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Citation
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Judgment date
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| December 2002 |
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Reported
A statutorily ‘‘conclusive’’ customary-union certificate may be impeached by evidence that it was procured by fraud.
Customary-union certificates – s 31(2A) Black Laws Amendment Act 76 of 1963 – ‘‘conclusive proof’’ – admissibility of evidence of fraud to impeach statutorily conclusive certificates – interpretation of ‘‘conclusive proof’’; Moroney distinguished; proof on balance of probabilities.
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2 December 2002 |
| November 2002 |
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Reported
An employer is not vicariously liable to an unauthorised passenger carried in breach of an express prohibition on giving lifts.
Delict — Vicarious liability — Unauthorised conveyance of passenger in employer’s vehicle — Effect of express prohibition on giving lifts; scope of employment; SAR&H v Marais applied. Delict — Foreseeability and factual finding whether injured person was passenger — credibility and probabilities considered.
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29 November 2002 |
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Reported
Whether attorneys’ trust deposits in banks constitute "trust property" excluded from bank assets under the 2001 FI Act.
Financial Institutions (Protection of Funds) Act 28 of 2001 – interpretation of "trust property" – whether attorneys’ trust deposits in ordinary bank accounts fall within definition and are excluded from bank assets on insolvency. Statutory interpretation – definition and s 4(5) to be read in context of Act’s purpose (regulating trust property administered by financial institutions). Bank–customer law – deposited money becomes bank’s property; no automatic fiduciary relationship between bank and attorney’s client arising from attorney’s deposit under s 78(2A). Principle of commixtion and practical consequences considered in construing legislative intent.
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29 November 2002 |
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Reported
Enforcement of a foreign judgment on a cargo claim can constitute a new maritime claim permitting arrest of an associated ship.
Admiralty jurisdiction – Admiralty Jurisdiction Regulation Act 105 of 1983 ss 3(6), 3(7), 3(8) – definition of "maritime claim" (including judgments) – whether enforcement of foreign judgment is same maritime claim as original cargo claim – judgment may create new and independent cause of action – construction of letter of undertaking/insurer’s guarantee – execution against vessel despite prior release on security.
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29 November 2002 |
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Reported
Section 84(1) of the Insolvency Act applies to instalment-sale transactions even if not subject to the Credit Agreements Act.
Insolvency Act s84(1) – afbetalingsverkooptransaksie – section 84(1) incorporates the descriptive elements of an instalment-sale in the Credit Agreements Act (paras (a) and (b)) and applies even where the Credit Agreements Act has not been made applicable by ministerial notice; summary judgment for delivery set aside; interim possession order interlocutory and not appealable.
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29 November 2002 |
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Reported
Administration costs of an article 43(a) undertaking are not recoverable if not pleaded as damages.
Road Accident Fund/Multilateral Motor Vehicle Accidents Fund Act – article 43(a) (s 17 RAFA) undertaking – interpretation limited to future hospital/medical/treatment/goods or services costs pleaded as damages – administration costs (attorney/trustee remuneration) not recoverable under undertaking where not claimed; curator bonis remuneration relevant; question whether administration costs can ever be pleaded left open.
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29 November 2002 |
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Reported
Section 37 permits courts to order accused to provide voice samples; such compulsion is not testimonial and does not breach privilege.
Criminal Procedure Act s 37 – scope of "mark, characteristic or distinguishing feature" includes human voice; Compelled voice samples – autoptic/physical evidence, non‑testimonial, do not breach privilege against self‑incrimination; s 37(1)(c) and s 37(3) – courts may order accused to comply with measures to ascertain bodily characteristics and may reinforce police powers; Review – order for voice samples in unconcluded proceedings not a gross irregularity; Procedural law – undue delay and condonation refused.
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28 November 2002 |
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Reported
A pension fund’s rule amendment benefiting qualifying members did not unfairly discriminate against former members or create enforceable substantive expectations.
Pension funds – Rule amendments – Differentiation between members and former members – Unfair discrimination; Trustees’ discretion and fiduciary duty – scope of judicial review; Legitimate expectation – procedural vs substantive relief; Remedy – practical and actuarial constraints on ordering retrospective benefits.
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28 November 2002 |
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Reported
Court upheld trial judge’s refusal to subpoena under s186; alleged intoxication evidence was not essential.
Criminal procedure – section 186 Criminal Procedure Act – court’s duty/power to subpoena a witness if their evidence is 'essential to the just decision' – meaning of 'essential' – timing of application (after State case v after whole case) – deference to trial court’s discretion and limited appellate interference.
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28 November 2002 |
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Reported
Possession taken under an interim order perfects a general notarial bond if obtained before the concursus creditorum crystallises.
General notarial bonds — perfection by possession pursuant to interim court order; effect of subsequent provisional liquidation (concursus creditorum); sufficiency of sheriff’s securing premises and handing keys as delivery to perfect a pledge; doctrine of notice and priority between bondholders; limits on court discretion to refuse confirmation of perfected security.
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27 November 2002 |
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Reported
Applicant lacked standing and failed to prove prior rights or procedural bars; registration of the mark upheld.
Trade marks – popular nicknames – no exclusive proprietary right merely from fame; Trade marks – function as badges of origin; sponsorship use does not equal trade mark use; Trade marks – merchandising intention insufficient for prior right under old Act; Trade marks – s 17(3) citation and opposition procedure must follow prescribed regulations to bar registration; Procedural – review vs ordinary application and the need for proper record from Registrar.
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27 November 2002 |
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Reported
Failure to notify an accused that the minimum-sentence regime may apply and to ensure understanding renders sentencing substantially unfair.
Criminal law – minimum sentencing – Criminal Law Amendment Act 105 of 1997 – requirement that State pertinently notify accused when relying on automatic/semi-automatic firearm to invoke minimum sentence; presiding officer’s duty to ensure accused understands potential application of minimum sentence; onus on State to prove firearm’s qualities.
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27 November 2002 |
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Reported
Pilot negligent but not gross; domestic pilotage provisions exempt the port authority and bar application of English Pilotage Act.
Admiralty — collision — compulsory pilotage — negligence v gross negligence; definition and standard of gross negligence; application of s6(1) and s6(2) Admiralty Jurisdiction Regulation Act; paragraph 10 Succession Act — pilots as employees and exemption from liability; inapplicability of s35 UK Pilotage Act 1983; master’s duty and prohibition on interference.
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27 November 2002 |
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Reported
An interlocutory discovery ruling and leave to amend in tax appeals are not appealable under s 86A as they are non‑final procedural decisions.
Income tax – Appeals – s 86A(1) ‘any decision’ – interpretation and appealability; interlocutory orders v final decisions; discovery in Income Tax Special Court – regulation B4 and magistrates’ court practice; constitutional access to information (s 32) not decided where not pleaded; reasons for judgment not appealable as substantive orders.
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26 November 2002 |
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Reported
Whether a Competition Commission referral is reviewable or requires a full pre-referral hearing by the Commission.
Competition law – distinction between investigative and adjudicative functions; Competition Commission may investigate and refer complaints without full pre-referral audi alteram partem; referral to Tribunal is not determinative and not ordinarily reviewable; prosecutorial robustness and use of a test case permissible absent bad faith; standard of review limited to mala fides, oppression or vexation.
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26 November 2002 |
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Reported
Sale of rights to statutory fishing permits; transfer-on-demand obligation breached and damages awarded (R120,000).
Sea-fishing permits — statutory personal authorisations; rights to apply for permits transferable by contract; seller's obligation to procure issuance to purchaser; demand as condition precedent to transfer and to commencement of prescription; causation — probability that licensing authority would have issued permits; assessment of damages where permits wrongfully disposed.
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25 November 2002 |
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Reported
Taxing Master must decide VAT recoverability and reassess counsel fees based on actual work; matter remitted for fresh taxation.
Review of taxation; VAT in costs — distinction between output and input tax; Taxing Master's duty to determine VAT recoverability; counsel's fees — improper use of opponent's leading counsel as yardstick; remittal for fresh taxation.
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15 November 2002 |
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Reported
Whether ‘substantial and compelling’ circumstances justified departing from mandatory life and the court’s duty to secure sentencing evidence.
Criminal law – Minimum sentencing (Criminal Law Amendment Act 105 of 1997) – s51(1) mandatory life for rape of person under 16 – scope of ‘substantial and compelling’ circumstances. Interpretation – ‘substantial and compelling’ need not be ‘exceptional’ or amount to ‘shocking injustice’ (Malgas applied). Sentencing procedure – duty of sentencing court to act proactively to secure relevant evidence (psychological assessment, witnesses) when considering departures from prescribed sentences. Remedy – setting aside sentence and remitting for resentencing where material evidence is lacking and misdirection occurred.
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15 November 2002 |
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Reported
Multiple culpable homicide convictions permitted where multiple deaths were reasonably foreseeable from a single negligent act.
Culpable homicide — multiple counts from single act — permissible if multiple deaths were reasonably foreseeable; distinction between murder (dolus) and culpable homicide (culpa); evaluation and corroboration of accomplice evidence; sentencing — cumulative sentences may be ameliorated where strikingly inappropriate.
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14 November 2002 |
| October 2002 |
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Reported
Administrative-justice applies to tender reconsideration: market changes may be considered but tenderers must be heard beforehand.
Administrative law – tender processes – tender reconsideration after court order – tender process constitutes administrative action requiring lawful and procedurally fair process. Public law v contract – contractual tender terms do not displace constitutional duties of fairness; public authority must exercise contractual powers within administrative-justice framework. Reconsideration – supervening factors (e.g. market-value increases) may be considered; deference appropriate in polycentric decisions. Audi – procedural fairness requires opportunity to make representations before non-award/re-advertisement based on supervening considerations. Authority – Mustapha (1958) overruled insofar as it separated statutorily-derived contractual powers from public-law controls.
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18 October 2002 |
| September 2002 |
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Reported
Alcoholism does not excuse drunk driving; repeat offences justify some custodial sentence despite rehabilitative aims.
Criminal law – Sentencing – Driving under the influence – Alcoholism is a disease but not an excuse; may aggravate – Rehabilitation vs deterrence – Repeat DUI offences warrant custodial element – Correctional supervision (s 276(1)(h)) not appropriate for persistent offender – Licence cancellation on conviction.
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30 September 2002 |
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Reported
Whether the consignor’s reservation of ownership defeats the bank’s floor‑plan ownership claim and estoppel defence.
Property law; sale vs. simulated transaction (floor-plan) – proof of delivery and ownership; constitutum possessorium; estoppel – reliance requirement; fraud and simulation; referral for oral evidence on alleged knowledge/acquiescence; costs reserved.
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27 September 2002 |
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Reported
Absence of a formal s164 finding may render unsworn testimony technically inadmissible, but a High Court under s52 can cure the defect to secure a fair trial.
Criminal procedure – admissibility of unsworn evidence – s 162, 163, 164 Criminal Procedure – meaning of ‘understands oath’ – no formal recorded inquiry strictly required – magistrate must form view – technical defects curable. Criminal procedure – section 52(3) powers of High Court to reopen, recall witnesses or remit for further evidence to secure a fair trial.
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27 September 2002 |
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Reported
Police owe a constitutional duty to prevent escape of known dangerous detainees and are liable for resulting harm.
Delict — omissions — wrongful omission and legal duty of police to prevent escape of known dangerous detainee; constitutional imperative (ss 7(2), 12(1)(c), 39(2), 205(3)) to protect individuals (especially women) from violence; role of control, foreseeability and reasonable preventive measures; special relationship not a prerequisite; public policy/floodgates concerns rejected in custody-control context.
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27 September 2002 |
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Reported
Whether a single eyewitness identification, despite parade irregularities and the accused's silence, proved guilt beyond reasonable doubt.
Corruption offence — identity of alleged extorting policeman — eyewitness identification; identification parade irregularities; parade form not proved; corroboration by name tag. Single‑witness identification — assessed holistically against parade defects. Accused’s failure to testify — uncontradicted prima facie case strengthens prosecution.
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26 September 2002 |
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Reported
Section 26(1) requires a genuine intention to farm profitably; reasonable profit prospect is only an objective indicium.
Income tax – s 26(1) – "carrying on farming operations" – requires genuine intention to carry on farming profitably – reasonable prospect of profit is an objective indicium to test intent, not an independent statutory requirement – taxpayer's ipse dixit tested against objective factors (size, suitability, effort, management, prospect of profitability).
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26 September 2002 |
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Reported
Separate property of a spouse married in community is available to joint creditors upon sequestration.
Insolvency – marriage in community of property – joint liability of spouses for debts – scope of ‘estate’ under Insolvency Act includes separately owned property – testamentary exclusion cannot immunise property from joint creditors; Matrimonial Property Act does not create separate creditor‑protected estate.
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26 September 2002 |
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Reported
Flat per‑erf land charges imposed without valuation or measurement are unlawful, irrational and invalid.
Local government — Municipal fiscal powers — Property rates must be based on valuation or measurement — s 229(1)(a) Constitution; LGTA s10G(6) — Ordinance s29(2) vests approval with Administrator/MEC who must apply mind — Flat per‑erf levy irrational, discriminatory and unlawful.
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26 September 2002 |
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Reported
Police defence of justification failed where contradictory testimony did not prove imminent danger to officers or the public.
Delict – fatal police shooting – justification/self-defence – onus on party alleging justification – credibility and contradictions in police evidence – employer’s liability for acts of police servants.
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26 September 2002 |
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Reported
Impairment of earning capacity is compensable only if proven to have diminished the injured person’s patrimony.
Delict — loss of earning capacity — patrimony — impairment of capacity compensable only if estate diminished; family/company structure — company losses may quantify personal loss in appropriate circumstances but are not automatically equivalent; globular awards for diminished marketability require evidential foundation.
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26 September 2002 |
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Reported
Minimum-sentence elements (including value) must be proved before conviction; bulk consignment value, not street gram price, controls.
Criminal law – dealing in cannabis – meaning of "value" in minimum-sentencing Schedule; market value must reflect the relevant market level for the consignment (bulk price), not automatically street-per-gram price; elements bringing offence within Schedule (including value) must be proved before conviction; State may not adduce such proof only after conviction when plea guilty has ended the verdict stage.
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26 September 2002 |
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Reported
Medical and factual evidence showed the appellant exceeded private defence and breached a domestic violence protection order.
Domestic Violence Act – contravention of protection order (s 17(a)) – assault; evaluation of evidence – requirement to assess all evidence in conspectus rather than compartmentalised versions; private defence – reasonable relationship between attack and defensive act; medical evidence corroboration; mens rea and awareness of protection order.
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26 September 2002 |
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Reported
Whether fatal drunk-driving was an “accident” and whether insurer excused by “wilful exposure to danger.”
Insurance — accidental-death policy — definition of “accident” — negligence does not preclude accident; Interpretation — “wilful exposure to danger” — whether pejorative/obstinate disregard or deliberate reconciliation with known risk; Onus — insurer must prove exception to cover; Application — drunk driving may amount to wilful exposure depending on subjective awareness and conduct.
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26 September 2002 |
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Reported
Receipt of restitution claims is a formal act; only s 11 acceptance/rejection is reviewable, appeal dismissed with amended costs.
Restitution of Land Rights Act — administrative action — distinction between formal receipt of claims (s 6) and substantive acceptance/rejection (s 11) — reviewability — prematurity of review — costs: punitive costs for improper conduct; reallocation of wasted postponement costs.
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25 September 2002 |
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Reported
A trustee cannot execute an unlimited suretyship for a beneficiary absent express or necessarily implied authority in the will.
Trusts – Testamentary trust – Interpretation of powers – Whether trustee may execute unlimited suretyship for beneficiary’s debts absent express authority. Wills – Implication of terms – Words or powers may only be read into a will by necessary implication; incidental or convenient powers insufficient. Trust law – Trustee’s exposure of trust assets to business/farming risks – absent express power or court authorisation trustee cannot assume such risks.
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25 September 2002 |
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Reported
High court jurisdiction upheld for common-law technology licence accounting and royalty claims, not displaced by Patents Act.
Patents Act s18(1) – jurisdiction – distinction between statutory patent licences and common-law technology-licensing agreements – incidental patent issues do not oust High Court jurisdiction to grant common-law remedies for accounting and royalties; clause construing agreement as technology licence decisive.
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25 September 2002 |
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Reported
Recurring payments for sand removals constituted taxable revenue; taxpayer failed to prove a capital disposal.
Income tax Distinction capital v revenue Construction of sale agreement Sale of building sand v sale of a right to acquire sand Recurrent tranche payments and exploitation of farm resource indicate trading Burden of proof under s 82 Income Tax Act.
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25 September 2002 |
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EST charges were separate from kit price and were not dutiable royalties under s 67(1)(c).
Customs duty – transaction value – whether engineering, styling and tooling (EST) charge is part of price actually paid or payable for imported CKD kits. Customs duty – royalties and licence fees – applicability of s 67(1)(c) where payment is payable in respect of assembled vehicles rather than as condition of sale of imported kits. Evidence – credibility and procedural opportunity to seek cross‑examination where invoices do not itemise contested charges.
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23 September 2002 |
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Reported
Sentences set aside and remitted where reasons absent and insufficient facts prevented proper sentencing discretion.
Criminal law – Sentence – Absence of recorded ex tempore reasons – Appellate obligation to obtain reasons or, if inadequate facts supplied at trial, to remit for re-sentencing – Proper exercise of sentencing discretion requires sufficient factual material; failure warrants setting aside and referral.
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23 September 2002 |
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Reported
Whether a written suretyship omitting the principal debtor can be cured by incorporation of a loan agreement and admissible extrinsic evidence.
Suretyship – s 6 General Law Amendment Act 50 of 1956 – identity of principal debtor a material term – incorporation by reference of another agreement – admissibility of extrinsic evidence to identify incorporated document (not to prove prior negotiations) – Trust Bank van Afrika Bpk v Sullivan reconsidered.
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20 September 2002 |
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Reported
A provincial division’s refusal of leave to appeal under s 309C is an appealable order, but proper leave and procedural sequence must be followed.
Criminal procedure — s 309B/309C applications for leave to appeal — whether refusal by provincial division is appealable — appellate jurisdiction of Supreme Court of Appeal under sections 20 and 21 of Supreme Court Act — interpretation of 1997 amendments — procedural requirements for obtaining leave to appeal.
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20 September 2002 |
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Reported
A bank was not liable in delict for safe-deposit loss; no duty to disclose absence of alarm/guards (majority).
Delict – pre-contractual non-disclosure – duty to speak assessed by legal convictions of the community; exclusive knowledge and "honest person" tests – safe-deposit facility – adequacy of security (alarm, movement detectors, guards) – exemption clause – majority: no duty to disclose absence of alarm/guard; dissent: duty and negligence established.
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19 September 2002 |
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Reported
A functional oval bi-convex tablet lacked distinctiveness and is unregistrable under sections 10(5) and 10(11).
Trade marks — three-dimensional/shape marks — whether a shape can function as a trade mark; distinctiveness (inherent and acquired) under s9 and proviso to s10. Trade marks — exclusion for functional shapes — s10(5): shapes necessary to obtain a specific technical result are unregistrable. Trade marks — s10(11): registration likely to limit development of art. Evidence — market surveys must show association of shape with origin and must use the registered mark as depicted. Application of Philips/ECJ authority (Philips III) as persuasive guidance in interpreting South African provisions.
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19 September 2002 |
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Reported
A general award of “costs of the arbitration” does not include expert qualifying costs; costs may be remitted under s 32(2).
Arbitration — Costs — Qualifying costs of expert witnesses are not recoverable unless specially awarded; general phrase "costs of the arbitration" does not suffice; Arbitration Act s 35(1) confers power but award must be construed. Arbitration Act s 32(2) — Court may remit any matter referred to arbitration (including costs) for reconsideration on good cause shown; delay may be condoned if explained and not prejudicial.
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19 September 2002 |
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Reported
A partial cession of a claim without the debtor's consent is invalid in South African law and cannot support a set-off defense.
Cession – Partial cession – Splitting of claim – Whether a creditor may cede part of a claim without debtor’s consent – Invalidity of cession that splits claim absent consent – Set-off as a defense – Procedural law – Default judgment – Application for rescission based on invalid cession dismissed.
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13 September 2002 |
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Reported
Section 65 mandates exclusive, expedited Commission/Electoral Court procedure for objections material to declared election results.
Local government elections — section 65 Municipal Electoral Act — objections material to declared result — mandatory, time‑limited procedure via Commission and appeal to Electoral Court — High Court lacks jurisdiction for such post‑declaration challenges; s 78/s 20(4) govern other electoral disputes and code infringements.
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13 September 2002 |
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Reported
Trustees authorised to guarantee a close corporation's debts where the guarantee was for a beneficiary's benefit.
Trust law — interpretation of trust deed — powers of trustees to give guarantees (borgskap) — scope of phrase "any person or company" — includes close corporations where context so indicates — proviso that guarantees permitted if for benefit of a beneficiary — trustees liable where guarantee prima facie benefits beneficiary.
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13 September 2002 |
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Reported
A bank collecting a crossed 'not transferable' cheque into a payee‑nominated attorney trust account is not liable if so authorised by the payee.
Delict — collecting bank liability under extended lex Aquilia; cheque crossed 'not transferable' collected into attorney trust account; cheque drawn on and paid by same bank — paying and collecting functions may coexist; payee's authorisation rebuts prima facie unlawfulness; Indac test applied; refusal to decide abstract question on s 78(2A) Attorneys Act.
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13 September 2002 |
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Reported
Appellant charged with sexual offences failed to show exceptional circumstances under s60(11)(a); bail refused and appeal dismissed.
Criminal procedure – Bail – Schedule 6 offences – s 60(11)(a) requires appellant with prior similar conviction to prove exceptional circumstances on balance of probabilities; prior conviction and breaches of bail conditions demonstrate untrustworthiness and justify refusal of bail; lack of representation partly self‑inflicted and insufficient to outweigh factors against release.
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13 September 2002 |
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Reported
A purposive construction found that plural "excipients" did not exclude a single‑compound subcoating, so infringement was established.
Patent law — claim construction — purposive (not purely literal) approach to ascertain "pith and marrow" of invention; plurality in claims does not necessarily require multiplicity where specification and dependent claims show indifference to composition; single‑compound subcoating that meets functional requirements can fall within claim scope; infringement found where accused product meets essential functional features.
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12 September 2002 |
