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Citation
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Judgment date
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| November 2021 |
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22 November 2021 |
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Leave to appeal refused: no reasonable prospects nor compelling reasons to disturb subpoena and confidentiality findings.
Application for leave to appeal — Superior Courts Act s 17(1)(a)(i) and (ii) — subpoena duces tecum for medical records — declaratory relief re privilege/confidentiality — requirement for factual foundation — reliance on conflicting precedent (Lott) insufficient to establish compelling reasons — costs follow result (including two counsel).
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21 November 2021 |
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An urgent interdict was struck off because the applicant’s delay created self-induced urgency, attracting punitive attorney-and-client costs.
Urgent application — relief to interdict auction of disputed property — delay and self-created urgency — abuse of urgent procedure — special/punitive costs order (attorney-and-client including counsel) — application struck off.
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21 November 2021 |
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19 November 2021 |
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19 November 2021 |
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19 November 2021 |
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Where two mutually destructive versions exist, an accused’s reasonably possibly true account precludes conviction if reasonable doubt remains.
Criminal law – conflicting versions – mutually destructive accounts – accused’s version to be accepted if reasonably possibly true (S v Shakell); onus of proof – state must exclude reasonable doubt; assessment of probabilities and credibility where road‑rage incident involves sudden, emotionally charged events.
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19 November 2021 |
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Rescission refused: affixed service at chosen domicilium valid; judgment not erroneously granted; punitive costs awarded.
Civil procedure – Rescission of default judgment – Rule 42(1)(a): judgment erroneously granted requires procedural/error on record; service at chosen domicilium by affixing to unit door valid under Rule 4(1)(a)(iv) where sheriff's return stands unchallenged; non-compliance with Rule 6 condoned under Rule 27(3); Rule 7(1) challenge to deponent’s authority must be timely; costs on attorney-and-client scale justified where rescue application vexatious.
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18 November 2021 |
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Particulars failing to allege cause of action against non-selling builder were excipiable and set aside with leave to amend.
Exception — failure to disclose cause of action; Interpretation of sale agreement — seller and warranty obligations confined to named seller; Integration/entire agreement clause — limits tacit or implied terms; Pleadings — incompatibility between pleading and written agreement renders parts excipiable; Actio redhibitoria — cannot be raised for first time in heads of argument; Amendment — leave to cure defective particulars; Correct party citation and costs awarded to excipient.
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18 November 2021 |
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Applicant’s motion to set aside separation agreement for alleged misrepresentation dismissed; referral to trial refused; costs awarded to respondents.
Civil procedure – Uniform Rules r 6(5)(g) – referral to trial or oral evidence – requirements: genuine dispute of fact and whether applicant ought to have anticipated disputes
Contract – separation agreement – allegation of misrepresentation/fraud inducing signature – requirement that claimant would not have contracted but for true facts. Motion proceedings – Plascon-Evans approach to disputes of fact on affidavit
Costs – discretion to award punitive costs; courts may decline where applicant personally appears and respondents do not press for punitive scale
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18 November 2021 |
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17 November 2021 |
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Applicant failed to meet section 18 requirements; execution pending appeal denied because respondents may suffer irreparable harm.
Civil procedure — Superior Courts Act s 18 — Execution of a decision pending application for leave to appeal — Exceptional circumstances required
Section 18(3) — Applicant must prove on balance of probabilities irreparable harm to itself and that respondents will not suffer irreparable harm. Court’s discretion — only available if statutory preconditions met and must consider prospects of success. Irretrievability of funds/distribution to wrong persons can constitute irreparable harm to respondents
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17 November 2021 |
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Sequestration granted where debtor likely used successor company as alter ego to evade creditors; trustee may recover assets.
Insolvency Act s12(1) – sequestration – applicant must show on balance of probabilities "reason to believe" sequestration advantageous to creditors and reasonable grounds that a trustee may recover assets; alter-ego and possible fraudulent transfer to a successor company relevant; costs to be costs in sequestration.
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16 November 2021 |
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16 November 2021 |
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Particulars must plead material facts and damages with sufficient particularity; vague claims are excipiable and must be amended.
Exception — pleadings — requirement to plead material facts (facta probanda) with sufficient particularity under Uniform Rule 18; vague and embarrassing pleadings excipiable
Contract — verbal insurance agreement — must plead date, place, material terms, insured items, promised values, and compliance
Breach — must plead particulars of repudiation or breach. Unjustified enrichment — claim must be supported by factual basis; speculative large-figure enrichment claim excipiable
Damages — quantum and basis must be pleaded. Rule 23/strike-out — averments alleged scandalous/vexatious require a proper strike-out application. Rule 33(1) notice — not applicable where it does not comply with form and is irrelevant to exception proceedings
Costs — self-represented litigant, court exercised discretion: each party to pay own costs
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16 November 2021 |
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Court upheld 12-year sentence for appellant’s cocaine importation, finding sentencing proper and crediting pre-trial custody.
Drugs and Drug Trafficking Act s5(b)/s17 – importing cocaine (406.9g); CLAA s51(2) minimum sentences – inapplicable to District Court where value not proved; sentencing discretion – appellate interference only for material misdirection or startling disparity; credit for pre-trial detention.
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16 November 2021 |
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A lender's acceleration claim failed: emails evidenced agreed COVID-19 reduced payments and the second suit constituted abuse of process.
Civil procedure – lis pendens – same parties and same cause of action – discretion to hear matter despite overlapping proceedings. Contract variation – temporary reduction of loan instalments – binding variation by email communications under the Electronic Communications and Transactions Act
COVID-19 – negotiated relief during national lockdown – proportionate payment linked to rental collections. Abuse of court process – launching related proceedings while an earlier related matter pending may constitute abuse. Motion proceedings – disputed facts (Plascon-Evans) – when referral to oral evidence is unnecessary
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16 November 2021 |
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Court granted sole guardianship and leave to relocate child to New Zealand, finding relocation bona fide and in the child’s best interests.
Children — Relocation — Termination of specific guardianship rights (ss 18(3)(c)(iii) and (iv)) and grant of sole guardianship to allow relocation — Urgency established — Expert report not required where sufficient factual matrix and prior forensic assessment exist — Best interests paramount — Appointment of parenting coordinator and interim contact regime — Costs awarded against opposing parent.
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15 November 2021 |
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Applicant detained for entering with fraudulent visa; detention lawful and court will not interfere with pending criminal prosecution.
Immigration law – arrest and detention for presenting fraudulent travel/visa documents; Refugees Act – entitlement to apply for asylum at port of entry; Criminal procedure – court must not interfere with pending prosecution by ordering release absent illegality of detention; Credibility and full disclosure material to refugee relief applications.
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15 November 2021 |
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Court enforces interim child contact order, forbids unilateral withholding of contact, and orders urgent voice-of-child assessment.
Family law – enforcement of interim parenting/contact orders – urgency and condonation of non-compliance – unilateral withholding of contact unjustified absent evidence of harm – permission to retrieve household items pending divorce – directive for voice of the child assessment.
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15 November 2021 |
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A valid suretyship and admitted inability to pay do not justify final sequestration absent proof sequestration will advantage creditors.
Insolvency — sequestration — valid suretyship gives liquidated claim; act of insolvency may arise from written acknowledgement of inability to pay; disposition of assets requires proof of prejudice to creditors; applicant must prove sequestration would advantage creditors (including dividend calculation per practice manual) — provisional order discharged where advantage not shown.
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15 November 2021 |
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Court enforces subpoena against company despite service on director, protects confidentiality and declines criminal sanctions in motion proceedings.
Subpoena duces tecum – enforcement – substantial compliance with service on company where served on sole director at registered office – relevance of documents sought assessed against pleadings – confidentiality not a bar but protected by court order – overbreadth cured by adjusting start date – criminal sanctions for non‑compliance require criminal process, not opposed motion proceedings.
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15 November 2021 |
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Leave to appeal refused: executor lacked clear right to urgent broad interdict over foreign assets; personal punitive costs imposed.
Civil procedure – Leave to appeal under s17(1)(a) Superior Courts Act – stringent ‘reasonable prospect’ test; Interpretation of undertakings – whether unqualified waiver regarding foreign assets; Executors’ rights and duties – locus standi and clear right to interdict foreign assets absent extension/recognition of powers; Urgency and alternative remedies – failure to pursue recognition/extension or narrower relief; Costs – punitive de bonis propriis costs justified where applicant conduct cumulatively vexatious.
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12 November 2021 |
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12 November 2021 |
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12 November 2021 |
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12 November 2021 |
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12 November 2021 |
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Court confirmed the applicant’s rule nisi despite mootness, finding respondents’ occupation issue moot; no order as to costs.
Interdict — confirmation of rule nisi — mootness of dispute where respondents no longer occupy land — PIE protections and occupier status — procedural defects and prejudice — discretion to confirm despite academic issues.
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11 November 2021 |
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A rule 26 notice of bar is irregular where an extant rule 23 exception suspends the obligation to plead; punitive costs awarded.
Procedure — Rule 26 notice of bar; Exception as a pleading under rule 23(4) suspending further pleadings; Rule 26 cannot compel enrolment of opposed exception; Irregular step; Abuse of court process; Costs — punitive (attorney and client) award.
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11 November 2021 |
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Leave to appeal dismissed where applicant failed to provide statutory grounds and pursued vexatious, unsupported litigation.
Civil procedure – Leave to appeal – application must comply with section 17 of the Superior Courts Act and include grounds; failure to do so justifies dismissal. Judicial recusal – assertion of bias must be supported by reasonable, credible grounds; unsupported demands do not warrant recusal. Procedural discipline – persistent non-compliance and vexatious litigation conduct may result in refusal of relief. Adjunct claims of illness require medical proof to obtain procedural indulgence
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11 November 2021 |
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11 November 2021 |
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11 November 2021 |
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10 November 2021 |
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10 November 2021 |
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Commercial Court discovery is targeted; electronic disclosure can satisfy discovery—application dismissed with costs.
Commercial Court — discovery — Rule 35 qualified; targeted discovery; electronic/digital disclosure and indexed trial bundle can satisfy discovery obligations; attorney’s hearsay affidavit insufficient to compel further production; unreasonable insistence on hard copies.
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10 November 2021 |
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10 November 2021 |
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A debtor is in mora ex re when payment is due; courts must apply the contractually agreed mora interest rate.
Contract law – incidental credit agreement – mora ex re where contract fixes time for payment; no interpellatio required
National Credit Act s129 – procedural notice not prerequisite to creating mora
Interest – pacta sunt servanda requires enforcement of contractually agreed mora interest; courts should not substitute their own rates absent lawful basis
Costs – entitlement to contractual scale costs of appeal; Full Bench approach distinguished
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10 November 2021 |
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Municipality failed to render accurate accounts; three-year prescription applies to municipal service charges; applicant entitled to credits, reconnection and costs.
Municipal billing and procedure — duty to render accurate accounts and to address billing queries (Systems Act, MFMA, bylaws); prescription of municipal service charges (three years) and limited liability of purchaser for predecessors’ debts; model litigant obligations of municipalities; remedies: credits, reconnection, production of meter reports, interim interdict; costs on attorney-and-client scale.
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9 November 2021 |
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Applicant granted interim interdict protecting a Swiss‑form rivaroxaban patent against respondent’s imported generic product.
Patent law – interim interdict – requirements: prima facie right, irreparable harm, balance of convenience, no adequate alternative remedy
Patentability – Swiss‑form (second medical use/process) claims – permissibility and assessment against novelty and inventive step
Dosage‑regimen claims – when a Swiss‑form claim may validly capture a novel dosage/administration regimen
Revocation under s 61(1)(g) – material misrepresentation must be proven with knowledge at time of declaration
Infringement – comparison of essential integers; s 67(1) extends process claim to product; s 45 imports right to exclude importation and sale
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9 November 2021 |
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Whether a shareholders' agreement can override a company's MOI quorum provisions to invalidate a business rescue resolution.
Company law – Business rescue (s129/s130) – Validity of business rescue resolution – Quorum: shareholders' agreement v memorandum of incorporation – s15(7) inconsistency – Directors' power to fix quorum (MOI articles 75,77) – Referral to oral evidence: test for genuine disputes of fact – Reclassification of shareholder loan (accounting treatment) – Creditor consent for extension to publish plan (s150(5)).
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9 November 2021 |
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9 November 2021 |
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Whether a signed letter imposed personal liability on the respondent for the applicant’s tenant’s lease and utilities debts.
Contract interpretation — text, context and purpose (Endumeni/Capitec) — admissibility of extrinsic evidence; Personal liability of sole member — interpretation of signed letter; Prescription — burden to identify prescribed portions of municipal charges; Execution against CC — no personal liability absent clear personal undertaking.
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9 November 2021 |
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An order granted in absentia was rescinded where material facts showed the sale had been perfected.
Civil procedure – Rule 42(1)(a) – rescission of order erroneously sought or granted in absence of affected parties – material facts (belated guarantee, sheriff's power of attorney, subsequent on‑sale and registration) relevant to whether order should have been granted; Execution/sale in execution – purchaser’s belated compliance and bona fide on‑sale – effect of abstract system of transfer and protection of bona fide purchaser; Delay and locus – long delay and prior eviction proceedings undermine relief; Costs – discretion to order each party to bear own costs where conduct/reasonableness assessed.
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9 November 2021 |
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Plaintiff failed to prove arrest, assault or unlawful detention by police; action dismissed with costs.
Delict — unlawful arrest and detention — burden to prove arrest by police — contemporaneous docket entries and investigating officer's evidence outweigh inconsistent plaintiff testimony
Evidence — hearsay and section 3 of Law of Evidence Amendment Act — statements by arresting persons that they were police of low probative value absent direct proof
Procedure — plaintiff bound by pleadings; unpleaded alternative (private arrest leading to unlawful police detention) cannot be relied on unless fully canvassed at trial. Constitutional/CPR issue — police duty to justify continued detention after an arrest by a private person; detention may be justified pending magistrate and on available evidence
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9 November 2021 |
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8 November 2021 |
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Leave to appeal granted where contested s105 jurisdictional issue required determination before ordering production of the review record.
Interlocutory relief – production of record under rule 53(1)(b) – appealability of production orders; jurisdictional challenge under s105 Tax Administration Act – where jurisdiction contested court must rule before making other orders (Competition Commission v Standard Bank); leave to appeal under s17 Superior Courts Act – reasonable prospects and interests of justice.
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8 November 2021 |
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Applicants entitled to payment under respondent's admitted payment plan despite no signed settlement agreement.
Contract/settlement agreements – unsigned draft agreement – whether a binding agreement concluded. Admissions and conduct – email acknowledgement and subsequent payments as evidence of an enforceable payment plan. Civil procedure – absence of a material dispute of fact on the papers entitling applicants to payment
Remedies – award of monetary judgment, interest a tempora mora and costs
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8 November 2021 |
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Defendant’s failure to monitor and timely perform indicated C-section caused neonatal hypoxic brain injury; defendant held fully liable.
Medical negligence – obstetric care – failure to follow Maternity Guidelines 2007 (monitoring, CPD assessment, labour management). Delay in performing indicated cesarean section – avoidable theatre delays (linen shortage, wrong patient) as negligent cause of prolonged foetal hypoxia
Causation – prolonged intra-uterine foetal distress as proximate cause of hypoxic-ischaemic encephalopathy and cerebral palsy
Costs – attorney-and-client costs awarded for inadequate defence and litigation conduct
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8 November 2021 |
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Leave to appeal dismissed: no reasonable prospects to enforce an ante-nuptial contract where the marriage status was denied.
Family law – customary marriage – confirmation of customary marriage and validity of ante-nuptial contract; enforceability of ante-nuptial agreements where marriage status disputed. Contractual formality – oral antenuptial agreements and SMS v VRS considered. Appeal procedure – leave to appeal requires reasonable prospects of success (Superior Courts Act s17 and Smith v S)
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8 November 2021 |
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8 November 2021 |