suffer no prejudice.
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14 December 2021 |
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Leave to appeal refused: strike‑out decision moot after abandonment and no reasonable prospects to upset costs order.
Leave to appeal — Superior Courts Act s17 test (reasonable prospects or compelling reasons); Rule 6(15) strike‑out applications — requirements and mootness where main relief abandoned; Appealability of costs orders — exceptional circumstances required; Mootness and practical effect (s16(2)(a)); Removal of impugned publication after litigation does not necessarily confer substantial success.
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14 December 2021 |
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14 December 2021 |
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1988 sale valid; 2014 transfer set aside for fraud; alleged customary marriage invalid due to existing civil marriages.
Property law – Alienation of Land Act s 2 – handwritten 1988 deed valid where parties, subject matter and price are identifiable; Recognition of Customary Marriages Act – competency to marry – customary marriage invalid where parties already civilly married; Deeds registration – abstract theory and fraud exception – registration may be rectified where underlying transaction tainted by fraud; Deeds Registries Act s 97 – registrar may report but failure to do so does not preclude relief.
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14 December 2021 |
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An overpayment counterclaim was partly struck for lack of particularity while a separate, identifiable charge claim was upheld.
Civil procedure – Exception to counterclaim – Requirement of sufficient particularity and joinder of issue; causa condictio indebiti – recovery of payments made in error; running account – need to identify specific transactions; contractual clause cannot displace pleading burden; amendment and striking out of inadequately pleaded claim; costs apportioned for partial success.
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14 December 2021 |
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Court dismissed father’s application for expert investigation and interdict, finding allegations and child evidence unreliable.
Children’s Act s29(5) – appointment of social worker; interim interdict – requirements and single prior incident; reliability of child statements – recordings and elicited ‘time‑capsule’ exercises; best interests of the child – settlement and pandemic effects; credibility and conduct of litigant (maintenance and prompting of children).
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14 December 2021 |
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Provisional sequestration granted where judgment debt remained unpaid and respondent failed to raise a bona fide dispute.
Insolvency Act s8(b) – act of insolvency by inadequately fruitful execution – provisional sequestration; jurisdiction under s149(1)(b); prima facie case and 'reason to believe' sequestration benefits creditors; bona fide dispute on reasonable grounds; abuse of process considerations.
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13 December 2021 |
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Reported
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10 December 2021 |
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Respondents held in contempt for failing to install bulk services; ordered to file sworn report and pay punitive costs.
Contempt of court — Non-compliance with an order to install municipal bulk water and electrical services — Requirement for sworn report — Joinder of municipal office-bearers due to constitutional and statutory duties — Attorney-and-client costs as punitive measure.
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10 December 2021 |
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Urgent liquidation refused where applicants failed to prove irreparable harm from delay; non-compliance with rules not condoned.
Company law – provisional liquidation – urgency – applicant must show irreparable harm from delay before urgent liquidation justified; concursus creditorum and liquidators’ investigatory powers relevant. Civil procedure – urgency – depreciation of assets alone does not establish irreparable prejudice; non-compliance with rules not to be condoned absent urgency. Insolvency – dispute of indebtedness vs act of insolvency – question of bona fide dispute to be determined on merits, not on urgency application.
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9 December 2021 |
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A tenant’s unpaid rent, unsupported oral variations and unproven COVID force majeure do not prevent lawful eviction.
Lease law – commercial lease – breach by non-payment – oral variations and extensions – written lease clauses excluding oral amendments and waiver; Evidentiary requirements – affidavits as pleadings and evidence; Force majeure/COVID-19 – burden to prove objective impossibility and direct causation for relief; Eviction – unlawful occupation and entitlement to ejectment and costs.
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9 December 2021 |
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Urgent evictions under PIE require strict compliance with section 5 notice rules and accurate beneficiary lists.
PIE Act s5 – Urgent eviction proceedings; s5(2) and s5(3) notice requirements and right to legal aid; accuracy of allocation/eviction lists; procedure and fairness in housing allocation disputes.
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8 December 2021 |
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8 December 2021 |
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Applicants failed to show reasonable prospects of success on appeal against the setting aside of a bank-account attachment; leave refused with costs.
Civil procedure – leave to appeal – section 17 Superior Courts Act – requirement of reasonable prospects of success or compelling reasons. Civil procedure – Rule 45 – attachment of bank accounts and requirement (or timing) of notice prior to attachment. Judgment – patent/clerical error – immateriality and insufficiency to justify leave to appeal. Execution and attachment – setting aside irregular attachment of bank account.
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8 December 2021 |
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Default judgment rescinded where bona fide defence and issue estoppel arose from cancelled agreement and subsequent settlement.
Civil procedure – rescission of default judgment – bona fide defence and triable issues where prior agreement was consensually cancelled and later settlement disposes of disputes; issue estoppel/res judicata – flexible application where earlier judgment and related agreements are essential to later claim.
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7 December 2021 |
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Detention unlawful; applicant to be released and issued a temporary asylum seeker permit pending refugee-status finalisation.
Immigration and refugee law – detention at repatriation centre – lawfulness and urgency of release – s22 temporary asylum seeker permits – refugee status determination credibility findings – procedural fairness and recording of RSDO interviews – referral of RSDO officer for prosecution.
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7 December 2021 |
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The Minister’s reversal to extradite to Mozambique was irrational due to unresolved immunity and defective warrants; extradition ordered to the USA.
Extradition — rationality review of executive decision; administrative law — ignoring relevant factors (immunity, defective warrants, victims’ interests); post‑hoc reasons inadmissible to validate decision; separation of powers does not dilute rationality standard; remedial substitution where court has full record.
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7 December 2021 |
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Reported
A minister’s reversal of extradition must be rational; ignoring immunity and defective warrants renders the decision invalid.
Extradition; judicial review on rationality and legality of executive decisions; consideration of immunity of requested person; validity and consistency of foreign warrants and indictments; impermissibility of post hoc reasons; separation of powers and circumstances permitting substitution of an executive decision; international cooperation to combat transnational corruption.
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7 December 2021 |
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Applicants failed to show urgency or a clear prima facie right to interdict a provincial tender; interim relief dismissed with costs.
Administrative law – interim interdict restraining exercise of statutory procurement power; urgency under Rule 6(12); NLTA (ss 40, 41, 42, 46, 93(4)); procurement law – section 217 Constitution and PFMA; PPPFA Regulations – subcontracting requirement; Tripartite Heads of Agreement and Industry Restructuring Fund; absence of ITPs; separation of powers and public interest in interim relief.
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7 December 2021 |
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Applicant awarded opposed costs where respondent belatedly delivered discovery without expressly waiving costs.
Rule 35(1) notices and discovery — costs liability where discovery affidavit delivered before hearing — absence of express waiver — briefing counsel reasonable under uncertainty — late defences raised from the bar may be disregarded — rule 30 not invoked — opposed (but not punitive) costs awarded.
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7 December 2021 |
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Accused convicted of multiple firearm‑related offences; life sentences imposed for two premeditated murders; no substantial and compelling circumstances found.
Criminal law – Sentencing – Application of section 51(2) Criminal Law Amendment Act (prescribed minimum sentences for murder) – premeditation and substantial and compelling circumstances – firearm offences – grouping of counts involving the same semi‑automatic pistol – protection of society and aggravating factors (gender‑based violence, lack of remorse).
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7 December 2021 |
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Reported
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7 December 2021 |
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7 December 2021 |
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Leave to appeal refused where applicant failed to show reasonable prospects or compelling reasons to disturb the order.
Leave to appeal – Superior Courts Act s17(1) – elevated threshold: reasonable prospects or compelling reason – appellate interference with sentencing discretion – misconduct by legal practitioner; costs (two counsel).
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6 December 2021 |
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Sale of a company-owned residence under s386 does not attract Rule 46A judicial oversight or s26 protection afforded to natural persons.
Companies Act s386 – sale of company immovable property – constitutional challenge to lack of judicial oversight. Property law – execution and sale of residential property – distinction between natural persons and juristic persons. Constitutional law – right of access to adequate housing (s 26) and access to courts (s 34) – applicability to companies. High Court Rule 46/46A – judicial oversight of execution against primary residences limited to natural persons. PIE Act – eviction of unlawful occupiers from company-owned property.
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6 December 2021 |
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An appeal court reduced a disturbingly disproportionate 12-year sentence imposed on the applicant for housebreaking and theft to six years.
Criminal law – Sentencing – Appeal against sentence – Interference where material misdirection or sentence induces shock – Proportionality principle – Prior convictions and prevalence of crime are aggravating but cannot justify a disproportionate sentence – Distinction between housebreaking and robbery relevant to sentence severity.
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6 December 2021 |
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Accused convicted of multiple murders and firearm offences based on confession, ballistic, DNA and cellular‑phone evidence.
Criminal law – murder and dolus eventualis; admissibility and corroboration of confession (s209 CPA); circumstantial evidence – ballistics, DNA and cellular‑phone/tower data linking accused to scenes; identification evidence by witnesses who knew accused; unlawful possession of firearm and ammunition; assault – immediacy requirement for apprehension; discharge/pointing of firearm in built‑up area; kidnapping.
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6 December 2021 |