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Citation
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Judgment date
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| December 2023 |
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Whether post-publication judicial findings and an FSCA press release are admissible to support truth/public-interest defences.
Defamation — admissibility of judicial findings and regulatory press releases post-dating publications; rule in Hollington v Hewthorn confined; relevance and probative force of later judicial findings for Bogoshi, truth and public-interest defences; interlocutory evidence and creation of disputes of fact affecting hybrid motion procedure; costs in the cause.
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29 December 2023 |
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Alleged defamatory innuendo must be supported by pleaded facts; absent such averments an exception is upheld.
Defamation — innuendo — necessity to plead background facts supporting alleged defamatory meaning; exception for failure to disclose cause of action; distinction between insulting characterisation and actionable defamation.
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29 December 2023 |
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Arrest without objectively reasonable suspicion and malicious prosecution warranted R2,000,000 damages against the State.
Criminal Procedure Act s40(1)(b) – arrest without warrant – requirement of objective reasonable suspicion; Malicious prosecution – reasonable and probable cause and malice; Prosecutorial duty – reliance on dock identification and duty to protect public interest; Vicarious liability of State for police and prosecutorial conduct; Quantum for unlawful arrest and malicious prosecution.
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29 December 2023 |
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Properly authorised 252A entrapment justified warrantless arrest; malicious prosecution and loss-of-earnings claims dismissed.
Criminal procedure – Section 252A entrapment – authorisation, execution and admissibility of evidence; typographical defects in authorisation do not automatically invalidate entrapment. Arrest without warrant – section 40(1) CPA – reasonable suspicion of Schedule 1 offence; lawfulness of warrantless arrest. Malicious prosecution – requirement of absence of reasonable and probable cause and animus; prima facie prospects by prosecutor defeat malice. Civil onus – credibility, reliability and probabilities (Stellenbosch Farmers’ Winery guidelines). Labour/discipline – Regulation 18(5) SAPS – applicant’s failure to follow reconvening procedure bars loss-of-earnings claim.
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29 December 2023 |
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Unlawful public procurement and contract amendments set aside; respondent ordered to repay unlawfully received public funds.
Administrative law – review for legality of public-entity procurement and contracting; delay/laches under Buffalo City two-stage enquiry; just and equitable relief for unlawful public contracts; recovery of public funds where service provider fails to substantiate performance or expenditure; application of PFMA procurement obligations.
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28 December 2023 |
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A CPA-based cancellation raises a triable defence; cession was valid but summary judgment is refused.
Cession — transfer of contractual rights — debtor not a party to cession cannot ordinarily challenge validity; cedability of future/anticipated rights (in anticipando). Consumer Protection Act — fixed-term consumer agreements (s 14) — consumer right to cancel on notice and to tender reasonable cancellation amount; regulations on reasonable penalty and maximum fixed term. Definition of "supplier" under CPA may embrace financiers/lessors providing financial or related services. Summary judgment — where defendant discloses bona fide triable issue (CPA cancellation, notice to supplier), summary judgment must be refused and leave to defend granted.
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28 December 2023 |
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Court restores biometric access and golfing rights where levies dispute and spoliation, urgency, and High Court discretion justified interim relief.
Community schemes – membership levies – withholding levies pending counterclaim/exceptio non adimpleti contractus; Biometric access – deactivation as dispossession – mandament van spolie; Jurisdiction – interplay between CSOS dispute-resolution regime and High Court discretion; Urgency – Eastrock test, irreparable temporal harm; Costs – refusal where CSOS not utilised and urgent court time diverted.
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27 December 2023 |
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Alleged WhatsApp defamation required action proceedings for unliquidated damages; referral to oral evidence was inappropriate here.
Defamation — alleged label of "racist" in WhatsApp group; procedure — unliquidated damages require action proceedings (Rule 17(2); EFF v Manuel); hybrid procedure/referral to oral evidence only in exceptional cases (Ndlozi distinguished); necessity of oral evidence where intention and external effects contested.
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27 December 2023 |
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Applicant failed to prove exceptional circumstances for Schedule 6 bail; appeal dismissed.
Criminal procedure – Schedule 6 offences – s 60(11) CPA – applicant must prove 'exceptional circumstances' on balance of probabilities; absence of State opposition does not remove onus. Bail – strength of State's case – community apprehension and unchallenged investigating officer’s affidavit can establish prima facie case. Remittal – no remit where applicant cannot adduce further evidence overcoming onus.
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23 December 2023 |
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Court balances parents' rights and priorities for children's well-being with phased contact and financial responsibilities.
Family Law – Interim maintenance pendente lite – Rights and responsibilities regarding minor children – Appointment of parenting coordinator.
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22 December 2023 |
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Court orders respondent to fund primary school, transport, medical aid obligations and a limited R40,000 legal-costs contribution pendente lite.
Family law – pendente lite maintenance – medical aid retention and premiums; school fees and transport; nanny and clothing contributions; allocation of medical excesses; initial contribution to legal costs; inequality of arms considered.
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22 December 2023 |
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Interest on taxed arbitration costs began to run from the additional award of 14 October 2021, not from the 2019 allocatur.
Arbitration award and allocatur – effect of judicial review setting aside award; whether subsequent arbitration award reinstates earlier award; commencement of interest on taxed costs; effect of suspension of writ of execution on running of interest; striking out vexatious and scandalous allegations in affidavit.
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22 December 2023 |
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Plaintiff's bare plea that agreements were void ab initio was excipiable; particulars were vague and amendment ordered.
Pleadings – Rule 18(4) – material facts must be pleaded with sufficient particularity; facta probanda vs facta probantia; exception for vagueness and embarrassment; cannot plead bare legal conclusion that agreements are void ab initio; reliance on alleged admissions in other proceedings insufficient; leave to amend and costs ordered.
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21 December 2023 |
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First appellant’s joint-possession convictions set aside; both appellants’ minimum sentences reduced for sentencing misdirection.
Criminal law – Joint possession of firearm – test requires evidence that group intended to exercise possession through actual detentor and that detentor intended to hold firearm on behalf of group; mere knowledge or acquiescence insufficient. Sentencing – prescribed minimum sentences under s51 CLAA – substantial and compelling circumstances; proper weight to pre-trial detention and cumulative personal circumstances; appellate interference where sentence disproportionate.
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19 December 2023 |
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The applicant proved a liquidated claim and insolvency; the respondent’s estate was finally sequestrated.
Insolvency Act s12 – final sequestration – requirements: liquidated claim, insolvency, advantage to creditors; fiduciary breach via bond-churning transactions; standard for referral to oral evidence on return day; death of applicant’s deponent/hearsay insufficient to dislodge clear claims.
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19 December 2023 |
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An exception is a pleading and may be amended under Rule 28 before judgment on the exception, subject to prejudice.
Civil procedure — exceptions — exception regarded as a pleading and capable of amendment; Rule 28(10) permits amendment before judgment (interlocutory judgment on exception); interplay of Rule 23(1) and Rule 28; amendment permissible where delay explained and no irremediable prejudice; pleadings under s424 (old Companies Act) and s218 (new Companies Act) require proper factual averments; vague and embarrassing particulars must be particularised.
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18 December 2023 |
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Applicant awarded interim spousal accommodation maintenance and a Rule 43 contribution to legal costs based on need and respondent’s means.
Family law – spousal maintenance pendente lite – common-law reciprocal duty of support – constitutional rights to dignity and adequate housing – Rule 43 contribution to legal costs (sui generis) to ensure equality of arms – adverse inferences from inadequate financial disclosure.
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18 December 2023 |
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Eviction ordered where alleged sale lacked required formalities and occupiers failed to raise a valid defence.
Property law; PIE Act s 4(7)–(9) — eviction of unlawful occupiers; Alienation of Land Act formalities for sale of land; burden of proof for deed/signature; just and equitable balancing of prejudice; sheriff enforcement and costs.
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18 December 2023 |
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The applicant's claim for unlawful arrest, detention and malicious prosecution was dismissed for lack of reasonable suspicion and malice.
Unlawful arrest and detention – warrantless arrests under s40(1)(b) – reasonable suspicion based on visible injuries and statements; malicious prosecution – requirement of absence of reasonable and probable cause and malice; credibility assessment; withdrawal for untraceable complainant.
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18 December 2023 |
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Whether a covering mortgage bond secures damages and enrichment claims and whether leave to appeal should be granted.
Mortgage bond – covering/continuous bond – scope of security; whether bond secures debts "pursuant to" a sale agreement or also delictual/enrichment claims; contractual interpretation – unitary approach (Endumeni; Trinity Asset Management; Auckland Park Theological Seminary); res judicata/election and access to court arguments; leave to appeal under s 17(1)(a) of the Superior Courts Act; appropriate forum for appeal (Full Court v SCA).
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18 December 2023 |
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15 December 2023 |
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Applicants' leave to appeal against an interim order dismissed for lacking reasonable prospects; attorney-and-client costs awarded.
Civil procedure – leave to appeal – appealability of interim orders – interests of justice test under s17 SCA. Urgency and condonation – discretion to expedite and grant interim relief. Evidentiary standard in urgent applications – Webster v Mitchell applicable; Plascon-Evans not engaged where primary disputes are legal. Non-joinder – postponement permissible where interim relief attainable without joinder. Interim interdict/provisional reversal – requirement for prima facie right, particularisation of allegations, and statutory compliance (s71 of the Act). Costs – attorney-and-client scale ordered against applicants.
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15 December 2023 |
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Summary judgment granted for life‑right loan repayment after suspensive condition met; defendant lacked bona fide defence and interest awarded.
Procedure – summary judgment; Rule 32 verification and notice requirements; life‑right agreement – clause 14.3 suspensive condition and repayment; motion practice – realistic/common‑sense approach to alleged disputes of fact; mora debitoris – entitlement to interest as compensation.
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14 December 2023 |
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Court enforces written instalment agreement, rejects simulated shareholders’ loan defence, and dismisses referral to trial.
Contract law; Rule 6(5)(g) – referral to oral evidence; caveat subscriptor; parol/extrinsic evidence inadmissible to contradict written agreement; suretyship enforcement; dismissal of simulated-agreement defence where unsupported by documents.
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14 December 2023 |
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Applicant entitled to mandatory interdict enforcing settlement obligation to purchase and register a vehicle in her name.
Family law – enforcement of divorce settlement made an order of court; specific performance/mandatory interdict to compel purchase and registration of vehicle; interpretation of interim use clause vis‑à‑vis primary obligations; robust approach to disputes of fact on motion.
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14 December 2023 |
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Whether an unsigned amendment to a written land sale (agent-signed) can create a binding contract under s2(1) of the Alienation of Land Act.
Property law – Alienation of Land Act s2(1) – deed of alienation must be in writing and signed in its final form by parties/agents. Contract formation – acceptance and condonation of late acceptance; agent’s signature versus seller’s signature. Stipulatio alteri – limits where statutory formalities for land alienation apply. Interim interdict – requirement to establish prima facie right as threshold for relief.
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14 December 2023 |
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Applicant’s unexplained delay and commencement of contract works defeated urgency; application struck from urgent roll with costs.
Administrative law — urgent interim interdict to restrain tender implementation — delay by applicant in instituting urgent proceedings — commencement of contracted works rendering relief nugatory — urgency test and substantial redress in due course.
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14 December 2023 |
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Provisional sentence granted on admitted AOD; suretyship not a liquid document so provisional sentence against surety dismissed.
Provisional sentence — acknowledgement of debt — admitted signature — justus error and bona fide defence — when mistake entitles repudiation; Provisional sentence — deed of suretyship — suretyship for unspecified future debts not a liquid document; certificate of indebtedness cannot convert suretyship into liquid document; Evidence — retention certificate and internal calculations can defeat accounting disputes.
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14 December 2023 |
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Excessive unexplained delay and defective notice; no reasonable prospects of appeal against conviction or life sentence.
Criminal procedure – condonation for late application under s316(1)(b) – excessive delay and inadequate explanation; Notice of application for leave to appeal – non‑compliance with s316(3)(a); Appeal prospects – repetition of trial issues and no reasonable prospects of success; Sentence – mandatory life where victim raped more than once (s51(1)(a)(i) CLAA); Interpretation of s51(1)(a)(iii) – additional consideration but immaterial to outcome; Amendment to Schedule 2 (5 Aug 2022) clarified convictions-based trigger for life sentence.
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14 December 2023 |
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Provisional sequestration granted where unexplained large receipts and an email indicated respondent’s knowledge of misappropriated funds.
Insolvency — provisional sequestration — s 10 and s 8(c) Insolvency Act — delictual claim (condictio furtiva) to recover misappropriated funds — knowledge/dolus eventualis inferred from circumstantial evidence — Kalil v Decotex approach to factual disputes in sequestration applications.
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14 December 2023 |
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Certification refused: no prima facie negligence case, overbroad foreign opt‑out classes and many claims time‑barred under Zambian law.
Class action — Certification — requirement of prima facie cause of action raising triable issues; overbroad and unmanageable class definitions; choice‑of‑law — lex causae Zambian law on limitations — many claims prescribed; jurisdiction — opt‑out class impermissible for wholly foreign peregrini (opt‑in required); funding — third‑party funding and ATE insurance acceptable with court oversight; remediation claims and district‑wide scope insufficiently pleaded.
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14 December 2023 |
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Whether appellants may retain profits from constitutionally invalid contracts — court orders disgorgement subject to audited expense set‑off.
Procurement law; constitutional remedy s172(1)(b); emergency procurement; just and equitable remedial discretion; no‑profit dictum not absolute; requirement for audited accounts and expert determination; set‑off of reasonable expenses; performance under invalid contracts.
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12 December 2023 |
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Default judgment not erroneously granted despite imperfect service and defective notice; leave to appeal dismissed.
Administrative law / procedure – Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 s3 – applicability to municipalities and effect of defective or late notice. Civil procedure – default judgment – rescission under Uniform Rule 42(1) – ‘‘erroneously granted’’ standard; subsequent disclosure of a defence or defective notice does not necessarily render judgment erroneous. Service and compliance with court orders – failure to follow re-service directions not automatically fatal where defendant had opportunity to respond. Condonation – purpose and defendant’s obligation to raise it timely. Leave to appeal – section 17 Superior Courts Act – reasonable prospects of success and compelling reasons.
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12 December 2023 |
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Leave to appeal refused where applicant failed to show reasonable prospects of success or compelling reasons under s17(1)(a).
Leave to appeal – Superior Courts Act s17(1)(a) – requirement of reasonable prospects of success or compelling reasons; elevated threshold per Mont Chevaux; arbitrator’s powers – allegation of decision beyond pleaded case; gross irregularity – procedural fairness and differential treatment; application to lead further evidence characterised as late discovery.
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12 December 2023 |
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Leave to appeal refused: composite payment advice valid and indemnity obligation stands; applicants ordered to pay costs.
Guarantees and payment advices – Composite payment advice – Whether composite advice can trigger multiple distinct guarantees; indemnity and suretyship – standalone liability not dependent on validity of underlying demand; leave to appeal – Section 17(1) reasonable prospects and compelling reasons; reliance on prior judgments confirming jurisdictional facts.
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12 December 2023 |
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Applicant proved a tacit universal partnership entitling him to half the deceaseds estate; executor removed and ordered to account.
Family law – Universal partnership – Tacit universal partnership established where parties contributed money, labour and skill to joint ventures and shared benefits and burdens – Probative value of undisputed facts on motion proceedings. Civil procedure – Motion proceedings – answering affidavit must place positive factual basis to create a real dispute of fact; failure permits decision on papers. Executors and administration of estates – removal of executor for misconduct, failure to account and conflicts of interest; personal costs order against executor.
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12 December 2023 |
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Refusal of condonation for a late counter-application was held non-appealable and, alternatively, not reasonably appealable under s17(1)(a).
Civil procedure – appealability – whether an order refusing condonation for late filing of a proposed counter-application is appealable under Zweni criteria (finality, definitiveness, disposal of substantial relief). Civil procedure – discretion to refuse condonation – appellate interference limited to capriciousness, wrong principle, bias, or lack of substantial reasons. Superior Courts Act s17(1)(a) – leave to appeal requires reasonable prospect of success or compelling reason to hear appeal; standard raised compared to prior law.
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12 December 2023 |
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Unopposed attachment application decided on the founding affidavit and limited to the outstanding amount.
Unopposed application — absence of notice to oppose/answering affidavit — no lis — no obligation to give reasons; Attachment of bank accounts — scope of order — limited to outstanding quantum; Decision on founding affidavit where matter unopposed.
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12 December 2023 |
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Leave to appeal dismissed: refusal for non-disclosure of tax statement justified; absence of audited statements not fatal where requirement did not apply.
Administrative law – Tender awards – Rationality of procurement decisions – Request for tax liability statement and refusal to award when non-disclosure persists.* Procurement law – Strict compliance – Requirement to submit audited financial statements does not invalidate award where the requirement does not lawfully apply to the bidder (distinguishing WDR). *Contract/tender interpretation – Post-award conditions – ‘Negotiation of decreasing price’ construed as obligation to negotiate, not to achieve a specific outcome.* Civil procedure – Evaluation of uncontested affidavit averments in final relief applications.
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11 December 2023 |
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Applicants must exhaust municipal dispute remedies; municipalities must give cogent written decisions and may not collect disputed amounts.
Municipal law – credit control and debt collection – Local Government: Municipal Systems Act and municipal by‑laws – dispute resolution machinery creates contractual and administrative duties; customers must particularise disputes and continue paying undisputed charges; municipalities must investigate promptly and provide cogent written decisions (s11(5) COJ by‑laws; s12 MCLM by‑laws); no collection or disconnection in respect of properly disputed amounts; internal remedies (s62 appeal) must generally be exhausted before judicial intervention; fact‑specific inquiry into compliance.
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11 December 2023 |
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Sublessee cannot resist eviction by disputing lessor’s title; stay refused; eviction granted; utilities quantum referred to oral evidence.
Lease law – sublease concluded in breach of main lease – breach renders sublease voidable, not void ab initio unless main lessor elects to seek nullity; Mighty Solutions principle—sublessee cannot dispute lessor’s title to resist eviction; lis alibi pendens inapplicable where parallel proceedings do not raise same central issue; referral to oral evidence appropriate where material factual dispute exists as to quantum of utility charges.
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11 December 2023 |
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Whether a letter of intent created a binding two‑year exclusive contract — court finds no binding contract absent concluded final agreement.
Contract interpretation – letter of intent – "final award subject to successful conclusion of the contract" – no binding comprehensive contract without final agreement; Context v text (Endumeni) applied; Tacit terms (duration, exclusivity, termination for cause) not established; Quasi‑mutual consent/reliance not made out.
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11 December 2023 |
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Whether the franchise and sublease expired by effluxion of time, allowing the applicant to interdict and evict the respondent.
Franchise law – interpretation of addendum – effluxion of time; final interdict – requirements satisfied (clear right, irreparable harm, no alternative); rei vindicatio – owner entitled to recovery of possession; eviction of former franchisee; procedural objections (hearsay, pleading) rejected.
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11 December 2023 |
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Respondent's application for leave to appeal dismissed — no reasonable prospects of success or compelling reasons.
Leave to appeal – heightened test – applicant must show another court would reach a different conclusion – absence of reasonable prospects and no compelling reasons – application dismissed with costs.
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8 December 2023 |
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Applicants failed to show reasonable prospects of success or improper exercise of discretion; leave to appeal dismissed with costs.
Application for leave to appeal — refusal of separation under rule 33(4) — leave to appeal requires reasonable prospects of success per s 17(1)(a)(ii) Superior Courts Act — Commercial Court case management and discretion — decision dismissing separation not appealable.
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8 December 2023 |
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Leave to appeal dismissed: applicant failed to show realistic prospects or compelling reasons under section 17(1).
• Civil procedure – Leave to appeal – Superior Courts Act s17(1) – leave only where appeal would have reasonable prospects of success or other compelling reason.• Threshold under the Superior Courts Act is higher than under the repealed Supreme Court Act – realistic, not merely possible, prospect required.• Section 18 – suspension regimes – findings settled; does not determine interlocutory appealability.• Costs – applicant ordered to pay respondent’s costs, including costs of two counsel; punitive costs declined.
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8 December 2023 |
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Mother not in contempt for refusing to coerce traumatised minor into interim contact; application dismissed with costs.
Contempt of court – requisites: order, notice/service, non‑compliance, wilfulness and mala fides – criminal standard (beyond reasonable doubt) for committal; Interim contact orders – declaration of rights vs. positive obligations on caregiver; Child’s wishes and best interests – caregiver may not be obliged to coerce traumatised minor into contact.
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8 December 2023 |
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Whether a warrantless arrest and denial of medical treatment were lawful—court found arrest justified and no denial proven.
Criminal procedure — Warrantless arrest — s40(1)(a) & (b) Criminal Procedure Act; Road Traffic Act ss63,65 — driving under influence and negligent/reckless driving; Onus on State to justify arrest — preponderance of probabilities; Detention — right to medical treatment (s35(2)(e) Constitution) — failure to prove denial; Exercise of discretion — absence of mala fides.
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8 December 2023 |
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An interested party with direct proprietary rights must be joined; estoppel and prescription issues deferred to trial.
Civil procedure – Joinder – necessity where party has direct and substantial interest likely to be prejudicially affected by judgment – applicant entitled to joinder.* Civil procedure – interlocutory determination – court should not decide estoppel or prescription at joinder stage where issues are better ventilated at trial.* Property law – competing proprietary claims to immovable property – pending collateral proceedings do not preclude joinder in execution action.
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8 December 2023 |
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Applicants lacked locus standi and failed to show subpoenas to third parties constituted abuse of process; application dismissed.
Civil procedure – subpoenas duces tecum – setting aside subpoenas – extraordinary remedy requiring clear proof of abuse of process. Locus standi – challenger of subpoenas addressed to third parties must show abuse of process or personal prejudice. Abuse of process – setting aside permitted only where subpoena is obviously unsustainable and used for extraneous purposes. Relevance and prejudice – pending appeals or disputes about entitlement do not automatically render subpoenas abusive.
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8 December 2023 |