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Citation
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Judgment date
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| May 2022 |
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Plaintiff failed to prove causation; materially divergent trial evidence from pleadings warranted dismissal of claim.
Delict — causation and onus — plaintiff failed to prove insured driver’s negligence as causa causans; Pleadings — party bound by pleaded case; impermissible to advance materially different version at trial without amendment; Evidence — evaluation of single witness where defendant calls no evidence; credibility, inherent probabilities and cautionary approach.
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31 May 2022 |
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Applicant proved an unpaid R22.05m advance, rendering the company factually insolvent; provisional winding-up order granted.
Insolvency law – factual insolvency – effect of off‑books or reclassified loans on solvency assessment; auditors’ qualified reports as evidentiary material. Company law – shareholder loans – whether alleged shareholder loan was advanced by creditor-applicant or by a trust and whether sale/conversion transactions extinguished the debt. Civil procedure – provisional winding up – requirement of proof of indebtedness and insolvency. Prescription – demand and claim not prescribed where loan payable on demand and demand was made.
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31 May 2022 |
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31 May 2022 |
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Applicant entitled to intervene and the 2014 order setting CC as "in business" was set aside under Rule 42(1)(a).
Company law – Section 354 application to set aside voluntary liquidation – Locus standi to intervene – Uniform Rule 42(1)(a) rescission – Judgment erroneously granted where court unaware of material facts – Relief by rescission in motion where order was erroneously granted in absence of an affected party.
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30 May 2022 |
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Applicant failed to show grounds to rescind a default judgment; wrong procedure and late plea without lifting bar.
Civil procedure – Default judgment – rescission – common law and Rule 42(1)(a) – requirements for rescission (reasonable explanation, bona fide application, prima facie defence). Civil procedure – Plea filed out of time/bar – necessity to apply to lift bar before plea can be entertained. Civil procedure – Declaratory relief vs appeal – appropriate procedural route to challenge prior judgment. Costs – attorney-and-client scale for frivolous or abusive litigation.
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30 May 2022 |
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Arrest and three-day detention unlawful where police failed to verify service and terms of an interim protection order; R250,000 awarded.
Police procedure — Domestic Violence Act s 8 — arrest for alleged contravention of protection order; necessity to verify existence, service and terms of order before arrest; lawfulness of warrantless arrest; assessment of damages for unlawful arrest and detention.
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30 May 2022 |
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Default judgment rescinded where administrative error explained and a prima facie fraud defence established.
Rescission of default judgment – good cause – reasonable explanation for default; bona fide application; bona fide prima facie defence (fraud allegation); wilful default – administrative error.
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30 May 2022 |
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Non-variation and indulgence clauses upheld; pandemic defence rejected; bank awarded judgment against debtor and capped surety.
Contract — non-variation clause enforceable — oral extensions ineffective unless written and signed; Indulgence clause — extensions/relaxations do not operate as estoppel, waiver or novation; Suretyship — surety liability limited to the capped amount in the surety; Frustration/Covid-19 — pandemic did not excuse pre-existing repayment obligations; Certificate of balance — prima facie proof of indebtedness.
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27 May 2022 |
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Rescission and condonation dismissed for unexplained delay, no bona fide defence, and absence of error on the record.
Rescission of judgment — Rule 31(2)(b) — 20-day period and requirement to show good cause and bona fide defence; Rule 42(1) — rescission for judgments erroneously granted; condonation for late launch; deliberate/default non-attendance at hearing; costs follow result.
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26 May 2022 |
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Rescission refused where applicant delayed, lacked candour and failed to show a bona fide defence; costs to respondent.
Road Accident Fund – rescission of default judgment – Rule 42(1) and common law rescission – requirement to show erroneous grant or bona fide defence – delay and lack of candour fatal to rescission – sufficiency of particulars of claim – expert evidence on entitlement to compensation (quantum disputed).
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26 May 2022 |
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Applicant failed to prove entitlement to a s15(9) adjustment; review of the liquidator’s report dismissed with costs.
Matrimonial Property Act s15(9) – adjustment on division where spouse contracts without required consent – requirement to prove joint estate loss. Review of liquidator’s Distribution and Allocation Account – allegations of incorrect buy‑out calculation and misallocation. Motion proceedings – existence of material disputes of fact and application of Plascon‑Evans principle.
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25 May 2022 |
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Applicant entitled to judgment for unpaid statutory medical fees with interest and punitive costs due to respondents' non‑compliance.
Compensation Fund / Compensation Act – payment of prescribed medical practitioner fees – administrative non‑payment and reconciliation failures Civil procedure – summary resolution of account disputes – application of Wightman test to determine whether a real, genuine dispute exists Enforcement of court orders – consequences of non‑compliance and entitlement to punitive costs Interest – calculation of simple interest at prescribed 7% rate and application of in duplum principle
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25 May 2022 |
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Objective reasonable‑person test for harassment; applicant failed to prove harm, appeal dismissed with costs.
Protection from Harassment Act — meaning of ‘harassment’ and ‘harm’ — objective reasonable‑person test; requirement of harm (not mere hurt); typically repetitive or oppressive conduct but single overwhelming act may suffice; civil protection order distinct from criminal assault charges.
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25 May 2022 |
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Request for reasons under Rule 49(1)(b) suspends the deadline to apply for leave to appeal, postponing an unopposed execution application.
Civil procedure – Uniform Rules of Court – Rule 46/46A – application for special execution of immovable property. Civil procedure – Rule 49(1)(b) – request for written reasons for judgment or order and effect on timing for applications for leave to appeal. Procedure – postponement of unopposed application where respondent has requested reasons; timing for filing leave to appeal runs from receipt of reasons.
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25 May 2022 |
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Creditor proved unpaid debts and lack of genuine disputes; court granted final winding-up orders with costs.
Company law – winding-up – creditor’s locus standi to institute liquidation based on unpaid SLAs – Badenhorst rule on bona fide disputes – Plascon‑Evans approach to disputed facts – commercial versus factual insolvency – shareholder intervention and just and equitable/sectional insolvency grounds.
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24 May 2022 |
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Reported
Applicant's family-house rights upheld; transfer to applicant as custodian ordered and respondent interdicted from alienation.
Family-house rights – Conversion of apartheid-era occupational permits into ownership (Conversion Act / ULTRA) – interplay between unregistered family rights (customary/social tenure) and registered common-law ownership – administrative adjudication and Director-General’s acknowledgment – remedial relief: transfer to custodian and caveat; interdict against alienation.
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24 May 2022 |
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Leave to appeal refused where proposed grounds lacked reasonable prospects of success or compelling legal importance.
Civil procedure – Leave to appeal – Superior Courts Act s17(1) – appeal only if reasonable prospect of success or other compelling reason – novelty of legal argument insufficient; business rescue jurisprudence (Panamo) cited.
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23 May 2022 |
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Applicant's Rule 46(11) cancellation granted; deposit cannot be retained absent sheriff's report; costs awarded to applicant.
Rule 46(11) — cancellation and resale of immovable property; sheriff's duty to place full information and a report before court; retention of purchaser's deposit requires proof of loss; purchaser's failure to deliver bank guarantee constitutes breach justifying costs; applicability of National Credit Act s129.
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23 May 2022 |
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Discovery under Rule 35 in application proceedings requires prior court authorisation under Rule 35(13); premature Rule 30A invocation dismissed.
Civil procedure – discovery in applications – Rule 35(12) entitles inspection of documents referred to in affidavits; Rule 35(13) requires court authorisation to apply discovery to applications; premature invocation of Rule 30A(2) is irregular.*
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23 May 2022 |
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An exception to particulars alleging post-contract variations and assignment is partially upheld; respondent must amend unclear annexures.
Civil procedure – exception (Rule 23) – vagueness and embarrassment – pleadings to be read as a whole; contract variation by subsequent correspondence; cession/assignment of contractual rights; necessity to explain annexures that appear to contradict pleaded cause of action (invoices described as ‘software license fee’); informal extraneous agreement referenced in foreign proceedings must be properly pleaded.
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23 May 2022 |
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21 May 2022 |
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Application for leave to appeal dismissed: no reasonable prospect on contractual interpretation issue.
Leave to appeal — s 17(1) Superior Courts Act — test of reasonable prospect of success or other compelling reason; Contract interpretation — whether clause is conjunctive or comprises alternative conditions; No reasonable prospect shown for appeal; costs.
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20 May 2022 |
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Rescission refused: arrears existed at judgment and post-judgment payments cannot reinstate agreement under the NCA.
Civil procedure — Rescission of judgment — Rule 42(1)(a) — Whether judgment was erroneously sought or granted due to facts existing at time of judgment (payments). National Credit Act — s129(3)–(4) — Post-cancellation payments do not reinstate agreement; Nkata applied. Motion practice — founding affidavit must contain the applicant’s case; new explanations in replying affidavit not ordinarily entertained. Condonation — delay in bringing rescission — explanation considered but merits addressed.
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20 May 2022 |
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Reported
Courts may order trusts or curator bonis to protect damages; Master cannot be granted Estates Act powers over trustees.
Trusts and curators bonis — protective mechanisms for damages awarded to minors or incapacitated persons; Master’s supervisory powers under Trust Property Control Act versus Administration of Estates Act; invalidity of orders conferring Estates Act powers over trustees; requirement for clear court orders/trust deeds fixing trustee remuneration, security, audit and termination clauses; practice directive for procedure, medical evidence and curator ad litem reports; Guardian’s Fund for small awards.
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20 May 2022 |
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Trustees of a family trust may be joined in divorce to contest alleged sham trust assets forming part of the joint estate.
Family law – divorce – joinder of trustees of a family trust as defendants in reconvention – alleged sham/alter‑ego trust and piercing the trust veil – joinder test: direct and substantial legal interest – joinder stage distinct from merits of underlying claim – non‑joinder of other interested parties not fatal at joinder stage.
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20 May 2022 |
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Application for security for costs under Rule 47 dismissed for incoherence, prematurity and lack of proper grounds.
Rule 47 – Security for costs; proper grounds required (peregrinus, insolvency, vexatious litigation or inability to pay); procedural prerequisites (notice and quantification); applications based on unrelated litigation or incoherent pleading will be dismissed.
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20 May 2022 |
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Leave to appeal refused where applicant failed to show reasonable prospects of success and unduly delayed instituting proceedings.
Pension funds — s 30P review of Pension Funds Adjudicator determination — leave to appeal — s 17(1)(a)(i) Superior Courts Act reasonable prospects test — condonation for late prosecution — withholding benefits under fund rules and delay in instituting proceedings.
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20 May 2022 |
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Section 11(1)(f) excludes from VAT zero-rating gold that previously underwent manufacturing before final refining/manufacture.
Tax — Value-Added Tax — Interpretation of section 11(1)(f): zero-rating of supplies of gold to closed list of recipients — meaning of "gold" and scope of prohibition on prior manufacturing/refining — re-refining and historical manufacture exclude zero-rating; administrative class rulings not determinative.
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19 May 2022 |
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The respondent’s final interdict was upheld: sufficient interest, unlawful intimidation, reasonable apprehension of harm; appeal dismissed with costs.
Civil procedure – interdict – requirements for final interdict: clear right, injury committed or reasonably apprehended, and no alternative satisfactory remedy. Locus standi – a demonstrable interest in subject matter suffices; ownership not prerequisite to a clear right. Evidence – resolving mutually destructive versions by conspectus of evidence, assessing probabilities, credibility and corroboration. Remedies – existence of alternative remedies may not preclude interdict if they do not afford similar protection; police advice to seek interdict relevant. Constitutional/proportionality considerations – narrowly framed interdicts do not necessarily infringe freedom of association or other rights.
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19 May 2022 |
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19 May 2022 |
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Leave to appeal refused: Plascon‑Evans and Swissborough correctly applied; applicant failed to prove fronting or benefit.
Administrative law – review proceedings – application of Plascon‑Evans principle to resolve disputes of fact on motion; Swissborough approach in review – reliance on investigatory report without pinpointing passages; admissibility of replying‑affidavit evidence; proof required to establish fronting and economic benefit.
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18 May 2022 |
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Summary judgment refused where cause of action not properly verified and respondent raised bona fide triable defences.
Rule 32 — Verification of cause of action and amount; National Credit Act s129 notice — validity and role in disclosing cause of action; Summary judgment — bona fide defence and triable issues; Complex contract interpretation not amenable to summary judgment; Leave to defend and costs.
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18 May 2022 |
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18 May 2022 |
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18 May 2022 |
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Owner held fully liable where Rottweilers attacked invited guest; actio de pauperie and negligence established.
Dogs Owner liability Actio de pauperie (contra naturam sui generis) and alternative lex aquilia (negligence) Volenti non fit iniuria and provocation defences Credibility and invitation to fetch puppies causing risk.
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18 May 2022 |
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17 May 2022 |
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Applicant granted mandament van spolie to restore possession and access; counter‑applications and interim interdicts were dismissed.
Property law – Spoliation (mandament van spolie) – restoration of undisturbed possession and access. Civil procedure – Counter‑application in spoliation proceedings – limited to cases where despoiler seeks relief beyond spoliatory relief. Companies Act s133 – business rescue moratorium – effect on enforcement actions and timing of transfer of movable property. Interim interdict – requirements: prima facie right, irreparable harm, balance of convenience; application against auctioneer/purchaser dismissed.
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17 May 2022 |
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17 May 2022 |
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17 May 2022 |
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Default judgment: Road Accident Fund 100% liable for passenger's serious injuries; R1,248,415 awarded and s17(4)(a) undertaking granted.
Road Accident Fund – default judgment – passenger injured in head-on collision – proof of liability and quantum in default proceedings; serious injuries; entitlement to section 17(4)(a) undertaking; general damages and actuarial loss of earnings awarded; costs including experts.
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17 May 2022 |
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Court required taxation of attorney-and-own-client fees and ordered a three-member trust with an independent trustee to protect the minor's award.
Medical negligence – damages for birth injury causing blindness – structured trust for minor’s award; Contingency-fee agreements – "normal fees" and reasonableness assessed against attorney-and-own-client scale; Taxing Master to assess fees; Interest on unpaid disbursements – National Credit Act implications; unenforceability where client impecunious; Trusts for minors – composition, voting rights, independent professional trustee, guardian as co-trustee, dispute-resolution and reporting to Master; Interim investment of capital in attorneys’ trust pending trust formation; Costs – defendant to pay party-and-party costs including specified expert fees.
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17 May 2022 |
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Reported
Warrantless arrest based on a prosecutor's instruction and to compel answers was unlawful; malicious prosecution claim failed for lack of proven malice.
Criminal Procedure Act s 40(1)(b) – jurisdictional facts for warrantless arrest – reasonable suspicion and reasonable grounds; Prosecutor not a "peace officer" for s 40 – prosecutor’s instruction cannot justify arrest; Right to silence – arrest to compel information unlawful; Malicious prosecution – requirement of absence of reasonable and probable cause and animus injuriandi; failure to prove malice defeats claim despite prosecution failure.
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16 May 2022 |
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A business rescue plan does not, by itself, extinguish a natural person’s personal liability under a guarantee.
Companies Act – business rescue – effect of adopted business rescue plan – binding on company, company’s creditors and holders of company securities; personal guarantees/suretyships given by natural persons are not "securities" under s 1 and are not automatically affected by business rescue; guarantor remains personally liable absent express agreement to vary liability.
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16 May 2022 |
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Court granted condonation for late section 3 notice, finding good cause, no prejudice and reasonable prospects of success.
Institution of Legal Proceedings Against Certain Organs of State Act s3 – condonation of late notice – requirements: debt not prescribed; good cause for delay; no unreasonable prejudice to organ of state. Prescription – Prescription Act and s3(4)(b) interplay; summons issued before three‑year prescription date preserved claim. Duty of care – prima facie negligence where visitor fell into unguarded manhole on state school premises. Interests of justice – balancing explanation for delay, prospects of success and prejudice to respondent.
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16 May 2022 |
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Rescission refused where proper service, willful default, ostensible authority and valid suretyship were established.
Civil procedure – rescission of default judgment – requirements: reasonable explanation, bona fide defence, absence of wilful default. Service – domicilium citandi et executandi and personal service on household member sufficient to support judgment. Close corporation law – s54: member’s acts bind corporation; ostensible authority – third parties protected. Suretyship – validity despite spouse married in community of property where member acted to bind corporation. Intervention – majority member granted leave to intervene; costs awarded to respondent.
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16 May 2022 |
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Proposed international relocation refused as not in the minor child’s best interests given bonds and lack of enforceable arrangements.
Child relocation — best interests of the child paramount; consider child's wishes (even unsworn) but weigh with other evidence; conflicting expert reports and absence of clear, enforceable contact and funding arrangements can render proposed international relocation contrary to child's best interests; parties acting bona fide — each to bear own costs.
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13 May 2022 |
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Appellants' aggravated robbery convictions and 15-year sentences upheld; circumstantial evidence and attendant violence warranted the aggravated charge.
Criminal law – Robbery with aggravating circumstances – conviction on identification and circumstantial evidence – contradictions in witness evidence not necessarily material. Common purpose – absence in charge-sheet does not preclude aggravated robbery where violence/GBH establishes aggravating circumstances. Sentencing – no substantial and compelling circumstances; awaiting-trial detention insufficient to warrant reduction.
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13 May 2022 |
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Appeal dismissed with costs where appellant failed to provide ordered security and voluntarily surrendered estate, trustee would not pursue appeal.
Civil procedure – Appeal – security for costs under Rule 49(13) – registrar determines security where parties disagree; insolvency – voluntary surrender/sequestration and effect on appeal – trustee’s refusal to pursue appeal; failure to furnish security and no appearance – dismissal with costs.
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13 May 2022 |
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Court orders consolidation of rescission and declaratory proceedings to avoid conflicting judgments and for efficiency.
Consolidation of actions – Rule 11 – application to consolidate rescission and declaratory proceedings – onus on applicant – balance of convenience and avoidance of conflicting judgments – costs to follow main application.
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13 May 2022 |
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Rescission refused: judgment was not by default, applicant was represented, and no common mistake or good cause existed.
Rescission of judgment — Rules 31(2)(b), 42(1)(a) and 42(1)(c) — default judgment; representation and presence of party; absence; common mistake; res judicata; witness protection statute; subsidiarity; attorney-and-client costs.
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13 May 2022 |