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Citation
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Judgment date
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| May 2023 |
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SIU entitled to intervene in pending recovery action to protect state’s financial interests; costs awarded against SIU for delay.
Administrative law / statutory bodies – Special Investigating Unit – statutory mandate to investigate and institute civil proceedings to recover or prevent losses to state institutions – locus standi to intervene in pending proceedings. Civil procedure – Rule 12 intervention – permissive construction; direct and substantial interest as sufficient ground for joinder; intervention as co‑defendant to pursue counterclaim. Procedural fairness – late intervention and prejudice – delay alone does not automatically bar intervention; costs may address prejudice.
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3 May 2023 |
| April 2023 |
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Advocate found dishonest over R75,000 trust funds; explanations rejected and rule nisi confirmed, leading to striking off.
Professional discipline – Advocate misconduct – misappropriation of client trust funds; improper retention of trust money in business account; credibility of explanation (alleged robbery) – dishonesty – fitness to practise – striking off where no exceptional circumstances justify suspension.
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28 April 2023 |
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Applicant failed to show a real risk of consolidation of unrelated municipal accounts to justify an interdict against water disconnection.
Municipal law; interim interdict — requirement of well‑grounded apprehension of irreparable harm; consolidation of municipal accounts — limits where accounts relate to different properties and different persons; statutory alternative remedy — s102 Municipal Systems Act (consumer dispute prevents consolidation).
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26 April 2023 |
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Finance company entitled to enforce rental agreement and claim repayment; exclusion clauses and exceptio non adimpleti contractus rejected.
Contract law – hire/finance agreements – exclusion clauses precluding withholding payment or cancellation for defects – enforceability and public policy; exceptio non adimpleti contractus – inapplicable where financier has performed by payment; financier liability – financier not liable for supplier’s defective performance; partnerships – partners may be sued in capacity as partners; Consumer Protection Act – turnover threshold.
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25 April 2023 |
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A retrenchment payment received during marriage is part of the joint estate; pension shares are valued as at divorce.
Matrimonial property – community of property – retrenchment lump sum received during marriage forms part of the joint estate; Pension law – pension interest deemed part of joint estate on divorce – statutory apportionment under Pension Funds Act and Government Employees Pension Law – valuation as at date of divorce, not date of separation.
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21 April 2023 |
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Interim interdict dismissed because the applicant unreasonably delayed PAJA review and failed to establish entitlement to condonation.
Administrative law – PAJA s 3(2)(b) procedural fairness – public participation in disposal of municipal land; PAJA s 7(1) and condonation – 180‑day rule and unreasonable delay; Environmental law – NEMA s 28 duty of care and s 32 standing; Interim relief – requirements for interdict and effect of unexplained delay on prima facie right; Costs – application of Biowatch principle in constitutional/environmental litigation.
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19 April 2023 |
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Reported
A departmental circular cannot override the Act; uncontradicted medical evidence entitled the applicant to 100% disablement.
Compensation law – PTSD – departmental circular (Circular Instruction 172) is not binding and cannot override the Act; Schedule 2 Item 6 (‘any other injury causing permanent total disablement’) includes PTSD proven to cause total disablement; tribunal must give reasons and exercise inquisitorial function; award of 39% set aside and substituted with 100% permanent disablement.
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14 April 2023 |
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Rule 45 execution improperly used to seize funds for Rule 43 maintenance arrears; interim attachment confirmed and costs awarded to applicant.
Civil procedure – execution under Uniform Rule 45 – competence of Rule 45(12)(a) to collect Rule 43 (pendente lite) maintenance arrears – procedural requirements of Rule 45(3) – improper attachment where no judgment amount exists – appropriate remedy for non‑payment of Rule 43 orders is contempt proceedings.
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14 April 2023 |
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Sureties not discharged where loan advanced without new security; deeds permitted non-provision and certificate of balance upheld.
Banking law – suretyship – effect of creditor advancing loan without obtaining agreed additional security – deeds allowing creditor to release or not obtain future security; contractual interpretation – condition precedent versus term; acquiescence; certificate of balance as prima facie proof; costs on attorney-and-client scale.
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12 April 2023 |
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Whether the respondent’s CEO appointment was indefinite or ended with the Board’s term; court held it ended and counterclaim failed.
Contract interpretation – unitary contextual approach (Endumeni) and admissibility of extrinsic evidence; Employment law – construction of dual Executive Chairperson/CEO role; effluxion of time versus indefinite appointment; repudiation of contract by employee and acceptance by employer; remedies — repayment of overpaid salary, interest and costs.
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11 April 2023 |
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Applicants failed to prove permanent tenancy or urgency; affixed notice sufficed and urgent reconnection was refused.
Administrative law – procedural fairness in municipal service disconnection – applicability of Joseph to tenants; Civil procedure – urgency (Uniform Rule 6(12)) and self-created urgency; Notice – affixing disconnection notice to premises sufficient for temporary/commercial occupants; Uniform Rule 7 – substantial compliance with proof of mandate.
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4 April 2023 |
| March 2023 |
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Business rescue ends when a proposed plan is rejected; practitioner may not unilaterally amend the plan after a rejected binding offer.
Companies Act – Business rescue – s132(2)(c)(i) (termination where plan proposed and rejected) – s151–153 (consideration of plan; failure to adopt; binding offers to purchase voting interests) – Interpretation of s153(4): adjournment to make "necessary revisions" only to reflect accepted offers; practitioner may not unilaterally make substantive amendments after rejected offers – acts ultra vires and void – provisional winding-up and personal costs against practitioner.
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29 March 2023 |
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Statutory demand in terms of section 345(1)(a) and an enforceable acceleration clause warranted provisional winding-up; respondent raised no bona fide defence.
Companies law – statutory demand – section 345(1)(a) Companies Act 61 of 1973 – deemed inability to pay debts. Evidence – certificate of balance and loan agreement as prima facie proof of indebtedness. Contract – acceleration clause – definition of 'Relevant Party' includes borrower. Procedure – misdescription of statutory provision in affidavit not fatal where demand itself complies in substance. Liquidation – requirement of bona fide defence to resist provisional winding-up.
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27 March 2023 |
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Applicant obtained enforcement of a six‑month restraint to prevent a senior ex‑employee joining a direct competitor.
Restraint of trade – validity and enforceability – employee signed employment contract containing confidentiality and 6‑month restraint clause. Protectable interest – senior/management access to confidential financials, order books, pricing, forecasts and customer information. Threat to interest – employment with direct competitor creates inevitable risk of disclosure; enforcement requires risk, not proof of actual misuse. Public policy – six‑month restraint reasonable and not contrary to public policy; onus on respondent to prove otherwise. Remedies – mandatory interdict enforcing restraint and preventing competitor from employing employee; costs to successful applicant.
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24 March 2023 |
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Appellate court found identification evidence unsafe and an inadmissible warning statement, setting aside convictions and sentences.
Criminal law – Identification evidence – single witness identification in poor lighting and inconsistencies requires caution and may render conviction unsafe. Evidence – Admission of confession/warning statements – statements to non‑commissioned officers inadmissible under s217(1)(a) CPA unless admissibility proved. Appeals – Incomplete appeal record/reconstruction – defects not necessarily fatal where material for appellate determination exists. Appellate jurisdiction – Court may exercise inherent power to set aside related convictions to prevent injustice where leave to appeal was not timely pursued.
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24 March 2023 |
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Owners ordered to demolish unlawful structures, stop vehicle‑repair activities, remediate pollution and pay costs.
Building law – s12 Building Act – dilapidated/unapproved structures; Environmental law – NEMA owner’s duty to remediate pollution; Land‑use/zoning – INLI2 light‑industry uses and prohibited informal vehicle repairs; Civil procedure – Plascon‑Evans/Wightman test for disputes of fact on affidavit; Remedies – interdict, demolition, remediation and costs (authorisation to enter and recover costs).
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17 March 2023 |
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Executor not obliged to obtain occupancy certificate after transfer; purchaser in possession must pursue statutory or contractual remedies.
Property law – sale of immovable property from deceased estate – vacant possession and certificate of occupancy – s 14 National Building Regulations – voetstoots clause – executor’s duties and standing – remedies for statutory non‑compliance.
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17 March 2023 |
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Court stayed proceedings in favour of London arbitration under English law and LMAA rules; costs reserved.
Arbitration – Agreement to arbitrate – forum selection for disputes under commercial contracts – London arbitration under English law and LMAA rules. Stay of court proceedings – disputes subject to arbitration – court should stay matters appropriately referred to arbitration. Contractual disputes – repudiation, entitlement to return of goods and settlement payments not determinable on papers where arbitration clause applies.
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16 March 2023 |
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Valuation appeal board’s failure to fairly hear and justify decisions vitiated property valuations; appeals must be reheard de novo.
Municipal property rates – valuation and appeals – market value determined under MPRA s46 & s45; appeal board must determine appeals de novo and may not predetermine or shift onus. Administrative law – PAJA reasons and time limits – failure to furnish reasons suspends running of 180‑day review period; condonation where appropriate. Procedural fairness – appeal board must adopt fair, published procedures, afford hearings, consider relevant evidence and may not rely on arbitrary contingencies. Review grounds – error of law, irrationality, procedural unfairness and failure to perform statutory function vitiate valuation decisions.
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15 March 2023 |
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Reported
Court dismissed applicants' review: suspensions were lis pendens, forensic report not PAJA administrative action, strike-out granted.
Labour law – precautionary suspension – no prior right to make representations before suspension; Disciplinary procedure – sixty-day time period and interruption by COVID-19 lockdown; Administrative law – investigatory forensic report compiled under contract not administrative action under PAJA; Civil procedure – lis pendens bars duplicative litigation; Practice – unopposed strike-out under Rule 6(15).
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10 March 2023 |
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Appeal upheld: summary judgment set aside where respondent failed to verify and proved an unliquidated, excipiable claim.
Civil procedure — Summary judgment — compliance with Magistrates' Courts Rule 14(2)(b)/Uniform Rule 32 — verification requirements and sufficiency of supporting affidavit; Pleadings — particulars of claim excipiable where vague, contradictory or lacking particularity; Liquidated claim — claim must be based on an agreed or readily calculable sum; Legal costs — untaxed or unagreed legal costs cannot be treated as a liquidated component without taxation or agreement; Points in limine — may be raised at hearing but opposing party should be afforded reasonable opportunity to prepare (adjournment); Service and filing — delivery requires both service and filing and timing must be proved.
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10 March 2023 |
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The applicant awarded R1,398,567.12 for lifelong right‑elbow injury after the court fixed general damages and contingency deductions.
• Personal injury – assessment of general damages for permanent upper‑limb impairment and early post‑traumatic osteoarthritis
• Future loss of earnings – use of actuarial calculations and contingency deductions (premorbid and post‑morbid)
• Evidence – reliance on joint expert reports/minutes where parties agree no viva voce evidence will be led
• Judicial discretion – courts determine contingency rates within acceptable range and by reference to circumstances and comparable awards
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9 March 2023 |
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Leave to appeal refused: applicants failed to show reasonable prospects of success under s 17; settlement did not bar future lease claims.
Leave to appeal – Superior Courts Act s 17 – heightened threshold: appeal must ‘would have a reasonable prospect of success’; settlement agreements – not a novation unless expressly so; addendum alters quantum but does not bar future claims under ongoing contract; certificate of balance – exclude improperly included legal costs and rely on corrected calculation; locus standi – acquisition does not ipso facto extinguish legal personality.
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9 March 2023 |
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Electronic agreement valid; defendant failed to raise bona fide defence; summary judgment and vehicle recovery granted.
Electronic contracts – Electronic Communications and Transactions Act s13(3) – electronic method of acceptance (one‑time PIN, webpage confirmations, watermark) validly constituting an electronic signature. Summary judgment – requirement to disclose bona fide defence – Uniform Rule 32(3)(b) – denials must be supported by material facts. Supervening impossibility (vis major/casus fortuitus) – must be particularised with dates and facts; vague assertions (stabbings, COVID‑19) insufficient. Certificate of balance – where agreement so provides, constitutes prima facie proof of indebtedness. Relief – confirmation of termination, recovery of vehicle, attorney‑and‑client costs, leave to apply for damages (Davel compliance).
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7 March 2023 |
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Application to declare a primary residence executable dismissed for lack of a recent valuation and no demonstrable benefit to the creditor.
Rule 46A – execution against primary residence – compliance with Rule 46A and requirement of a recent valuation; suretyship judgments; effect of prior bond on benefit to judgment creditor; alternative remedy: Magistrates’ Courts Act section 65 interrogation.
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3 March 2023 |
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Customary marriage valid despite incomplete lobolo or absent formal bride‑transfer where parties consented and cohabited; registration ordered.
Customary marriage — Recognition of Marriages Act s 3(1) — consent and customary negotiation/celebration; lobolo — part payment/waiver sufficient; bride‑handing over not essential where parties consent and cohabit; bare denials insufficient to establish real dispute of fact; order directing registration and issue of s 4(8) certificate.
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3 March 2023 |
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An 'Affidavit' documenting a family property agreement was not the deceased's will under section 2(3) of the Wills Act.
Wills Act s2(3) — testamentary intention — document titled "Affidavit" — contractual property arrangement vs testamentary disposition — admissibility under s2(3) — requirement of clear, certain intention; administration of estate and claims; costs ordered as estate costs.
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3 March 2023 |
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Leave to appeal refused; special voting rules in a mixed‑use sectional scheme not shown to be unlawful or reasonably appealable.
Civil procedure – leave to appeal – section 17 Superior Courts Act – elevated threshold: reasonable prospect of success or compelling reasons required. Sectional titles – mixed‑use schemes – special rules allocating voting rights – not per se unconstitutional or discriminatory; courts cautious about rewriting rules forming contractual arrangements among owners. Administrative law – appeal from Ombud – factual disputes (knowledge of rules, unequal application, alleged conflicts) are not determinative on appeal on points of law.
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3 March 2023 |
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Whether a s30P wide appeal applies and whether withholding benefits under s37D was lawful.
Pension law – s30P appeal to High Court – appeal in the wide sense; Pension law – s37D(1)(b)(ii) – withholding benefits permissible where trustees satisfied of a prima facie case; Adjudicator’s determinations judicial and equivalent to civil judgments; FSRA s230 reconsideration does not oust s30P; Procedural fairness – multiple opportunities to be heard required but failure to avail oneself may justify withholding.
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3 March 2023 |
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Provisional sequestration granted where creditor proved claim and 'without prejudice' settlement constituted an act of insolvency.
Insolvency law – Sequestration – Provisional sequestration test under s 10 and final under s 12 of Insolvency Act. Acts of insolvency – s 8(e), s 8(g) and s 8(b) – settlement offers and sheriff's return. Admissibility – 'without prejudice' settlement offers admissible as admissions of insolvency in sequestration proceedings. Concursus creditorum and public interest justify admission of privileged settlement communications.
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2 March 2023 |
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Exception for vagueness dismissed; pleadings adequately pleaded zincalume specification and quantified damages.
Civil procedure – exception for vagueness and embarrassment – Uniform Rules 18(4), 18(6) and 18(10) – pleadings to be read as whole – requirement to plead contractual specifications (zincalume) – quantification of damages – prejudice as test for exception.
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1 March 2023 |
| February 2023 |
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Leave to appeal refused where challenge to traditional leadership lacked reasonable prospects and male-line primogeniture was upheld.
Leave to appeal — section 17(1)(a) Superior Courts Act — requirement of reasonable prospects of success or compelling reasons; review of recognition of traditional leader; customary succession — male-line primogeniture through eldest son and male progeny; costs including senior counsel.
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28 February 2023 |
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Appellate court ordered concurrency where trial court failed to consider cumulative effect of linked offences' sentences.
Criminal law – Sentencing – Consecutive versus concurrent sentences – Duty to consider cumulative effect under s280 of the Criminal Procedure Act – When offences are inextricably linked, concurrency may be warranted. Appeal – Interference with sentence – Appellate restraint per S v Rabie; intervention justified where material misdirection in sentencing. Authorities: S v Mokela; S v Rabie; S v Kgosimore; S v Hewitt.
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24 February 2023 |
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Appeal against sentence dismissed; trial court validly departed from minimum sentences based on substantial and compelling circumstances.
Criminal law – sentencing – appellate review of sentence – interference only for misdirection or startling disparity; Minimum sentences – departure permitted where substantial and compelling circumstances exist; Evidence – substantial admissions (including s220) and personal circumstances relevant to mitigation; Sentencing principles – balance between offence, offender and society, and consideration of rehabilitation.
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24 February 2023 |
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Award set aside where tender criteria and experience‑scoring methodology were unclear, rendering procurement process unconstitutional.
Procurement law; constitutional duty under s217(1) — requirement for fair, equitable, transparent, competitive and cost‑effective tender processes; clarity and precision of tender invitations; functionality criteria and computation of key personnel experience; reviewability of arbitrary or unexplained scoring; remedial relief — setting aside award and re‑advertisement.
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22 February 2023 |
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Accused convicted of murder sentenced to 20 years; no substantial and compelling circumstances to reduce statutory minimum.
Criminal law – Sentencing – Murder – Application of ubuntu in sentencing; Minimum sentences – s 51(2) Criminal Law Amendment Act 105 of 1997 (Part II, Schedule 2); Substantial and compelling circumstances – meaning and application (S v Malgas); Remorse and personal circumstances – weight in mitigation (S v Matyityi); Firearms Control Act s 103(1) – determination and declaration of unfitness to possess a firearm.
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17 February 2023 |
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Acquittal on rape/robbery for lack of identification/DNA; convicted of murder on circumstantial evidence, confession and false alibi.
Criminal procedure – section 174 application – discharge where no evidence implicates accused. Identification and forensic evidence – absence of DNA can create reasonable doubt in sexual offence prosecutions. Circumstantial evidence and inferences – conviction for murder may rest on admissions, conduct, possession of keys, disposal of body and false alibi. Accomplice/section 204 witnesses – cautionary approach; corroboration and consistency with independent evidence. Administrative criticism – failure by police/laboratory to provide timely DNA analysis undermines prosecutions and victims’ rights.
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15 February 2023 |
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Applicant’s urgent PAJA application struck off for lack of urgency; delay was self‑created, so interim stay refused.
Administrative law – PAJA review – urgency – applicant’s delay after internal appeal; urgency self‑created. Interim interdict – stay of tender pending review – requirement to proceed promptly and explain delay. Civil procedure – High Court application rules applicable to PAJA proceedings regarding urgency and interim relief.
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6 February 2023 |
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Eviction granted where purchaser’s agreement was validly cancelled for non-payment and alleged improvement lien unproven.
Sale agreement cancelled for non-compliance – failure to pay deposit and furnish bank guarantee; unlawful occupation after cancellation; improvement lien/right of retention requires proof of lawful possession, necessity/usefulness, proof of expenses and absence of contractual arrangements; insufficiency of unparticularised allegations of improvements; referral for oral evidence unnecessary where no material factual disputes.
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3 February 2023 |
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A s112(2) plea must expressly admit unlawfulness and intent; otherwise conviction cannot be based on inferred mens rea.
Criminal procedure — Section 112(2) s112(1)(b) — admissible facts versus legal conclusions — admissions must cover actus reus, mens rea and unlawfulness; intent cannot be inferred from admitted acts alone — where s112(2) statement is insufficient, presiding officer must question accused further under s112(2) or change plea under s113.
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3 February 2023 |
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Reported
Failure to comply with section 93ter(1) (explain and record accused’s waiver of assessors) vitiates a murder conviction.
Criminal procedure – murder trial – section 93ter(1) Magistrates’ Courts Act – peremptory requirement to have two assessors unless accused requests otherwise – duty of judicial officer to personally explain, obtain and record accused’s informed election – indication by legal representative insufficient – non‑compliance vitiates conviction.
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3 February 2023 |
| January 2023 |
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Reported
Judge recused due to reasonable apprehension of bias arising from his prior findings about the prosecutor's alleged disclosure of medical information.
Recusal — reasonable apprehension of bias — test from SARFU — prior judicial findings on alleged disclosure of accused’s medical information — private prosecution of lead prosecutor — impact on prosecutor’s title to prosecute and fair trial rights.
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30 January 2023 |
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A guarantor must honor a compliant performance guarantee demand; underlying contractor–employer disputes do not defeat guarantor liability.
Performance guarantee – calling up – compliance with clause 5 requirements (statement of termination due to contractor's default and accompanying termination correspondence). Guarantor's obligation to honour a compliant demand – underlying dispute between contractor and employer irrelevant to guarantor's liability. Alleged fraud by beneficiary – must be clear, pleaded and evident to relieve guarantor of liability. Indemnity and suretyship enforcement – applicant entitled to judgment where demand complies and no bona fide defence is shown. Application decidable on papers where respondents do not raise a real, genuine dispute of fact.
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27 January 2023 |
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27 January 2023 |
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Leave to appeal refused where deleted lease clause and alleged reliance on the wrong contract did not show reasonable prospects of success.
Leave to appeal — section 17(1) Superior Courts Act — whether reasonable prospects of success — application of Premier Free State v Firechem — tender documents versus signed contract — effect of deleted lease clause on material terms — vacant possession and commencement of rental obligations.
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26 January 2023 |
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Insurer failed to prove non-disclosure of sawdust dump materially affected underwriting; insured awarded full claim, interest and costs.
Insurance — fire loss — origin of fire — sawdust/timber waste dump found to be origin on balance of probabilities; non-disclosure — materiality and inducement under s53 Short-term Insurance Act — insurer failed to prove non-disclosure materially affected underwriting; waiver/estoppel — insurer’s delay considered but did not excuse failure to prove materiality.
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26 January 2023 |
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24 January 2023 |
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Court upheld multiple particularity exceptions, ordered detailed amendments but dismissed attacks on enrichment and contract claims; amend within 20 days.
Civil procedure – exceptions to particulars of claim – vagueness and embarrassment – distinction between facta probanda (must be pleaded) and facta probantia (evidence) – particulars required for allegations of accounting manipulation, improper capitalisation and valuations – unjust enrichment and breach of contractual claim held competent – directors duties under s 76 of Companies Act may extend to subsidiaries in certain circumstances.
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23 January 2023 |
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20 January 2023 |
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Court awards primary residence to the respondent and school enrolment at her choice, with reasonable access to the applicant.
Family law – custody – primary residence of minor child – best interests paramount; urgency self‑created; Family Advocate and psychologist reports considered; unilateral enrollment viewed as stratagem; award of primary residence to mother; reasonable access to father; costs awarded to respondent.
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13 January 2023 |