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Citation
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Judgment date
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| November 2000 |
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Reported
Repeal did not defeat an accrued right to seek the Board’s recommendation under s 12(2)(c) of the Interpretation Act.
Customs and excise – rebate scheme – repeal of enabling note – whether right to approach advisory Board for recommendation survived repeal under s 12(2)(c) Interpretation Act – distinction between accrued, acquired and conditional rights – repeal not to affect accrued/acquired rights.
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30 November 2000 |
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Reported
Objective test: termination letters can constitute repudiation and third‑party communication may suffice as acceptance.
Anticipatory breach/repudiation – objective test; letters terminating distributorship construed in context may amount to repudiation; innocent party’s election to cancel may be manifested by conduct and communicated by third party; communication of election must come to repudiator’s attention but need not be personally transmitted by innocent party; later breaches by either party do not necessarily extinguish rival causes of action for damages.
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30 November 2000 |
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Reported
Manager’s temporary participations are secured loans, not trading stock, and incoming funds are held as agent, not taxable proceeds.
Income tax – definition of "trading stock" – participations in participation bonds held by manager are secured loans, not stock held for sale or exchange – Participation Bonds Act confirms agency/loan character – receipts from incoming participants held on behalf, not gross income – s 22 diminution claim based on interest paid in advance rejected.
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30 November 2000 |
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Reported
Engineer breached supervisory duties and contractor liable for nominated sub‑contractor; both independently liable for overlapping damages.
Construction contract – Identity of contractor – contractual interpretation and surrounding circumstances; Prescription – knowledge of identity of debtor and s 12(3) Prescription Act; Cession – scope of 'debts' in sale of business and effectiveness of subsequent cession; Nominated sub‑contractors (clause 61) – liability of contractor for nominated sub‑contractor; Professional services – scope of engineer’s supervisory duty to inspect materials and workmanship; Concurrent liability – plaintiff may sue contractor and supervising engineer for overlapping damage; Deduction of retention monies from awards.
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30 November 2000 |
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Reported
Whether estate duty payable by the executor is included in the s 4(q) deduction — court held it is excluded.
Estate duty – s 4(q) deduction – meaning of "accrues to" – whether estate duty payable by executor is included in deduction – entitlement under law of succession – role of long‑standing administrative practice in construing fiscal statutes.
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29 November 2000 |
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Reported
The Speaker can bind the legislature to pay legal costs for a s98(9) Constitutional Court referral; such undertaking is enforceable.
Constitutional law – s 98(9) interim Constitution – Speaker’s power to refer disputes to Constitutional Court – petitioners acting qua members of legislature. Administrative/constitutional finance – Speaker’s authority to bind legislature to pay legal costs incurred in resolving constitutionality disputes as part of legislative administration. Civil procedure – undertaking by public official – enforceability and consequences of repudiation; taxation of costs and recovery from legislature without formal notice to non‑party
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29 November 2000 |
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Reported
Whether a member’s resignation took effect earlier by agreement; court held the parties agreed early termination.
Cooperatives — membership resignation under statute (art 33(1)) — interpretation of resignation letter — agreement to accelerate statutory effective date — acceptance by council, payment and banking of cheque as evidence of consensus — continuous membership for distribution purposes.
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29 November 2000 |
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Reported
Applicants failed to establish reasonable grounds for apprehended bias by tribunal members; appeal dismissed with costs.
Industrial tribunal review – alleged bias – onus on applicant to establish actual or apprehended bias – reasonable suspicion test – necessity of record of proceedings for review – effect of respondent’s denial where allegations lack particularity.
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29 November 2000 |
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Reported
Fraudulent misrepresentation must be shown to have causally produced patrimonial loss; mere misdescription of contracting party was insufficient.
Delict — Fraudulent misrepresentation — Causation — Claimant must prove that misrepresentation influenced its decision and caused patrimonial loss; Misdescription of contracting party — Materiality and reliance; Damages — Quantum must reflect actual patrimonial loss, not enable unjust enrichment where contract was performed; Civil procedure — Absolution from the instance where causation and damage not proved.
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29 November 2000 |
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Reported
Affidavit allegation in litigation was not relevant for qualified privilege; trustees' employer held vicariously liable; R30,000 awarded.
Defamation — publication in affidavit during litigation — qualified privilege — relevance tested objectively — whether defamatory matter reasonably necessary to occasion
Relevance — not coextensive with evidential relevance; value judgment by reason and common sense; speculative allegations lack relevance. Vicarious liability — director/trustee acting in insolvency matters — payments of trustee's fees to firm, provision of infrastructure and absence of contrary evidence ground prima facie liability
Quantum — limited publication but permanent court record; award assessed on facts; R30,000 awarded
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29 November 2000 |
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Reported
Attachment to found jurisdiction fails where applicant does not plead fraud or collusion to overcome s 2 exclusion for court-ordered dispositions.
Insolvency — dispositions made in compliance with court order — s 2 exclusion — consent orders ordinarily qualify as orders — to set aside court-ordered dispositions applicant must allege and prima facie establish fraud, collusion or other improper conduct — attachment ad fundandam/confirmandam jurisdictionem requires proper pleading of cause of action.
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28 November 2000 |
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Reported
Employer not vicariously liable for employee’s deliberate forgery where acts were outside scope and no ostensible authority.
Delict and vicarious liability – employee fraud – requirement that wrongful act be committed in course of employment to impose employer liability. Scope of authority – actual, implied and ostensible authority – absence of employer representation to third parties precludes ostensible authority
Evidence – reliance by victim on third‑party communications and bank reputation, not on employer’s manifestations of authority. Public policy – fairness considerations insufficient to make employer insurer for deliberate unauthorised fraud by employee
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28 November 2000 |
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Reported
A settlement reached by parties' attorneys is binding where the opposing party reasonably relied on the attorney's ostensible authority despite internal error.
Civil procedure — Compromise/settlement agreements — Enforceability of attorney-negotiated settlements — Ostensible/apparent authority of instructed attorney; Contract law — Unilateral mistake — Narrow scope to rescind where other party not misled; Public bodies — Status does not permit avoidance of lawfully concluded contracts.
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28 November 2000 |
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Reported
Res judicata and the "once and for all" rule do not bar a later damages claim where the earlier suit sought restitution.
Civil procedure – exceptio rei judicatae – requirements: idem actor, idem reus, eadem res, eadem causa petendi; comparison of entire claims required "Once and for all" rule – scope and limits; does not automatically require restitution and damages to be claimed in one action where remedies differ Contract – restitution (repayment) distinguished from damages Conventional Penalties Act – forfeiture clauses as penalties may bar subsequent damages claims (distinguishable cases)
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28 November 2000 |
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A court may order a lump sum for household necessaries as part of a just maintenance award under section 7(2).
Family law – Divorce Act s 7(2) – maintenance – scope of "maintenance" post-divorce – whether lump-sum awards for household necessaries may form part of maintenance; discretion of court to make just orders considering parties' means; distinction from s 7(3) redistribution where antenuptial accrual exclusions apply.
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28 November 2000 |
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Reported
Proclamation authorised liquidators to sue without creditors’ resolution; court properly exercised discretion to wind up insolvent company.
Company law – Liquidation – Authority of liquidators of a statutory corporation dissolved by proclamation – Annexure empowering liquidators to institute legal proceedings without creditors’ resolution or Master’s directions – generalia specialibus non derogant. Company law – Winding-up discretion – Suspension of business, insolvency under ss 344 and 345, and just and equitable grounds. Civil procedure – Alleged abuse of process and mala fides in timing of liquidation application; adequacy of explanations for delays. Effect of counterclaim on liquidation – Counterclaim insufficient to prevent winding-up where insolvency persists
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28 November 2000 |
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Reported
Appellant liable for failing to close hazardous mountain road during foreseeable landslide risk despite warning signs.
Delict — municipal/local authority liability for road safety; duty to take reasonable precautions; adequacy of warning signs; obligation to close hazardous road in foreseeable dangerous weather; negligence for administrative failure to appoint qualified decision-maker and use available weather/records.
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27 November 2000 |
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Reported
Sales of manufacturer‑used lease and promotional vehicles were capital disposals, not taxable revenue.
Tax law – capital versus revenue – disposal of assets manufactured for a taxpayer’s own use – effect of taxpayer’s intention, manner of realization and accounting treatment
Tax law – lease and promotional schemes – employee benefit v. profit‑making scheme – receipts from disposal of earmarked vehicles as capital
Tax law – regularity and extent of sales not determinative of revenue character
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24 November 2000 |
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Reported
Prescription begins once a creditor knows the basic facts and debtor’s identity, not only when full evidence to prove the claim exists.
Prescription – s 12(3) Prescription Act 18 of 1943 – commencement when creditor knows basic facts giving rise to debt and identity of debtor, not when creditor can finally prove entire case; collecting banker liability; demand letters and knowledge.
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24 November 2000 |
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Reported
Suicide by a person whose brain injury impaired judgment does not break the causal link to the negligent injury.
Delict — Causation — Suicide by person with impaired mind — Whether suicide constitutes novus actus interveniens — Brain injury and depression as causal link — Flexible approach to legal causation (factual causation and juridical inquiry) — Foreseeability and impaired volition.
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24 November 2000 |
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Reported
A Master may not use s414(2) to subpoena witnesses to pursue investors' delictual claims unrelated to the company's affairs.
Companies Act s 414(2) – Master’s power to subpoena and interrogate – limited to matters concerning the company or its affairs – cannot be used to pursue investors' delictual claims; s 424 – requisites for personal liability: carrying on the company’s business and requisite knowledge – brokers pursuing their own business and employer vicarious liability do not satisfy s 424; review under s 151 Insolvency Act – court may reconsider afresh where Master acted beyond competence.
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22 November 2000 |
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Reported
Long custodial sentences for juveniles set aside where no pre-sentencing probation/social reports were obtained.
Criminal law – Sentencing of juveniles – Pre-sentencing reports (probation officers/social workers/psychologists) required before custodial sentence – Trial court’s duty to obtain necessary reports – Failure to obtain reports vitiates sentence and warrants referral for re-sentencing.
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21 November 2000 |
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Reported
Financial assistance given only after conversion avoids s 38; substance, not form, determines liability.
Company law – s 38(1) Companies Act – prohibition on company giving financial assistance for purchase of its shares – substance over form; simulated transactions – conversion into close corporation – financial assistance given after conversion not within s 38(1) – purpose of s 38 to protect creditors – election to cancel requires clear and unequivocal notice.
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10 November 2000 |
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Reported
An unsuccessful tenderer is entitled to written reasons when the tender process constitutes administrative action under section 33.
Administrative law – procurement/tenders – invitation, consideration and award of tenders by a state-controlled company as administrative action – right to be furnished with written reasons under section 33(1)-(2) of the Constitution – public power/function test – waiver of constitutional rights and section 36 limitation – section 217 (procurement) considered but not decided.
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9 November 2000 |
| October 2000 |
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Reported
No legal duty on police or prosecutors to detain or re‑arrest the accused; appeal dismissed with costs.
Delict — omissions: legal duty assessed by reasonableness and policy considerations; Prosecutorial discretion on bail — no absolute duty to oppose; Requirement of a special relationship between State actor and individual for liability; Relevance of psychiatric report and constitutional bail context to reasonableness; Absolutio from the instance upheld; appeal dismissed.
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2 October 2000 |
| September 2000 |
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Reported
The respondent is not vicariously liable for its employee’s theft; the applicant bank remained liable for negligent collection.
Vicarious liability – theft by employee – application of subjective/objective two-tier test; employee on a "frolic of his own" is outside course and scope of employment. Banking law – duty of collecting bank to take care not to collect for person not entitled to proceeds. Concurrent wrongdoers – employer who is victim of employee’s theft is not necessarily answerable, and employee’s dolus does not absolve negligent third party
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29 September 2000 |
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Reported
Use of "Power House" on clothing did not infringe "Power" registrations; no likely confusion or sufficient similarity/detriment.
Trade marks — Infringement — s 34(1)(a): likelihood of deception/confusion must be assessed by global comparison and notional use; "Power House" distinguished from "Power"; no confusion. Trade marks — Dilution/unfair advantage — s 34(1)(c): "similar" requires a marked resemblance; superficial resemblance insufficient; must prove detriment or unfair advantage with evidence, not mere assertion
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29 September 2000 |
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A sheriff who attaches third-party property not in the debtor’s possession acts at his own risk and may be liable for resulting loss.
Civil procedure – sheriff’s liability – attachment of third-party property not in debtor’s possession – messenger/sheriff acts at own risk and is answerable to true owner
Uniform Rule 9(8) – third-party security held only until judgment; entitlement to immediate return on judgment. Factual causation – but-for test; unlawful attachment causing increased risk leading to theft
Precedent – Weeks v Amalgamated Agencies applied; absence of negligence not a defence to liability for wrongful attachment
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29 September 2000 |
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Reported
Appeal dismissed under s21A as any order would have no practical effect because the labour disputes were finally resolved.
s21A – appeal dismissal for lack of practical effect (mootness); Labour Relations Act – exclusive Labour Court jurisdiction; interim interdicts in industrial disputes; refusal to decide abstract or hypothetical issues; remittal and costs following dismissal.
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29 September 2000 |
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Reported
Section 99(5) of the Customs Act is a statutory expiry period extinguishing liability, not subject to Prescription Act interruptions.
Customs law – section 99(5) of Customs and Excise Act 91 of 1964 – statutory expiry/limitation period extinguishing liability after two years; Prescription Act 68 of 1969 (ss 13(1)(g), 16(1)) – inapplicable where inconsistent; accessory (surety) liability ceases when principal’s liability ceases.
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29 September 2000 |
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Reported
Section 69(3) warrants generally require notice unless concealment or necessity excludes audi; ex parte warrant set aside here, special costs order reversed.
Insolvency Act s69(3) – search and seizure warrants – audi alteram partem – statutory interpretation as to implied exclusion of notice – concealment v "otherwise unlawfully withheld" – ex parte applications and duty of disclosure – trustee’s representative capacity and de bonis propriis costs.
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29 September 2000 |
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Reported
A post‑prescription undertaking not to plead prescription is enforceable and not contrary to public policy; appeal dismissed.
Prescription law – undertaking not to plead prescription – validity where underlying debt already extinguished by prescription – Prescription Act 68 of 1969 (arts 10, 17). Public policy – contract freedom to forgo procedural defence – distinction between post‑prescription undertakings and advance waivers or consensual extensions. Effect of undertaking – does not revive extinguished debt but bars debtor from pleading prescription
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29 September 2000 |
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Whether a wholly suspended 15-year sentence for domestic murder was unduly lenient and warranted appellate interference.
Sentence — Murder by strangulation — Wholly suspended lengthy sentence — Trial judge misdirected by overemphasis on therapeutic mitigation — Domestic violence and need for deterrence — Condonation of late application for leave to appeal — Appellate interference — Sentence substituted to seven years' imprisonment.
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29 September 2000 |
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Reported
A local authority may withhold clearance certificates until municipal charges are paid; such payments by a liquidator are costs of realisation.
Municipal law – embargo provisions – s50 Local Government Ordinance – entitlement of local authority to withhold clearance certificate until specified charges paid. Insolvency law – s89 Insolvency Act – meaning and scope of costs of maintaining, conserving and realising property; effect of s89(4) and s89(5) on non‑tax municipal charges. Liquidator’s payments to obtain transfer – constitute costs of realisation and are not automatically recoverable from local authority. Creditor’s claims – pre‑insolvency debts remain due and payable and may be demanded under valid embargo provisions
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29 September 2000 |
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Reported
s44(2) requires creditor attachment before vesting; no attachment pre-27 April 1994, appeal dismissed.
Insurance Act s 44(2) — deeming operates "as against any creditor" and requires attachment in execution before vesting; Insurance Act s 44(1) — sequestration may include conclusion of s 34 Administration of Estates procedure; Effect of Brink v Kitshoff — deeming provisions invalid from 27 April 1994; Vesting requires acquisition of right before constitutional invalidation.
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29 September 2000 |
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Reported
An agency shop agreement that does not expressly provide for s 25(3) requirements is unenforceable and cannot be rectified.
Labour law; agency shop agreements — statutory formalities under s 25(3) LRA — requirement that agreement "provide" expressly for specified matters; substantial compliance and incorporation by reference rejected; rectification incompetent where agreement invalid for non-compliance with statutory form; appellate consideration of new point permissible where facts are common cause; waiver and costs.
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29 September 2000 |
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Reported
s84 presumption applied; defendant failed to rebut negligence and appeal dismissed.
Forest Act s84 – presumption of negligence in respect of veld/forest fires outside fire-control areas; onus shifted to defendant to rebut negligence; scope of onus (whether it includes disproving causative relevance) controversial; standard of care for landowners and foresters; sufficiency of ground support and communication in aerial/ground firefighting contexts.
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29 September 2000 |
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Reported
A seller with outstanding trade debts remained a "trader" and its business premises formed part of the business, so the transfer was void.
Insolvency Act s 34(1) — meaning of "trader"; present-tense "carries on" does not require active daily trading if trade debts remain; immovable property may "form part of" a business where premises are adapted for the trade and used exclusively; non-compliance with s 34(1) notice/publication renders transfer void against trustee.
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29 September 2000 |
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Reported
Non‑disclosure did not invalidate extradition warrant and delay did not justify an indefinite stay.
Extradition — Extradition Act s 5(1) — validity of arrest warrant — material non‑disclosure by State; Constitutional right to trial within reasonable time — delay analysis, systemic delay and accused’s conduct; Indefinite stay of extradition — extraordinary remedy requiring specific trial prejudice; Costs — criminal proceedings in substance, costs order inappropriate.
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29 September 2000 |
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Reported
Whether ministerial regulations can render minors' MMF claims prescribed — court holds they cannot.
Multilateral Motor Vehicle Accidents Fund — Regulation 3(2)(a)(i)-(ii) — Prescription; Prescription Act ss 13 & 16 — whether subordinate regulations can oust Chapter III protections for minors; Delegation under s6 — limits on making unconditional Article 40 liability conditional; Mbatha and Prinsloo (Padongelukkefonds) considered.
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29 September 2000 |
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Reported
Whether termination constituted redundancy/retrenchment under the fund’s statute, entitling enhanced gratuity.
Statutory interpretation — Municipal Employees Gratuity Fund Rules — whether termination falls under s34(1) (resignation/dismissal) or s34(2) (redundancy/retrenchment) — "redundancy" / "retrenchment" given a wide, practical meaning including replacement in re‑organisation/affirmative action. Employment law context — no consensual termination where employer-initiated replacement
Costs — limits and penal orders where record and heads disregarded leave and rules
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29 September 2000 |
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Reported
Competition Act applies to raisin marketing unless a specific regulatory measure under the Marketing Act actually exists.
Competition law – Scope – Whether activities in the marketing of raisins fall within Competition Act or are displaced by Marketing of Agricultural Products Act. Statutory interpretation – "subject to or authorised by public regulation" requires an existing directive/authorisation; enabling legislation alone insufficient
Jurisdiction – Exclusive competence of Competition Tribunal and Competition Appeal Court to grant and hear interdicts in respect of prohibited practices. Interaction of sectoral enabling statutes with general competition law – displacement only where concrete regulatory measures exist
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29 September 2000 |
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A defence counsel’s cross‑examination can create an implied admission that dispenses with formal proof of forensic sample identity.
Criminal procedure – forensic evidence – identity of blood samples – implied admissions by defence counsel in cross‑examination – such admissions dispense with formal proof; DNA paternity evidence as strong corroboration.
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29 September 2000 |
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Further evidence admitted to excuse late heads; condonation granted for one robbery count due to unsatisfactory identity parade.
Criminal procedure – admission of further evidence under s 22 Supreme Court Act – standards for condonation (Melane) – identity parades – non-suspects must approximate suspects in age, height, build and appearance – desirability of photographs to assess parade fairness – failure to grant condonation where practitioner’s dilatoriness unjustly visited on active client.
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29 September 2000 |
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Where other convictions are overturned on appeal, an appellate court may remit sentence to consider correctional supervision.
Criminal law – Sentence – Availability of correctional supervision (s 276(1)(h)) where concurrent custodial sentences on other counts are set aside on appeal – Appellate court may set aside imprisonment and remit for resentencing – Consideration of degree of participation, first offender status and provocation.
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29 September 2000 |
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Appellate court increases sentence after finding trial court's global sentence for repeated rapes disturbingly inadequate.
Criminal law – Sentencing – taking multiple offences together for sentencing purposes – undesirable but mere non‑compliance not necessarily misdirection; Sentencing appellate review – whether sentence is disturbingly inappropriate; Rape – severity, prolonged humiliation, repeat rape as aggravating factors; concurrency and cumulative effect of sentences.
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29 September 2000 |
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Reported
A late tender considered without exercising statutory discretion invalidates the award; appeal dismissed with costs.
Tender law – late submission of tenders – Regulation 7(6)(d) discretion to refer late tenders – failure to exercise statutory discretion – award set aside – matter referred back for fresh consideration – costs against late tenderer.
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29 September 2000 |
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Reported
Failure to object and actively defending in foreign proceedings constitutes submission enabling enforcement of that foreign judgment.
Foreign judgment enforcement; international jurisdiction — requirement of domicile/residence or submission; waiver of jurisdictional objection by conduct; effect of filing defence and participation; incompetence or ignorance of solicitor not excusing submission.
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28 September 2000 |
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Reported
Extension of probation was valid; post‑decision hearing satisfied procedural fairness; termination upheld and appeal dismissed.
Administrative law – review – undue delay and mootness; employment law – probationary appointments – extent and timing of extension; procedural fairness – adequacy of opportunity to be heard where initial decision is provisional; appeal procedure – requirements for record and prejudice to respondent.
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26 September 2000 |
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Reported
Respondent’s factual insolvency and refusal to pay an undisputed creditor justified a final winding‑up order without a provisional order.
Company law – Winding‑up – s 344(f) and s 345 – commercial (cashflow) insolvency and factual (balance‑sheet) insolvency as relevant factors; unpaid undisputed creditor claim and false denial of liability as indicia of inability to pay; discretion to grant final winding‑up order without provisional order where issues fully ventilated; limited weight to bank’s satisfaction where security exists.
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22 September 2000 |
