|
Citation
|
Judgment date
|
| November 1998 |
|
|
Reported
Purchaser was not a bona fide purchaser; consignor could not pass good title and owner is entitled to possession.
Property/Movables – possession v title – sale by agent/consignor – bona fide purchaser protection (Morum Bros) inapplicable where purchaser not in good faith. Evidence – affidavit disputes – importance of adequately dealing with contradictory factual allegations. Remedies – claim for recovery of movable and counter-application for possession; limitations on declaring ownership on limited papers.
|
27 November 1998 |
|
Disputes committee decisions of a medical scheme are final and binding; scheme management may not ignore them.
Medical schemes — disputes committee — power to determine disputes arising from administration and interpretation of rules — decision final and binding; management cannot ignore such decision but may appeal or seek review. Membership — continued/"retired" membership — validity of membership and entitlement to reinstatement; interpretation of amended rules (6.3 and 10.2) unnecessary where membership and disputes committee decision dispose of dispute.
|
27 November 1998 |
|
Reported
A prominent ticket-office disclaimer excluding liability, including for negligence, was incorporated and barred the respondents' delictual claim.
Contract law — incorporation of exclusion clauses by notice at ticket offices; Construction of disclaimer — exclusion of liability for negligence (including design/construction); Delict — whether cause of action falls within incorporated exclusion clause; Civil procedure — appealability of dismissal of a substantive defence independent of plaintiff's claim.
|
27 November 1998 |
|
Reported
Whether testamentary annuity payments were respondent's taxable receipts and whether related bond interest was deductible.
• Tax — Income tax — Whether testamentary annuity payments made by legatee are received by him in a fiduciary capacity (and therefore excluded from gross income) or are his own receipts. • Tax — Deductibility — Whether interest on bonds registered under a will to secure legacies is deductible under s11(a) read with s23(g). • Succession law — Distinction between modus and fideicommissum and its tax consequences. • Precedent — Application and limits of Holley v Commissioner.
|
27 November 1998 |
|
Reported
Rule 10 applies to defended and undefended actions and Rule 60(5) can extend and revive a lapsed summons.
Magistrates' Court Rules — Rule 10 (lapse of summons) — applicability to defended as well as undefended actions; Rule 60(5) — extension of 'any time limit prescribed by these rules' — power to extend twelve‑month period in Rule 10 and revive lapsed summons; meaning of 'lapse' as loss of legal efficacy.
|
27 November 1998 |
|
Reported
Vacancies must be filled at the AGM by the whole congregation; "represent" denotes origin, not sectional mandate.
Trust deed interpretation – trustees and vacancies – clauses 4(a), 4(b), 4(e) and 7 – meaning of "represent" – vacancies to be filled at AGM by whole congregation; no separate sectional electoral colleges; interim trustee appointments by remaining trustees valid until next AGM.
|
27 November 1998 |
|
Appellate court upholds trial credibility findings, adverse inference for plaintiff’s non‑testimony, and trial court’s costs discretion.
Delict — causation and negligence — irreconcilable eyewitness accounts — credibility assessment and adverse inference where plaintiff fails to testify despite prior sworn statement; Civil procedure — Rule 34(1) settlement offers and trial court’s discretion on costs — appellate interference only for irregularity or no reasonable basis.
|
27 November 1998 |
|
Reported
Whether a general synod could lawfully amend the church order to dissolve the church and transfer congregations' assets unilaterally.
Church law; constitutional amendment powers of voluntary associations; ultra vires acts by a General Synod; presbyterian governance; autonomy and property rights of local congregations; invalidity of unilateral dissolution and compulsory asset transfer by constitutional amendment.
|
27 November 1998 |
|
Reported
The Master may authorise s 415 examinations after an initial distribution; winding-up is not necessarily ended by payment under a confirmed account.
Companies Act – s 415(1) – examination at creditors’ meetings – "company which is being wound up" descriptive not time-limiting; s 417 comparison; winding-up not necessarily complete upon distribution; post-final accounts and subsequently discovered assets; Master’s powers to investigate preserved.
|
27 November 1998 |
|
Reported
Psychogenic automatism requires an extraordinary trigger; here objective conduct and absence of such trigger negated the defence.
Criminal law – automatism – psychogenic (non‑pathological) automatism requires an extraordinary emotional trigger; onus on State to prove voluntariness beyond reasonable doubt; objective conduct (aiming/firing multiple shots, avoidance behaviour, post‑offence statements) inconsistent with automatism.
|
27 November 1998 |
|
Reported
Appellant absolved after court found plaintiff failed to prove elevator malfunction; demeanour cannot override probabilities.
Delict – negligence – duty to maintain common-property elevator – causation and proof of malfunction. Evidence – credibility: limits of demeanour-based findings; necessity of assessing probabilities and total evidence. Civil procedure – costs between co-defendants where one is absolved and the other succeeds on appeal.
|
26 November 1998 |
|
Reported
Insured’s failure to disclose that a vehicle was stolen and recoverable was material, allowing insurer to repudiate.
Insurance — duty of disclosure — material non-disclosure — reasonable person test — insured’s knowledge that insured vehicle was stolen and subject to recovery material because it may impair insurer’s subrogation and affect acceptance or premium.
|
26 November 1998 |
|
Reported
Private prosecution refused where alleged injury stems from unenforceable illegal gambling debts; no cognisable s 7(1) locus standi.
Criminal Procedure Act s 7(1) – private prosecution – locus standi – whether injury arising from unenforceable gambling debts is cognisable – illegality of contract (gambling) and public policy – ex dolo malo non oritur actio – abuse of process – interest under s 7(1) must derive from a cognisable injury.
|
26 November 1998 |
|
Reported
A costs claim contingent on agreement or taxation is not "due" at settlement; prescription did not commence on acceptance date.
Prescription — when debt "due" under s 12(1) Prescription Act — settlement requiring agreement or taxation to determine quantum — agreement/taxation as condition precedent (not mere procedural step) — Molloy distinguished — onus on party invoking prescription to plead and prove inception date.
|
26 November 1998 |
|
Reported
Claimant failed to prove quantum: valuation evidence did not establish market value on the relevant date.
• Contract/damages – onus to prove quantum – claimant must prove market value at the material date.• Evidence – valuation evidence must be specific to the relevant date; court may not speculate about unasked questions.• Causation – diminution in value caused by subsequent illegal occupation, not plaintiff’s earlier breach.• Procedure – alternative claims inadequately proved and loss of rental not open on appeal without cross-appeal.
|
26 November 1998 |
|
Reported
An application to set aside a members voluntary winding-up must be proved on the ordinary civil onus, not merely prima facie.
Companies Act s 354(1) – application to set aside winding-up – proof "to the satisfaction of the court" requires ordinary civil onus – no lighter standard for members voluntary winding-up; finality protected by ss 355(2), 408(c), and notice requirements of s 359(2); unexplained delay and failure to prove creditor status fatal to relief.
|
26 November 1998 |
|
Reported
Exceptio non adimpleti contractus fails where payment duties are fixed by date/tonnage but rehabilitation duties are flexible and non-reciprocal.
Contract law – locatio conductio operis – composite unitary price for mining, delivery and rehabilitation; exceptio non adimpleti contractus – reciprocity and timing of reciprocal obligations; tacit term – inference of prohibition on leaving walls/pillars in opencast mining; mining regulation requiring concurrent rehabilitation.
|
23 November 1998 |
|
Reported
Whether cheques obtained by false pretences and later appropriated are "stolen" under s 81(1), entitling the payee's cessionary to recover.
Bills of Exchange Act s 81(1) – cheques obtained by false pretences and subsequently appropriated – whether "stolen" for s 81(1). Ownership and possession of negotiable instruments – effect of delivery to a person purporting to act for the payee where payee has not authorised collection. Cession – drawee's ceded claim enforceable by cessionary against later possessor who gave value. Costs – disallowance of costs attributable to unnecessarily voluminous appeal record.
|
20 November 1998 |
|
Reported
Whether interest on loans accrues for tax when funds are advanced or only when payable at maturity.
Tax law – accrual of income – meaning of "accrued to" – lender of money for consumption becomes entitled to interest when funds are made available – contractual stipulations or cession cannot defer legal accrual – section 7(1) deeming unnecessary in this case; note: accrual now addressed by s 24J (inserted 1995).
|
20 November 1998 |
|
Reported
Creditor’s election to sue apparent principal binds it; insolvent principal not liable and claims properly expunged.
Insolvency — claims against liquidated estate — stipulatio alteri and third‑party benefits; undisclosed principal doctrine — election to sue agent binding; Master’s expungement under s45(3) Insolvency Act upheld; costs including two counsel allowed.
|
20 November 1998 |
|
Convictions upheld on reliable identification and corroboration; sentencing affirmed and concurrency of Count 2 ordered under s 32(2)(a).
Criminal law – Identification evidence – reliability and contamination of identification parades – weight given to witnesses with adequate opportunity to observe. Corroboration – possession of firearm and stolen property shortly after crime. Defence credibility – improbability and false explanations. Sentencing – exercise of judicial discretion; concurrency of sentences under s 32(2)(a) Correctional Services Act. Procedure – duty to prepare appeal record properly; court may refuse to strike appeal in interests of justice.
|
3 November 1998 |
| September 1998 |
|
|
Reported
Failure to afford a hearing under building regulations invalidated plan approval; matter remitted for reconsideration on property-value derogation.
Administrative law – building-plan approval – audi alteram partem under National Building Regulations – failure to afford hearing renders approval reviewable; remedy by remittal when no bias or foregone outcome; demolition order premature without fuller factual basis.
|
29 September 1998 |
|
Reported
Appellate court upheld finding that respondent delivered the exchange coins; appeal dismissed with costs.
Contract — delivery of goods under partly oral/partly written agreement — dispute whether respondent delivered exchange coins; Evidence — claims against deceased estate — cautionary approach to testimony of surviving party who alone can speak to critical facts; Onus — placement of burden of proof not necessary to decide where delivery proved on facts; Cancellation — right to cancel/time not of essence unnecessary to determine.
|
29 September 1998 |
|
Reported
Media may avoid defamation liability if publication was objectively reasonable and non-negligent; strict liability overruled.
Defamation — media publications — legality of publishing false allegations — qualified privilege/reasonableness test for press publications; overruling of strict liability (Pakendorf) for owners, publishers, editors and printers; media negligent standard; onus on defendant to prove justification; constitutional considerations under s15 and s35(3) of Interim Constitution; pre-constitutional publications unaffected by s15.
|
29 September 1998 |
|
Reported
A widow's remarriage does not extinguish her loss‑of‑support claim; remarriage is a deductible benefit in quantifying damages.
Delict — Wrongful death — Quantum — Widow's remarriage does not extinguish claim; remarriage (or its possibility) is a deductible pecuniary advantage when assessing loss of support. Workmen's Compensation Act s 8(1)(b) — Right of recovery not altered by widow's remarriage. Precedent — Glass v Santam incorrectly treated remarriage as terminating claim; established approach retained. Policy and causation — assessment guided by fairness and policy, not strict causation rules.
|
29 September 1998 |
|
Reported
Foreign statutory survivor's pensions funded by employers are "pensions" under the Assessment of Damages Act and not deductible.
Assessment of Damages Act 9 of 1969 s1(1) – deduction of foreign statutory payments from loss of support – characterization of payments as "pension" or "insurance money"; Statutory survivor's pensions funded by employers qualify as "pensions" even if no employee monetary contribution or lump‑sum option exists; Objective of Act to prevent deduction of pensions and similar benefits from dependants' loss of support claims.
|
29 September 1998 |
|
A contractual insurance clause granting the seller discretion does not import a tacit obligation to insure at replacement value.
Contract – construction of insurance clause – whether ‘shall insure’ imposed obligation to insure at market/replacement value – discretion of seller to determine insured sum – tacit term/officious bystander test – onus to prove common intention.
|
28 September 1998 |
|
Proclamation deemed employees to transitional administration; agreement’s retrenchment benefits not triggered, appeals dismissed with costs.
Local government transition – Proclamation ss 8–10 – Deeming of employees to be in service of transitional administration; Contractual retrenchment provisions – "staff reduction" defined conjunctively (redundancy, dismissal, loss of work due to factors beyond control); Interpretation of clauses providing for alternative post or transfer; Payment taken by employee without valid entitlement; Relief to set aside administrative resolutions and restraint on publication.
|
28 September 1998 |
|
Reported
Whether Prescription Act s13 protects insane non‑detained claimants when the Agreement's Article 56 refers to detained persons.
Prescription — interaction of s 13(1) Prescription Act and Article 56 of the Multilateral Motor Vehicle Accidents Fund Agreement; distinction between "insane" and "detained" persons; statutory construction and presumption against unjust legislative intent; relevance of Mental Health Act reforms; authority considered: Apalamah, Terblanche, Kotze, Van Rhyn.
|
28 September 1998 |
|
Reported
Without‑prejudice settlement offers can suspend prescription, but an already expired statutory prescription cannot be extended by agreement; estoppel not shown.
Prescription — Motor Vehicle Accidents Act — s 14(2)(b) — whether without‑prejudice settlement offers amount to offers of settlement suspending prescription — held yes; but once statutory prescriptive period has run its termination cannot be altered by agreement — extensions after expiry are contractual; tacit term and estoppel not proved.
|
28 September 1998 |
|
Reported
Exceptio available for partial withholding of occupation; BK Tooling limited for continuing obligations; occupational interest reduced 25%.
Exceptio non adimpleti contractus; occupational interest on sale of immovable property; limitations of BK Tooling for continuing obligations; remission of rent analogy; equitable pro rata reduction of occupational interest; costs.
|
28 September 1998 |
|
Dismissal for strike was unfair where employer provoked stoppage and denied reasonable time to consult the union.
Labour law – dismissal for strike action – unfair labour practice – employer provocation, failure to explain dismissal of shop steward and to seek union assistance – requirement to afford reasonable time to consult union before dismissal.
|
25 September 1998 |
|
Reported
Appellate court allows prudent investment in shares/unit trusts, invalidating arbitrary caps, JSE-only restriction and stockbroker/Master supervision.
Trusts — investment powers — trustees may invest in quoted shares and unit trusts where prudence and preservation of real capital require — arbitrary percentage caps, exchange restrictions, mandatory independent stockbroker approval and compulsory quarterly reporting to the Master unjustified absent supporting evidence.
|
25 September 1998 |
|
Reported
A mother informed by phone of her child’s death can recover for reasonably foreseeable psychiatric shock; mere grief is not compensable.
Delict — Psychiatric injury (nervous shock) — Hearsay victims — Foreseeability and legal causation — Duty of care — Policy considerations and floodgates — Distinction between recognisable psychiatric illness and mere grief.
|
25 September 1998 |
|
Reported
Whether crumbed then frozen mutton is frozen meat (Chapter 2) or prepared meat (Chapter 16).
Customs and excise – tariff classification – distinction between Chapter 2 (meat fresh/chilled/frozen) and Chapter 16 (prepared/preserved meat) – meaning of "prepared" – illustrative nature of "including those merely covered with batter or bread crumbs" – breadcrumbing does not necessarily amount to preparation for cooking or preservation.
|
25 September 1998 |
|
Reported
Whether magistrate's court jurisdiction under art 28(1)(g) extends to personal claims causally connected to immovable property.
Landdroshowe – jurisdiksie – art 28(1)(g) – betekenis van "in verband met" – vereiste van direkte/of kousale verband tussen aksie en onroerende eiendom – insluiting van personam-eise en eise in verband met verband op grond – uitleging van "or in connection with a bond thereon".
|
25 September 1998 |
|
Reported
Whether a sudden blackout excuses delictual liability; court found blackout probable and dismissed the appeal with costs.
Delict – road collision – automatism (sudden blackout) as defence; burden of proof in delict – plaintiff must prove defendant's negligence; evidentiary value of contemporaneous statements and medical records; no adverse inference where witness availability not established.
|
25 September 1998 |
|
Whether equipment and bank funds were corporate property and the appeal for their return should be condoned.
Close corporations — ownership of assets — whether equipment and bank funds purchased/maintained in deceased’s name were corporate property; evidence and admissions as proof of transfer of benefit to the corporation; Close Corporations Act s50 — scope and misapplication; condonation for late filing of appeal; property recovery and transfer orders.
|
25 September 1998 |
|
A temporary suspension of advances did not constitute breach or repudiation absent fixed payment dates or demand.
Contract — Financing agreement construction — incorporation of discretionary-advance clause; mora — no default without due date or demand; repudiation — requires unequivocal refusal to perform; mitigation of damages.
|
25 September 1998 |
|
Reported
Appellant failed to prove assignment of obligations or prima facie right; appeal dismissed with costs.
Contract – Assignment – Distinction between transfer of rights and transfer of obligations – factual basis required to show transfer of obligations. Civil procedure – Attachment ad fundandam jurisdicitionem – prerequisite of prima facie cause of action against foreign peregrine. Civil procedure – Attachment ad confirmandam jurisdictionem – limited to claims sounding in money or relating to property; costs orders do not expand this principle. Interim interdict – prima facie right and balance of convenience – speculative future claims insufficient. Mootness (s 21A) raised but appeal decided on merits.
|
25 September 1998 |
|
Reported
Appellant failed to prove respondent exceeded speed limit; claim dismissed and condonation refused with costs.
Evidence – assessment of eyewitness testimony and measurements; expert extrapolation of speed from brake marks; burden of proof in alleging contractual breach by negligent driving; incorporation of contractual terms (not decided); condonation for deficient appeal record refused.
|
22 September 1998 |
|
Reported
Conversion of creditors' claims into redeemable preference shares constitutes a concession benefitting the respondent; respondent bears the burden to prove set-off.
Income Tax Act s 20(1)(a)(ii) – assessed loss reduction where taxpayer receives benefit from concession or compromise by creditors – conversion of debt into redeemable preference shares constitutes such a concession/compromise. Redeemable preference shares – substitution of debt with contingent/shareholder rights effects reduction/extinction of liabilities and thereby confers a benefit to the debtor. Burden of proof – s 82 places onus on taxpayer to prove set-off; Special Court erred in requiring Commissioner to quantify benefit. Procedural – s 83(7)(c) confines grounds at appeal; valuation issue not decided because not properly raised in notice of objection.
|
21 September 1998 |
|
Reported
A broad claim for a sandwich‑type shock tube was held obvious and the patent revoked; prior use not proved.
Patent law – claim construction – claims must be read by their language; cannot import limitations from specification examples. Patent law – novelty – prior commercial use must be proven by cogent contemporaneous evidence. Patent law – inventive step/obviousness – application of s 25 and structured inquiry (state of the art, difference, obviousness to skilled person). Patent law – secondary evidence (commercial success) relevant but not decisive; must be probative. Amendment – amendment to introduce new matter precluded; expiry of patent may render amendment impracticable. Costs – successful appellant awarded costs including two counsel.
|
21 September 1998 |
|
Reported
Delivery of an MMF claim form to an unauthorised agent does not extend prescription; claim prescribed after three years.
Prescription – Multilateral Motor Vehicle Accidents Fund Act/Agreement – Articles 55, 57 and 62 – delivery of prescribed claim form to wrong appointed agent does not extend prescription; substantial compliance and deeming under Article 62(e) inapplicable where agent lacked authority.
|
21 September 1998 |
|
Reported
Applicant failed to prove abuse under s 56; importation constituted working and 6% royalty was not shown reasonable.
Patents Act s 56 — compulsory licence; abuse of patent rights — non-working and refusal to licence; importation/local formulation as “working”; burden of proof in founding affidavit; reasonableness of royalty (R&D, promotion, capital recovery).
|
21 September 1998 |
|
Reported
Pleadings between defendant and a joined third party count as "in the action" for Rule 13(3)(a), so the third‑party notice was valid.
Civil procedure – Rule 13 third‑party notices – interpretation of "pleadings in the action in connection with which it is issued" – pleadings between defendant and a joined third party constitute pleadings in the action – leave to serve after close of pleadings unnecessary where served before close of pleadings in the overall action.
|
18 September 1998 |
|
Reported
The appellant failed to prove a tripartite or Administrator-bound bilateral land availability contract; Rule 33(4) issues answered negatively.
Public/statutory land – Black Communities Development Act s 34(9) – distinction between land vesting in State (Administrator) and in local authority – competence to make land available. Land availability agreements – Regulation 4 – requirement for written agreement and its interplay with s 34(9). Contract formation – animus contrahendi – whether administrative approval constitutes contractual undertaking by Administrator. Civil procedure – separation of issues under Rule 33(4) – limits on trial court when answering narrowed issues and effect of exceeding that scope. Costs – appellate costs where limited success and effect of substituted orders.
|
18 September 1998 |
|
Reported
Whether a contract silent on VAT can be read to oblige the buyer to pay VAT — court holds no tacit term; VAT liability rests on seller.
VAT — supply of immovable property — seller registered as entrepreneur — s 7(1)(a) and s 7(2) VAT Act — legal obligation to pay VAT rests on seller; Contract — silence as to VAT — implication of tacit term — bystander/business efficacy test — not satisfied; Rectification/counterclaim dismissed.
|
18 September 1998 |
|
Reported
Bribery by supplier principals of a buyer's agents tainted ensuing contracts, allowing the innocent buyer to rescind without prior restitution.
Commercial bribery — elements and proof of bribery; secret payments to agents; imputation of agent's knowledge to principal — limits; effect of bribery on ensuing contracts — voidable at instance of innocent principal; rescission without prior tender of restitution where restoration impossible.
|
17 September 1998 |
|
Reported
A handwritten "valid until" clause does not extinguish a surety's accrued liabilities; clauses must be read together.
Suretyship – construction of continuing guarantee – handwritten clause fixing "valid until" date – does not discharge accrued liabilities; clause read with notice clause to fix latest termination date; commercial efficacy and need for clear words to extinguish accrued debt; no ambiguity meriting parol evidence.
|
17 September 1998 |
