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Citation
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Judgment date
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| December 2003 |
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Reported
Appellate court reassessed demeanour-based credibility findings, found confession to theft, and upheld truth/public-interest defence; appeal dismissed.
Defamation and iniuria — proof and defences; truth and public interest as justification; appellate review of demeanour-based credibility findings; reassessment of evidence on probabilities; effect of confession on iniuria claim.
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2 December 2003 |
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Reported
s46(9)(c) read with s49(3)(b) limits retrospective reinstatement by the Industrial Court to six months.
Labour relations – s 46(9)(c) read with s 49(3)(b) – mutatis mutandis incorporation – retrospective reinstatement limited to six months – selective re‑employment unfair – reinstatement appropriate but limited where insufficient evidence for greater compensation.
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2 December 2003 |
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Reported
A ten‑year prison sentence for multiple indecent assaults on boys was excessive and reduced to five years to allow supervised treatment.
Criminal law – Sentencing – indecent assaults on children – balancing rehabilitation and protection of community; expert evidence on availability of in‑prison psychotherapy; principle of proportionality and consistency in sentencing; substitution of excessive custodial term with five years under s 276(1)(i) to permit corrective supervision and treatment.
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2 December 2003 |
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Reported
An in‑court admission may be withdrawn on appeal; 'trader' under s 2 does not generally include mere property‑letting.
Insolvency Act s 34(1) – voidable sale of business – admissibility and withdrawal of in‑court admissions – construction of 'trader' in s 2 – letting/hiring of immovable property not generally encompassed by 'trader' clause – remittal for further factual enquiry.
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1 December 2003 |
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Reported
Respondent failed to prove the high threshold of article 13(b); return ordered with detailed protective conditions and costs against Central Authority and respondent.
* Hague Convention (1980) – child abduction – article 12 mandatory return and article 13(b) narrow exception for grave risk of physical or psychological harm or intolerable situation.
* Standard of proof – usual civil onus applies; Plascon‑Evans approach to disputes on affidavit in Convention proceedings.
* Admissibility of fresh evidence on appeal where it materially affects earlier assumptions.
* Role of Central Authority/Family Advocate – duty to initiate or facilitate return proceedings; costs consequences for failure to act.
* Protective conditions and mirror orders to govern return pending custody determination in state of habitual residence.
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1 December 2003 |
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Reported
Payment-linked reduction of periodical imprisonment is not lawful; partial suspension ordered conditioned on payments and no further maintenance default.
Maintenance law; sentencing — periodical imprisonment — limits on Correctional Services officials’ power to alter court-imposed periodical imprisonment — payment-linked reduction not authorized by Correctional Services Act or regulations; partial suspension appropriate for deliberate maintenance default; best interests of the child and enforcement of maintenance obligations as sentencing considerations.
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1 December 2003 |
| November 2003 |
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Reported
Process served in a wrongly-named creditor’s name does not interrupt prescription unless it objectively notifies the true creditor’s claim.
Prescription Act s 15(1) – interruption of prescription – objective requirement that process must itself show the creditor claims payment – misnomer/ amendment of pleadings distinct from statutory compliance – reliance on Albestra affirmed.
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28 November 2003 |
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Reported
Whether a supplier's 'standard procedure' clause creates obligations and affects indemnities, notice periods, and liability for latent defects.
Contract interpretation — 'standard manufacturing procedures' clause — whether clause creates contractual obligation or mere recital; meaning of 'standard' and 'standard raw materials'; whether compliance is condition precedent to indemnities; scope of written warranty/exclusion clause; tacit term and 21‑day notice for latent defects; exclusion of implied warranty against latent defects.
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28 November 2003 |
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Reported
Whether the applicant could amend a final costs order to claim attorney-and-client costs under the securities.
Costs — amendment after judgment — functus officio — Firestone exceptions considered — whether costs on attorney-and-client scale based on securities were raised in heads or oral argument — application to vary costs refused.
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28 November 2003 |
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Reported
A sectional-title transfer embargo for unpaid levies does not outrank a mortgagee's preferent claim in execution sales.
* Sectional Titles Act s 15B(3)(a)(i)(aa) – transfer-embargo/veto for unpaid levies – does not create a preferent claim over mortgagees for purposes of Magistrates’ Courts Act s 66(2).
* Magistrates’ Courts Act s 66(2) – protects mortgagees as preferent creditors in execution sales unless statutory language clearly provides otherwise.
* Embargo provisions – juridical nature sui generis; effective preference in insolvency (costs of realisation) but not ordinary statutory preference.
* Relevant authorities – Johannesburg Municipality v Cohen’s Trustees; Rabie NO v Rand Townships Registrar; South African Permanent Building Society v Messenger; Nel NO v Body Corporate (confined to insolvency).
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28 November 2003 |
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Reported
Facilities letter did not satisfy contractual written-release requirement; waiver, estoppel and reliance claims failed.
* Suretyship – written-release clause – release must appear from the document itself; background circumstances cannot supply a release.
* Non-variation clause (Shifren principle) – waiver or informal variation barred where effect would be to permit unwritten release.
* Estoppel – cannot be used to evade contractual formalities requiring written release.
* Reliance/objective theory – reasonable offeree must have been justified in believing a release was intended before binding the offeror.
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28 November 2003 |
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Reported
Whether a non-appealable magistrate liability ruling can be reviewed and whether defendants’ silence permits an inference of joint negligence.
Civil procedure – appealability of a magistrate’s liability-only ruling; res ipsa loquitur; adverse inference where defendants with exclusive knowledge decline to give evidence; application of Galante rule to prefer inference favourable to plaintiff; joint and several liability of co-defendants.
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28 November 2003 |
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Reported
A s 20(3) objection prevents a registrar enrolling the applicant; condonation for late appeal record was refused.
Attorneys Act s 20(1) and s 20(3) — effect of written objection on registrar's power to enrol; Law society locus standi to challenge irregular enrolment; Admission under former Bophuthatswana Act — alleged discrimination; Condonation for late and incomplete appeal record — refusal; Recommendation for legislative clarification.
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28 November 2003 |
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Reported
Holders of contingent allocation rights are "persons with an interest" entitled to be heard under section 80(3).
Administrative law; Marine Living Resources Act s80(3) – "person with an interest" includes holders of contingent allocation rights; procedural fairness – duty to give affected rights-holders opportunity to state case when appeals affect allocations; prior appeal opportunity not a substitute; administrative inconvenience no excuse.
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28 November 2003 |
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Reported
A blanket prohibition on asylum-seekers' work and study is unlawful; the Standing Committee must assess individual cases.
Refugees Act — power to determine conditions of asylum-seeker permits (s 11(h)) — Minister's regulations beyond power — blanket prohibition on employment and study unlawful as unjustified limitation of dignity (s 10) and education (s 29) — remedy: remit to Standing Committee to decide individual cases.
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28 November 2003 |
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Reported
Residence tied to employment can be terminated on lawful dismissal; unsubstantiated theft allegations may justify eviction.
Extension of Security of Tenure Act – s 8(2) residence linked to employment – s 8(4) age proof – s 9/s 10(1)(c) eviction for fundamental, irremediable breach (unsubstantiated allegations) – occupier status by marriage.
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28 November 2003 |
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Reported
Whether a single trustee can bind a trust and whether the Turquand rule applies to trusts.
Trusts and trustees – unanimity requirement – delegation and authority of trustees – construction of trust deed clause limiting signing to official/administrative documents – applicability of Turquand (indoor management) rule to trusts not decided – ostensible authority a factual enquiry – referral to trial under Rule 6(5)(g).
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28 November 2003 |
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Reported
An employee in a fiduciary lead role must disclose and account for secret profits from client opportunities.
Employment law; fiduciary relationship – when an employee stands in fiduciary relation to employer – corporate opportunity doctrine – undisclosed appropriation of client equity – duty to account for secret profits; pleadings construed to include fiduciary claim.
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28 November 2003 |
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Reported
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28 November 2003 |
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Reported
A peremptory regulation requiring timely police affidavits in unidentified-vehicle claims is valid, not ultra vires, and non-compliance bars recovery unless s 24(5) applies.
* Road Accident Fund Act – regulation 2(1)(c) – interpretation of "in a position" and "if reasonably possible" – 14-day affidavit requirement in unidentified-vehicle claims.
* Regulatory preconditions – peremptory nature of evidentiary requirements – non-compliance bars Fund liability.
* Delegation and vires – s 26 regulation-making power permits evidentiary/regulatory measures to prevent fraud; regulation 2(1)(c) not ultra vires.
* Interaction with s 24(5) – deeming provision may cure non-compliance where Fund fails to object within 60 days.
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28 November 2003 |
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Reported
Appeal against 18‑month sentence for possession of 6,157 abalone dismissed; sentencing discretion properly exercised.
Sentencing — possession of large quantity of protected marine resource (abalone) — limits and penalties — exercise of judicial discretion in sentencing — judicial notice of local crime incidence permissible — duty to order probation report only where requisite information is lacking — first offender not automatically entitled to non‑custodial sentence.
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28 November 2003 |
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Reported
Derivative evidence found after unlawful interception and inducement excluded; acquittals substituted only where law allows.
Criminal law — admissibility of derivative real evidence discovered after unlawful interception and inducement — s 35(5) Constitution and s 218(1) Criminal Procedure Act — exclusion where admission would bring administration of justice into disrepute; Criminal procedure — undertaking by police/prosecutors to use person as witness — effect on subsequent prosecution and admissibility of resultant statements; Appeal — appellate court may not substitute guilty verdict for trial acquittal in absence of Crown appeal; Accessory and money-laundering liability — proof by circumstantial and documentary evidence.
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28 November 2003 |
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Reported
Appellate court set aside an unduly lenient suspended sentence for multiple rapes and imposed eight years’ imprisonment.
* Criminal law – Sentence – rape – gravity, humiliation and degradation of victim – due weight to retribution and deterrence required.
* Sentencing principles – triad of crime, offender and society; bench-marking where prescribed minimums are departed from.
* Appeal procedure – delay in lodging record does not automatically lapse State appeal absent unreasonable delay.
* Evidence on appeal against sentence – further affidavits admissible only in exceptional circumstances.
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28 November 2003 |
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Reported
A plant breeder’s right was invalidated for material misrepresentation, absent description and lack of novelty.
Plant Breeders’ Rights – registration requirements – mandatory technical description and register representation; breeder/discoverer status – material misrepresentation v entitlement to apply; novelty/distinctness – ‘otherwise come to the knowledge of the public’ defeats novelty; Registrar’s publication duty; limits of correction/amendment/transfer under ss 33, 36 and 38; termination of invalid plant breeder’s right.
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28 November 2003 |
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Reported
The respondent who agreed to perform when a company failed to ratify was a purchaser, not merely a surety.
Contract construction – commercial documents – purchaser versus surety – effect of non-existent principal – clause construed in context; suretyship is accessory; parties' performance and conduct admissible to confirm intention.
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27 November 2003 |
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Reported
Twenty-two-year cumulative sentence for multiple housebreakings was excessive for a young first-time offender; reduced to seven years.
Sentencing – cumulative sentences – excessive total for a young, first-time offender; mitigating factors (youth, remorse, family support, prospects of rehabilitation); housebreaking and theft; declaration of unfitness to possess firearm under s 12(2) Arms and Ammunition Act retained.
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27 November 2003 |
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Reported
Proceeds from a property bought with the fixed intention to resell at a profit are revenue and taxable, despite lessee’s special position.
Tax — Sale of immovable property — Characterisation of proceeds as revenue or capital — Intention at acquisition and circumstances of sale — Profit‑making scheme where asset acquired for resale — Lessee’s special position/public‑law forbearance does not convert planned resale profit into capital.
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25 November 2003 |
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Reported
Final sequestration upheld where applicant’s secret commissions/bribes exceeded assets and were recoverable by the respondent.
Insolvency — s 12(2) Insolvency Act — court’s discretion to admit further proof of insolvency in replying papers; Motion procedure — authority to institute proceedings — deponent need not personally be authorised where attorneys are duly appointed; Employment law — employee’s duty of good faith/fiduciary duty — secret commissions/bribes received by employee are recoverable by employer; Review — appellate interference with discretionary exercise only for caprice, wrong principle, or absence of reasons.
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25 November 2003 |
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Reported
Employer not vicariously liable where employee acted for private purposes with only a peripheral connection to employment.
* Vicarious liability – course and scope of employment – dominant purpose test – personal acts incidental to employment – employer vehicle ownership not determinative.
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24 November 2003 |
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Whether mere knowledge or acquiescence establishes joint possession under s32(1)(c) of the Arms and Ammunition Act.
Arms and Ammunition Act s32(1)(c) – possession of explosive device; joint possession – whether mere knowledge or acquiescence suffices; evidence must establish which accused had actual possession; convictions set aside.
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21 November 2003 |
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Reported
Regulator’s community-television licence conditions must be rationally connected to the information and empowering provisions; several conditions set aside.
Administrative law — judicial review under PAJA — rationality standard (s 6(2)(f)(ii)) — licence conditions for community broadcasting — rational connection required between material before decision-maker and imposed conditions; language, news, employment-equity and training conditions set aside; refusal to extend licence area upheld as rational pending policy and frequency planning.
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21 November 2003 |
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Reported
A sale of an undivided portion of agricultural land conditioned on ministerial consent is void without that consent.
Subdivision of agricultural land – s 3(e)(i) Subdivision of Agricultural Land Act 70 of 1970 – sale of undivided portion without Minister's consent – effect of 1981 amendment defining 'sale' to include suspensive conditions; suspensive condition of Ministerial consent does not avoid statutory prohibition; agreement in contravention of s 3(e)(i) declared null and void; restitution and costs ordered.
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20 November 2003 |
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Reported
Whether ordinary sand is a ‘mineral’ under s 3(1) Act 50 of 1956 — court holds it is not; contractual recovery granted.
Property law – extraction of soil/sand – whether ordinary sand constitutes a ‘mineral’ for s 3(1) General Law Amendment Act 50 of 1956; notarial attestation requirement; validity of oral agreement to win sand; recovery for unpaid sand.
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14 November 2003 |
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Reported
State liable where police and prosecutor negligently failed to oppose bail, leading to respondent’s assault.
Delict — State liability for omissions — police and prosecutors’ duty to oppose bail or place relevant information before court; Wrongfulness — constitutional norm of accountability and protection of life, dignity and security; Negligence — failure to make independent inquiries/reliance on unsubstantiated recommendation; Causation — but-for test where judicial bail order intervened; Objective assessment of what a reasonable judicial officer would, on probabilities, have done; Public policy/proximity — no basis to deny action for damages where no other effective remedy existed.
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14 November 2003 |
| September 2003 |
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Reported
War‑policy incorporated Hull exclusions; aircraft used for smuggling so illegal‑use exclusion applied and claim dismissed.
Aviation insurance – Hull “All Risks” and War & Allied Perils policies – incorporation clause – whether exclusions (including illegal‑use exclusion) are incorporated; construction of "while the aircraft is being used for any illegal purpose" – objective assessment of use/purpose; insured’s lack of knowledge not sufficient to defeat exclusion; seizure/forfeiture for smuggling precludes indemnity.
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30 September 2003 |
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Reported
Section 36 requires deduction of full statutory compensation from a third party's apportioned liability; 'like‑for‑like' rejected.
Compensation for Occupational Injuries and Diseases Act s36 — 'have regard to' means deduct compensation payable by Commissioner/Director General from third‑party's gross (apportioned) liability — rejection of general 'like‑for‑like' deduction rule — apportionment and recovery by Director General.
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30 September 2003 |
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Reported
Ss 77–78 of the Systems Act regulate delivery mechanisms, not the initial decision to establish a municipal police service; Police Act procedure governs establishment.
Local government law – municipal services – meaning of "municipal service" not confined to chargeable services; Municipal Systems Act ss 77–78 regulate choice of delivery mechanism, not antecedent decision to provide service; Interaction with Police Act – establishment of municipal police service is sui generis and governed by Police Act procedure, so s 78 obligations did not apply; Review – municipality’s decision lawful.
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30 September 2003 |
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Reported
A specialist broker must warn of onerous policy terms but need not ensure the insured’s compliance; prescription accrues on formal repudiation.
Insurance broking — specialist broker’s duty to draw attention to material, unusual or limiting policy terms and explain implications; not obliged to enforce insured’s compliance or make intrusive inquiries into business practices; insured’s responsibility to comply. Prescription — cause of action against broker accrues on formal notification that insurer repudiated claim on basis of insured’s non‑compliance; earlier discussions do not necessarily start prescription.
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29 September 2003 |
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Reported
Whether "in the public interest" compels rail providers to assume statutory policing duties for commuter safety.
Administrative law; statutory interpretation – meaning of "in the public interest" in ss 15(1) and 23(1) of the Legal Succession to the South African Transport Services Act – scope limited to provision of a service benefiting the public, not imposing policing duty; constitutional law – policing is SAPS function (s205(3)); civil procedure – disputes of fact on affidavit and Plascon-Evans rule; structural interdict/mandamus – limits where policy, budget and contractual/arbitral schemes involved; costs – interlocutory costs follow outcome where interlocutory matters rendered irrelevant by merits.
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29 September 2003 |
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Reported
Whether an indefinite distribution contract is terminable on reasonable notice and whether six months’ notice was reasonable.
Contract law – indefinite duration contracts – terminable on reasonable notice; tacit terms; assessment of notice period reasonableness at time notice given; distributor‑supplier relationship; commercial reasons for termination.
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26 September 2003 |
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Reported
An organ of state must consider all relevant circumstances, including suitable alternative accommodation and public interest, before evicting unlawful occupiers.
* Land law – Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 – s 6(1) and s 6(3) – factors to be considered when an organ of state seeks eviction – s 6(3) not exhaustive; court may consider all relevant circumstances including public interest and s 4(6)/(7) factors.
* Evictions by organ of state – availability of suitable alternative accommodation and assurance of security of tenure are critical, especially where occupiers have long resided on privately owned land and the State has housing obligations under s 26 of the Constitution.
* Evidential burden – municipality must show factual basis for inference of control/availability of alternative land before eviction order should be granted.
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26 September 2003 |
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Reported
A surety is not automatically released by a creditor’s realisation of pledged shares; prejudice requires breach of a legal duty.
• Suretyship – prejudice and release – no general rule of automatic release; release only when prejudice results from breach of legal duty under principal agreement or deed of suretyship. • Parate executie – private realisation of movables in creditor’s lawful possession not per se unconstitutional; Findevco decision criticised. • Pactum commissorium – void; conditional take‑over at fair price valid. • Valuation/timing of pledge realisation – determined by deed terms and evidence of market value. • Third‑party commercial arrangements – do not necessarily reduce surety liability absent contractual provision or proof of prejudice.
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26 September 2003 |
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Reported
Loan agreements were authorised and funds received by the borrower, but an unwritten waiver of a suspensive condition caused the agreements to lapse.
* Company law – authority to bind company – implied/unanimous assent and acquiescence can validate transactions absent formal board minutes.
* Contract – suspensive condition – requirement that waiver be ‘in writing’ enforceable; oral waiver ineffective.
* Loan transactions – borrower may nominate payee account; payment to nominated account does not negate receipt by borrower.
* Formality/entrenchment clauses – strict enforcement promotes certainty; courts will enforce agreed formalities.
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26 September 2003 |
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Reported
A cheque claim is governed by s 11(c)’s six‑year prescription, and does not automatically prescribe with the underlying debt.
Prescription Act s 11(c) – debt arising from a bill of exchange/cheque – six‑year prescription period; cheque as negotiable written contract dependent on justa causa; effect of underlying debt’s prescription on cheque claim; provisional sentence procedure.
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26 September 2003 |
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Reported
Police owe a duty to investigate an applicant’s fitness before recommending firearm licences; negligent failure causing shooting is actionable.
Delict — Police duties in firearm licensing — statutory and common-law duty to investigate applicant’s antecedents, character and mental/temperamental fitness — form SAP286 and Special Force Order as binding administrative/statutory guidance — negligence for failure to take basic corroborative steps — factual and legal causation for shooting — State liable in delict.
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26 September 2003 |
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Reported
A provisional restraint order may be granted if there are reasonable grounds to believe a confiscation order may follow, relying on s22 presumptions.
Prevention of Organised Crime Act — Chapter 5 restraint and confiscation — s 18 (confiscation enquiries), s 25/26 (restraint orders), s 22 presumptions — ex parte disclosure duty — evidentiary standard for reasonable grounds to believe a confiscation order may be made.
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26 September 2003 |
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Reported
A council’s plan approval is invalid without an appointed building control officer; loss of a view can derogate adjoining property value.
* Building plans – National Building Regulations and Building Standards Act 103 of 1977 – ss 5, 6, 7 – appointment of building control officer and its recommendation are jurisdictional pre‑conditions to approval of plans.
* Planning – Derogation from value – s 7(1)(b)(ii)(aa)(ccc) – 'value' means ordinary market value; substantial loss of view can amount to derogation.
* Town Planning Regulations (Durban) – regulation 19 – meaning of 'rear space' and 'external rear wall' – rear boundary fixed by site geometry, not building orientation.
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26 September 2003 |
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Reported
An advocate may not perform attorneys’ administrative litigation work or sign magistrates' court pleadings; suspension for misconduct upheld.
Advocates — professional misconduct — referral system — advocate may not undertake administrative or preparatory work normally performed by attorneys — advocate may not sign magistrates' court pleadings, notices of motion or furnish own address for service — consent order restrictive interpretation — application to lead new evidence refused.
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26 September 2003 |
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Reported
Section 371(3) does not authorise the Minister to direct appointment of provisional liquidators absent a statutory nomination.
Companies Act – Liquidation – s 371(3) – remedy for aggrieved persons limited to appointments following statutory nomination – s 371 does not extend to provisional liquidators; 'nomination' means formal nomination under s 364 – Minister may not direct appointment of provisional liquidator absent statutory nomination; availability of urgent review/interdictory remedies.
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25 September 2003 |
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Reported
Appellate court upheld habitual‑criminal declaration under s 286(1), finding no misdirection or improper exercise of sentencing discretion.
* Criminal law – Sentence – Section 286(1) Criminal Procedure Act – declaration of habitual criminal – requirements: habituality, community protection, age and maximum punishment – discretion of sentencing court and requirement of prior warning.
* Sentencing appeal – appellate interference only where trial court misdirected or sentence so inappropriate as to vitiate discretion.
* Cheque fraud – prevalence and community prejudice as relevant to seriousness and need for protection.
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23 September 2003 |
