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Citation
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Judgment date
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| December 2022 |
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Applicant failed to prove nature and extent of patrimonial benefits for forfeiture; appeal dismissed.
Divorce Act s9 – Forfeiture of patrimonial benefits – onus to plead and prove nature, ambit and extent of undue benefit; Proof required: valuations/documentary evidence for property and pension; Condonation and conduct of parties relevant to discretionary forfeiture; Discretionary exercise – appellate restraint per Trencon.
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30 December 2022 |
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Whether an alleged oral cession and assignment of a subcontract was effective given a non-variation clause requiring written consent.
Contract law; subcontract cession and assignment – non-variation clause requiring written consent; final account and certification under JBCC clause 34; retention; entitlement to additional and variation works where contractor accepted benefit or gave written site instructions.
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28 December 2022 |
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Claimant failed to prove statutory licence, immediate export and foreign‑going destination; refunds therefore refused.
Customs and Excise Act – duty‑at‑source/self‑assessment – rebate items 623.25 & 671.09 – licenced distributor requirement at time of acquisition – interpretation of "wholly and directly exported" – storage/mixing in unlicensed tanks as diversion – foreign‑going ship requirement.
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28 December 2022 |
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Gauteng High Court lacks jurisdiction over dispute concerning immovable property and cause of action arising in Limpopo.
Jurisdiction – Territorial jurisdiction of High Court – forum rei sitae – exclusive jurisdiction over title and possession of immovable property – Superior Courts Act s21(1) – cause of action arising where property is situated – application dismissed for lack of jurisdiction.
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28 December 2022 |
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Insufficient evidence of unemployability after unlawful shooting; court rejected actuarial assumptions and awarded R500,000 for loss of earnings.
Delict – Unlawful shooting by police – liability conceded; quantum adjudication limited to past and future loss of earnings. Evidence – proof of income – need for verified financial records and occupational assessment when claiming loss of earnings. Experts – industrial, clinical and surgical reports did not support total unemployability; actuarial calculations unreliable where premised on unsound assumptions. Quantum – judicial estimation permissible where actuarial approach is unsound; award of R500,000 for past and future loss of earnings. Procedural – interim payments already made considered in assessment; costs limited to the quantum adjudication.
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28 December 2022 |
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A defendant not party to a cession cannot rely on alleged cession formalities to deny the plaintiffs' locus standi.
Exception — pleadings accepted as true; exception confined to four corners — locus standi — adequacy of pleading cession; distinction between undertaking to cede and actual cession; debtor not party to cession cannot challenge cessionary compliance; nemo dat quod non habet limited to contracting parties.
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28 December 2022 |
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Applicant failed to prove group association; court refused to enforce restraint against respondent’s new company.
Restraint of trade – enforceability against former employee and his company – definition of “group” and “prescribed client” – evidentiary burden in motion proceedings – need for objective documentary proof when association is disputed – urgency accepted.
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23 December 2022 |
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A prior discovery order excluding certain documents does not bar a later subpoena for a company’s bank statements if relevant to the proceedings.
Discovery and subpoenas – subpoena duces tecum for company bank statements in divorce proceedings; relevance to claims of undisclosed income and maintenance; prior discovery order excluding documents does not bar later subpoena; abuse of process; POPIA exception for legal proceedings; costs – attorney-and-client vs de bonis propriis.
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22 December 2022 |
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Court held sale, lease and option genuine (not credit agreements), upheld lease cancellation, ordered eviction, arrears and costs.
Property law – sale with leaseback and option to repurchase – characterization of transactions as sale, lease and option not loan. National Credit Act – whether NCA applies to sale/lease/option or to simulated credit agreements – NCA not applicable where documents and conduct show investment not loan. Simulation/Brusson‑type transactions – requirements to prove simulation; such facts not established. Lease cancellation and option lapse – lawful cancellation for non‑payment; option terminated upon lease cancellation. Remedies – ejectment, payment of arrears and interest; costs awarded (including security for costs and interdict reserved costs).
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21 December 2022 |
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Service at chosen domicilium via security guard was valid; rescission of default judgment dismissed with costs.
Civil Procedure – rescission of default judgment – requirements: reasonable explanation for default and bona fide triable defence. Service of process – domicilium citandi et executandi – handing documents to security guard at entrance of security complex can be valid and effective service. Contract law – domicilium survives cancellation of primary obligations and remains effective for service. National Credit Act – s 127(7) post-sale notice delays commencement of prescription until expiry of ten business days. Attachment – procedural defects in bank account freezing do not constitute substantive defence to claim; punitive costs not warranted.
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21 December 2022 |
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Reported
Court varied an improperly granted final sequestration to provisional, finding the applicant not a fugitive and correcting the mistake under s149(2).
Insolvency – Sequestration procedure – Sections 9–12 Insolvency Act – two-stage process (provisional rule nisi followed by final hearing) – subsection 9(5) not authority to dispense with provisional order; Sequestration – validity of orders – mistake v nullity ab initio – Tasima and Ndabeni principles; Insolvency Act s149(2) – court may vary or rescind sequestration orders to rectify mistakes; Locus standi – ‘fugitive from justice’ defence – onus on respondent to prove fugitive status; Civil procedure – Rule 6(5)(e) further affidavit permitted to meet new matter; Remedies – Rule 42/common law rescission not appropriate where exercise of s149(2) is available.
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20 December 2022 |
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Executrix failed to follow s35; remaining member entitled to buy deceased’s and minority interests for R600,000; transfers ordered.
Close Corporations Act s35 – duties of executrix disposing of deceased member’s interest; pre-emptive rights of remaining members. Joinder – intestate heirs and Master unnecessary where executrix represents the estate. Civil procedure – whether valuation dispute is bona fide such that oral evidence/action proceedings required. Remedies – ss36 and 49 – unfairly prejudicial/just and equitable relief; purchase of member’s interest as remedy.
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20 December 2022 |
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First respondent found guilty of contempt for breaching interlocutory order; suspended fine imposed; attempted joinder irregular.
Contempt of court – wilful disobedience of interlocutory order – admission of wrongful conduct – suspended fine as sanction; counter‑application and unilateral joinder – procedural irregularity and non‑compliance with rules – rei vindicatio and lis pendens issues; scope of interdictory relief – alternative remedies (winding‑up).
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19 December 2022 |
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Court permits applicant to relocate child to Croatia, finding relocation in the child’s best interests and ordering contact and document cooperation.
Children — Relocation — Best interests paramount; voice of the child and Family Advocate report; urgency where school stability is implicated; parental responsibilities and contact regime; court may compel signing of documents and authorise Sheriff to obtain passports; costs where opposition neglects child’s interests.
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19 December 2022 |
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Applicant’s rei vindicatio dismissed for failure to prove ownership, possession, liquor licence renewal or dispossession; costs awarded.
Property law – rei vindicatio – owner must prove ownership and that respondent was in possession when proceedings commenced.* Distinction between spoliation (protection of factual possession) and rei vindicatio (owner’s claim to property).* Res judicata requires identity of parties; prior spoliation judgment did not bar fresh rei vindicatio claim where parties differed.* Evidentiary requirements for ownership: proof of purchase/payment, agreement, documentary evidence, licence renewal, and corroborative affidavits.
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19 December 2022 |
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Resolution placing company into business rescue set aside for lack of reasonable basis of financial distress.
Companies Act – Business rescue – s129 commercial resolution placing company into voluntary business rescue – s130(1)(a)(i) application to set aside – standard: no reasonable basis to believe company financially distressed – facts: unencumbered R30m property, R250k rental income, R100k overheads, bank debt paid – applicant an affected person – creditors rejected plan and no further steps, proceedings should terminate (s153(5).
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19 December 2022 |
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Applicant failed to prove a tacit term excluding policy proceeds from a share sale; proceeds remain company assets.
Company law – separate legal personality – company assets distinct from shareholders; Contract law – tacit term / implied term – officious-bystander and business-efficacy tests; Evidentiary law – insufficiency of hearsay, opinion evidence and lack of personal knowledge to establish tacit contractual terms; Relief – claim to policy proceeds following share sale; Costs – costs follow the result.
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19 December 2022 |
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Final sequestration granted where creditor proved liquidated judgments and respondent failed to rebut nulla bona return.
Insolvency – sequestration — requirements for final sequestration (liquidated claim, act or fact of insolvency, benefit to creditors) — sheriff’s nulla bona return sufficient to establish act of insolvency absent admissible rebuttal; bonded immovable property values and unsubstantiated contingent claims — commercial insolvency established; procedural and joinder defences rejected; trustee to determine spousal property under section 21 of Insolvency Act.
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19 December 2022 |
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Appeal allowed: consolidation under Rule 11 set aside where it prejudiced minor children and delayed finalisation of divorce.
Family law; Rule 11 consolidation—onus on applicant to prove convenience and absence of substantial prejudice; best interests of the child paramount in consolidation applications involving minors; interlocutory Rule 11 orders appealable where interests of justice require review.
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15 December 2022 |
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Applicant’s late change of case and failure to comply with B‑BBEE procurement requirements doomed its review application.
Administrative law – review under rule 53 and PAJA; Procurement law – PPPFA/PPPF Regulations and B‑BBEE requirements (Generic Scorecard for >R50m); Clarification meetings and regulation 14 – not inherently reviewable decisions; Contract law – NEC contract must be signed and award published before effective award; Procedural – late amendment under r53(4) and condonation; Costs – punitive attorney‑and‑client costs awarded.
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15 December 2022 |
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Bank’s winding-up counter-application dismissed where alleged debt was bona fide disputed; costs awarded to applicant.
Companies – Winding-up – liquidation not to be used to enforce disputed debts; bona fide dispute about debt bars winding-up (Badenhorst rule); Plascon-Evans approach where facts are disputed on affidavits; costs discretion – party-and-party costs awarded, punitive costs refused where insufficient justificatory debate.
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15 December 2022 |
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Parole Board recommendation irrational and inadequately recorded; decision reviewed and set aside, and a fresh hearing ordered with procedural safeguards.
Parole — administrative action — Parole Board recommendation reviewable under PAJA — minutes must record rational basis for recommendation — recommendation set aside where not rationally connected to psychologist, social work and Case Management Committee reports — remedial referral for fresh hearing with procedural safeguards.
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15 December 2022 |
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A judge cannot recuse herself after judgment, as she is functus officio, even with procedural bias claims.
Civil procedure – Application for judicial recusal – Grounds for recusal – Functus officio principle – Costs awarded de bonis propriis.
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15 December 2022 |
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No reasonable prospects of appeal against the trial court’s quantification of damages; leave to appeal dismissed with costs.
Damages assessment – general damages; future loss of earning capacity; contingency deductions require evidential basis; future medical expenses – reasonable estimate from undisputed expert evidence; failure to lead evidence limits appellate challenge.
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15 December 2022 |
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Ex parte freeze order set aside for material non-disclosure that respondent controlled business and received the disputed funds.
Ex parte applications — duty of utmost good faith — material non-disclosure — reconsideration under Rule 6(12)(c) — setting aside provisional freeze order — entitlement to funds where purchaser assumed control of business.
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15 December 2022 |
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Leave to appeal refused: credibility findings and life sentence upheld; condonation granted for late filing.
Criminal procedure – condonation for late filing of application for leave to appeal – s316(1)(b) CPA. Leave to appeal – test under s17 Superior Courts Act – realistic prospect of success. Evidence – credibility findings; witness evidence corroborated by post-mortem and DNA. Sentence – consideration of time in custody and family responsibilities; life sentence for murder upheld.
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14 December 2022 |
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Leave to appeal refused: payment undertaking did not create enforceable obligation absent cession; costs awarded.
Contract interpretation — payment undertaking; privity and cession — absence of cession prevents substitution of creditor; commixtio insufficient where payments discharge supplier’s claim; leave to appeal — reasonable prospects required under s17.
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14 December 2022 |
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Court set aside municipal appeal decision for deciding issues not before it, confirmed MPT rezoning approval and substituted the decision.
Administrative law — Judicial review under PAJA — Appeal authority unlawfully deciding matters not before it and attempting to override extant administrative approvals; failure to consider relevant material; irrationality, arbitrariness and reasonable suspicion of bias; exceptional circumstances permitting substitution of decision under s 8(1)(c)(ii)(aa) of PAJA; confirmation of Municipal Planning Tribunal rezoning approval.
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13 December 2022 |
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A late, limited amendment to litigate a contract’s vagueness may be allowed; appeal reinstated and remitted for further proceedings.
Contract — sale of land — suspensive condition requiring purchaser to raise “sufficient funds for development” — whether such finance condition is void for vagueness and objectively unenforceable. Civil procedure — application for leave to amend pleadings — late amendments after evidence led — factors: explanation for delay, prejudice, triable issues, and merits; discr etion vitiated where court fails to address central legal issue. Appeal procedure — lapse for non-prosecution — condonation and reinstatement where explanation and prospects of success exist.
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13 December 2022 |
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Court condoned late s 3 notice—found notice adequate, malicious prosecution not prescribed, and no unreasonable prejudice; costs awarded.
Institution of Legal Proceedings Against Certain Organs of State Act s 3 — notice requirements and condonation under s 3(4)(b). Prescription — differentiation between unlawful arrest (accrues on arrest), unlawful detention (daily causes of action), and malicious prosecution (prescription runs from prosecution failure). Requirements for condonation: debt not prescribed; good cause (including prospects of success); no unreasonable prejudice to organ of state. Adequacy of s 3(2) notice — quantum increases and failure to use specific cause‑of‑action labels not necessarily fatal.
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13 December 2022 |
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Leave to appeal granted although judge found alleged racist label not likely to have harmed the applicant’s reputation.
Defamation — whether statement likely to injure good esteem of reasonable person — Le Roux v Dey test applied. Arbitrary/unexplained accusations — less likely to be defamatory in context. Leave to appeal — reasonable prospect of success under s 17(1)(a)(i) of the Superior Courts Act. Procedural objections to basis of decision irrelevant to primary question of harm.
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13 December 2022 |
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Eviction granted where organised rent boycott repudiated leases; PIE s4(6) applied and eviction ordered as just and equitable.
Landlord and tenant – rent boycott constituting repudiation and lawful termination of leases; entitlement to ejectment under PIE s4(6). Housing subsidy – National Housing Code and subsidy agreement do not compel perpetual subsidised rentals or compulsory options to purchase for occupiers. Civil procedure – lis pendens and non-joinder defences defeated where prior application withdrawn and subsidy agreement cancelled. Ownership evidence – title deed and company records establish ownership despite company conversion. PIE Act – eviction just and equitable where occupation became unlawful less than six months before proceedings, and occupants do not face homelessness.
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13 December 2022 |
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Final sequestration granted where claimant proved debt, insolvency and advantage to creditors; late Rule 35 production notice and postponement dismissed.
Insolvency — s12 Insolvency Act — requirements for final sequestration (liquidated claim, insolvency/act of insolvency, advantage to creditors); joint and several liability under settlement agreements; jurisdiction — concurrent seats of High Court (Johannesburg and Pretoria); Plascon-Evans rule applied to factual disputes in opposed sequestration application; Uniform Rule 35(3),(6),(13) — production notices and postponement — invalidity of late opportunistic notices and failure to obtain court direction.
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12 December 2022 |
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Parole decision set aside; prisoner who committed offences pre‑1998 must be considered under pre‑1998 parole policy.
Parole — Eligibility — Application of pre‑1998 parole policy where offences committed before commencement of Chapters 4,6,7 of the Correctional Services Act; Review under PAJA for failure to consider relevant factors, irrationality and unreasonableness; Non‑retrospectivity of increased penal severity (Phaahla).
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12 December 2022 |
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Condonation for late review and late replying affidavit refused due to excessive unexplained delay and contemptuous conduct.
Civil procedure — Condonation applications for late review of taxation and late replying affidavit; applicable principles in Steenkamp and Grootboom; excessive and unexplained delay; attorney negligence not excusing litigant; litigant's contemptuous conduct (removal of attached goods) and repeated non-compliance weigh against condonation.
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12 December 2022 |
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A court referred disputed factual issues about alleged post-termination trademark infringement for oral evidence; locus standi objection dismissed.
Trade Marks Act – proof of registration – proprietor’s title established by registration certificates (s 34). Company law – locus standi and authority to institute proceedings – permitted user/authorisation and challenge procedure (Rule 7). Civil procedure – disputes of fact on affidavit evidence – mero motu referral for oral evidence. Remedies – alleged post-termination use of marks may constitute infringement where consent withdrawn.
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12 December 2022 |
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Master may refer disputed estate claims to court; spouse-executrix not removed and remains entitled to fees.
Administration of Estates Act s35(9) – Master may direct that an account be amended or refer disputed factual allegations to a court where findings require oral and expert evidence. Administration of Estates Act s54 – Removal of executor requires cogent proof of bias, misuse of office or inability to act in estate’s interests. Master’s investigatory limits – Master is not equipped to determine complex factual disputes involving alleged theft/fraud. Executors’ fees – entitlement persists absent proof of unfitness or misconduct.
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9 December 2022 |
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Leave to appeal refused where review was brought after PAJA’s 180‑day limit without s9 extension; amendment to add damages was improper.
Administrative law — Leave to appeal — Appeal requires reasonable prospect of success — PAJA s7(1) 180‑day limit and s9 extension — Amendment to pleadings — Excipiable/amendment without foundation — Distinction between public‑law review and private damages remedies.
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9 December 2022 |
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Court refused suspension of interdict pending appeal, finding municipal procurement irregularities and ongoing illegality justified enforcement.
Administrative law – supply chain management – failure to follow SCM procedures and abuse of deviation – obligation to provide written reasons and procurement records under PAJA and MFMA circulars. Civil procedure – section 18 Superior Courts Act – exceptional circumstances and irreparable harm required to refuse suspension of order pending appeal. Contempt – failure to comply with court-ordered disclosure – contempt finding does not necessarily create res judicata or issue estoppel where order not final. Contract law – conditional letter of appointment and unsigned service level agreement – absence of vinculum juris prevents recognizing a binding appointment.
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8 December 2022 |
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Application for leave to appeal dismissed: appellant failed to show material disputes of fact or reasonable prospects of success under s17.
Civil procedure – Leave to appeal – Section 17 Supreme Court Act – elevated "would" threshold for prospects of success; material disputes of fact – requirement for referral to trial; rei vindicatio – return of property.
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7 December 2022 |
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Leave to appeal refused because the appellant failed to show the appeal would have a realistic chance of success.
Leave to appeal — Superior Courts Act s17(1)(a)(i) — higher threshold requires appeal would have a realistic chance of success — mere possibility or arguable case insufficient; municipal billing dispute — order directing municipality to interrogate accounts to ensure correct tariff application.
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7 December 2022 |
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Leave to appeal dismissed: alleged oral lease and enrichment lien fail; s15(1) interpretation rejected; attorney‑and‑client costs awarded.
• Civil procedure – motion proceedings – Plascon‑Evans standard – when denials do not raise bona fide disputes of fact
• Property law – eviction after cancellation of sale – occupation pending transfer and effect of contractual undertakings to vacate
• Alienation of Land Act 68 of 1981 – interpretation of section 15(1) and scope of forfeiture protections
• Enrichment liens – availability where purchaser undertook not to alter and to vacate; relevance of De Aguiar v Real People Housing
• Admissibility of late affidavit evidence – prejudice and timing
• Costs – contractual clause and discretionary award of attorney‑and‑client costs including two counsel
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7 December 2022 |
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Court may entertain s 13(2) challenge despite AFSA Rule 14.4; applicant failed to prove reasonable apprehension of arbitrator bias.
Arbitration — removal of arbitrator — s 13(2) Arbitration Act — AFSA Rule 14.4 — whether internal rule excludes court’s jurisdiction — not exclusive; court may entertain s 13(2) application. Perceived/objective bias — reasonable apprehension test — mere associations, prior professional interactions or routine procedural rulings do not demonstrate reasonable apprehension of bias without clear evidence. Late supplementary affidavit — not newly discovered; leave refused.
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7 December 2022 |
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Members who acted mala fide to evade a compulsory winding‑up must pay personal costs; withdrawn or hopeless applications attract costs.
Company law – winding‑up and business rescue – costs de bonis propriis against members for mala fides conduct; withdrawal of business rescue — costs follow result; persistence in hopeless binding‑offer challenge contrary to binding precedent — costs awarded; costs of two counsel permitted; punitive scale declined.
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7 December 2022 |
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Spoliation succeeds: police seizure was unlawful absent warrant or valid consent; seized items must be returned.
Spoliation — mandament van spolie — restoration of possession of vehicle, keys, mobile phone and driver’s licence. Criminal Procedure Act ss20, 21, 22 — lawful seizure requires warrant, valid consent, or s22(b) grounds. Consent — capacity to consent and procedural warnings required (Magobodi). Hearsay/unproduced evidence insufficient to establish reasonable grounds. POCA preservation order inapplicable where it concerns a different vehicle.
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7 December 2022 |
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Leave to appeal against a committal order dismissed: no reasonable prospects, further affidavits require formal application, s173 not a shortcut to deviate from rules.
Contempt and committal proceedings; leave to appeal under s17 Superior Courts Act; Rule 6(5)(e) — further affidavits require party application; late Rule 43(6) application not ground for postponement; s173 does not permit deviation from Uniform Rules or mero motu ordering of further evidence.
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7 December 2022 |
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Plaintiffs' amended particulars disclose a cause of action; exceptions dismissed and defendants ordered to pay costs.
Companies law – exceptions – particulars of claim – suspensive conditions of subscription agreement – alternative pleading permitted – locus standi to seek delinquency under s162 may raise factual issues for trial – exception test: plea excipiable only if no evidence can disclose a cause of action; amendment can cure technical defects; costs awarded on ordinary scale.
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7 December 2022 |
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Review of a customary-marriage registration cannot proceed without the administrative record; matter postponed sine die, costs reserved.
Recognition of Customary Marriages Act – registration and certificate requirements – need for prescribed Form A/B/C and register extracts; administrative review procedure – Rule 53 review vs Rule 6 application; absence of administrative record fatal to review; court cannot grant unpleaded declaratory relief where material factual disputes exist.
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7 December 2022 |
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Assessment of quantum for a minor’s catastrophic brain injury; future loss, general damages and trust‑based payment ordered.
Delict – quantum assessment after conceded liability; catastrophic traumatic brain injury to minor – assessment of general damages and loss of earning capacity; actuarial approach for minors; creation and approval of trust for award to minor; costs including experts and curator ad litem.
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7 December 2022 |
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Rescission refused: RAF elected not to attend trial, no reasonable explanation or prospects, condonation denied.
Rescission — Rule 42(1)(a) — whether judgment erroneously granted in absence — election not to participate; Common law rescission — good cause requires reasonable explanation and prospects of success; Condonation — unreasonable delay in bringing rescission; Allegations of non‑disclosure of expert evidence held unfounded.
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7 December 2022 |