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Citation
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Judgment date
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| December 2010 |
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Reported
Court reviews Home Affairs’ identity-document delays, limits remedies and allows a narrow pro bono costs exception.
Administrative law – PAJA s 6(2)(g) – delay/failure to decide – applicant must prove application made and unreasonable delay; review unavailable if decision already taken; remedies must be directed at administrator. Civil procedure – competence of orders – court cannot grant consequential relief framed as obligations on applicant; structural interdicts and declaratory relief limited and must be justified. Costs – indemnity principle; narrow exception permitting costs awards where indigent litigant is represented pro bono and attorney bears disbursements; court fixed lump-sum costs and limited disbursements. Contempt enforcement against State – problematic and fact-specific.
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23 December 2010 |
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Reported
An executrix may be removed where she uses her office to pursue personal advantage and fails to act impartially toward a claimant.
Administration of Estates Act s 54(1)(a)(v) – removal of executor – discretion exercised in interests of estate and beneficiaries; duty of executor to act bona fide, impartially and objectively when adjudicating claims; misuse of office to pursue personal advantage or to harass a claimant justifies removal; evidence of withholding maintenance, eviction attempts, interference with attorney and association with threats supports removal.
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17 December 2010 |
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Application to reinstate appeal and bail refused for inadequate excuse, poor prospects of success, and public interest in finality.
Criminal procedure – condonation/reinstatement of appeal – applicant’s failure to prosecute appeal – adequacy of explanation for delay; Bail pending appeal – restoration contingent on successful condonation; Evidence – identification sufficiency and credibility; Criminal law – defeating/obstructing course of justice – reservist duty, dolus eventualis and omission liability; Sentencing – proportionality, abuse of office and aggravating factors.
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14 December 2010 |
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Court varied custody to a shared-weekly residence after mother wilfully obstructed father’s court-ordered access, prioritising children’s best interests.
Children — Custody variation — Onus rests on non-custodial parent to show variation in children’s best interests; repeated wilful obstruction of access justifies changing residence; joint parental responsibilities retained while primary residence varied to shared-weekly arrangement; contempt and non-compliance with custody orders seriously considered.
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13 December 2010 |
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Misappropriation of trust funds and failure to comply with trust-account obligations justify striking an attorney off the roll.
Attorneys — Misappropriation of trust monies — Failure to produce Rule 21A certificate — Breach of statutory trust-account duties (s 78) — Full and frank disclosure required — Jasat three-stage inquiry — Striking off appropriate for theft of trust funds.
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12 December 2010 |
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Reported
Sale of subdivided agricultural land without Minister’s consent is void; lien and capital-payment claims failed; retention of part-payment permitted pending damages action.
Property law – Subdivision of agricultural land – sale of a portion without Minister’s written consent void ab initio under Subdivision of Agricultural Land Act 70 of 1970. Contract law – written agreement and variation – unsigned oral variation not binding where agreement requires written signed variation. Possessory remedies – improvement lien – claimant must plead and prove expenses were necessary/useful and quantify enhancement of value. Restitutio in integrum – equitable departure from tender rule – innocent party may be excused from immediate restitution where justice and equities so require; retention of part-payment pending damages action permissible in suitable circumstances.
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6 December 2010 |
| November 2010 |
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Section 17(e) mandates imprisonment for dagga dealing; fines may be added but cumulative punishment can be constitutionally disproportionate.
Drugs — s17(e) Drugs and Drug Trafficking Act — mandatory imprisonment with possible additional fine; fine may carry default imprisonment (s287(1) CPA); cumulative direct imprisonment plus fine with default term can be constitutionally disproportionate (s12(1)(e)); sentencing considerations — quantity, prior convictions, motive, ability to pay; suspension to mitigate.
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18 November 2010 |
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Reported
An owner (the applicant) has standing to sue for collision damages even if an insurer or trust bears the risk.
Delict/Aquilian actions – locus standi – ownership of vehicle sufficient to sue for patrimonial loss despite insurer/other bearing contractual risk; subrogation collateral and need not be pleaded.
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12 November 2010 |
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Reported
Section 35 suspensions/disqualifications are automatic on conviction and may be invoked by the court mero motu.
National Road Traffic Act s35 – automatic suspension/disqualification on conviction – duty to notify accused under s35(4) – court may invoke s35 mero motu – discretionary relief under s35(3) – authority: S v Botha, S v Wilson, S v Louw.
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12 November 2010 |
| October 2010 |
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Convictions set aside where refusal to produce exhibits, denial of defence testimony, and inadequate identification undermined a fair trial.
Criminal law – Conservation and Trespass charges – unlawful gathering and possession of specially protected plants; chain of custody and species identification required for conviction. Fair trial – right to adduce and challenge evidence (s25(d) Constitution) – court must permit production of exhibits or satisfactorily explain refusal. Evidence procedure – oath, affirmation or admonition (s164) – conditional refusal to take oath does not automatically bar testimony. Legal representation – failure to appoint counsel where indicated may vitiate proceedings. Interpretation – language/interpreter failures can undermine proof and fairness.
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1 October 2010 |
| September 2010 |
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Appellant's life sentence upheld: CLAA omission not fatal; premeditation and active participation outweighed caregiver mitigation.
Criminal law – sentencing – application of Criminal Law Amendment Act (Schedule 2) where indictment omits reference; Legoa exception; procedural irregularity and failure of justice; appellate interference only for shockingly inappropriate sentence or material misdirection; sentencing weight of premeditation, economic motive and caregiver status; welfare measures for minor children of sentenced offender.
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23 September 2010 |
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Accuseds' alibis rejected; identification upheld — convictions for two rapes and theft; robbery as charged not proven.
Criminal law – identification evidence – prior acquaintance, lighting, clothing, voice and proximity may sustain identification despite some darkness. Criminal law – alibi – late, vague or uncorroborated alibi may be rejected as recent fabrication; accused's silence at plea does not preclude assessment but may reduce alibi weight. Criminal procedure – robbery versus theft – where robbery is not fully proved, competent verdicts under section 260 CPA may limit conviction to theft; court may not invent additional competent verdicts. Criminal law – common purpose – co-perpetrators can be convicted for crimes committed in concert (rape and theft).
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23 September 2010 |
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Reported
Children’s courts do not have jurisdiction to grant guardianship; the High Court has exclusive guardianship jurisdiction pending family courts.
Children’s Act — Jurisdiction to grant guardianship — Section 24(1) requires High Court application — Section 29 addresses territorial jurisdiction and does not confer jurisdiction on children’s courts to grant guardianship — Section 45(3) confirms High Court exclusivity pending family courts — potential ambiguity as to Divorce Court jurisdiction.
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17 September 2010 |
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s 51(2)'s "not less than" prescribes a sentencing range, not a single minimum, so exceeding the lower bound needs no special procedure.
Criminal law – Minimum sentencing legislation – s 51(2) Criminal Law Amendment Act – "imprisonment for a period not less than" construed as prescribing a range of sentences, not a single prescribed minimum; departures downward controlled by s 51(3)(a) (substantial and compelling circumstances); S v Mbatha approach criticised.
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17 September 2010 |
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Appellant’s self-defence rejected; conviction and 18-year sentence under minimum-sentence regime upheld.
• Criminal law – murder – claim of self-defence – assessment of credibility, contradictions and medical evidence; • Evidence – multiple gunshot wounds and blunt-force injuries inconsistent with accused’s version; • Sentencing – minimum-sentence regime (Criminal Law Amendment Act) – role of statutory minimum; • Sentencing procedure – whether defence must be warned if a sentence above statutory minimum is contemplated; • Appeal – interference with sentence only for material misdirection or startling inappropriateness.
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17 September 2010 |
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Reported
A non‑creditor alleging ownership of assets sold in liquidation may be an "aggrieved person" entitled to review the Master’s decision.
Insolvency/Companies law – Review of Master’s decision under s151 Insolvency Act and s407(4)(a) Companies Act – "person aggrieved" and locus standi – Distinction between proving claims under s44(1) Insolvency Act and standing to seek review – Master’s inability to determine disputed facts administratively – Court’s power to hear fresh evidence and decide de novo.
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15 September 2010 |
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Reported
Applicant’s guilty pleas held voluntary; counsel’s strong advice and threat to withdraw did not vitiate the pleas.
Criminal procedure – plea – voluntariness of guilty plea – adequacy of advice by counsel and accused’s informed choice. Counsel conduct – strong advice and withdrawal threat – not automatically irregular if accused retains ultimate choice. Review – setting aside conviction – applicant must prove irregularity on a balance of probabilities. Section 112(2) plea explanation and court questioning relevant to establishing voluntariness.
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10 September 2010 |
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Appellant’s murder conviction set aside: lies and circumstantial inferences insufficient to prove common purpose to kill.
Criminal law – participation and common purpose – conviction for murder requires proof of intention/dolus to kill or foresight by co-offenders; mere presence insufficient. Circumstantial evidence – inferential reasoning permissible but each inference must be grounded in objective proved facts and exclude reasonable alternative inferences (Caswell; Blom). Untruthful testimony – an accused’s lies cannot, by themselves, supply missing proof of guilt or be used as punishment for mendacity.
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10 September 2010 |
| August 2010 |
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Reported
Synthetic hockey turf’s essential character as sports equipment warranted classification under tariff heading 95.06/9506.99, not as a carpet.
Customs and Excise – tariff classification – Harmonized System and Explanatory Notes – Schedule interpretation – primacy of headings and notes; use of Rules 3 and 4. Classification principle – objective characteristics and principal function of goods at importation; limited relevance of purpose/design where wording permits. Sports equipment – artificial turf for hockey held to be sporting equipment (heading 95.06/9506.99), not textile carpet (heading 57.03/5703.30). Admissibility and weight of expert evidence in determining technical function and essential character.
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31 August 2010 |
| July 2010 |
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Convictions overturned where contradictory prosecution evidence and misapplication of burden and cautionary rule rendered trial unfair.
Criminal law – robbery – insufficiency of prosecution evidence – contradictions and inconsistencies; burden of proof and cautionary rule misapplied; identification and corroboration issues; trial fairness undermined by magistrate's conduct; convictions and sentences set aside
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16 July 2010 |
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Failure to caution a suspect under Judges' Rules does not automatically require exclusion of evidence if guilt is otherwise proven.
Criminal law – admissibility of production/pointing-out evidence; suspects’ rights – scope of Section 35 vs Judges’ Rules; improperly obtained evidence – discretion to admit; warrantless searches under s22(b) Criminal Procedure Act; proof of possession and constructive control.
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7 July 2010 |
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An insured plaintiff cannot recover fully indemnified repair costs without pleading subrogation; the insurer holds the recovery right.
Motor vehicle collision; insurance indemnity and subrogation; prohibition of double recovery; requirement to plead subrogation; insured’s entitlement to recover excess only.
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6 July 2010 |
| June 2010 |
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A confiscation order requires the convicted defendant to bear curator fees only for his restrained assets, not those of acquitted persons.
POCA – confiscation orders (s18) – scope and effect – confiscation order binds only as to convicted defendant’s property; curator’s fees recoverable only in respect of that defendant’s restrained assets. Restraint orders and curatorship (s28) – where no confiscation order is made the State bears curator fees as indicated by the Master and Regulations. Interpretation – clear, unambiguous statutory orders cannot be varied by extraneous negotiations or consent alleged to exist outside statutory framework. Procedure – motion proceedings decided on affidavits; alleged factual disputes do not automatically require oral evidence in the absence of triable issues. Counter-application – variation to include acquitted persons’ assets would be ultra vires POCA and procedurally barred where convictions cannot now be obtained.
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10 June 2010 |
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Reported
A conviction based on an untested mentally ill complainant and a misdirected burden of proof was set aside.
Criminal law – competence of witnesses – mentally disordered witnesses – s 194 Criminal Procedure Act – competence requires inquiry/psychiatric evidence or proper in‑court assessment; lucid interval cannot be assumed from a J88 alone. Evidence – dangers of hallucination/delusion when relying on testimony of long-term psychiatric patient; trial court must appreciate risks. Burden of proof – accused has no onus to prove innocence on balance of probabilities; misdirection vitiates conviction.
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1 June 2010 |
| May 2010 |
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Reported
Jaftha’s judicial-oversight reading-in applies only where execution affects a debtor’s home and s 26(1) is engaged.
Constitutional law – execution against immovable property – s 66(1)(a) Magistrates’ Courts Act – Jaftha remedy of reading-in requiring judicial oversight limited to cases where execution affects debtor’s home and s 26(1) right to access adequate housing. Reading-in as remedy – must be narrowly tailored to the constitutional defect and respect separation of powers. Sale in execution – validity where property is not debtor’s home and s 26(1) not engaged.
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21 May 2010 |
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Reported
A private prosecutor may withdraw and re‑institute charges; repeated withdrawals are abusive only in clear improper‑purpose cases.
Criminal procedure — ESTA s23 private prosecutions; Private prosecutor’s right to withdraw and to re‑institute proceedings; Abuse of process — repeated withdrawals; Right to fair and speedy trial — delay and prejudice considered under s35(3) Constitution.
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4 May 2010 |
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Reported
Summary judgment dismissed because supporting affidavit lacked personal knowledge and was ambiguous as to the defendants sued.
Summary judgment – Rule 32(2) affidavit must be by applicant or person with personal/direct knowledge; affidavits founded solely on perusal of cedent's documents are hearsay and defective; ambiguity as to which defendant is targeted (singular vs plural) is fatal; procedural defects cannot be cured merely because respondent addresses merits.
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4 May 2010 |
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Applicant’s cumulative mitigating circumstances qualified as substantial and compelling, reducing the prescribed life sentence to 20 years.
Criminal law — Sentencing — Minimum prescribed sentences — s 51 Criminal Law Amendment Act — application of Malgas determinative test — prescribed life sentence not assumed proportionate a priori. Sentencing — Substantial and compelling circumstances — cumulative effect of youth, first offender status, dependants and employment history can justify departure from prescribed sentence. Sentencing — Individual deterrence and rehabilitation — consideration of totality of offender’s circumstances.
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4 May 2010 |
| April 2010 |
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Reported
Whether a defective garnishee order or transfer of trust funds lawfully displaced a co-owner’s entitlement to sale proceeds.
Maintenance law – garnishee/attachment – validity of garnishee order – wrong description of debtor and failure to effect attachment under s 26/30 of the Maintenance Act. Trust law – attorneys' duty in respect of trust money – trust creditor entitlements and liability of attorneys. Civil procedure – allocation of liability between successive law firms where trust funds transferred upon change of employment/firm.
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26 April 2010 |
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Appeal against life sentence dismissed: CLAA applicable, omission to formally cite it not fatal; appellant was active participant.
Criminal law – Sentencing – Application of Criminal Law Amendment Act (Schedule 2) where murder was planned/premeditated and committed in furtherance of common purpose; omission to refer expressly to CLAA in indictment does not automatically vitiate sentence where facts gave notice; procedural irregularity and ‘‘failure of justice’’ tests; role of caregiver not always substantial and compelling; appellate review of sentence confined to material misdirection or shockingly inappropriate outcome; court-ordered social services for minor children.
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23 April 2010 |
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Invocation of s 51(1) without timely notice renders sentence substantively unfair; sentence must be reconsidered (life imposed).
Criminal law – Minimum sentencing (Criminal Law Amendment Act s 51) – Requirement of timely, substantive notice by State that minimum-sentence regime will be invoked; legal representation not a substitute for such notice; failure to give notice = material misdirection rendering sentence unfair; sentencing to be reconsidered without reference to the Act.
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23 April 2010 |
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Appellant’s conduct (fetching, dragging, returning victim) established accomplice liability; conviction and sentence upheld.
Criminal law – Accomplice liability – acts which facilitate, encourage or assist commission of rape – knowledge and intentional association required; corroboration and credibility of complainant’s evidence; failure to call alibi/witnesses. Sentence – consideration of personal circumstances and first‑offender status – discretionary range and proportionality.
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6 April 2010 |
| March 2010 |
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Appeal upheld where incomplete record, s 309B non‑compliance and misdirected evaluation of child complainant evidence undermined conviction.
Criminal law – appeal against conviction – incomplete trial record and failure to reconstruct – non‑compliance with s 309B(3) (leave to appeal without recorded grounds) – assessment of single child complainant evidence and medical evidence – misdirection by trial court – conviction set aside; referral to Magistrates’ Commission.
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30 March 2010 |
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Summary judgment set aside where plaintiff failed to verify a complete cause of action due to unproved suspensive conditions.
Civil procedure — Summary judgment — plaintiff must verify a complete cause of action — cause must appear ex facie summons and affidavit; court has discretion to refuse summary judgment where cause incomplete. Contract — "subject to" clauses — suspensive conditions (due diligence approval; franchisor approval) suspend contractual obligations until fulfilled. Restitution/condictio — claimant must prove absence of valid causa; underlying contract terms and fulfilment of suspensive conditions may be essential to such claims. Defence — rectification/common mistake — defendant’s affidavit may disclose bona fide defence despite non-variation clause.
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26 March 2010 |
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Reported
A 30‑day payment term for full purchase price did not render sale agreements credit agreements under the National Credit Act.
National Credit Act — classification of agreement under s8(1),(3),(4),(5) — whether sale agreements with full purchase price payable within 30 days constitute credit facility or credit transaction; deferral of payment; requirement to register as credit provider; suretyship as credit guarantee.
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19 March 2010 |
| January 2010 |
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A court found respondent vicariously liable after paramedics’ negligent scene treatment probably caused the applicant’s HIV infection.
Delict — negligence by emergency medical personnel — failure to follow infection‑control protocols at accident scene; foreseeable risk of cross‑contamination. Causation — factual and legal causation assessed on balance of probabilities; flexible policy‑based approach. Expert evidence — conflicting virology opinion on HIV survivability and window period; court weighs probabilities. Vicarious liability — employer liable for employees’ negligent acts in course of employment.
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20 January 2010 |