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Citation
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Judgment date
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| November 2022 |
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Business rescue application not 'made' for lack of proper service; provisional liquidation granted; employees allowed to intervene.
Company law — Business rescue — When application is ‘made’ under s 131(6) — strict compliance with service and notification requirements (Lutchman) — service on attorneys insufficient — suspension of liquidation not triggered; Intervention by employees — leave granted; Provisional liquidation granted where company commercially insolvent.
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21 November 2022 |
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Applicants permitted to supplement review papers under Rule 53(4); Rule 30 strike‑out dismissed for lack of prejudice and procedural non‑compliance.
Rule 30 (irregular proceedings) — requirements for setting aside an irregular step — applicant must show no prejudice and comply with procedural steps; Rule 53(4) — right to amend and supplement review papers on receipt of record; Rule 27 — court’s discretion to condone non-compliance with time limits; late filing and change of attorneys; costs on attorney-and-client scale.
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21 November 2022 |
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Court found defendant negligent in intrapartum care; plaintiff’s unchallenged evidence established causation and liability.
Medical negligence – obstetric care – failure to monitor foetal heart rate during induced labour, delayed emergency caesarean section and inadequate intra-uterine measures – causation of peripartum hypoxic ischaemic brain injury (HIE) – unchallenged expert evidence and joint minutes – separation of liability and quantum (Rule 33(4)) – costs including experts’ fees and senior counsel.
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21 November 2022 |
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Reported
Prosecuting authority decides outgoing extradition requests; no statutory right to pre-request representations to the DG or Minister.
Extradition — outgoing requests to foreign states — decision-making authority: prosecuting authority (NDPP) initiates and decides, Minister performs administrative/diplomatic conduit role; no statutory right for a person to make pre-request representations to the DG or Minister; treaty (Article 9) and Extradition Act govern documentation and diplomatic transmission; constitutional separation of powers (s 179, NPA Act) precludes Minister overruling prosecuting authority.
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21 November 2022 |
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Court removed trustees for fiduciary breaches and appointed the administrator as interim sole trustee to secure administration.
* Trust law – removal of trustees – s20(1) Trust Property Control Act – removal justified where trustees’ conduct imperils trust property and administration; * Master’s duties – s16 report – late/limited report not necessarily fatal where court can exercise its discretion; * Fiduciary duty – trustees must act with care, diligence and proper accounting; * Interim administration – appointment of administrator as sole trustee to verify beneficiaries, reconstruct records, negotiate tax liabilities, and convene trustees’ election; * Costs – trust and opposing trustees jointly and severally liable for applicants’ costs.
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18 November 2022 |
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Whether a section 129(1) notice delivered to the relevant post office by registered mail satisfies the NCA’s delivery requirement.
National Credit Act – s129(1) and s130 – delivery of pre-enforcement notice by registered mail; proof of delivery to relevant post office; Sebola (CC) and Benson (Full Court) – non-compliance dilatory not void; hearsay Post Office documents inadmissible without supporting affidavits; execution of immovable property under rule 46A; fixing reserve price.
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18 November 2022 |
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Registered owner established but eviction under PIE refused due to children’s interests and absence of municipal alternative-accommodation report.
* PIE Act – eviction procedure – owner’s locus standi; * Unlawful occupation – withdrawal of consent and notice to vacate; * Just and equitable enquiry – necessity of municipality report on alternative accommodation; * Constitutional considerations – protection against homelessness and best interests of children; * Absence of municipal alternative-accommodation report can be fatal to eviction order.
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18 November 2022 |
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The applicant’s administrative policy did not justify rescission of a default judgment without a reasonable explanation and prima facie defence.
* Civil procedure – rescission of default judgment – applicability of Uniform Rule 42, section 173 and common law – requirements for rescission (reasonable explanation and bona fide defence with prospects of success).
* Public body administration – institutional policy of non‑attendance at trials does not, without more, justify setting aside default judgments.
* Common law development – court declines to create special rescission rules for a public entity; finality and administration of justice emphasised.
* Costs – successful respondent awarded costs, including reserved costs and costs of two counsel where employed.
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18 November 2022 |
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After a water-authority directive rendered the interdict unnecessary, the court ordered each party to bear its own costs.
Environmental law; urgent interdict to stop mine-impacted water discharge; Department of Water and Sanitation directive under NWA s19(3) & s53(1); NEMA s32(2) and costs discretion for public-interest environmental litigation.
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18 November 2022 |
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Court granted provisional liquidation where respondent failed to show ability to pay debts and offered no good cause for postponement.
• Companies law – Winding‑up – inability to pay debts – monies paid into respondent’s nominated bank account and no bona fide defence to repayment;
• Provisional liquidation granted where respondent relied on bankers’ failure to pay but did not discharge liability;
• Civil procedure – Postponement – requirements for good cause, disclosure and prompt application; last‑minute change in counsel and vague affidavits insufficient;
• Security for costs – irregular procedure under Rule 47 cannot justify postponement;
• Jurisdiction – High Court may liquidate companies registered within its area; foreign creditors may apply for liquidation.
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18 November 2022 |
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Disqualification for alleged failure to submit ISO certificate due to ambiguous tender requirements was unlawful and reviewable.
Administrative law – public procurement – tender ambiguity ("certification" vs "certificate") – procedural fairness under PAJA – disqualification for non-submission of mandatory returnable unlawful and irrational; remedy: review and set-aside with suspension pending fresh tender; split tender permissible where envisaged.
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17 November 2022 |
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Whether the plaintiff may recover subcontractor costs from the defendant where subcontracting breached the RFP and the LOA lapsed.
* Procurement law – RFP and LOA – prohibition on undisclosed subcontracting and BBBEE compliance; * Company law – separate juristic personalities and privity of contract; * Contract law – LOA 60-day term and no tacit extension without required authorisations; * Prescription – three-year prescriptive period; * Evidence – burden to prove actual costs and causation of loss.
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17 November 2022 |
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Urgency self-created and statutory prerequisites for deletion of forensic identifiers unmet; application dismissed with costs.
Criminal procedure – forensic identifiers and arrestee index – deletion under s151 of Criminal Law (Forensic Procedures) Amendment Act – prerequisites (non-prosecution or acquittal and no outstanding investigations) – premature relief; Urgency – self-created delay – requirements for urgent relief; Declaratory relief and final interdict – failure to show clear right and absence of alternative remedies; Alternative remedies – mandamus to compel prosecutorial decision; section 205/212 investigatory steps.
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17 November 2022 |
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Leave to appeal granted where a disputed loan balance and risk of losing primary residence raised a real prospect of success.
• Civil procedure – leave to appeal – s 17 Superior Courts Act – requirement of reasonable prospect of success or other compelling reason; • Rescission of default judgment – dispute of fact – affidavit evidence v need for oral testimony; • Proof of indebtedness – failure to attach loan agreement or plead particulars of outstanding balance; • Execution against immovable property – severity of consequences as factor in granting leave to appeal.
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17 November 2022 |
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Applicant failed to prove exceptional circumstances for bail; lower court’s refusal was correctly upheld.
* Criminal procedure – Bail – s 60(1), s 60(4) and s 60(11) CPA – onus on accused to prove exceptional circumstances; relevance of prior bail default, community opposition and psychiatric reports. * Appeal – s 65(1)(a) CPA – superior court will not interfere with refusal of bail unless decision was wrong; appellate court may reassess evidence.
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17 November 2022 |
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Appeal upheld: trial court erred in finding plaintiff had closed its case and that respondents disproved indebtedness; matter remitted.
* Civil procedure – allocation of evidential onus – distinction between defendant’s duty to disavow signed contracts and plaintiff’s burden to prove indebtedness. * Absolution from the instance not competent where onus lies on defendant to begin. * Admissibility of evidence and unresolved testimony preclude final determination on indebtedness. * Remittal under s19 Superior Courts Act for further evidence.
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17 November 2022 |
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Applicant’s failure to comply with post-judgment repayment agreement and not rescinding judgment defeated return of the vehicle.
Civil procedure – enforcement of judgment; instalment sale – post-judgment forbearance agreement; compliance with stay conditions to avoid execution; relief incompetent without rescission of judgment; indulgence not novation.
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17 November 2022 |
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Applicant entitled to full Rule 35 discovery of respondent's financial records due to pleaded misrepresentation and inadequate discovery.
Civil procedure – discovery – Uniform Rule 35(1),(3) and (7) – relevance determined from the pleadings – party must discover all documents relating to any matter in question; Discovery in divorce proceedings – financial disclosure and accrual calculation – source documents, bank accounts and share records; Misrepresentation – conditional settlement agreements – pleaded misrepresentation may render agreement void and justifies further discovery; Costs – punitive attorney-and-client costs where party resists discovery mala fide and uses procedural steps to evade disclosure.
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17 November 2022 |
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Respondent ordered to pay trust establishment and administration costs under s17(4)(a), with interest and punitive attorney-and-client costs.
* Road Accident Fund Act s17(4)(a) – scope of undertaking – includes costs of establishment and administration of trust and bond/security.
* Trust deed made an order of court – enforceability of trustee remuneration and administration costs under RAF undertaking.
* Costs – punitive/attorney-and-client costs justified for non-compliance with court order.
* Interest – awarded at 7% per annum.
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16 November 2022 |
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Court allows amendment to challenge administrative mark, leaving PAJA/time issues for determination in main proceedings.
* Civil procedure – amendment of pleadings – Rule 28 – amendments should be allowed unless mala fide or cause irremediable prejudice; prejudice may be cured by costs or further affidavits.
* Administrative law – challenge to administrative mark – question whether proposed relief constitutes judicial review under PAJA and whether time limits and Rule 53 apply left for main hearing.
* Interlocutory relief – court may permit introduction of review-related relief and allow respondent opportunity to file supplementary affidavits rather than refusing amendment summarily.
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16 November 2022 |
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Plaintiff’s version rejected; defendant’s version accepted and volenti applied—claim dismissed with costs.
Delict — negligence — mutually destructive versions — assessment of credibility, reliability and probabilities; volenti non fit injuria where commuter knew risks of clinging to/boarding trains; separation of merits and quantum.
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16 November 2022 |
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Ex parte order set aside for material non-disclosure; trustee joined, R4m released to trust, applicants ordered to pay costs.
Ex parte proceedings — duty of full and frank disclosure — material non-disclosure entitling court to set aside ex parte order; Uniform Rules 6(8) and 6(12)(c) — anticipation/reconsideration of return day — urgency; joinder of trustee; release of funds held in trust; costs on attorney-and-client scale.
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16 November 2022 |
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Application for curator ad litem struck off for lack of jurisdiction and necessary non-joinder of the competent Master.
Curatorship – jurisdiction of Master – appointment of curator ad litem – territorial jurisdiction where minor resides or where greatest portion of property situated; Procedure – necessary joinder – party (Master) with direct and substantial interest must be joined/waiver required; Administrative procedure – Master’s waiver prerequisite to registration elsewhere.
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16 November 2022 |
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The plaintiff awarded R340,376 for unlawful arrest, assault and detention covering medical costs, loss of income and general damages.
• Delict – unlawful arrest, assault and detention – public humiliation, assault with weapon, unsanitary cells and prosecution leading to psychological injury.
• Quantum – reliance on joint medico‑legal minutes and actuarial reports to quantify future medical expenses and loss of earnings.
• Assessment of general damages – consideration of comparable awards, duration and circumstances of detention, and psychological sequelae.
• Costs and interest – State Liability Act s 3(3)(a)(i) payment/interest regime.
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16 November 2022 |
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Absence of an express High Court jurisdictional averment is not fatal where pleadings and contract disclose jurisdiction; exception dismissed.
* Civil procedure – Rule 23 exception – whether lack of express averment of High Court jurisdiction in particulars of claim is excipiable.
* Pleadings – Rule 18(4) – requirement of material facts and sufficient particularity; minor procedural defects and lack of prejudice.
* Procedural choice – exception versus special plea – improper use of exception to delay proceedings.
* Jurisdiction – plaintiff as dominus litis; High Court concurrent jurisdiction with Magistrates’ Courts; NCA considerations regarding jurisdictional consents.
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16 November 2022 |
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Default judgment refused where defendant filed a late notice to defend and plaintiff failed to disclose it.
Civil procedure — Default judgment — Uniform Rule 19(5) permits late delivery of a notice of intention to defend before default judgment — Duty of full disclosure in ex parte/default applications — Practice directives and electronic filing obligations — Costs consequences for late notice and failure to disclose.
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16 November 2022 |
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Termination without contractual breach notice amounted to repudiation; specific performance and punitive costs ordered.
Contract – Specific performance – Remedy for repudiation where termination without contractual notice; clause interpretation – clause 11 breach-notice requirement; clause 5.1 and clause 8 – no suspensive condition; Public policy – protection of employment and enforcement of commercial contracts; Costs – punitive attorney-and-client costs ordered against terminating party.
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15 November 2022 |
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Applicant creditor proved demand and insolvency; provisional liquidation granted as respondent’s denials were not bona fide disputes.
Companies Act – s 344/345/346 – winding‑up applications by creditor – demand and failure to secure or compound – commercial and factual insolvency – contingent and prospective liabilities – bona fide dispute on affidavit – provisional liquidation ordered.
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15 November 2022 |
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High Court declined to hear rescission pending Constitutional Court confirmation and ordered applicants to pay costs.
Constitutional procedure — rescission applications — competence of High Court while confirmation proceedings under section 167(5) pending; effect of section 172(2)(a); stay pending confirmation; costs for late disclosure of Constitutional Court Directions.
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15 November 2022 |
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A late payment by the respondent, accepted as final, disposed of the applicant’s liquidation application despite disputed set-offs.
Companies Act – winding-up under s 344(f)/s 345 (1973 Act) read with 2008 Act; unpaid taxed bills of costs; bona fide dispute and set-off (Baderhoust/Kalil principle); admission of further/supplementary affidavits (Rule 6(5)(e)); effect of conditional/‘under protest’ payments and reservation of rights.
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15 November 2022 |
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Section 26 of the Insolvency Act applies to donations; religious freedom did not bar setting aside dispositions or validating liquidators’ interdict.
Insolvency — Dispositions without value — Donations qualify as dispositions under s26 — Company cannot receive ‘‘religious value’’ to defeat section 26; Constitutional law — Freedom of religion — Section 26 and s417/418 enquiries do not infringe right to freedom of religion as pleaded; Civil procedure — Agreements reached at companies’ enquiries — Subsequent delivery of assets and power of attorney enforceable; Interim relief — Rule nisi confirming interdict preventing alienation of immovable property.
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14 November 2022 |
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Award of R3,100,596.85 for a minor’s future loss of earnings due to permanent brain injury, with 35% contingency applied.
• Road Accident Fund – quantum – future loss of earning capacity for minor with severe traumatic brain injury; use of medical, educational, occupational and actuarial evidence; application of contingency deduction to address uncertainties. • Civil procedure – admission of expert reports on affidavit under Uniform Rule 38(2). • RAF – s 17(4)(a) undertaking for future medical expenses; protection and administration of capital awards via trust; appointment of trustee subject to Master’s control.
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14 November 2022 |
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A conspicuous, CPA-compliant disclaimer can absolve the respondent of liability for a slip-and-fall.
Consumer Protection Act s49 – disclaimer/exemption clause – requirements of plain language and conspicuous notice; Premises liability – slip-and-fall – proof of wetness and reasonable cleaning systems (travel-path checks); Onus and probabilities in mutually destructive versions; Relevance of inspection in loco and video evidence to credibility findings.
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14 November 2022 |
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Defendant failed to prove forfeiture; court ordered payment of R1,233,654 from defendant’s pension and division of joint estate.
Family law – Divorce in community of property; forfeiture of patrimonial benefits under section 9 of the Divorce Act – onus on party seeking forfeiture; substantial misconduct and undue benefit; pension interest as part of patrimonial estate; section 37D(4) Pension Funds Act endorsement and payment of non-member spouse's entitlement.
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14 November 2022 |
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Application for leave to appeal dismissed: no reasonable prospects of success under section 17 of the Superior Courts Act.
* Civil procedure – Leave to appeal – Section 17, Superior Courts Act 10 of 2013 – Requirements: reasonable prospect of success or other compelling reason, not falling within s16(2)(a), and where applicable leading to just and prompt resolution.
* Section 17 test is subjective – seised judge must be satisfied another court would likely reach a different conclusion.
* Application for leave to appeal dismissed where no reasonable prospects or compelling reasons shown; costs awarded.
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14 November 2022 |
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Non‑compliance with Rule 23(1)(a) renders vagueness exceptions premature; particulars disclose cause; court has jurisdiction; claim not prescribed.
Civil procedure – Exceptions – Rule 23(1)(a) non‑compliance – vagueness and lack of averments – point in limine upheld; particulars of claim disclose cause of action. Jurisdiction – Court with defendant’s principal place of business can adjudicate; dispute‑resolution clause (mediation/arbitration) not mandatory to oust jurisdiction. Prescription – cause of action arose when payment became due; claim not prescribed. Costs – reckless/non‑compliant conduct attracts attorney and client costs.
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11 November 2022 |
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An unregistered credit provider’s pawn transactions and prohibited charges breached the NCA; tribunal orders and fine upheld.
* Credit law – registration requirement – section 40 – unregistered credit provider entering pawn transactions. * Advertising – section 76(3) – prohibition on advertising credit prior to registration. * Consumer protection – prescribed form for small credit agreements – section 93(2), Regulation 28, Form 20.2 – strict compliance required. * Cost of credit – closed list of permissible charges – sections 100–102 – valuation, drafting and storage fees not permitted. * Pawn transactions – treatment of proceeds of sale – surplus proceeds to consumer; remedial refunds available. * Tribunal powers – remedial orders and administrative fines under the NCA (sections 150–152, 151).
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11 November 2022 |
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Leave to appeal granted where statutory service and prescription issues raise reasonable prospects of success.
State liability and procedure – service on State Attorney – effectiveness of service on Minister; interruption of prescription – peremptory versus purposive interpretation of SLA, Institution of Legal Proceedings Against Certain Organs of State Act and Prescription Act; leave to appeal – reasonable prospects of success.
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11 November 2022 |
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Court stayed lease-renewal proceedings and referred exclusivity-clause competition issues to the Competition Tribunal pending review outcome.
* Competition Act s65(2)(b) – referral of competition-law issues raised in civil proceedings to the Competition Tribunal; * Exclusivity provisions in head leases – potential restrictive vertical practice and impact on competition; * Simulated/fictitious head-lease structure alleged to reserve premises and exclude competitors; * Stay of civil proceedings pending Tribunal determination and related review application; * Frivolous/vexatious threshold for referral under s65(2)(b)(i).
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11 November 2022 |
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An appellate court will only disturb a well-reasoned sentence if the sentencing discretion was improperly exercised or induces shock.
Criminal law – Sentencing – Appeal against sentence – appellate interference only where discretion not judicially exercised, vitiated by irregularity or induces shock; deviation from statutory minimum – relevant factors to be weighed – mitigation including pre-sentencing report and impounded vehicle; admissibility of new evidence on appeal – unsworn documents in heads insufficient.
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11 November 2022 |
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Conviction set aside where charge failed to specify which sexual offence was attempted, infringing the accused's fair-trial rights.
* Criminal procedure – defective charge – section 55 Sexual Offences Act – failure to specify which sexual offence was attempted; prosecutor conceded defect.
* Constitutional right – s 35(3)(a) – accused must be informed of charge with sufficient detail.
* Criminal Procedure Act – s 86 (amendment of charge) and s 88 (defect cured by evidence) – no amendment sought and evidence did not cure defect.
* Prosecutorial duty – careful drafting of charges to avoid prejudice; conviction set aside where accused not fairly informed.
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11 November 2022 |
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Appellants’ cumulative sentences reduced by adjusting concurrency though prescribed 15-year minimums for aggravated robbery remain intact.
* Criminal law – Minimum sentences – Robbery with aggravating circumstances – section 51(2) and (3) Criminal Law Amendment Act – no substantial and compelling circumstances to depart from 15-year minimum.
* Sentencing – Concurrency and cumulative effect – appellate adjustment of concurrency to avoid excessive total imprisonment.
* Mitigation – first offender status, guilty plea, remorse and Covid-related unemployment relevant to overall sentence but not sufficient to reduce prescribed minimum.
* Sentence antedating – sentences antedated to 8 September 2021.
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10 November 2022 |
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Applicants failed to prove the respondent's financial distress; urgent business rescue refused and punitive costs awarded.
Companies Act — s 131(1) and s 131(4) — application to place company under supervision — requirement to prove financial distress (s 128) — disputed debt not shown to be due and payable on demand — urgency and condonation — abuse of process and costs de bonis propriis.
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8 November 2022 |
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Court corrected a patent error under Rule 42(1)(b), varying its appeal order to dismiss the plaintiff’s claims with costs.
Civil procedure – Rule 42(1)(b) – Variation of order for patent error or omission – Court may correct its order mero motu or on application despite functus officio where correction does not affect merits and causes no prejudice – Appeal order varied to substitute order dismissing plaintiff’s claims with costs.
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8 November 2022 |
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8 November 2022 |
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A default judgment obtained without the Rule 31(5)(a) five‑day notice was erroneously granted and properly rescinded.
* Civil procedure – Default judgment – Rule 31(5)(a) – mandatory five‑day notice requirement prior to applying for default judgment – non‑compliance renders judgment erroneously sought or granted under Rule 42(1)(a).
* Civil procedure – Rescission – Rule 42(1)(a) – rescission available for orders "erroneously sought or erroneously granted" in absence of party; no requirement to show "good cause" or bona fide defence under Rule 31(2)(b).
* Civil procedure – Registrar’s powers – Registrar may only grant default judgment in terms of statute and the Rules; judgments granted without procedural compliance are erroneous.
* Execution – Writ of execution issued pursuant to erroneously granted default judgment to be set aside.
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8 November 2022 |
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Late, overbroad appeal and a novel retrospective Rule 46A argument raised for the first time on appeal were dismissed with costs.
* Civil procedure – appeal – introduction of new issues on appeal – appellate courts generally will not entertain issues raised for first time on appeal; * Civil procedure – condonation – late filing of notice of appeal – requirement to show sufficient cause and full explanation; * Judgment and execution – Rule 46A (reserve price and procedure for execution against primary residence) – retrospective application raised but not determined due to procedural irregularities and academic nature; * Scope of leave to appeal – appeals limited to issues specified in leave; overbroad notices inconsistent with leave are invalid.
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8 November 2022 |
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Sequestration refused where applicant’s withholding of subdivision consent created special circumstances and potential abuse of process.
Insolvency law – sequestration – jurisdictional requirements (debt, act of insolvency, prima facie case) met; discretion to refuse provisional sequestration where special circumstances or abuse of process exist; creditor’s withholding/conditioning of bondholder consent to subdivision can constitute special circumstances; advantage to creditors (concursus creditorium) must be considered.
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7 November 2022 |
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Tribunal's use of RAF/WPI/AMA and Circular 157 for COIDA permanent-disablement assessments was unlawful; matter remitted for reassessment.
* COIDA – permanent disablement – proper mechanism: Schedule 2 and s49 – individualized assessment required; * Director-General Circular Instruction 157 – internal guideline; cannot displace statutory COIDA assessment; * Improper use of RAF/WPI/AMA models in COIDA determinations renders awards invalid; * Temporary total disablement – extension requires medical evidence and exercise of discretion under s47(5)(b); * Tribunal role inquisitorial; remittal for reassessment; * Causation – pre-existing condition v triggering accident (Basson principle).
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7 November 2022 |
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Rescission dismissed because applicant failed to join parties with a direct and substantial interest.
* Civil procedure — Rescission of judgment — Misjoinder — Necessity to join parties with a direct and substantial interest in the subject-matter of the original orders — Failure to join such parties fatal to rescission application.
* Joinder — Direct and substantial interest test — Parties who would be prejudiced by variation or rescission are necessary parties.
* Practice — Point in limine of non-joinder can lead to dismissal where applicant omits necessary parties and fails to address the issue.
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7 November 2022 |