|
Citation
|
Judgment date
|
| December 2011 |
|
|
Resuming debt review under s86(11) does not reinstate a lawfully cancelled instalment sale agreement.
National Credit Act – s86(11) – resumption of debt review does not reinstate a lawfully cancelled credit agreement; Credit agreements – cancellation (s123/s129) terminates consumer’s possession rights; Debt review – good faith participation by credit provider; Civil procedure – summary judgment affidavits – personal knowledge requirement (Rule 32 / Shackleton).
|
8 December 2011 |
|
Reported
Police officer’s use of deadly force was justified as self-defence; applicant’s damages claim dismissed.
Use of force by police – s49 Criminal Procedure Act – requirements for statutory justification; self-defence – imminence, necessity and proportionality; police vicarious liability; whether multiple shots exceeded bounds of self-defence.
|
1 December 2011 |
| September 2011 |
|
|
Court holds sexual‑offence provisions that omit penalties are nonetheless punishable; legislature should remedy the omission.
Sexual Offences Act 32 of 2007 – statutory offences without express penalties – nullum crimen sine lege / nulla poena sine lege – R v Forlee and subsequent authority – constitutional principle of legality (s 35(3)(l)) – statutory interpretation: when an express prohibition creates a punishable offence – courts’ power to sentence in absence of prescribed sanction.
|
16 September 2011 |
| August 2011 |
|
|
Claim for fire-damage breach of lease dismissed: no proved mora and insurer proceeds obviated plaintiff’s loss.
Lease – breach – obligations to insure, to procure insurer payment and to reinstate; requirement of interpellatio where no time fixed for performance; primary obligation to reinstate; collateral-source/insurance proceeds and assessment of damages.
|
24 August 2011 |
|
Reported
Accused in Schedule 6 robbery failed to show exceptional circumstances; bail refusal upheld; State’s prosecutorial failure criticized.
Bail — Schedule 6 offence — accused bears onus to show 'exceptional circumstances' under s60(11)(a); Affidavit evidence alone generally insufficient; Prosecutorial duties — duty to place all relevant facts before court and comply with practice directives; Appellate review under s65(4) requires showing the lower court was wrong.
|
19 August 2011 |
| June 2011 |
|
|
Reported
Condonation granted for failure to serve statutory notice; Children's Act cannot retrospectively curtail accrued prescription rights.
Administrative law / civil procedure – Institution of Legal Proceedings against Certain Organs of State Act – s3 notice requirement and condonation under s3(4); Prescription – interplay between Prescription Act and Children’s Act reducing age of majority; Accrued rights – amending statute cannot retrospectively extinguish accrued prescription rights; Attorney error – oversight by attorney not attributed to applicant; Access to courts and protection of children’s rights.
|
17 June 2011 |
|
Final sequestration granted where nulla bona returns, concealed assets and prospect of recoverable assets justified investigation.
Insolvency — Sequestration — Act of insolvency established by nulla bona returns under s 8(b) — Founding affidavit authority and s 9(4A) compliance — Arm’s length sequestration appropriate where concealment of assets and involvement in multiple entities create reasonable prospect of benefit to creditors — Gardee distinguished.
|
8 June 2011 |
| May 2011 |
|
|
Restraint unenforceable: no protectable customer connections or trade secrets; dismissal with costs.
Employment law – Restraint of trade – enforceability: test for protectable proprietary interest (customer connections and trade secrets); evidence required to show employee can carry customers; confidentiality – criteria for trade secrets; Plascon‑Evans approach on motion; balancing public policy and employee’s right to earn a livelihood; discretion to permit supplementary affidavits under Rule 6(5)(e).
|
27 May 2011 |
|
Reported
An administrator under s46(3) has exclusive management powers; interim trustees may only make recommendations unless authorised.
Sectional Titles Act s46(3) – administratorship – administrator vests with powers and duties of body corporate to its exclusion Interim trustees – powers limited to making recommendations; may act only as authorised agents Interdict – final interdict to prevent trustee interference with administrator’s management; application of Plascon-Evans Alternative remedies – administratorship can divest members of meeting/removal powers, removing alternative relief Costs – Management Rule 12 creates indemnity but does not bar costs orders against trustees
|
20 May 2011 |
| March 2011 |
|
|
Court upheld national allocation and post-tender negotiations as lawful, dismissing review despite a procedural allocation irregularity.
Public procurement – section 217 Constitution and PPPFA applicability to RFP; 50/40/10 scoring system enforced as part of tender framework. Tender law – post-tender negotiations and multiple awards permissible where RFP contemplates them; splitting volumes to reflect price and capacity lawful. Administrative law – introduction of a new national allocation model after close of tenders is a procedural irregularity but may be tolerated if rational and not materially prejudicial
Peremption/acquiescence – signing contract under protest does not necessarily preclude review. Judicial discretion – court may refuse to set aside administratively flawed awards where nullification would disproportionately prejudice innocent parties and public interest
|
30 March 2011 |
|
Reported
A claimant who litigates in breach of an arbitration agreement cannot require arbitration while keeping the litigation pending.
Arbitration clause – construction – disputes arising out of building contract – certificates, defects and post-contract settlement disagreements fall within clause. Arbitration v litigation – commencement of court proceedings does not automatically waive right to arbitrate; onus to prove election/abandonment rests on respondent. Equitable principle – party who litigates in breach of arbitration agreement cannot enforce arbitration while maintaining the litigation
Remedy – refusal of stay; costs awarded to respondent
|
8 March 2011 |
| February 2011 |
|
|
Reported
Security arrests under s 5(3) AJRA require specific property identification and proof of genuine, reasonable need by the applicant.
Admiralty law – s 5(3) AJRA – security arrest requires showing genuine and reasonable need; hearsay admissible; respondent’s failure to rebut may reinforce applicant’s case; security arrest must identify specific property (ownership or susceptibility to action in rem); open-ended orders permitting sheriff to seize any property impermissible.
|
22 February 2011 |
|
Reported
A simple summons is not a pleading and may not be attacked by way of exception; exceptions dismissed with costs.
Civil procedure – simple summons (Form 9) – not a pleading – exception under Rule 23(1) unavailable; Rule 18 requirements for pleadings; summons serves to commence litigation and give concise notice only; irregularity under Rule 30 distinct from exception.
|
18 February 2011 |
|
Reported
AOD confirmed a discounting agreement; discounting fees are not interest, so the NCA did not apply and judgment granted.
Contract – Novation – presumption against novation; acknowledgement of debt construed as confirmation not substitution of prior obligation. Commercial law – Discounting agreement distinguished from money‑lending; discounting fee held not to be interest
National Credit Act – AOD not a credit agreement when fee is a discounting fee; NCA ss 129/130 and statutory interest limits inapplicable. Civil procedure – Tender to pay capital plus mora interest held ineffective where no basis for mora interest under the agreement
|
18 February 2011 |
|
Reported
A registrar’s default judgment was set aside after the court applied the "good cause" test and found a prima facie defence.
Civil procedure – Rule 31(5)(d) – Reconsideration of registrar’s default judgment – Court may apply "good cause" criteria and substitute its discretion – condonation of late application – bona fide defence requirement – agency, authority, estoppel and ratification – costs reserved; interim interdict costs to be costs in the cause.
|
16 February 2011 |