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Citation
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Judgment date
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| December 2010 |
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Reported
Arresting party must prove ownership of arrested cargo; surrender of bills and telex release did not prove transfer of ownership.
• Admiralty — Arrest in rem — Onus: arresting party must prove on balance of probabilities that arrested property belonged to alleged owner at time of arrest. • Bills of lading — Surrender/telex release at load port — May facilitate physical release but does not automatically effect transfer of ownership absent agreement or intention. • Sale of goods — Lex situs (South African) law governs transfer of ownership; mode of delivery determined by contract terms (CIF v non‑CIF).
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9 December 2010 |
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Insured’s failure to notify insurer of an incident when reasonably possible justified insurer’s avoidance of indemnity.
Insurance law – claims-made public liability cover – notification clause (clause 6(a)(i)) – meaning of "event" as underlying incident – timing of "as soon as reasonably possible"; insured’s knowledge or what a reasonable insured would have appreciated; insurer entitled to avoid for failure to notify.
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8 December 2010 |
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Provisional sequestration granted where prima facie insolvency and a not-too-remote prospect of benefit to creditors were shown.
Insolvency — Provisional sequestration — s10 Insolvency Act — requirement of prima facie claim, insolvency/act of insolvency and reasonable prospect of advantage to creditors; substantial compliance with s9(4)(A)(b) — trusts, company drawings and beneficial interests may justify provisional sequestration.
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7 December 2010 |
| November 2010 |
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A mortgagee with a power of attorney cannot oppose eviction or litigate for the mortgagor without proper joinder or intervention.
* Company law – separate juristic personality – directors’ personal admissions do not bind the company; * Security law – mortgagee with power of attorney and perfected notarial bond – limits of authority to act in litigation on behalf of mortgagor; * Civil procedure – non‑party/mortgagee must intervene to oppose summary judgment; * Costs – improper opposition by non‑party attracts liability for costs.
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19 November 2010 |
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Reported
Tenant’s amendments amounted to a counter-offer, so no written lease existed and declaratory relief was inappropriate amid disputed facts.
* Contract/lease formation – counter-offer destroys original offer – Hyde v Wrench principle applied; acceptance must be clear and unambiguous. * Motion proceedings – Plascon-Evans rule: disputes of fact may preclude grant of relief on affidavit. * Declaratory relief – applicant must show a clear, real right and interest; ongoing negotiations and factual dispute defeat declarator. * Costs awarded where applicant proceeds despite known disputes of fact.
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1 November 2010 |
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Reported
PAIA applies to third‑party records sought for pending litigation where the rules of court do not provide a contemporaneous avenue for production.
Access to information – Promotion of Access to Information Act (PAIA) – section 7(1) exclusion for records requested for pending proceedings – meaning of "provided for in any other law" – Uniform Rule 38(1)(a) subpoena duces tecum not displacing PAIA where no trial date fixed – public body obligations and section 23 notices where records cannot be found.
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1 November 2010 |
| October 2010 |
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Respondent failed to prove an oral long-term lease; eviction granted with one month to vacate.
Eviction – Alleged oral lease for 3+3 years – Credibility and probability assessment; burden of proof on party asserting contract; commercial practice of reducing leases to writing significant; subsequent conduct and correspondence as evidence of intentions and rights; eviction granted with one month to vacate and costs awarded.
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29 October 2010 |
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Reported
Debt-review notice under the NCA (s86) bars creditor litigation under s88(3) unless statutory termination occurs; rescission granted.
National Credit Act – s 86 debt review process – s 86(4)(b)(i) notice – s 86(10) termination – s 88(3) bar on enforcement; statutory scheme limits creditors’ common-law enforcement rights; rescission of default judgment where bona fide defence established; condonation for late rescission application.
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12 October 2010 |
| September 2010 |
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Plaintiff’s contractual and delictual claims were prescribed once he became aware of the defendant’s conduct in July 1999.
Prescription — Prescription Act ss 12(1), 12(3) — accrual of debt when creditor has knowledge of debtor and facts — once-and-for-all principle — discovery of irrecoverability does not defer commencement — creditor cannot postpone prescription by own conduct.
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21 September 2010 |
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Where exclusive-use rights are not recognised by the Act, common-property maintenance costs must be shared pro rata by all owners.
Sectional Titles Act s 37(1)(b) – proviso construed to apply only to exclusive-use rights recognised by the Act (s27, s27A, s60(3)); common-property maintenance costs recoverable pro rata unless statutory exclusive-use right exists; body corporate meetings – rule 65 disqualification for unpaid "contributions" does not extend to unpaid interest where levies paid; administratorship under s46 is a drastic remedy requiring substantiated mismanagement.
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14 September 2010 |
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Reported
Accused’s confession obtained during unlawful detention was excluded; remaining evidence insufficient for conviction, resulting in acquittal.
* Constitutional and criminal procedure – Section 35(1)(d) (right to be brought before court within 48 hours) and section 50 CPA – unlawful delay in bringing accused to court; effect on admissibility of evidence. * Confession – admissibility – voluntariness, undue influence and proper procedure; interpreter’s role. * Evidence – reliance on confession; insufficiency of remaining circumstantial and single-witness evidence to convict beyond reasonable doubt.
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14 September 2010 |
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Reported
A landlord may obtain interdiction against excessively noisy picketing where such conduct unlawfully limits property and trade rights.
Picketing and nuisance; High Court jurisdiction over common-law nuisance and constitutional property rights despite concurrent labour dispute; landlord’s locus standi to protect tenants’ and public rights; interplay of LRA ss.67/69 with constitutional rights and proportionality; limits on noisy picketing; municipal bylaw breach not established.
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3 September 2010 |
| August 2010 |
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Reported
Whether the steps in s129/s130 bar debt review and permit cancellation and repossession of the vehicle.
National Credit Act — s86(2) interpretation; s129(1)(a) notice versus s129(1)(b) and s130 pre-litigation steps; effect of service of magistrates’ application under s86(8)(b); termination of debt review under s86(10); over-indebtedness (s79) and relief under s85/s87; adequacy and realism of debt counsellor restructuring proposals.
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20 August 2010 |
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Reported
Whether ordinary supplier credit arrangements are incidental credit agreements, exempting the plaintiff from NCA registration and related defences.
National Credit Act – s 40 registration requirement – distinction between incidental credit agreement and credit facility (s 8(3)) – ordinary supplier credit (payment in full, interest only on default) not a credit facility – s 89 consequences of unregistered credit provider inapplicable. Section 129(1)(a) notice – adequacy. Jurisdiction clause – consent to Magistrates’ Court not nullify High Court jurisdiction. Suretyship – waiver of excussion and co-principal debtor status; s 90 inapplicable where deed is not a credit guarantee (s 8(5)).
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20 August 2010 |
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Reported
Risk of prosecution alone does not confer standing to challenge search warrants absent a connection to seized items or premises.
* Constitutional law – standing under section 38 – challenge to search and seizure warrants – whether mere risk of prosecution confers locus standi; * Criminal procedure – search and seizure – warrants executed at investigative stage – challengeability in interlocutory proceedings; * Precedent – interplay between Zuma (SCA) and Constitutional Court authority on standing; * Remedies – objection to admissibility of evidence and requests for particulars are appropriate at trial or by interlocutory pleadings.
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17 August 2010 |
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Reported
Spouse married in community of property may be jointly liable and insurer may set off liquidated reciprocal claims against ceded policy proceeds.
Matrimonial Property Act ss15, 17 – consent to spouse’s contract – joint estate – joint and several liability for debts incurred for or in earning income for joint household – set-off – cession – liquidated reciprocal debts – sequestration does not extinguish solvent spouse’s liability.
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16 August 2010 |
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Reported
Unclear police identification and disproportionate hot pursuit made the subsequent arrest and detention unlawful, entitling plaintiff to damages.
Police powers – hot pursuit and identification – reasonable suspicion versus proportionality of response; unlawful arrest and detention where identification unclear and less risky procedures not used; breach of Standing Order 341; damages awarded.
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13 August 2010 |
| July 2010 |
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Reported
Default judgment rescinded where municipality failed to follow statutory valuation/appeal procedures and a bona fide defence existed.
Municipal rates – valuation and objection procedure – failure to process appeals before enforcement; Rescission of default judgment – prima facie defence (Naidoo test); Rule of law and constitutional right of access to court; Consequences for writs of attachment arising from rescission.
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22 July 2010 |
| June 2010 |
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Winding-up and oppression claims dismissed where deadlock caused by applicant’s own wrongful conduct and no unfair prejudice proved.
Company law – s344(h) just and equitable winding up – deadlock and disappearance of substratum; clean hands doctrine; company as separate legal entity – shareholder does not acquire proportionate ownership of company property; Companies Act s252 – unfairly prejudicial conduct – requirements and discretionary relief; remedies for oppressed minority and sale of shares.
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25 June 2010 |
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A curator ad litem may claim advocate’s fees for consultations and perusal; taxation remitted to assess quantum.
* Costs — Curator ad litem — entitlement to counsel’s fees for consultations and perusal — appointment does not negate professional remuneration; * Interpretation of court orders awarding costs for ‘exercise of powers’ of curator ad litem — covers related consultation and perusal fees; * Review of taxation — taxing master’s discretion and limits of review (Visser v Gubb principles); * Quantum — remitted for assessment of reasonableness in light of seniority, time and complexity.
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1 June 2010 |
| May 2010 |
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Reported
Municipality may consolidate accounts and disconnect communal services where no dispute existed at consolidation time.
Municipal Systems Act s102 — meaning of "dispute"; timing requirement for invoking s102(2); consolidation of accounts; municipal power to consolidate and to cut off electricity/water under Durban Extended Powers Ordinance s64 and s68(h); limits of in duplum argument in motion proceedings.
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1 May 2010 |
| February 2010 |
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Reported
A vessel cannot be arrested as its own associated ship under the AJRA; the associated ship must be a different ship.
Admiralty — Arrest of ships — Associated ship under s 3(7)(a) AJRA — Associated ship must be a ship other than the ship concerned; a vessel cannot be its own associated ship — statutory construction; maritime claim arising out of charterparty.
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16 February 2010 |
| January 2010 |
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Reported
Notice of bar after summary judgment filing does not automatically waive summary judgment; Rule 18(6) non‑compliance may be condoned.
Rule 32 summary judgment — moratorium on plea delivery; Rule 26/Rule 30 notice of bar — effect and setting aside; Rule 18(6) — annexure of written contract; condonation for technical non‑compliance; costs reserved for trial court; expedited roll.
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18 January 2010 |