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Citation
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Judgment date
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| 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 |
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Respondent validly cancelled the franchise for breach of stockholding/performance; applicant accepted cancellation by conduct.
Franchise law – cancellation for breach – Minimum stockholding and performance standards (clauses 12.36 & 29) – Franchisor entitled to cancel for non-compliance. Franchise agreements – directives and ordering system changes – directives permitted by contract do not amount to unilateral amendment or repudiation. Contract – election by conduct – franchisee’s post-notice communications and acts amounted to acceptance of termination. Restraint of trade – reasonableness assessed when enforcement is sought; not adjudicated where not enforced. Civil procedure – party cannot rely on unpleaded Consumer Protection Act defence in motion proceedings. Contractual accounting/audit obligations – unaudited certifications complied with clause 8.3.2.
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7 November 2022 |
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Court orders insurer to supply particulars of alleged undisclosed prior claims as strictly necessary for defendants' trial preparation.
Civil procedure – Rule 21(2) – further particulars – court may compel particulars strictly necessary to enable a party to prepare for trial; Insurance – alleged non-disclosure of prior claims by broker/employee – particulars about number, dates, insurers, outcomes and notice; Costs – late filing causing postponement – wasted costs awarded against party responsible.
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7 November 2022 |
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A date error in the charge sheet did not prejudice the appellant; convictions and 15-year sentences were upheld.
Criminal procedure – essentials of a charge (s84 CPA) – date discrepancies – prejudice requirement; Right to fair trial – informed of charge; Evidence – identification in daylight where complainants knew accused; Sexual offences – unlawful touching during search constitutes sexual violation; Sentencing – prescribed minimum sentences and absence of substantial and compelling circumstances.
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7 November 2022 |
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An inordinate, unexplained delay in prosecuting a claim justified dismissal for want of prosecution and costs.
Civil procedure – dismissal for want of prosecution – inordinate and inexcusable delay – prejudice to defendant – court’s inherent jurisdiction and interests of justice – condonation not established.
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7 November 2022 |
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Whether the agreements constituted credit agreements under the National Credit Act and were therefore unlawful and unenforceable.
National Credit Act – s 8 and s 40 – credit agreement defined – deferred payment falling within s 8(4); registration requirement under s 40(1) – unregistered credit provider renders agreement unlawful and unenforceable under s 89; novation/substitution – replacement of prior contract bars revival; inchoate agreements – incompleteness and effect on enforceability; pleadings – inability to rely on an unpleaded settlement defence.
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7 November 2022 |
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Payment to a subsequent cessionary after notice of a prior cession does not discharge the debtor absent estoppel.
Cession – Payment after notice of prior cession – Effect of payment to subsequent cessionary – Protection of blameless debtor – estoppel – Insolvency and ceded proceeds of crop sale.
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7 November 2022 |
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Court awarded damages for injuries, found plaintiff functionally unemployable and accepted uncontested expert reports.
Delict — passenger pushed from moving train — liability admitted (90%) — quantum only. Quantum — general damages, past and future loss of earnings, future medical expenses. Evidence — admitted expert reports; weight of uncontested expert evidence; joint minutes. Employability — functional unemployability found; 20% residual capacity rejected. Contingencies — actuarial calculations and appropriate discounts applied. Costs — taxed or agreed High Court scale costs including specified expert and counsel fees.
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7 November 2022 |
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A tribunal panel’s lack of accounting expertise does not automatically invalidate its decision; the exchange may direct restatement of financial statements.
Administrative law; Tribunal composition – FSR Act ss220, 224, 225 – no automatic requirement for accounting-qualified panellist on every reconsideration; Securities regulation – JSE Listing Requirement 8.65 and Financial Markets Act empower corrective directives including restatement; Company law – business judgment rule protects directors from liability but does not excuse non-compliance with IFRS; Procedural fairness – party may call witnesses and Tribunal may rely on expert evidence.
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7 November 2022 |
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4 November 2022 |
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Urgent application for stay and discovery under the Protected Disclosures Act struck from roll for lack of urgency; costs awarded against State.
Protected Disclosures Act; urgency—Uniform Rule 6(12) requirements (trigger event and absence of substantial redress); self-created urgency; failure to pursue discovery pre‑litigation; Biowatch principle and costs against State.
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4 November 2022 |
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Court allowed plea amendment to include commission report extracts, finding no mala fides or incurable prejudice.
Civil procedure – Uniform Rule 28 – amendment of pleadings; defamation – incorporation of Commission/Inquiry report into plea; relevance and public-domain reports; prejudice as determining factor; mala fides and costs remedial; excipiability arguable at trial.
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4 November 2022 |
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Default judgment appropriate where respondents failed to plead after a notice of bar and offered only unsupported bare denials.
Civil procedure – default judgment – notice of bar – ipso facto bar where defendant fails to plead; bare, late denials unsupported by affidavit do not constitute a real triable issue and do not justify upliftment of bar or postponement.
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3 November 2022 |
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Rescission refused: judgment validly granted after personal service and applicant's late affidavit is a nullity.
Rule 42(1) – rescission for judgment erroneously sought or granted; Rule 46A enforcement against primary residence – personal service and procedural compliance; late answering affidavit post-judgment is nullity; no obligation on creditor to serve compliance directive affidavit; costs awarded on ordinary scale (Biowatch).
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3 November 2022 |
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2 November 2022 |
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Whether the CPA applies to a financed second-hand vehicle sale and the appropriate scope of refund and penalty.
Consumer Protection Act – applicability to financed vehicle sales; supplier liability for implied warranty of quality (s55(2)(c)) and repair/replace/refund remedy (s56(3)); limits of statutory qualification (s55(6)); court/tribunal power to craft practical orders under s4(2)(b)(ii)(bb); administrative fines under s112 and judicial review of discretion.
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2 November 2022 |
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Court dismissed challenge to ex parte curatorship procedure as academic where no live dispute existed and s5(1) already requires good cause.
Administrative law – curatorship of medical schemes – ex parte applications under s5(1) Financial Institutions (Protection of Funds) Act – requirement that ex parte relief be on good cause shown. Civil procedure – res judicata and lis pendens – when same cause of action may support distinct remedies; pending appeal does not automatically bar separate proceedings. Constitutional/Declaratory relief – section 21(1)(c) Superior Courts Act – court may refuse declaratory relief where no live lis exists or issue is academic/moot. Mootness/justiciability – withdrawal of impugned ex parte application and parties’ agreement rendered the challenge hypothetical.
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2 November 2022 |
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1 November 2022 |
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A collateral challenge fails where the impugned regulation applies to municipalities, not the accused, and is not an element of the criminal charges.
Administrative law — collateral challenge to validity of administrative act — available only where act constitutes basis for coercive action against challenger; municipal investment regulation — Regulation 6(c) limits municipal investments to Banks Act banks and applies to municipalities/municipal entities/investment managers only; criminal indictment referencing regulation as background does not make regulation an element of offences — collateral challenge not competent; locus standi and condonation refused.
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1 November 2022 |
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A company’s name or ownership change does not create a new entity; Registrar must record a valid notification of a new responsible person.
Company law – juristic person retains identity despite change of shareholders or name where registration number unchanged – effect on licences. Firearms Control Act – notification of change of responsible person (SAPS 521(e)) is a statutory notification (section 38/7(4)), not an appealable decision under section 133. Administrative law – Registrar obliged to update Central Firearms Registry records when a valid notification is submitted. Procedural – urgency established where refusal to update records prevents trading.
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1 November 2022 |
| October 2022 |
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Rescission application dismissed: applicants in wilful default and failed to show good cause or prima facie defence.
Civil procedure – Rescission of judgment – Rule 31(2)(b), Rule 42(1) and common-law rescission – requirements of reasonable explanation, bona fides and prima facie defence. Service and domicilium – effectiveness of service at nominated addresses and personal service of Rule 46A. Wilful default – awareness of proceedings and deliberate failure to defend. National Credit Act – alleged non-compliance with s129 notices and its relevance to enforcement proceedings.
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31 October 2022 |
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Interim order awards primary residence to respondent, specified contact to applicant, Family Advocate investigation and maintenance pendente lite.
Children’s Act—best interests standard—interim parental rights and responsibilities; primary residence awarded to parent caring for children; detailed contact schedule granted to non-resident parent; Family Advocate investigation ordered; maintenance pendente lite for spouse and children and contribution to legal costs ordered.
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31 October 2022 |
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Rescission of default judgment granted where Applicant showed bona fide defence that suretyship was terminated and gave reasonable explanation for default.
Civil procedure – rescission of default judgment – Rule 31(2)(b) – requirements: reasonable explanation for default, bona fide application, bona fide defence. Suretyship – alleged termination following sale of company and bank representative’s confirmation – estoppel/representation and bank’s inaction. Condonation – late filing of rescission application and commissioning defect in opposing affidavit – granted.
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31 October 2022 |
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Application to set aside a 1999 transfer dismissed; transfer held lawful and title may only be altered by court order.
Property law – validity of transfer and registration of title; Deeds Registries Act – Registrar cannot cancel title without court order; Prescription Act – onus and knowledge for commencement of prescription; Motion procedure – resolving disputes of fact on affidavits; Costs – punitive costs require exceptional misconduct.
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31 October 2022 |
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A valid sale of a private company by its sole shareholder divested her rights; unilateral removal of the purchaser as director was unlawful.
Company law – Sale of company – Whether a company can be merx of a sale agreement; essentialia of sale (consensus ad idem, merx, price); effect of sale by sole shareholder; validity of unilateral removal of director; Companies Tribunal orders and CIPC registration.
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31 October 2022 |
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Spoliation: dispossession without consent or court order requires restoration; ownership disputes irrelevant.
Civil procedure — Spoliation — Requirement: applicant must show peaceful and undisturbed possession and unlawful dispossession. Property law — Possession versus ownership — Spoliation protects physical possession; ownership disputes irrelevant in spoliation proceedings. Evidence — Police presence does not render removal lawful absent statutory seizure powers being exercised. Relief — Confirmation of interim spoliation order and costs awarded.
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31 October 2022 |
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The applicant’s leave to appeal was refused; respondents’ absence and failure under Rule 6(12)(c) left no reasonable prospects.
Superior Courts Act s17 – leave to appeal – elevated ‘reasonable prospects’ threshold; Rule 6(12)(c) – second jurisdictional fact – failure dispositive; service/return of service – fact before court; reasonableness of absence and reliance on authorities (Zuma; Chess South Africa; Freedom Stationery; Wilmar Continental; ISDN Solutions).
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28 October 2022 |
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Default judgment rescinded: claim lacked cause of action against the Minister and the NDPP should have been joined.
Rescission of judgment; Rule 42(1)(a) and Rule 31(2)(b); service on State Attorney; Rule 31(4) — no set-down required where no notice to defend; National Prosecuting Authority Act ss 33, 42 and s179 Constitution; prosecutorial decisions not Minister’s responsibility (Moleko); non-joinder of NDPP; lack of cause of action for malicious prosecution against Minister; costs in cause.
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28 October 2022 |
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Joinder refused where the claim against the proposed third defendant had prescribed and joinder did not interrupt prescription.
Prescription – whether joinder interrupts prescription; prescription pleaded in answering affidavit; date debt became due; joinder dismissed where claim prescribed.
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28 October 2022 |
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Tribunal’s failure to consider specialist reports and reliance on irrelevant factors rendered its non-serious injury finding reviewable and substituted.
Administrative law – PAJA review – failure to consider mandatory material considerations (specialist medico-legal reports); irrationality – reliance on irrelevant consideration (hairline coverage); remedial discretion – substitution order permissible where exceptional circumstances and decision is a foregone conclusion; personal injury – serious disfigurement assessment under RAF Act s17(1A).
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28 October 2022 |
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Applicant failed to prove authentic accreditation; court found the accreditation letter invalid and dismissed the review application.
Administrative law – judicial review – challenge to termination/non-recognition of accreditation – necessity to establish existence and authenticity of accreditation instrument. Evidence – authenticity of document – allegation of irregular/fraudulent creation and lack of authority to sign – applicant’s bare denials insufficient. Motion proceedings – Plascon-Evans approach applies to disputed facts where final relief is sought.
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28 October 2022 |
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Plaintiff failed to prove causation for loss of earnings; unchecked expert assumptions and missing records undermined the claim.
Road Accident Fund – Loss of earnings – Causation – Need to prove direct link between accident and diminished earning capacity; Weight of expert evidence – limited where based on plaintiff’s uncorroborated account and absence of contemporaneous hospital records; Documentary discrepancies and plaintiff’s non‑testimony undermine credibility; Speculation insufficient for awarding damages.
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28 October 2022 |
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False allegations against estate administrators were defamatory; plaintiffs awarded R50,000 each.
Defamation – publication of allegations against estate administrators to professional and regulatory bodies; burden to prove truth or other defences; solatium for reputational harm to legal practitioners; costs on Magistrates’ scale.
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27 October 2022 |
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Interim temporary-authorisation orders to mitigate prejudice were not appealable; leave to appeal dismissed with costs.
Appealability — interim/remedial orders issued to mitigate prejudice — not final or definitive of rights — temporary authorisations under s21 Firearms Control Act; application for leave to appeal dismissed.
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27 October 2022 |
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Rail operator liable for child's injuries due to negligent omissions (no fencing, signs or speed restriction; driver delayed braking).
• Delict — negligent omissions by a rail operator; duty to protect public where settlements abut rail lines; foreseeability of harm.
• Safety measures — failure to provide accessible crossings, maintain fencing, erect warning signs, and to impose speed restrictions.
• Negligence — reasonable steps expected of operator and of train driver (speed reduction, timely braking).
• Causation — but‑for test applied to negligent omissions leading to collision.
• Joint liability — parental/supervisory liability not established where caregiver’s conduct was not shown to be negligent.
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27 October 2022 |
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Court enforces written lease despite COVID-19 deprivation claim and orders R1,800,000 plus costs against defendants.
Contract law – lease agreement – validity and essentials of contract; Performance – COVID-19 restrictions and alleged deprivation as a defence to lease obligations; Arbitration clause – election by lessor to litigate; Civil procedure – striking out affidavits vs. court ignoring irrelevant material; Summary judgment – bona fide defence test.
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27 October 2022 |
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Plaintiff proved past medical expenses with supporting administrator affidavits; default judgment awarded R157,097.91 plus interest and costs.
Road Accident Fund claim – past medical and hospital expenses – sufficiency of schedule and supporting documentation; use of payment administrator affidavits and ICD-10 coding to identify accident-related items. Default judgment – defence struck out – procedure for proving quantified heads of loss. Interest – application of Prescribed Rate of Interest Act read with section 17(3)(a) of the Road Accident Fund Act. Costs – award of agreed or taxed High Court costs, including counsel fees; payment directions to plaintiff's attorneys' trust account.
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27 October 2022 |
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Where receipt of emailed notice of taxation is disputed, sender must prove transmission; absence of proof renders taxation irregular.
Civil procedure – Taxation of costs – opposed taxation proceeding set down by email – proof of electronic service required. Electronic service – Rule 4A read with ECTA sections 21–26 – deemed receipt under s 23(b) triggered only when sender proves transmission or where exceptional circumstances exist. Burden of proof – sender should produce an automatically generated 'sent report' to establish entry into addressee's system; mere assertion insufficient. Rule 30 irregularity – failure to serve notice of set down of taxation entitles opposing party to rescission.
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26 October 2022 |
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Sequestration granted where unobjected tax assessments became final, leaving the respondent factually insolvent.
Tax law – finality of assessments – Tax Administration Act s100(1)(b) – unobjected assessments binding and challengeable only by lawful rescission or appeal. Sequestration – factual insolvency – assets less than liabilities demonstrated. Civil procedure – default judgment stands where no timely objection or rescission. Non-joinder – company not necessary where assessments are against the individual. Badenhorst principle – inapplicable where debt is not bona fide disputed. VAT – exemptions are statutory and not established by unsupported assertions.
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26 October 2022 |