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Citation
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Judgment date
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| November 2023 |
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Reported
Winding‑up refused where the respondent bona fide and reasonably disputed the indebtedness secured by the surety bond.
Companies law — winding‑up — application inappropriate where underlying debt is bona fide and reasonably disputed; prescription; validity and scope of suretyship and surety mortgage bond; agency/representative admissions; admission of pleadings from parallel civil action into record; Badenhorst rule applied.
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30 November 2023 |
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Arrest and detention were lawful: officer had reasonable suspicion under s40(1)(b) and detention complied with 48‑hour rule.
Civil procedure – stated case (Rule 33(1)) – arrest and detention – section 40(1)(b) CPA: reasonable suspicion for arrest without warrant for Schedule 1 offence – objective test for suspicion; Criminal procedure/Constitution – section 35(1)(d) (48-hour rule) and section 50(1)(d) – computation of 48 hours and first court day – lawfulness of detention; Discretion of arresting officer – rationality standard (Sekhotho).
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29 November 2023 |
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Leave to appeal granted on novel question: correct procedure after rescission of a section 58 consent judgment obtained ex parte.
Civil procedure – Magistrates’ Court – Section 58 consent judgment (acknowledgment of debt) obtained ex parte where no summons issued – rescission under Rule 49 – procedural consequences. Whether rescission renders a magistrate functus officio and whether mero motu orders to file a declaration may revive proceedings. Leave to appeal – section 17(1)(a) Superior Courts Act – novel point of law and reasonable prospects of success.
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27 November 2023 |
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Withholding contract proceeds as self-help is unlawful; court confirmed freeze and ordered immediate release of funds to applicant.
Civil procedure – rule nisi for preservation of funds – confirmation and immediate release of frozen bank funds; Contract – subcontractor entitlement to invoice proceeds; Self-help and set-off – unlawful withholding of payment; Principles of fairness, reasonableness and rule of law (Beadica; Chief Lesapo); Interim relief – preservation of applicant’s rights and prejudice from supplier demands.
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27 November 2023 |
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Attempted murder is not a competent verdict to robbery; conviction replaced with assault with intent to do grievous bodily harm and sentenced to four years.
Criminal procedure – review under s304(4) – conviction of an incompetent verdict (attempted murder on robbery charge) is a gross irregularity; s260 CPA – competent verdicts to robbery; s93ter MCA – assessors discretionary, not peremptory except for murder; sentencing afresh by appellate/review court; s103 Firearms Control Act – automatic declaration of unfitness; s282 CPA – antedating of sentence.
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24 November 2023 |
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Court awarded R1,277,143.50 for a minor’s brain injury, adjusted for pre‑existing vulnerability and secured via trust and s17 undertaking.
• Civil damages – Road Accident Fund – pediatric concussive brain injury on pre‑existing cognitive vulnerability – assessment of general damages and loss of earnings. • Civil procedure – Rule 42(1)(b) correction of clerical error in curatrix ad litem appointment; Rule 38(2) admission of expert reports on affidavit where no opposing experts. • Quantum – appropriate contingency/discount for loss of earnings increased due to pre‑existing vulnerabilities. • Protection of minor’s award – trust, trustee security, case manager, s17(4)(a) undertaking.
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22 November 2023 |
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Applicant failed to establish a liquidated accrual claim or standing for provisional sequestration; application dismissed with costs.
Insolvency law – provisional sequestration – jurisdictional requisites under sections 9 and 10 of Insolvency Act – requirement of prima facie liquidated claim; Matrimonial property – accrual determined at dissolution (MPA s3) except where s8 exception applies; valuation date and inclusion of liabilities essential to quantify accrual; failure to establish liquidated debt and lack of evidence of advantage to creditors fatal to sequestration.
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21 November 2023 |
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Appeal dismissed except to correct trial court’s misdirection by ordering multiple life sentences to run concurrently.
Criminal law – Sentencing – Multiple offences – Life sentences – Whether life sentences should run concurrently or consecutively; interplay of s280 Criminal Procedure Act and s39(2)(a) Correctional Services Act. Sentencing mitigation – Guilty plea and prior convictions – when guilty plea does not constitute substantial and compelling circumstances. Appeal – Interference with sentence – misdirection in structuring concurrent/consecutive life sentences.
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17 November 2023 |
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Leave to appeal refused: no reasonable prospect of success; court lacked jurisdiction over first two defendants; amendment irregular.
Defamation — jurisdiction — forum determined by proper connection to cause of action; reading of publication in forum does not alone vest jurisdiction; Superior Courts Act s17(1)(a) — elevated test for leave to appeal; Rule 28(5) — amendment filed outside ten-day period irregular; costs follow result.
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17 November 2023 |
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Leave to appeal granted because the accrual date for prescription of construction-defect claims raises reasonable prospects of success on appeal.
Prescription – accrual of debt – whether debt arose December 2016 or 5 October 2018; reasonable knowledge and postponement of accrual. Prescription Act s 12(3) – knowledge of facts from which debt arises and reasonable care (Mtokonya considered). Application for leave to appeal – s 17(1)(a) Superior Courts Act; test for reasonable prospects of success (Cook; Mkhita). Housing Consumer Protection Measures Act – relevance to builder liability and prescription issues.
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17 November 2023 |
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Reconsideration under Rule 6(12)(c) refused; court finds BAC unlawfully altered tender criteria and substitution justified.
Administrative law – Judicial review of tender awards – PAJA – section 8(1)(c)(ii)(aa) substitution versus remittal – exceptional circumstances required (Trencon). Rule 6(12)(c) – reconsideration of urgent orders granted in absence of a party. Tender evaluation – procedural fairness – alteration of evaluation criteria after BEC recommendation vitiates process. Test whether court is in as good a position as administrator (Gauteng Gambling Board).
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16 November 2023 |
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Leave to appeal refused where mandamus was vague, unenforceable and statutory intergovernmental dispute remedies were not exhausted.
Administrative law – intergovernmental disputes – payment claims between governmental entities – necessity to exhaust dispute-resolution procedures under the Intergovernmental Relations Framework Act; Civil procedure – leave to appeal – section 17(1)(a) Superior Courts Act – appeal must have reasonable prospects of success; Certainty of orders – mandamus must be sufficiently certain and enforceable.
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16 November 2023 |
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Leave to appeal granted where applicability and exhaustion of municipal internal remedies under section 62(1) raised arguable, conflicting issues.
Municipal law – review of tender award – internal remedies – applicability and exhaustion of appeal under s 62(1) Municipal Systems Act; delegation question (municipal manager v delegated authority); supply chain regulations and internal remedies; test for leave to appeal under s 17 Superior Courts Act; costs in leave applications.
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16 November 2023 |
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Leave to appeal refused where spoliation appeal grounds were vague, repetitive and lacked reasonable prospects of success.
Spoliation — leave to appeal — Superior Courts Act s17(1)(a) — grounds for leave must be clear, succinct and show reasonable prospects of success — vague/repetitive grounds fatal to leave — costs follow result.
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16 November 2023 |
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Proceedings set aside where an unadmitted person impersonated a legal practitioner, constituting a gross irregularity.
Criminal procedure – special review under s22(1)(c) Superior Courts Act – impersonation/appearance by unadmitted person – Legal Practice Act s33(1) – right to legal representation (s73 Criminal Procedure Act; s35 Constitution) – gross irregularity vitiating proceedings – referral to DPP for consideration of re‑instatement de novo.
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16 November 2023 |
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Specific performance granted for an unrefuted redetermination agreement after oral withdrawal of resignation and no rebuttal evidence.
Employment law – Specific performance of a redetermination/settlement agreement for a fixed-term Head of Department where resignation was orally withdrawn; oral agreement reduced to writing; formal consultation requirements held directory not fatal; failure to lead rebutting evidence entitles court to accept uncontradicted case; counterclaim for overpayment not proved.
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15 November 2023 |
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Court stayed writ and uplifted bank attachment pending leave to appeal, finding urgency and potential irreparable harm.
Urgency – Rule 6(12); Suspension of execution pending leave to appeal – s18 Superior Courts Act; Interlocutory vs final orders – effect and interests of justice; Review/stay of writs and attachments (Uniform Rule 45); Non-joinder; Authority of attorneys to act for municipality.
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14 November 2023 |
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Post‑plea withdrawal of a charge and calling for plea without disclosure violate fair-trial rules; incomplete trial set aside.
Criminal procedure – s 6 CPA – distinction between withdrawal of charge before plea (s 6(a)) and stopping prosecution after plea (s 6(b)). Constitutional right to a fair trial – s 35(3)(a) and (b) – right to be informed with sufficient detail and to have adequate time and facilities to prepare a defence; requirement of disclosure and opportunity to consult counsel. Gross irregularity – improper post-plea withdrawal and calling for plea without disclosure vitiate incomplete trial; review and setting aside; order for de novo trial.
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14 November 2023 |
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Failure to consider the applicant’s lengthy pre-trial detention vitiated sentence; appeal upheld and term reduced to 12 years.
Criminal law – sentence appeal – material misdirection where sentencing court failed to consider lengthy pre‑trial detention; period in custody is a factor in the proportionality assessment under minimum‑sentence legislation; appellate court entitled to sentence afresh where misdirection established; prosecutorial and judicial duty to raise appropriate charge/penalty provisions timeously.
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14 November 2023 |
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An exception alleging improper pleading of suspensive conditions fails where contract reasonably allows advancement before fulfilment.
Contract interpretation – suspensive conditions – whether suspensive conditions must be objectively fulfilled or may be waived; Availability Date permitting advancement before fulfilment; exception to particulars of claim for improper pleading.
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13 November 2023 |
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Leave to appeal refused where applicant was tax non‑compliant and transferred funds contrary to the PFMA and SLA; costs awarded.
Administrative law – judicial review – leave to appeal under s17 Superior Courts Act – reasonable prospect of success required; Public Finance Management Act and Service Level Agreement – transfer of public funds and account compliance; Tax compliance as precondition for funding; Costs – Biowatch distinguished; unsuccessful litigant against State liable for costs.
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9 November 2023 |
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Non-compliance with MPRA notice requirements did not vitiate appeal board’s valuation where the applicant suffered no prejudice and valuation dispute was a difference of opinion.
• Municipal rates law – MPRA s49(1) – mandatory notice/publication/service requirements; evidentiary proof of service.
• Administrative justice – prejudice requirement where statutory notice provisions not strictly complied with; exhaustion of internal remedies.
• Valuation disputes – admissibility and weight of expert reports; viva voce evidence vs hearsay; difference of opinion not necessarily reviewable.
• MPRA s45 and s46 – valuation methodology, comparables and treatment of unregistered leases challenged but not shown to render decision irrational.
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2 November 2023 |
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Conviction on s112(1)(b) plea set aside where scientific identity of drugs lacked s212 analysis and reliable foundation.
Criminal procedure — Plea in terms of s112(1)(b) — Scientific element of offence — Requirement to call section 212(4) analysis certificate and chain‑of‑custody evidence — Undefended accused’s admissions of unknown scientific facts — Proper drafting of charge identifying statutory/scientific substance.
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1 November 2023 |
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Conviction set aside where accused’s section 112(2) plea failed to admit essential elements of housebreaking.
Criminal procedure – Plea of guilty – section 112(2) CPA – court must be satisfied accused admits all elements of the offence before convicting; section 113 – correction of plea where doubt exists; judicial duty of magistrate to clarify possible defences; special review under section 304(4).
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1 November 2023 |