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Citation
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Judgment date
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| December 2014 |
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Reported
Failure to invoke s93ter in a regional court murder trial is a fatal irregularity, vitiating convictions and sentences.
Criminal procedure – Magistrates' Courts Act s 93ter – assessors mandatory in regional court murder trials unless waived after proper explanation – magistrate retains discretion to summon assessors despite waiver; failure to invoke s 93ter is a fatal irregularity vitiating proceedings.* Record-keeping – trial record must reflect explanation to accused, election regarding assessors and the magistrate's consideration.* Case law – S v Naicker distinguished/overruled in this Division; Du Plessis, Khambule, Titus and others followed.
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9 December 2014 |
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Court permits use of official indigenous languages but warns against unilateral use absent policy and adequate transcription/translation structures.
Language in criminal proceedings – use of any official language permitted by Constitution and Magistrates’ Courts Act – accused’s right to understand proceedings, not to choose language – practical and logistical difficulties (legal terminology, dialects, transcription/translation delays) – need for Chief Justice guidance, policy and adequate transcription/translation structures before unilateral use by magistrates.
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9 December 2014 |
| November 2014 |
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Omission to specify Schedule 2 Part does not invalidate sentence where the applicant had timely notice and was not prejudiced.
Criminal law – Minimum sentencing (CLAA) – Schedule 2 Part 1 – sufficiency of charge-sheet particulars – whether omission to specify part vitiates proceedings – fair trial and prejudice – appellate interference with sentence.
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18 November 2014 |
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An antenuptial contract not registered before marriage cannot be registered under s 87(1); postnuptial relief requires s 88 and Ex Parte Lourens compliance.
Deeds Registries Act s 87(1) – scope limited to pre-marriage registration extensions; not a device for postnuptial change of matrimonial regime. Deeds Registries Act s 88 and Matrimonial Property Act – postnuptial registration procedure; must comply with Ex Parte Lourens practice directive (notice and advertising). Protection of creditors – requirement for disclosure and possible extrinsic corroboration to prevent abuse and fraud.
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4 November 2014 |
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Reported
House arrest is detention barred under s112(1)(a); conviction confirmed, sentence set aside and remitted for fresh sentencing.
Criminal procedure – s112(1)(a) pleas – Competence of sentence – House arrest constitutes a "form of detention without the option of a fine" and cannot be imposed under s112(1)(a); review under s304(1) assesses whether proceedings are "in accordance with justice"; remittal for resentencing where sentence inappropriate.
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4 November 2014 |
| July 2014 |
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Reported
Unfulfilled suspensive condition and lack of delivery defeat eviction and rent claims by the lessor.
Lease law – suspensive condition – where municipal clearances prevent intended use, suspensive condition effectively unfulfilled and lease obligations remain suspended (null ab initio). Delivery and possession – handing keys to a third-party tenant, with access only during limited hours, does not constitute free, undisturbed delivery of possession. Contract interpretation – warranty/disclaimer clause does not absolve lessor of duty to deliver premises fit for the leased purpose. Civil procedure – motion proceedings – respondent's denials were neither bald nor untenable; matter properly decided on the papers.
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1 July 2014 |
| June 2014 |
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Whether the roads authority negligently failed to warn the respondent adequately of a road closure, causing the collision.
Roads and delict – negligence and omissions – duty to warn road users of closures – foreseeability of reckless conduct by motorists – adequacy of signage and placement of barriers – causation and probabilities – apportionment of damages and appellate interference with trial court discretion.
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27 June 2014 |
| May 2014 |
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Applicant lacked locus standi and failed to join his trustee; application dismissed with costs.
Companies law – s 354 (stay or set-aside of winding-up) – applicant must be a liquidator, creditor or member with an "interest" to have locus standi.* Company membership – s 103 – registered membership and "interest" distinct from beneficial ownership; membership may vest in trustee upon sequestration.* Insolvency – sequestration vests estate in Master and trustee (Insolvency Act ss 20, 25, 129); rehabilitation does not defeat trustee’s rights to vested assets.* Civil procedure – non-joinder – trustee with direct and substantial interest must be joined; omission is fatal.
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28 May 2014 |
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Eviction orders were set aside because procedural non‑compliance with PIE and defective service caused gross prejudice to occupiers.
Land law – Eviction procedure – PIE s 4(1)–(5) – rule nisi as substantive eviction order – requirement for effective notice and service. Procedural law – Magistrates’ Court Rules (rule 55) – alignment with High Court practice for PIE matters – necessity to follow Cape Killarney/Ubunye procedure. Review – gross irregularity and prejudice – setting aside ex parte rule nisi and confirmed eviction orders. ESTA – possible applicability where occupiers had prior consent, but issue not determined due to failure to hear occupiers.
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23 May 2014 |
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Reported
An implied averment of prejudice suffices in fraud charges; company cannot lawfully authorize payments to a fictitious entity.
Criminal law – Fraud – essential averment of prejudice may be implied where facts permit fair inference; constitutional fair-trial/clarity requirements do not mandate express averment. Company law – a company cannot authorize unlawful disposals of its property; directors’ knowledge does not negate company inducement. Evidence – s 115/s 220 admissions are proof of admitted facts; credibility findings upheld.
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23 May 2014 |
| March 2014 |
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Late rescission application failed: applicant could not rebut sheriff’s return or justify the delay; rescission refused.
Civil procedure – rescission of default judgment – timeliness under Rule 42(1)(a) and comparison with Rule 31(2)(b) Civil procedure – return of service by sheriff prima facie evidence; burden on applicant to rebut Civil procedure – limited circumstances for ordering oral evidence under Rule 6(5)(g) Civil procedure – effect of abandonment of part of claim on existing High Court judgment Condonation – inadequate explanation for delay bars rescission
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31 March 2014 |
| January 2014 |
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Reported
An unregistered oral servitude cannot bind a purchaser unaware of it; registration is required to create a real right.
Property law – servitudes – distinction between personal, praedial and so-called public servitudes; real right of servitude arises only on registration; unregistered oral agreement does not bind a purchaser lacking knowledge; temporary private servitude distinct from municipal ‘street’ under s211 Local Authorities Ordinance; factual disputes not to be resolved on motion where credibility and knowledge are in issue.
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31 January 2014 |