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Citation
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Judgment date
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| December 2009 |
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Reported
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15 December 2009 |
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Reported
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14 December 2009 |
| November 2009 |
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Summary judgment granted for delivery of vehicle; applicant’s rule 32 affidavit upheld and respondent's fixed-interest/rectification defences rejected.
Civil procedure – Summary judgment (Rule 32) – sufficiency of verifying affidavit; reliance on company records for personal knowledge. Civil procedure – Technical defects in summary judgment papers – manifest errors not fatal where no prejudice and papers read as whole. Contract – Instalment sale – cancellation; delivery of goods – cancellation effective by notice; court confirmation not required. Evidentiary requirement – Certificate of balance is prima facie evidence only, not a prerequisite to summary relief. Substantive defence – Interest rate variable under written agreement; rectification not established where essential averments lacking.
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13 November 2009 |
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Applicant established prima facie case for provisional winding-up; s345 demand held valid and intervening party's objections rejected.
Companies Act – s345(1)(a)(i) – demand at registered office – validity of service and application of deeming provision. Companies Act – provisional winding-up under s346 – prima facie inability to pay debts on affidavit sufficient absent exceptional circumstances. Civil procedure – admissibility of supplementary affidavits/handing up in court – court’s discretion to receive and consider. Insolvency practice – bona fides of creditor/applicant and allegations of collusion or preference among creditors.
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13 November 2009 |
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Reported
Provisional sentence refused where sale was structured to evade Capital Gains Tax, rendering the contract illegal and unenforceable.
Contract law; provisional sentence — defendant must show probability of success in principal case; Revenue law — transactions intended to perpetrate fraud on revenue are illegal and unenforceable; party to illegality cannot enforce payment; referral to South African Revenue Service.
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12 November 2009 |
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A compromise that novates the original claim creates a new debt which may prescribe despite prior process on the original action.
Prescription Act s11(d) and s15(1) – three-year prescription for ‘‘any other debt’’; interruption requires service of process claiming that specific debt. Transactio/compromise – novation and res judicata; compromisorial settlements can create a new distinct debt. Rule 41(4) – procedural summary remedy; does not itself prevent prescription of a distinct post-settlement debt. Tacit term (bystander test) – clause permitting Rule 41(4) application did not import a tacit reservation to fall back on original claim.
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9 November 2009 |
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Reported
A policy was rectified to delete fire-section warranties inserted by administrative/system error, the insured having been unaware of them.
Insurance — Rectification — Warranties included in renewal/endorsement — Whether included by common mistake when insurer converted predecessor’s policies into its system — Rectification granted to delete warranties. Insurance — Warranties — Effect of automatic/systemic insertion and insurer’s failure to notify insured/broker. Civil procedure — Application for absolution at close of plaintiff’s case — prima facie case made out.
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3 November 2009 |
| October 2009 |
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Appellant's challenge to trap evidence and 12-year sentence for heroin dealing dismissed; convictions upheld.
Criminal law – Entrapment – admissibility of trap evidence under section 252A of the Criminal Procedure Act – application of Kotze and constitutional fair-trial considerations. Evidence – single-witness/cautionary rule – credibility assessment of undercover operations. Criminal procedure – appellate review – material misdirection on facts or law as basis for interference with conviction or sentence. Sentencing – dealing in heroin – seriousness, repeat offending and community protection justify substantial custodial sentence.
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27 October 2009 |
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A local authority may urgently obtain a mandatory interdict and removal order against an unlawfully erected billboard visible from a national road.
Local government law – advertising signage – applicability of pre-existing local bylaws and town-planning scheme – enforcement against unlawful billboard – interplay with s.50(1)(c) National Roads Act – locus standi of local authority – urgency and mandatory interdict – removal of structure authorised by court – costs including two counsel.
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16 October 2009 |
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Bank’s winding‑up claim upheld: respondent commercially insolvent; bookkeeping dispute not bona fide, provisional wind‑up granted.
Close Corporations Act s68(c)/(d) and s69(1)(a) – liquidation – inability to pay debts – statutory demand – bona fide dispute – commercial insolvency – adequacy of security – election to repossess versus winding‑up remedy.
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16 October 2009 |
| September 2009 |
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Non-receipt of summons excuses default only if accompanied by a bona fide defence; Rule 42 permits correction of patent errors in judgment.
Civil procedure – rescission of default judgment – common law test requires reasonable explanation for default and bona fide defence with prospect of success; non-receipt of summons may excuse default but must be coupled with a credible defence; Rule 42 permits court to vary or correct patent or clerical errors in judgments granted by the Registrar.
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23 September 2009 |
| July 2009 |
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Plaintiff was a holder in due course of the cheque; defendant’s speculative allegations failed to rebut statutory presumption; provisional sentence granted.
Bills of Exchange Act – holder in due course – section 27(1) and section 28(2) – meaning of "good faith" and absence of notice of defect; provisional sentence – onus on defendant to show probabilities favour success in principal case; endorsements and manuscript inscriptions – material alteration/regularity of bill; speculative allegations and hearsay insufficient to rebut presumption of holder in due course.
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17 July 2009 |
| June 2009 |
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Reported
A court may not reinstate a lawfully cancelled credit agreement under section 85; the respondent must return the goods.
National Credit Act – Sections 86, 85, 130 and 129 – commencement and form of debt-review application – Regulation 24/Form 16 requirements. Interpretation – interplay between section 86(2) (exclusion where enforcement steps taken) and section 130(3)(c)(i) (court barred while matter is before debt counsellor). Debt relief – section 85/section 87 – scope of debt rearrangement; section 85 does not reinstate a lawfully cancelled credit agreement. Repossession – effect of lawful cancellation on consumer's right to retain goods; post-cancellation monetary claims distinct from reinstatement.
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4 June 2009 |
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Accused acquitted where single-witness identification unreliable due to visibility, suggestive parades and no corroboration.
Criminal law – Identification evidence – single witness identification assessed with caution – lighting, duration, prior knowledge, suggestive identification parades and delays affect reliability. Evidence – corroboration – absence of independent corroboration undermines conviction based solely on single identification. Procedure – improper composition and conduct of identification parades may render identifications unsafe. Criminal law – benefit of doubt and acquittal where prosecution fails to prove guilt beyond reasonable doubt.
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1 June 2009 |
| May 2009 |
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Reported
Court dismissed review of law‑society fee taxation, holding the committee properly applied Rule 16 criteria and was not clearly wrong.
Attorneys Act s69(h)/s74(5) – Law‑society fee assessments – Rule 16(b)/(e) criteria – Review under Uniform Rule 48; taxing‑committee discretion; intervention only when "clearly wrong"; percentage of transaction value and estate‑agent comparisons not a proper basis without justification.
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13 May 2009 |
| April 2009 |
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Court allowed late reconvention and joinder, and permitted amendments to plead passing-off and s34 trademark claims.
Rule 24(2) – joinder of third party in reconvention; condonation for late delivery of reconvention; entitlement to take action and declaratory relief; lis alibi pendens; amendment of particulars of claim – Trans-Drakensberg test; passing off vs statutory trademark infringement (s34(1)(b)); use of alleged admissions in other proceedings to found triable issue; costs allocation including costs of two counsel.
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14 April 2009 |
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Reported
Sending an NCA s129 notice by registered post to the consumer’s nominated domicilium constitutes delivery, receipt not required.
National Credit Act s129(1)(a) – notice to consumer – delivery defined by National Credit Regulations and s65 – "delivered" means sent by hand, registered post, fax or e-mail to address chosen by consumer; risk of non-receipt borne by consumer; sending by registered post to nominated domicilium satisfies s129/s130 requirements.
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3 April 2009 |
| March 2009 |
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Applicants’ constitutional attack was misdirected to import statutes; true issue is s90 CPA, but challenge is premature.
Constitutional law – criminal procedure – reverse onus – s90 Criminal Procedure Act – import-control offences – ripeness and procedural joinder – constitutional issues to be determined when necessary and with interested state organs present.
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27 March 2009 |
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Summary judgment refused; exclusion clauses could defeat non-fraudulent misrepresentation, costs reserved for trial.
Civil procedure – summary judgment – Rule 32(9)(a) – whether plaintiff knew defendant relied on contention entitling leave to defend – costs sanction – contractual exclusion clauses – misrepresentation (fraudulent vs. non-fraudulent).
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16 March 2009 |