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Citation
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Judgment date
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| December 2017 |
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Particulars partly excipiable for vagueness; plaintiff granted leave to amend to plead ownership and unjust enrichment.
Civil procedure – exception to particulars of claim – vagueness and embarrassment – joint and several liability unclear; amendment of particulars – leave to amend to plead ownership and unjust enrichment; alternative pleadings permissible; costs apportioned for partial success.
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22 December 2017 |
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Applicant failed to establish a fiduciary duty and did not meet the higher leave-to-appeal threshold under section 17(1).
Civil procedure – leave to appeal – section 17(1) Superior Courts Act – higher threshold requiring likelihood another court would reach different conclusion. Fiduciary duties – whether fiduciary duty existed between parties – agency pleaded in founding affidavit; fiduciary duty cannot be broadened in reply. Motion proceedings – pleadings and evidence are the affidavits; applicant bound by founding affidavit; new causes of action in replying affidavit impermissible.
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22 December 2017 |
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Challenge to insurer's 10% spouse allocation and trust payment for minors dismissed; allocation upheld.
Insurance/group life — death benefits — allocation to dependants — section 37C Pension Funds Act — 10% payment to surviving spouse; balance deposited in trust for minors until majority — review of allocation — joinder of guardians — disputes of fact on papers.
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22 December 2017 |
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Non-parole periods may not exceed two-thirds and procedural safeguards must precede non-parole orders.
Criminal procedure – s 276B(1)(b) – non-parole period may not exceed two-thirds of the term of imprisonment. Criminal procedure – s 276B(1)(a) – before making a non-parole order the court must conduct or have regard to an investigation, warn the accused, and allow the accused an opportunity to address the court. Review – failure to follow s 276B procedure constitutes misdirection; conviction and sentence may be confirmed while irregular non-parole order is set aside.
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22 December 2017 |
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Court varied a consent order to reflect respondent's new medical scheme membership and adjust applicant's premium obligations.
Civil procedure – variation of consent order – application to amend a court-ordered settlement to reflect changed factual circumstances. Medical schemes – prohibition on dual membership – effect of joining new medical fund and waiting periods on parties' obligations under settlement. Informal agreement/conduct – recognition of parties' conduct as basis to vary terms of a court order (see DH v F and Others). Allocation of medical scheme premium liability and scope limited to specified option and escalations on written confirmation.
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22 December 2017 |
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A complex accounting and share-transfer dispute with genuine factual disputes was referred to trial; procedural directions and costs ordered.
Civil procedure – referral to trial under Uniform Rule 6(5)(g) where disputes of fact render an application unsuitable for decision on affidavit. Company/close corporation disputes – enforcement of settlement terms concerning transfer of member interest and appointment of valuator. Accounting relief – debatement of accounts, ownership of income, and related contempt allegations. Procedural directions – conversion of notice of motion to summons and setting of pleadings timetable.
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22 December 2017 |
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Whether a neighbouring owner is solely liable to repair a shared retaining boundary wall and entitlement to interdictory relief.
Property law – retaining and boundary wall – reciprocal duties of neighbouring owners to maintain and repair – joint liability; Interdictory relief – requirement to show clear right – applicant failed to prove sole responsibility; Doctrine of lateral support – held unnecessary to decide; Alternative dispute resolution – mediation recommended.
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22 December 2017 |
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Adjudicator wrongly denied jurisdiction despite parties' agreement; decision reviewed and dispute remitted.
Adjudication — jurisdiction — parties' express agreement at appointment meeting — adjudicator bound by that agreement and may not reassess own jurisdiction; Contract — termination by repudiation — effect: terminated contract's dispute-resolution clauses not enforceable between parties; Review — gross procedural irregularity where adjudicator decides matters beyond mandate and on issues not referred. |
22 December 2017 |
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Tender cancellation due to budget shortfall was lawful; emergency deviation appointment of interim provider was valid and review dismissed.
Procurement law – tender cancellation – reviewability under PAJA – Regulation 8(4)(b) PPPFA (funds unavailable) – no automatic right to prior representations; SCM deviations – Regulation 36/emergency procurement – lawful direct negotiations for short-term interim contract; costs – punitive attorney-and-client costs where applicant pursued moot/unchallenged relief and failed to disclose source of confidential material.
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21 December 2017 |
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Applicant failed to prove entitlement to interim interdict restraining respondents from alleging fronting or representing themselves as shareholders.
Interim interdict – requirements: prima facie right, well‑grounded apprehension of irreparable harm, balance of convenience, no satisfactory alternative remedy. Shareholder/director status – disputed removals and procedural compliance affect interim relief. Defamation/communications – entitlement to complain to regulatory bodies; no automatic interdiction of such complaints absent clear threat of irreparable harm. Evidentiary sufficiency – hearsay and lack of confirmatory affidavits undermine urgent relief.
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21 December 2017 |
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20 December 2017 |
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20 December 2017 |
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Court awarded R350,000 for unlawful arrest, detention and assault by police, emphasizing protection of personal liberty.
Unlawful arrest and detention; assault by police; constitutional protection of personal liberty; solatium and quantum of damages for infringement of fundamental rights; police misconduct and accountability.
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20 December 2017 |
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Ex parte interim freezing order discharged; court ordered restoration of contractual status quo and immediate unfreezing of account.
Rule 6(12)(c) – reconsideration of ex parte urgent orders; duty of full and frank disclosure in ex parte applications; interlocutory interdicts – purpose to preserve status quo; limits on freezing bank accounts affecting trade rights.
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20 December 2017 |
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Applicant's claim dismissed: no contract or fiduciary duty owed by the attorney and no legal duty to prevent pure economic loss.
Attorneys – trust accounts – payment into attorney's trust account may constitute actual advance to borrower rendering borrower the trust creditor.* Contract – tacit contract – no meeting of minds where attorney acted solely on client (borrower)'s instructions and no agreement with depositor.* Delict – pure economic loss – legal duty must be pleaded and established; reluctance to extend delictual liability for pure economic loss.* Pleading – requirement to plead particulars from which a legal duty can be inferred.
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20 December 2017 |
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20 December 2017 |
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Statutory rule that appeals do not suspend water‑use directives upheld; applicants' constitutional challenges dismissed.
National Water Act – section 148(2) – appeal not suspending directive under section 53(1); Constitutionality – access to water (s27) and shared statutory resource; Property right (s25) – no arbitrary deprivation where water use is regulated; Administrative justice (s33) and access to courts (s34) – internal remedies and PAJA exhaustion principle; PAJA s7(2) – exemption from exhaustion in exceptional circumstances; Interlocutory relief – courts/Tribunal may suspend directives in appropriate cases; Enforcement powers – authorised entry and remedial works under sections 53 and 125; Urgent prior orders requiring removal of obstruction reinforced enforcement.
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20 December 2017 |
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Whether an unsigned settlement can be enforced in divorce; court found no binding agreement and dismissed respondent's special plea.
Family law – Divorce – Settlement agreements – Whether an unsigned draft and attorney conduct can establish a binding compromise to be incorporated into divorce order. Evidence – Pre‑trial minutes and party conduct as indicia of settlement or continued dispute. Civil procedure – Onus on party alleging compromise to prove existence of settlement.
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19 December 2017 |
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Applicant's interim interdict to halt implementation of a public procurement award was refused; balance of convenience and lack of irreparable harm favoured respondents.
Procurement law – interim interdict to restrain implementation of a public tender – urgency and self-created delay; Administrative law – review under PAJA – materiality of tender irregularities assessed by reference to purpose; Public finance law – PFMA contemplates individual accounting authority where no controlling body exists; Separation of powers – courts reluctant to restrain exercise of statutory powers absent clearest cases; Balance of convenience – significant sunk costs and public interest may outweigh preservation of status quo.
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19 December 2017 |
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Deficient section 112(1)(b) questioning required setting aside a drunken-driving conviction and remitting the matter for de novo proceedings.
Criminal procedure – section 112(1)(b) – adequacy of questioning to secure admissions of all elements of offence; protective role for unrepresented accused. Drunken driving – essential elements – requirement of admission of impairment of driving ability, not merely consumption. Evidence – forensic blood-alcohol certificate tendered post-conviction without accused’s verification or questioning improper in s112(1)(b) context. Review – conviction and sentence set aside and remitted for de novo hearing where s112(1)(b) inquiry deficient.
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18 December 2017 |
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Contradictory child evidence and credibility defects meant the State failed to prove the appellant’s identity beyond reasonable doubt.
Criminal law – Sexual offences – Identification as central issue where complainants are young children – contradictions in child evidence and witness credibility may render State case untenable. Evidence – Single witness/child witness – cautionary approach; corroboration and common-sense assessment required. Forensic report (J88) – evidentiary value limited where author does not testify and is unsupported by consistent witness evidence.
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17 December 2017 |
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Application to withdraw units from rental pool dismissed due to unresolved factual and accounting disputes.
Contract law – Rental pool agreements – Termination clause (clause 9.3 as amended) – Adequacy and validity of written notice to Hotel Operator and Rental Pool Operator. Civil procedure – Motion proceedings – Disputes of fact on affidavit – Rule 6(5)(g) – referral to oral evidence or dismissal/ referral to trial. Accounting dispute and pending related action – effect on entitlement to declaratory or mandatory relief. Costs – unsuccessful motion dismissed with costs.
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15 December 2017 |
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Rescission refused: applicants failed to show good cause after valid domicilium service; court ordered respondent to engage and imposed R1,000,000 floor.
Civil procedure — Rescission of default judgment — Proper procedure under Rule 31(2)(b) — Requirements: reasonable explanation for default, bona fides, and prima facie defence. Service — Service by affixing at chosen domicilium — sheriff's return of service prima facie proof; rebuttal required. Exercise of discretion — Court may refuse rescission for wilful/default delay but may order interlocutory measures in the interests of justice (compel engagement; set minimum sale price).
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15 December 2017 |
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15 December 2017 |
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15 December 2017 |
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Appeal reinstated and summary judgment set aside where defendant disclosed a bona fide, triable defence (simulated/bookkeeping agreement).
Civil procedure – summary judgment – defendant’s affidavit disclosing simulation/bookkeeping defence – whether defence fully disclosed and bona fide – summary judgment set aside; condonation for late prosecution granted where explanation adequate and prospects of success shown. National Credit Act – characterization of transaction and pleaded cause of action relevant to determination.
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15 December 2017 |
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14 December 2017 |
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Applicant established prima facie infringement; interim interdict granted as respondents' invalidity challenges were speculative.
Patents – interim interdict – requirement of prima facie right, irreparable harm, balance of convenience and alternative remedy; Infringement – prima facie finding where respondents fail to produce samples or rebut composition allegations; Invalidity – prior public use/disclosure and s 61(1)(g) false declaration may cast only speculative doubt at interlocutory stage; Adequacy of damages versus royalty as alternative remedy; Status quo and public interest considerations in patent interlocutory relief.
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14 December 2017 |
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A defective combined summons under rule 18(1) is an irregularity (not a nullity); service interrupts prescription; condonation granted.
Civil procedure – Uniform rule 18(1): combined summons signed without advocate or attorney with High Court right of appearance is an irregular step, not a nullity – defective but served summons interrupts prescription under Prescription Act – condonation under uniform rule 27(3) where defect trivial, caused by attorney, and no prejudice – costs consequences.
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14 December 2017 |
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Plaintiff proved probable offshore career; awarded R5,700,128 for future loss of earnings to retirement age 65.
Motor vehicle collision — loss of earnings — proof of probable future employment offshore — credibility of industrial psychologists — retirement age for actuarial calculation — application of contingencies and capping in quantum.
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14 December 2017 |
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Revocation dismissed: conveyor-belt patent held clear, novel and involving an inventive step, claims certified valid.
Patent law – revocation – construction of claims – purposive interpretation; novelty and anticipation – prior art must disclose essential integers; inventive step – not obvious when combination balances heat transfer and mechanical stress; certification under s74.
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14 December 2017 |
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A small union’s class-action bid to set aside retrospective pension-factor amendments failed for lack of representativity and no triable prospect of success.
Class actions – certification – requisites (Children’s Resource Centre; Mukaddam) – interest of justice and representativity. Pension law – amendment of rules – actuarial interest factors – implementation and retrospectivity; benefits accrue on exit. Administrative law – Rule 14 consultation requirement; public power and PAJA considerations. Labour/collective bargaining – majoritarianism, PSCBC role and competing union representation. Relief – certification refused; applicant unsuitable representative; application dismissed with costs.
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14 December 2017 |
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Court upheld the will and rectified the trust deed to include grandchildren as beneficiaries.
Trust law – Rectification and interpretation of trust deed provisions; testamentary powers under trust deed to determine post‑termination distribution; validity and presumption of regularity of wills; late challenges to wills; striking out irrelevant affidavits under Rule 6(15).
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14 December 2017 |
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Court held estate bound to deceased's obligation to fund ex-spouse's medical scheme; applicant to be admitted as concurrent creditor.
Contract interpretation – divorce settlement clause promising medical scheme contributions – survival of contractual obligations on death Tacit terms – bystander test versus clear contractual language Estate liability – executor/executrix liable for contractual obligations of deceased to extent of estate Medical schemes – beneficiary continuation after main member’s death; third party payment of premiums Procedural relief – claim to be admitted as concurrent creditor of estate
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13 December 2017 |
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Whether trustees lawfully exercised discretion under section 37C in allocating a pension death benefit to factual dependants.
Pension Funds Act s30P – de novo review of Adjudicator determinations; s37C – distribution of death benefits; definition of 'dependant' (legal and factual dependence); standard of review of trustees’ discretionary allocations – irrationality and relevance of factors; factual dependence evidence (lobola, bank account access, medical aid registration, payment of schooling).
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13 December 2017 |
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12 December 2017 |
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The appellant's rape conviction was set aside because the child complainant's materially contradictory evidence rendered it unsafe.
Criminal law – Sexual offences – Conviction on single child witness – Cautionary approach and credibility findings required; Material contradictions and family animosity undermining complainant’s reliability; Post‑conviction recantation/new evidence relevant to safety of conviction; Appellate interference where trial court materially misdirected itself.
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12 December 2017 |
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Minister's refusal was reviewable for failing to consider statelessness; matter remitted and interim stay-to-work authorised.
Immigration law — Review of administrative decision — Minister failed to consider correct enquiry (statelessness) under s31(2)(b) — Remittal for further investigation and decision — Substitution refused — Interim authorisation to remain and work ordered.
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12 December 2017 |
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12 December 2017 |
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Applicant entitled to enforce PPP and Davis Order; respondent prohibited from using other providers and must pay overdue invoices.
Public-private partnership – enforcement – validity and enforceability of PPP agreement – exclusivity clause – court order (Davis Order) enforcement – prohibitory and mandatory interdicts; appointment of third-party service providers contrary to PPP; payment of overdue invoices and procedural sufficiency of annexures; arbitration not required where court has ordered compliance; contempt not proved against individual official.
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11 December 2017 |
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A lender’s claim for execution against a bonded family home can be defeated by calculation error, delay and Gundwana protections.
Mortgage bonds – claim for payment and order declaring property specially executable – application of Gundwana and section 26(3) – court’s mero motu duty to determine whether property is a home. Pleadings – plaintiff must positively aver property is not a home to avoid Gundwana protections. Error in calculation of arrears and inordinate delay – relevance to just and equitable assessment for special execution. Proportionality and constitutional protection against loss of home – reliance on Jaftha principles.
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8 December 2017 |
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Default judgment rescinded where applicant showed reasonable explanation, good faith and a bona fide defence with prospects of success.
Civil procedure – Rescission of default judgment – Requirements: reasonable explanation for default; good faith; bona fide defence with prospects of success. Contract/estate dispute – Alleged oral agreement as to distribution of estate proceeds – factual dispute requiring trial.
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8 December 2017 |
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Trustee/director who diverted a corporate contract for personal benefit was removed and declared a delinquent director.
Trust law – removal of trustee – s20(1) Trust Property Control Act – conduct that imperils the trust and beneficiaries; fiduciary duties – care, diligence and skill. Company law – delinquent director – s162(5) Companies Act – gross abuse of position, appropriation of corporate opportunity, intentional/grossly negligent harm; s76(2)(a) standards of conduct. Civil procedure – Plascon‑Evans approach to disputes of fact in motion proceedings.
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8 December 2017 |
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Leave to appeal dismissed; settlement void for unilateral mistake and knowledge properly imputed to the defendant.
Contract law – unilateral mistake (iustus error) – materially understated settlement quotation – void ab initio. Imputation of knowledge – admission in particulars of claim – effect on evidential burden. Good faith of mistake – assessment by inherent probability, not witness speculation. Prejudice to innocent party – Brink distinguished and inapplicable. Instalment sale – extinguishment by sale does not negate liability for outstanding balance under original agreement.
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8 December 2017 |
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Rule nisi suspending sale in execution discharged where underlying applications were set aside and occupant-applicant lacked standing.
Property law – sale in execution – suspension by rule nisi – standing of occupant (non-owner) to oppose sale – competence and vagueness of relief – mootness of interim relief where underlying applications set aside as irregular.
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8 December 2017 |
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Contradictions in complainant’s evidence and a corroborated alibi rendered the rape conviction unsafe; appeal upheld.
Criminal law – Rape – Single complainant evidence – contradictions and tailoring of statements – credibility – corroborated alibi (pocketbook entries and colleagues) – trial court misdirection – conviction unsafe; appeal upheld and conviction and sentence set aside.
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8 December 2017 |
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The plaintiff proved unlawful arrest, unlawful detention to 7 June 2012 and malicious prosecution; damages awarded.
Police liability – unlawful arrest and detention – breach of s12(1)(a) Constitution – malicious prosecution – opposing bail on spurious grounds – solatium damages for arbitrary deprivation of liberty.
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8 December 2017 |
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Rescission refused where opposing papers were before the court; judgment was not a default order and appeal, not rescission, is appropriate.
Civil procedure – rescission of judgment – default of appearance – where opposing affidavits are filed and before the court, judgment is not a default judgment and rescission inappropriate; appeal is the proper remedy.
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8 December 2017 |
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Licence withdrawal upheld: Board Notice applied and pre-transfer trust withdrawals, based on flawed legal advice, breached fit-and-proper requirements.
Financial services regulation – withdrawal of FSP licence under s 9 FAIS Act – fit and proper requirements (honesty, integrity, competence) Consumer Affairs Act – Board Notice applicability to public property syndication prospectuses registered under Companies Act Trust accounts – prohibition on withdrawal prior to transfer, underwriting or repayment Reliance on legal advice – insufficiency of brief/incorrect advice for specialist regulated provider Judicial review – PAJA, sanction proportionality and judicial deference to regulatory decision
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8 December 2017 |
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Plaintiffs' warrantless arrests for non-Schedule 1 firearm-related offences were unlawful; assault claims not proven.
Criminal Procedure Act s 40 — arrest without warrant — requirement of reasonable suspicion and Schedule 1 offences; limits on police discretion and need to consider less evasive alternatives; unlawful arrest and arbitrary deprivation of liberty; burden on State to justify warrantless arrest. Civil evidentiary standard — evaluation of mutually destructive versions, necessity of corroborating witnesses and admissible medico-legal evidence in assault claims.
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8 December 2017 |