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Citation
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Judgment date
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| December 2009 |
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Eviction refused: applicant failed to prove lawful lease termination and required contractual notice, despite substantial compliance with PIE notice.
PIE Act s4(2),(5),(6) – notice requirements – substantial compliance vs procedural fatality; Jurisdiction – LRA s157(1) and High Court jurisdiction where unlawfulness of occupation follows contract termination; Lease interpretation – written lease terms, parol evidence rule, indefinite tenancy terminable by employer with prescribed notice; Eviction law – applicant’s onus to prove lawful termination and adequate notice before PIE relief; Collective agreements – employee housing benefits and dispute resolution under bargaining council procedures.
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14 December 2009 |
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Claim for cancellation and damages survived: seller’s s 19 notice defective and sale to third party did not validly cancel contract.
Prescription – instalment sale of land – reciprocal debts – s 13(2) Prescription Act; Alienation of Land Act s 19 – statutory notice requirements (description of breach, 30-day period, indication of steps) – substantial compliance; Effect of sale to third party – repudiation and fresh cause of action; Validity of subsequent sale to unnamed purchaser – dependency on original contract.
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3 December 2009 |
| November 2009 |
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Section 7(2) permits appointment of a co‑trustee without prior hearing; section 23 allows a de novo court rehearing.
Trusts – Trust Property Control Act 57 of 1988 – s7(2) appointment of co‑trustee – audi alteram partem – statutory silence implies no mandatory prior consultation; legitimate expectation only if arising from extraneous promise or consistent practice – s23 provides de novo court rehearing – review on merits – costs awarded to trust’s estate.
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30 November 2009 |
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Denial of an attorney’s right of audience improperly caused default; default judgment was rescinded.
Civil procedure – rescission of default judgment – attendance by legal representative constitutes party's presence – magistrate wrongly refusing attorney audience invalidates default. Rescission – satisfactory explanation and bona fide defence where attorney wrongly refused right of audience. Security for costs – objection raised belatedly on appeal; court heard merits. Default judgment on unliquidated claims – quantum requires evidence (point noted but not decided).
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23 November 2009 |
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Attorney suspended pending cooperation; one‑year prohibition on independent practice thereafter to protect the public.
Attorneys — professional regulation — failure to cooperate with Law Society investigation; disclosure of files and accounting records; fitness to practise; suspension pending cooperation; public protection as primary consideration; possibility of removal from roll if further investigation warrants.
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20 November 2009 |
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Reported
A plaintiff relying on a written contract must annex a true copy to its particulars of claim or show good cause for non-compliance.
Civil procedure – Rule 18(6) – pleadings based on written contracts – requirement to annex true copy of contract or part relied upon; Rule 30 – irregular proceedings – failure to annex; Rule 27(3) – condonation for non-compliance – factors: steps taken to obtain document, prospects of obtaining it, prejudice to opponent, clarity of pleaded terms.
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20 November 2009 |
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Reported
Appellants failed to show 'exceptional circumstances' for bail under section 60(11)(a); appeals dismissed.
Criminal procedure – Bail under s60(11)(a) – Meaning of 'exceptional circumstances' – Ordinary factors must be present to an exceptional degree to justify release – Onus on accused in Schedule 6 matters – Affidavit evidence less persuasive than oral evidence; uncontradicted State evidence can be decisive.
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19 November 2009 |
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Conviction for child rape upheld; life sentence reduced where sentencing court failed to apply proportionality test under minimum-sentence law.
Criminal law – rape of a child; sentencing – minimum sentences (s 51/52 Criminal Law Amendment Act) – Malgas/Dodo proportionality test; prescribed sentence not to be assumed proportionate; sentencing court must consider personal circumstances and rehabilitation; appellate interference appropriate where sentencing court misdirects itself.
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10 November 2009 |
| October 2009 |
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Entrapment evidence and credibility findings upheld; 12-year sentence for repeated heroin dealing affirmed.
Criminal law – Entrapment – admissibility of trap evidence under s 252A – trial court to assess methods used and impact on fairness; recent authority (Kotze) guiding approach; discretion to exclude evidence retained. Evidence – single undercover witness – cautionary approach and corroborative indicia (matching trap notes) may sustain conviction. Sentencing – dealing in heroin serious; appellate interference limited absent material misdirection or startlingly inappropriate sentence.
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27 October 2009 |
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Entrapment evidence lawfully admitted; credibility and sentence (12 years for heroin dealing) upheld, appeal dismissed.
Criminal law – Entrapment – admissibility of trap evidence under s 252A – court must assess whether conduct merely provided opportunity or went further, and consider fairness of trial and administration of justice; applicable constitutional safeguards. Evidence – cautionary rule – single-witness evidence in drug-dealing prosecutions; credibility assessments and unchallenged evidence in cross-examination. Sentencing – dealing in heroin is serious; appellate interference only for material misdirection or a startlingly inappropriate sentence (Malgas test).
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27 October 2009 |
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Reported
Unsworn post‑conviction retraction insufficient for s304A review; magistrate must first take evidence or then refer.
Criminal procedure — conviction referred under section 304A after conviction but before sentence — whether unsworn post‑conviction retraction suffices to form opinion that proceedings 'are not in accordance with justice' — unsworn and untested statements insufficient; magistrate should take or cause evidence to be placed on record before referral; post‑conviction events may be relevant but must be tested.
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23 October 2009 |
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Correctional supervision with stringent conditions and suspended imprisonment can be appropriate for a remorseful, non‑violent, rehabilitatable child sexual offender.
Criminal law – Sentencing – Indecent assault on children – Appropriateness of custodial sentence versus correctional supervision; expert evidence on offender classification (regressed, opportunistic) and rehabilitation prospects; magistrate’s misdirection; courts’ power to substitute sentencing; s276(1)(h) correctional supervision and statutory limit under s276A(1)(b); suspended imprisonment as deterrent and denunciation.
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8 October 2009 |
| September 2009 |
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Reported
Rule 7(1) governs challenges to authority to litigate; s28 councillor immunity absent where meeting was not properly constituted.
Municipal law — Authority to institute proceedings — Rule 7(1) Uniform Rules governs challenge to authority to litigate for artificial persons; councillor immunity under s28(1)(b)(i) limited to conduct forming part of legitimate business of a properly constituted council; costs may follow where councillors elect to oppose proceedings.
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25 September 2009 |
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The applicant failed to prove on the balance of probabilities that the respondent’s negligence caused the explosion; claim dismissed.
Occupational health and safety regulations – scope of duty – duties imposed on ‘employer’ for benefit of employees, not independent contractors’ workmen; Confined space – practical application and definition; Hazard Clearance Certificate – requirement to ensure pipelines drained/isolated; Causation in delict – burden of proof and resolution where competing expert opinions are equally probable.
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25 September 2009 |
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Reported
Appellants’ murder and attempted murder convictions set aside for lack of proven dolus eventualis; housebreaking sentences reduced.
Criminal law – Dolus eventualis – subjective foresight required; inference must be the only reasonable one. Criminal law – Common purpose – unforeseeable deviation by one participant ("frolic of his own") not imputable to others. Criminal law – Culpable homicide – negligence must be assessed individually against reasonable person standard. Sentencing – appellate discretion to interfere where a striking disparity exists and pre-trial custody is material. Evidence – absence of firearms and preventative steps relevant to foreseeability of lethal resistance.
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14 September 2009 |
| August 2009 |
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A 'hire and fly' fax created a lease making the respondent liable for damage from the hard landing.
Contract formation – hire+fly fax as offer and acceptance; aviation 'charter' as lease; rejection of one-sided service agreement; earlier negotiations not incorporated; hirer supplying pilot liable for damage caused during hire.
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14 August 2009 |
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Reported
Whether public health providers breached antenatal duties causing birth of a Down Syndrome child and issues of informed consent.
Medical negligence – antenatal care – duty to arrange urgent follow‑up scans and to give clear written instructions; foreseeability of patient failing to return; causation of birth of Down Syndrome child; cordocentesis and laboratory analysis – no proven contamination or negligent testing; informed consent for sterilisation – valid; apportionment of liability and costs (joint and several to a specified date).
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7 August 2009 |
| June 2009 |
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Reported
Suspension without adequate prior hearing breached PAJA; suspensions and interim accounting authority set aside.
Key issues: statutory construction of s 12 (suspension) of the KZN Nature Conservation Management Act; procedural fairness/audi alteram partem before suspension; whether suspension is administrative action under PAJA; invalidity of consequential PFMA appointment if suspension unlawful.
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19 June 2009 |
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Plea statement, read with the charge sheet, sufficiently admitted elements of skimming and fraud; convictions and sentences confirmed.
Criminal procedure – Plea in terms of s 112(2) – sufficiency of factual admissions to establish elements of offences; use of charge sheet and schedules to supply particulars. Fraud – elements of falsity, misrepresentation, intention and actual prejudice – admissions in plea explanation can establish mens rea. Electronic Communications and Transactions Act – unlawful use of skimming device and card duplication – factual admissions supporting statutory contravention. Review – procedural irregularity in plea taking – materiality test and failure of justice required to set aside conviction.
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1 June 2009 |
| May 2009 |
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Appeal upheld: convictions based on an uncorroborated trap witness and misdirected credibility findings were set aside.
Criminal law – Trap evidence – single witness cautionary rule – need for corroboration (marked money, observation, cellphone records, pocketbook notes). Evidence – credibility assessment – demeanour insufficient to accept experienced police witness without supporting corroboration. Criminal procedure – delay between events and trial may undermine reliability of trap evidence and fairness of trial. Possession/sale – where premises accessed by multiple persons, accused’s explanations can raise reasonable doubt about possession.
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26 May 2009 |
| April 2009 |
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Reported
Professional-driver status under s65(2) depends on the vehicle driven, not the driver's occupation or permit.
Road Traffic Act s65(2) – interpretation of “professional driver” — depends on class of vehicle driven, not occupation or mere possession of permit; s65(2) comprises two separate offences (0.02 v 0.05 g/100 ml) and charge must specify which is alleged; s112(1)(b) C.P.A. questioning must address facts not legal conclusions; sentencing — magistrate should defer fines or refer on review when in doubt; improper charging practice cautioned.
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29 April 2009 |
| March 2009 |
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An accused may appeal a court’s refusal to "determine otherwise" under s103(1); the trial court must actively consider fitness factors.
Firearms Control Act s103(1) — appealability of court’s decision not to "determine otherwise"; duty of trial court to consider and record factors bearing on fitness to possess firearms; onus on accused to prove entitlement to determination otherwise on balance of probabilities; relevant factors include age, prior convictions, seriousness and connection of offence to firearms, period and record of licensed possession, community safety; consequence and appeal rights under s104 and Criminal Procedure Act s309(1)(a).
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24 March 2009 |
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Reported
PAJA governs review of failures to issue identity documents; mass-produced, deficient applications were dismissed and ethical concerns referred to the Law Society.
Identification Act 1997 – section 25 transitional provision – green bar-coded identity documents; Administrative law – PAJA applies to failure/delay to issue or deliver identity documents; PAJA time limits — need for particulars to show unreasonable delay (s7(1), s9(1)); Mass-produced affidavits and deficient demand letters – insufficient to found relief; Locus standi – unassisted minors; Legal ethics – use of agents, payments to procure work and fee-sharing—referral to Law Society; Civil procedure – rule 6 service and notice defects; Practice directive withheld pending better evidence.
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18 March 2009 |
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Reported
An arrest under s40(1)(b) must be reasonable and necessary, not lawful solely by statutory compliance.
Arrest — Criminal Procedure Act s40(1)(b) — statutory compliance insufficient; Constitution s12(1) — right against arbitrary deprivation of liberty; requirement of reasonableness and necessity; balancing individual rights versus police duties; standing orders as guidance not a substitute for constitutional standards.
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17 March 2009 |
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Municipality liable for cable damage after failing to comply with wayleave procedure; appeal dismissed with costs.
Municipal liability for utility damage – failure to follow wayleave/AO plan procedure – evidentiary burden once prima facie case established – inadmissibility of reconstructed plan/hearsay – negligence established under Kruger v Coetsee test.
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17 March 2009 |
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An inadmissible confession to a police officer was held irregular but harmless given overwhelming independent evidence; convictions and sentences upheld.
Criminal law – confession – admission to a peace officer not reduced to writing – s 217 Criminal Procedure Act – inadmissible; Consent or absence of objection by defence counsel does not validate a confession excluded by statute; Appeal – irregular reception of inadmissible evidence – test is whether a failure of justice actually resulted; Evidence – independent admissible evidence may render an irregularity harmless; Sentencing – magistrate’s exercise of discretion and minimum sentences considered.
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12 March 2009 |
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Respondent entitled to spoliation over a servitude; magistrate’s admission of new reply facts was properly exercised.
Civil procedure – application proceedings – scope of replying affidavit – discretion to permit new matter in reply where special circumstances and no prejudice exist; Property law – servitude/right of way – obstruction of access – mandament van spolie available to protect servitudal rights; Possession – exclusiveness not essential for spoliation.
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6 March 2009 |
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A sentencing court must start from the statutory minimum and record aggravating factors before imposing a sentence above that minimum; failure to warn defence of that possibility can vitiate sentence.
Criminal law – Sentencing – Minimum sentences regime – Statutory minimum as starting point even when contemplating upward departure – Necessity to identify and record aggravating circumstances justifying increased sentence – Duty to warn accused if higher sentence contemplated – Failure to warn as sentencing irregularity warranting interference.
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5 March 2009 |