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Citation
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Judgment date
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| December 2022 |
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Rescission of default judgment dismissed (except costs varied to Magistrates' Court scale); High Court jurisdiction upheld.
Rescission of judgment – Uniform Rule 31(2)(b) – concurrent jurisdiction of High Court and Magistrates' Court – chosen domicilium and proof of service – adequacy of payments to reinstate credit agreement – costs to be taxed on Magistrates' Court scale.
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31 December 2022 |
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An appeal delays enforcement but interest on taxed costs accrues from the trial judgment or taxing master's allocator.
Superior Courts Act s18(1) – effect of appeal on operation and execution of judgments; Prescribed Rate of Interest Act – accrual of interest on judgment debts; Taxing Master’s allocator – commencement date for interest; appellate correction of monetary awards – Bailey principle; distinction from arbitration awards (Malatji).
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28 December 2022 |
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The appellant’s challenge to conviction and mandatory life sentence was dismissed; trial court’s credibility and sentencing upheld.
Criminal law – Sexual offences – Rape by multiple perpetrators; DNA and J88 medical evidence; single witness/cautionary rule; mandatory minimum sentences (life where rape by more than one person or more than once); substantial and compelling circumstances for deviation; appeal against conviction and sentence.
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28 December 2022 |
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Summary judgment granted: director bound personally as surety and co‑principal debtor for unpaid lease obligations; no bona fide defence.
* Summary judgment – Rule 32 – bona fide defence required; bare denials insufficient.
* Contract law – caveat subscriptor – signatory bound by ordinary meaning of words above signature.
* Suretyship – accessory nature of surety deed; incorporation by reference; directors bound as sureties and co‑principal debtors in solidum.
* Pleadings – rectification not properly raised in affidavit/pleadings and unsuitable for summary judgment.
* Costs – contractual provision for attorney‑and‑client costs enforced.
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23 December 2022 |
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Court confirms Legal Practice Council jurisdiction for non-litigious fee disputes; adjusts taxed attorney fees for unreasonable/duplicative time.
* Civil procedure – Taxation of legal costs – Jurisdiction of taxing master to tax bills for non-litigious or pre-litigation work – Legal Practice Act 28 of 2014 and Fees Assessment Committee.
* Attorney-client agreements – Contingency fee clauses permitting taxation – agreement as primary indicator of acceptable hourly rate.
* Review – Standard of review of taxing master’s discretion – interference only where decision is clearly wrong, misdirected or based on wrong principle.
* Costs assessment – duplication of research, unreasonable hours and disallowance of excessive entries.
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23 December 2022 |
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Court refused to decide interim interdict on papers; referred disputed acceptance of payment plan and pactum de non petendo to oral evidence.
Interim interdict — requirements for interim relief — prima facie right, irreparable harm, absence of alternative remedy, balance of convenience; dispute as to acceptance of payment plan and existence of pactum de non petendo — credibility and oral evidence required; contractual termination in terms of breach notice (clause 19.5).
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23 December 2022 |
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Leave to appeal refused — applicants failed to show reasonable prospects of success and respondent’s counterclaim disclosed a cause of action.
Civil procedure — Leave to appeal — s17(1) Superior Courts Act — stringent threshold: reasonable prospects of success or compelling reason required; Cause of action — counterclaim disclosure; Companies Act — shareholder/ministerial approval for board resolutions; Ministerial/Remuneration Guidelines — applicability to state-owned enterprise board decisions; Factual disputes as to director status.
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20 December 2022 |
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A lease procured without a competitive tender was declared void ab initio; no equitable preservation of the lessor's rights was granted.
* Administrative law – procurement – failure to follow competitive open tender process – decision to conclude lease set aside; * Self-review/doctrine of legality – declaratory relief treated as review where affected parties had notice and opportunity to be heard; * Constitutional remedial powers (s 172) – just and equitable relief not granted where successor-in-title intervened and lessor's damages claim barred; * Evidence/procedure – supplementary affidavit considered but separate admission application dismissed.
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19 December 2022 |
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A South African court lacked jurisdiction to grant a section 361 eSwatini Companies Act declaratory order against resident directors.
* Private international law – jurisdiction – court competence to grant declaratory orders arising under foreign company insolvency legislation.
* Company law/insolvency – foreign statutes have no extra‑territorial effect – section 361 (eSwatini Companies Act) construed as vesting declaratory power in eSwatini High Court.
* Subject‑matter jurisdiction – residence alone insufficient to confer jurisdiction where liability derives exclusively from foreign statute and forms part of foreign winding‑up.
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19 December 2022 |
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Appeal against summary judgment for unpaid homeowners’ levies dismissed; claims held liquid and supported by annexures.
Homeowners’ association levies – summary judgment – whether claim liquidated – particulars read with annexures – reconciliation and ledger as arithmetic proof; Late building-completion penalties – documentary proof required (inspection/occupation certificates) – mere residence insufficient; Particulars of claim – excipiability – drafting imprecision insufficient to defeat liquidated claim.
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19 December 2022 |
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19 December 2022 |
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Whether the respondent’s indirect delegate election process satisfies members’ statutory right to elect trustees and validity of time-limited exemptions.
* Pensions law – s 7A(1) Pensions Fund Act – members’ right to elect at least 50% of trustees – direct versus indirect (delegate) elections – disenfranchisement by minimum-member exclusion. * Administrative law – s 7B(1)(b) exemptions – limits on Registrar/Conduct Authority’s power to impose fixed-duration conditions – ultra vires and reviewable. * Statutory interpretation – purposive and contextual approach (Endumeni).
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15 December 2022 |
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Delay in professional disciplinary proceedings not sufficiently undue to justify permanent stay; review dismissed.
Administrative law; disciplinary proceedings – undue delay and permanent stay – assessment of length, reasons, prejudice and public interest; review under PAJA – arbitrariness, rationality and reasonableness; applicant’s procedural conduct contributing to delay.
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15 December 2022 |
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Registrar’s failure to consider objection and Tribunal’s reliance on irrelevant clinical findings rendered the serious-injury decision procedurally unfair.
Administrative law – PAJA review – procedural fairness – Registrar's discretion under Regulation 8(c) – failure to consider objection to panel composition – necessity of occupational therapist where occupational-therapy report relied upon – Appeal Tribunal reliance on irrelevant/incorrect clinical finding (left vs right shoulder) – decision set aside and remitted.
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15 December 2022 |
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15 December 2022 |
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Rescission refused where default judgment was properly served, no reasonable explanation given, and no bona fide defence shown.
Rule 31(2)(b) – rescission for "good cause"; service at chosen domicilium; combined summons effect; bona fide defence; cancellation of instalment sale agreements; subsequent payments insufficient to reverse prior cancellation.
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15 December 2022 |
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Interim interdict granted to halt tender implementation pending review due to procedural unfairness and inadequate internal remedy notification.
Procurement law; PAJA s7(2) and internal remedies; debriefing versus effective internal remedy; interim interdict restraining tender implementation; procedural fairness and compliance with PPM Clause 20.9.1/20.9.2 and Supplier Integrity Pact; urgency; balance of convenience and separation-of-powers considerations.
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15 December 2022 |
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Sheriff’s failure to give statutorily required notice under Uniform Rule 46(7)(d) rendered the sale in execution invalid.
* Civil procedure — Execution against immovable property — Uniform Rule 46(7)(d) — Sheriff’s peremptory duty to forward copy of notice of sale to execution creditors and known mortgagees — Non-compliance renders sale in execution invalid.
* Civil procedure — Execution against immovable property — Notice requirements under Uniform Rule 46(5) and (7) — Purpose to afford preferent creditors opportunity to protect interests.
* Contract — Consent to subsequent bond — Clause concerning service of notices does not impose third-party obligation on Sheriff to notify mortgagee.
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14 December 2022 |
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Applicants failed to prove wilful contempt of a spoliation order; application dismissed with party-and-party costs.
Spoliation order—alleged contempt for non-compliance; civil contempt test (Fakie N.O.; Pheko)—order, knowledge/service, non-compliance and rebuttable presumption of wilfulness; bona fide reliance on absence of reasons/appeal intentions can negate wilfulness; imprisonment and de bonis propriis costs are exceptional remedies.
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14 December 2022 |
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The applicant failed to prove exceptional circumstances; bail refusal upheld due to absconding risk and psychiatric and community concerns.
Bail — s 60 CPA (interests of justice) — s 60(11)(a) onus to prove exceptional circumstances on balance of probabilities — s 65(4) appellate review of bail refusal — prior bail forfeiture, risk of evasion, psychiatric evaluation and community petition relevant to bail decision.
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13 December 2022 |
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Rescission of a final winding‑up order refused for lack of exceptional circumstances, bona fide defence and undue delay.
Companies Act s 354 – rescission of final winding‑up order; requirements: exceptional/special circumstances, satisfactory explanation for default, bona fide defence with prospects of success; not a re‑hearing of winding‑up merits; prejudice to creditors and delay are fatal to rescission.
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13 December 2022 |
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Court declared respondent's primary residence executable, set a R2.6m reserve, deferred sale until after 1 March 2023.
* Civil procedure – Execution against residential immovable property – Uniform Rule 46 and 46A – Court must consider relevant factors and constitutional protection of the home (s 26).
* Evidence – Judgment creditors must show absence of alternative means to satisfy judgment; debtors must place relevant, corroborative evidence before court to resist execution.
* Valuation – Applicants’ provision of municipal valuation and market information can suffice under Rule 46A(5); court may set reserve price under Rule 46A(9) and s 26 to protect interests.
* Dependents – Allegations of caregiving for a child with medical needs must be supported by corroborative evidence to constitute a relevant factor against execution.
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12 December 2022 |
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Use of force by metro officers firing at a fleeing, intoxicated driver’s vehicle held lawful and proportionate.
Traffic law – powers to stop under s3 National Road Traffic Act; use of force and arrest powers under s49(2) Criminal Procedure Act – reasonableness and proportionality of firing at vehicle tyres; credibility findings supported by blood-alcohol, docket and failure to call key witness; injured party’s claim dismissed.
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12 December 2022 |
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Applicants entitled to a complete rule 53 record to enable review of decisions permitting 1500MW of new coal-fired power.
Administrative law — Rule 53(1)(b) — Duty to dispatch complete record for review proceedings; Reviewability — Whether policy/integrated resource plan is reviewable; Procedural — Interlocutory order compelling production of documents may not decide ultimate reviewability; Remedies — Failure to produce record may lead to striking out; Costs — Costs including two counsel awarded to successful applicants.
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9 December 2022 |
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Leave to appeal refused where interlocutory amendment introduced a triable issue and appeal lacked reasonable prospects.
Civil procedure – interlocutory order – appealability of orders granting leave to amend; amendment of particulars of claim – when an amendment introduces a triable issue; allocation of onus – dicta not constituting reversible error; interests of justice and avoidance of piecemeal appeals; costs including employment of two counsel.
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9 December 2022 |
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Whether an executor-attorney may claim both executor's commission and separate legal fees from the estate.
Executor-attorney — double recovery prohibited; Taxation — taxing master's discretion under Rule 70 to disallow fees improperly charged to an estate; Fiduciary duty — executor must not profit for same services; Will/s51 — cannot authorise conduct contrary to fiduciary principles; Company form — private company status does not permit circumvention.
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9 December 2022 |
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Lodging an appeal against a non-disciplinary DRC award does not automatically suspend it, but the SAFA arbitrator may grant suspension.
Administrative law; sports arbitration – effect of lodging appeal against non-disciplinary DRC awards – NSL Handbook non-suspensive default (clause 26.3) – SAFA Arbitration Tribunal’s broad discretion to suspend awards (Article 81(11) read with Article 58(6)) – limited interim suspension to enable application to arbitrator – urgent relief refused where arbitration completed and review pending.
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9 December 2022 |
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The applicant cannot relitigate SCA rulings; HS 21/22 buy‑back agreements remain enforceable despite the scheme of arrangement.
Business rescue and schemes of arrangement – enforceability of pre‑existing buy‑back agreements – res judicata; novation; exceptio adimpleti non contractus; cession of claims v cession of shares; binding effect of SCA precedent.
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8 December 2022 |
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Where genuine disputes of fact arise in a motion for post‑marital registration, the matter should be referred to trial rather than dismissed.
• Civil procedure – opposed motion proceedings – genuine disputes of fact – when to refer to oral evidence or trial.
• Deed Registries Act s88 – post-marital registration of antenuptial contracts – effect on choice of procedure.
• Motion procedure – conversion of notice of motion to simple summons and notice of opposition to notice of intention to defend where referral to trial appropriate.
• Evaluation of documentary and notary evidence in presence of denials of signature and agreement.
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8 December 2022 |
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Court stayed indemnity application pending referral to senior legal practitioner under policy ADR, costs reserved.
* Professional indemnity insurance – insurer’s duty to accept or repudiate – timely notification and cooperation by insured.
* Prescription – indemnity claim arises when insured’s liability becomes fixed; prescription issues may depend on when debt becomes due.
* Res judicata – earlier Rule 13 joinder dismissal did not bar a subsequent declaratory indemnity claim where relief and proceedings materially differ.
* Contractual ADR – policy clause requiring referral to senior counsel/practitioner must be invoked; court may stay proceedings to enable clause to be followed.
* Court procedure – stay ordered pending appointment of senior practitioner by Chairperson of Legal Practice Council; costs reserved.
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8 December 2022 |
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Incomplete trial record requires structured reconstruction; appellant must actively secure an adequate record for appeal.
* Criminal procedure – incomplete/missing trial record – adequacy for appeal – record must permit proper consideration, not be perfect.
* Reconstruction of record – parties must collaborate; accused is dominus litis but State/clerks must assist in locating magistrate/prosecutor.
* Fair trial – missing record does not automatically vitiate conviction; attempt reconstruction before setting aside conviction.
* Court order – structured timetable and recorded reconstruction process required to protect rights and enable appeal.
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8 December 2022 |
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Stay granted on enforcement of adjudicator’s award pending resolution of parallel court proceedings concerning joint-venture termination and liquidation.
Construction law; adjudication under GCC – enforceability of adjudicator’s award pending parallel court proceedings; joint venture law – effect of member’s liquidation and unauthorised transfer; public funds and interests of justice; inherent powers of court (s173).
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7 December 2022 |
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Stay granted of adjudicator’s award enforcement pending court determination on contract termination after JV member liquidation.
Construction law – adjudication under GCC – enforceability of adjudicator’s decision; Joint venture law – effect of liquidation of a JV member on contract status; Stay of execution – protection of public funds; Inherent powers of the court (s173 Constitution).
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7 December 2022 |
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Non‑service of a supplementary affidavit is not automatically fatal; opportunistic conduct justified punitive costs and a postponement.
* Civil procedure – summary judgment – Supplementary Affidavit uploaded to CaseLines but not formally served – irregularity cureable by remedy or response.
* Civil procedure – in limine point – non‑service not automatically fatal where respondent aware of contents and suffers no prejudice.
* Costs – opportunistic/dilatory conduct justifying punitive costs – attorney and client scale – wasted costs of postponement.
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7 December 2022 |
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SARS’ finding of diversion and demands for forfeiture and VAT penalties were irrational where accepted VOCs cancelled WE entries and DP entries remained valid.
* Customs law – s 18(13) Customs and Excise Act – diversion and forfeiture; * Correction of entries – s 40(3)(a)(i) – vouchers of correction (VOCs) and effect of EDI acceptance; * Duplicate WE and DP bills of entry – obligation to correct; * VAT liability and penalties – effect of valid DP declaration and payment of VAT; * Administrative law – PAJA review – rationality and procedural fairness.
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7 December 2022 |
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Leave to appeal against an interim anti‑dissipation order dismissed where respondent failed to disclose asset alienation and had no prospects.
* Civil procedure – leave to appeal – interim anti‑dissipation order – whether interim order has immediate and substantial effect to justify leave to appeal.
* Civil procedure – anti‑dissipatory relief – proper test applied and no reasonable prospect of success on appeal.
* Equitable principle – clean hands/non‑disclosure – failure to disclose alienation of assets and payment of proceeds undermines applicant’s entitlement to relief.
* Procedural strategy – question whether accrual‑based claims require appellate clarification in absence of conflicting authority.
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7 December 2022 |
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Ex parte spoliation relief improperly granted where applicant failed to prove possession, make full disclosure, and misused attachment process.
* Civil procedure – ex parte relief – duty of full and frank disclosure in ex parte applications; failure to disclose material facts invalidates relief.
* Property law – mandament van spolie – requirement of possession (detention and animus) and unlawfulness of dispossession; no spoliation relief where applicant lacks possession.
* Execution law – sheriff’s duties under Uniform Rule 45 and Sheriffs Act; attachment places goods in custody of sheriff; sheriff cannot delegate custody absent statutory provision.
* Company law – effect of winding-up on attachments and executions (attachments after commencement of winding-up void ab initio).
* Professional conduct – misuse of judicial process and possible referral of attorneys and sheriff to regulatory bodies.
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7 December 2022 |
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Material factual disputes preclude winding up on affidavits; liquidation application referred to trial and notice of motion converted to summons.
Company law – Winding-up – s344(f) and s345 Companies Act – statutory demand – dispute of debt and counterclaim – motion proceedings inappropriate where material disputes of fact exist – referral to trial under Plascon/Wightman principles.
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6 December 2022 |
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Respondent held in contempt for failing to comply with a maintenance order; 60-day suspended sentence conditional on R35,000 payment.
* Contempt of court – failure to comply with Rule 43 maintenance order – breach beyond reasonable doubt required; wilfulness and mala fides to be assessed by adequacy of explanation. * Maintenance obligations accrue monthly; subsequent payments do not automatically purge earlier defaults. * Procedural remedies (rule 43(6) reconsideration, maintenance court, urgent relief or counter-application) must be pursued where compliance is alleged to be impossible. * Last-minute postponements may be mala fide and justify adverse cost orders.
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6 December 2022 |
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Applicant’s material non-disclosure and dishonesty rendered him not a fit and proper person for admission; application dismissed.
Legal Practitioners — Admission — Fitness and propriety — Duty of full disclosure in applications for admission — Material non-disclosure and dishonesty in founding affidavit fatal to admission — Supplementary affidavits filed as "damage control" do not cure deliberate or unexplained omissions.
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6 December 2022 |
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Reported
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6 December 2022 |
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Respondent’s persistent failure to comply with statutory practice obligations justified striking him from the roll.
Legal profession – professional misconduct and fitness to practise; failure to obtain Fidelity Fund Certificate; failure to submit opening and annual auditor’s reports; failure to complete practice management training; non-payment of membership fees; abandonment/closure of practice does not absolve regulatory obligations; striking off for prolonged non-compliance.
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6 December 2022 |
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Applicant failed to prove directors’ nondisclosure, misconduct, or appropriation of opportunities; application dismissed with attorney-and-client costs.
Companies Act — declaration of delinquent director (s162) — reliance on s165(5)(c); disclosure of interests and conflicts — board process to determine conflicts; corporate opportunity and misuse of confidential information — requirement to prove gross negligence, wilful misconduct or breach of trust; costs — attorney-and-client costs for unsubstantiated proceedings.
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6 December 2022 |
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Execution was not unlawful where notice had been given, but execution was stayed 10 days due to irregular attorney representation and injustice.
• Civil procedure – execution – notice of allocation and substitution of attorneys – Rule 16 and Rule 45 requirements; validity of warrant of attachment.
• Urgent relief – self-created urgency and conduct of applicant; limited equitable relief by way of brief stay.
• Payment arrangements – court declines instalment order absent sufficient evidence of need and ability to pay.
• Joinder – attorney who acted for creditor not necessary party but bears responsibility for confusion.
• Costs – partial success leads to apportioned costs between creditor and applicant; opposing attorney to bear own costs.
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6 December 2022 |
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Summary judgment granted where defendant's bare denials and unsubstantiated allegations failed to disclose a bona fide defence.
Summary judgment — bona fide defence — a bare denial insufficient; deponent's personal knowledge and authority; electronic signatures valid under ECT Act s13(3); proof of dispatch of cancellation notices; failure to prove alleged payments.
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6 December 2022 |
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Court rescinded consent summary judgment and granted condonation where settlement was made in court without applicants' mandate.
* Civil procedure – Rescission of judgment – Rule 42(1): rescission of orders erroneously sought or granted in absence of party; * Civil procedure – Condonation for non-compliance – Rule 27(3): court’s wide discretion to consider reasons and merits; * Agency/mandate – Counsel’s authority: settlement concluded without client mandate cannot bind client; * Execution – delay in discovery of judgment and adequacy of explanation for late application.
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6 December 2022 |
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5 December 2022 |
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A lapsed patent can be revoked; key independent claims lacked novelty and inventive step, so the patent was revoked.
Patents – revocation of lapsed patents – revocation retrospective to date of grant; Novelty – anticipation by earlier published patent WO2005/124611; Inventive step – lack of inventive step/obviousness over cited prior art; Business-method claims – method of doing business not patentable (s25(2)(e)); Amendment post-lapse – discretionary and not permitted where amended specification remains invalid; Material misrepresentation – omission of inventor’s name not automatically material misrepresentation (s61(1)(g)).
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5 December 2022 |
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5 December 2022 |
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Court found respondent a peregrinus and ordered him to furnish security for costs in the sequestration application.
Security for costs – domicile – incola versus peregrinus – Domicile Act (physical presence and animus manendi) – prolonged absence, shipment of belongings, one‑way travel and US residence as evidence of peregrinus – discretionary power to order security for costs in sequestration proceedings.
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5 December 2022 |