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Citation
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Judgment date
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| December 2004 |
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Reported
Unreasonable delay by the court a quo permitted appeal; pricing regulations under s22G were unlawful and declared invalid.
Administrative law — jurisdiction — unreasonable delay by court a quo in granting or refusing leave to appeal may be treated as refusal permitting approach to appellate court; Medicines Act s22G — ultra vires/legality — single exit price; logistics fee and importer treatment; impermissible delegation to Director‑General; appropriateness of dispensing fees; Schedule 0 mark‑up provisions; public interest in access to medicines.
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20 December 2004 |
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Reported
Whether employer payments to a pension fund to "top up" gratuities are payments to the fund or to the members.
Pension funds – Rule 7.17 increase of gratuity – purpose and operation; employer liability to pension fund v employer payment to member; condictio indebiti – who is 'recipiens' of payment; delegation of authority – Executive Management Committee power under enabling statute; interpretation of Pension Funds Act s13A and statutory remuneration power s19(1)(b).
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2 December 2004 |
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Reported
Owner not entitled to a prior hearing before municipal preliminary expropriation notice preserving the status quo.
Expropriation – Municipal Ordinance (Cape) 20 of 1974 – preliminary notice and s 123(4) restrictions – whether owner entitled to prior hearing – procedural fairness under s 33 – preservation of status quo – Premier’s approval required before deprivation.
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2 December 2004 |
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Reported
Trial court erred in relying on bail-record hearsay and in refusing a trial-within-a-trial; retrial permitted.
Criminal procedure – admissibility of confessions – factual disputes about voluntariness or constitutional breaches must be resolved on evidence, ordinarily by a trial-within-a-trial. Evidentiary law – hearsay from bail-record documents cannot be treated as trial evidence without being admitted and tested. Constitutional criminal procedure – failure to inform of right to remain silent does not automatically render statements inadmissible; exclusion under s 35(5) depends on awareness and trial fairness. Appeal and retrial – appellate court may permit prosecution de novo where state was unfairly deprived of opportunity to prove admissibility.
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2 December 2004 |
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Reported
Conviction for attempted murder upheld; sentence set aside and matter remitted for re-sentencing, self-defence disproved.
Criminal law – appeal against conviction and sentence – appellate approach to trial court factual findings – whole-judgment appraisal – contradictions between witnesses and police statements – self-defence evaluated objectively – dolus eventualis where accused fires into a group – sentencing reconsideration and correctional supervision (Act 111/1998) requiring accused’s consent.
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2 December 2004 |
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Reported
Where choice of law was ambiguous, lex loci contractus governed formalities; post-termination payments discharged the surety's liability.
Contract – Suretyship – choice of proper law ambiguous (South Africa and/or Namibia) – lex loci contractus governs formalities; where contract made in Namibia Namibian law validates the suretyship. Accessory liability – appropriation of payments to principal debtor – payments after determination discharged surety. Facultative approach (proper law compliance) noted but not displacing lex loci where choice is not clear.
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1 December 2004 |
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Reported
Claimant must prove insurer’s adverse ‘in our opinion’ disability decision was unreasonable; cover applied only to draughtsman role.
Insurance law – disability benefits – clause making liability contingent on insurer’s opinion – claimant must show insurer’s opinion unreasonable. Insurance law – interpretation of ‘actively at work’ condition – cover only from date insurer on risk for the claimant’s duties. Contract/third‑party benefit – question of enforceability by member under insurer–trustees contract. Estoppel – no representation and reliance shown to extend cover to pre‑policy occupation.
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1 December 2004 |
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Reported
A plaintiff relying on a sting is limited to the defamatory meanings pleaded and cannot rely on unpleaded meanings.
Defamation — meaning ascribed by the ordinary reasonable reader in context; limitation of plaintiff to pleaded stings/quasi-innuendo; justification requires proof of substantial truth of pleaded imputations; public interest and reasonable publication defences.
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1 December 2004 |
| November 2004 |
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Reported
Whether goods merely transhipped through South Africa fall within the Counterfeit Goods Act's import/export prohibition.
Counterfeit Goods Act 37 of 1997 – s 2(1)(f) – whether 'imported into' or 'exported from/through' includes goods in transit or transhipped through the Republic. Interpretation – penal statute – ambiguities to be construed restrictively; legislative clarity required to criminalise transit trade. International law – TRIPs and comparative EC law discussed but not determinative; EC permits border measures for transit, South African statute not sufficiently clear. Definition issues – shortcomings and ambiguities in the Act's definition of 'counterfeiting' and its relationship to territorial infringement.
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30 November 2004 |
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Reported
s51(3)(b) gives courts discretion to depart from statutory minima for 16–17 year‑old offenders; life sentence substituted with 18 years.
Criminal law – Minimum sentences – s51(3)(b) Criminal Law Amendment Act 105 of 1997 – interpretation as conferring discretion on sentencing courts in respect of offenders aged 16–17 – ‘substantial and compelling circumstances’ test not applicable to 16–17 year‑olds – child sentencing principles: best interests, least restrictive detention, proportionality and rehabilitation – life sentence substituted with term of years.
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30 November 2004 |
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Reported
Whether a signatory can avoid an embedded personal suretyship by proving a justifiable mistake induced by a misleading credit form.
Contract — caveat subscriptor and iustus error — document-induced misrepresentation — objective test whether a reasonable person in signatory’s position would be misled — personal suretyship embedded in credit application may be void ab initio if signatory justifiably misled.
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30 November 2004 |
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Reported
Whether an innocent trustee is liable under his Master’s undertaking for loss caused solely by a co-trustee.
Insolvency — trustees’ liability — theft by co-trustee; interpretation of Master’s standard "Undertaking and Bond of Security"; scope of s 56(4) Insolvency Act; suretyship/subrogation and recovery from co-trustee; admissibility of surrounding circumstances in contract interpretation.
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30 November 2004 |
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Reported
Refund claims for wrongly paid municipal levies prescribe after three years; s 11(a)(iii) protects the State, not the taxpayer.
Prescription — Prescription Act 68 of 1969 s 11(a)(iii) and s 11(d) — Whether 30‑year period for debts "in respect of any taxation" applies to taxpayer's refund claim for levies wrongly paid — Held: s 11(a)(iii) benefits the State only; refund claims subject to three‑year prescription under s 11(d).
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30 November 2004 |
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Reported
Court develops common law to define marriage as a union of two persons, enabling same-sex marriages subject to statutory formalities.
Constitutional law – equality and dignity – sexual orientation – development of common law – marriage defined to include same-sex partners; remedial relief and interaction with Marriage Act performative formula; question of suspension to allow parliamentary legislation.
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30 November 2004 |
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Reported
Two-year lodging requirement for unidentified-vehicle Road Accident Fund claims is valid; Prescription Act does not override it.
Road Accident Fund – Unidentified vehicle claims – Regulation requiring lodging within two years – Valid exercise of s 26 delegated power; statutory entitlement is conditional, not a pre-existing ‘debt’ under Prescription Act; reasonableness supported by police docket retention and fraud/evidentiary risks; five-year summons period once claim lodged; minors with guardians treated on facts, unguarded minors not decided.
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30 November 2004 |
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Reported
A foreign party’s contractual submission (domicilium/choice-of-law) can suffice to confer jurisdiction in money claims by a local plaintiff.
Practice — Jurisdiction — Submission by peregrinus — Whether submission alone founds jurisdiction in money actions by incola without attachment. Contract — Domicilium and choice of law clauses — Implied submission to local courts for disputes concerning contract substance. Private international law — Recognition of party prorogation of jurisdiction; American Flag plc affirmed.
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30 November 2004 |
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Reported
An insurer may validly exclude coverage for accidental self-inflicted injury by clear terms in a life insurance policy.
Insurance – life insurance – exclusion clause – interpretation – scope of 'self-inflicted injury, whether intended or not' – accidental self-inflicted injury – policy exclusion upheld – public policy – contract interpretation principles.
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30 November 2004 |
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Reported
Interim interdicts are appealable if final in effect; balance of convenience may justify limited variation; contempt requires wilful mala fide breach.
Appealability of interim interdicts; ‘final in effect’ test; balance of convenience in interlocutory interdicts; variation of interim relief to accommodate limited lawful activity; requirements for contempt (wilful and mala fide disobedience); interlocutory costs ordinarily reserved.
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30 November 2004 |
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Reported
A presiding officer may, in appropriate circumstances, permit legal representation at a public service disciplinary hearing despite clause 7.3(e).
Disciplinary hearings — legal representation — whether clause prohibiting representation by legal practitioners is absolute or subject to discretion; Interpretation of collective agreement (Code) — clause 2.8 permits departures in appropriate circumstances; Administrative fairness/PAJA s3 — assistance and legal representation may be required in serious or complex cases; Factors in exercising discretion — nature and complexity of charges, seriousness of consequences, prejudice to employer; Referral back to presiding officer where discretion not exercised.
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30 November 2004 |
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Reported
A court lacks inherent jurisdiction to rescind a s26 restraint order; rescission is limited to statutory and pre-existing common-law grounds.
Constitutional / statutory procedure – Prevention of Organised Crime Act 121 of 1998 – Restraint orders (s 26) – Limited grounds for variation or rescission (s 25(2), s 26(10)); no inherent jurisdiction to rescind. Curator bonis (s 28) – Orders appointing curator bonis and surrender orders are amenable to variation or rescission on good or sufficient cause; broader judicial discretion. Common-law rescission – Fraud, common mistake, instrumentum noviter repertum available only if existing at date of order; post-grant implementation difficulties do not found an inherent jurisdiction to rescind a s 26 order.
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30 November 2004 |
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Reported
Section 18(1)’s R25,000 cap applies to a passenger in a towed vehicle deemed driven by the tow truck driver.
Road Accident Fund Act — s 18(1) limitation to R25 000 — passenger in towed vehicle — s 20(1) deeming person in control to be driver — ‘being conveyed in or on the motor vehicle concerned’ — business/employment exceptions.
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30 November 2004 |
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Reported
Where insurers’ liabilities are equal and co-ordinate, payment by one discharges the others and the remedy inter se is contribution, not subrogation.
Insurance — Double insurance — Where two insurers have equal and co-ordinate liabilities, payment by one discharges the others — Remedy between insurers is contribution, not subrogation — Policy clauses of precedence or excess determine relative contribution rights but do not convert co-ordinate liability into primary liability.
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30 November 2004 |
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Reported
Mental retardation alone does not render a witness incompetent under s194; retrial allowed on the imbecility count.
Criminal procedure; witness competency — s194 interpreted with ss192–193; imbecility/mental retardation alone does not disqualify a witness unless caused by intoxication/drugs and deprives proper use of reason; trial court duty to investigate competence; exclusion of material evidence may constitute miscarriage of justice; s227(2) sexual‑experience evidence; retrial permitted on imbecility count.
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30 November 2004 |
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Reported
Service at either office maintained by the Provincial Commissioner suffices for s57(2) notice; appeal upheld.
Administrative law; service of statutory notice under s 57(2) South African Police Service Act — whether service at a maintained provincial office suffices where Commissioner maintained two offices; internal administrative practice cannot negate an office; distinction from Groepe and Mamazela.
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30 November 2004 |
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Reported
An exchange offer made to existing shareholders is not an "offer to the public for subscription" under s145.
Company law – Offer to the public for subscription of shares – s 145 Companies Act 1973 – Whether share-exchange offer is an offer to the public – Meaning of "subscription" and "public" – Offer directed to owners of specific property (shareholders) not an offer to the public.
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26 November 2004 |
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Reported
Respondent failed to prove driver’s negligence; circumstantial speed proof requires expert evidence.
Motor-vehicle collisions; negligence – proof of excessive speed from skid marks and impact distances; limits on judicial accident reconstruction without expert evidence; reaction time and stopping distance as essential factual prerequisites; collateral untruthfulness affects credibility but is not independently probative of speed/negligence.
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26 November 2004 |
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Reported
A landowner must take reasonable steps to control a fire on his land; statutory presumption of negligence was not rebutted.
Veld fire — duty of landowner to take reasonable steps to control or extinguish fire likely to spread to neighbouring property; omission may be wrongful; s 84 Forest Act presumption of negligence applicable and may be rebutted by evidence of reasonable precautions; statutory presumption concerns negligence and does not displace wrongfulness enquiry; vicarious liability not established where owner’s duty arises from his own omission.
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25 November 2004 |
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Reported
An insurer may not retrospectively terminate a policy for an earlier fraudulent claim to defeat a subsequently valid claim.
Insurance – fraudulent claim – insurer’s election to terminate – effect of termination prospective only; forfeiture doctrine not recognised in South African law; refusal to import punitive English forfeiture rule; insurers may contractually provide for forfeiture.
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24 November 2004 |
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Reported
Noting an appeal does not revive a discharged ex parte restraint order; restraint orders require reasonable grounds and proportionality.
Prevention of Organised Crime Act — provisional ex parte restraint orders — noting an appeal does not revive a discharged provisional order; standard for granting restraint orders is 'reasonable grounds' to believe a confiscation order may be made (not balance of probabilities); restraint must be proportionate to anticipated confiscation; applicant should, where possible, quantify prospective benefit.
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22 November 2004 |
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Reported
Blind application of an allocation formula produced irrational quota results and was reviewable; 2005 allocations set aside.
Administrative law – Review – Allocation of commercial fishing rights – Application of mathematical allocation formula – Whether outputs so unreasonable that no reasonable decision‑maker could have adopted them (s 6(2)(h) PAJA). Administrative law – Fettering discretion – Treating a formula’s output as decisive without considering results unlawful. Statutory procedure – Use of formula without promulgated regulation does not permit rigid application that ousts discretion. Judicial review – Technical complexity and specialist expertise invite deference but do not bar review of irrational outcomes.
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19 November 2004 |
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Reported
A purchaser who assigns rights and obligations after an auction is not a 'nominee' or 'trustee' under sale conditions and is not bound by clause 16.
Auction sale – sale concluded when bidding closes; nominee/trustee under Conditions of Sale – meaning and scope; cession/assignment of purchaser's rights and delegation of obligations releases original purchaser; clause rendering purchaser surety limited to those signing as nominee/trustee/company/partnership.
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19 November 2004 |
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Reported
Rape by on‑duty policemen held to be beyond course and scope of employment; State not vicariously liable; appeal dismissed.
Police liability – vicarious liability – standard test: employer liable only if delict committed in course and scope of employment; deviation must remain connected to functions of employment. Rape by policemen motivated by sexual gratification is ordinarily outside course and scope; failure to intervene not grounds for vicarious liability where conspiratorial common purpose exists. Constitutional development of law to impose broader state liability declined; legislative competence reserved.
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11 November 2004 |
| October 2004 |
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Reported
An in personam interim interdict directing return of an aircraft abroad was appealable and enforceable against respondents subject to the court's jurisdiction.
Civil procedure – interim interdict – finality and appealability – an interim order is appealable if it has immediate effect and will not be reconsidered at trial. Jurisdiction – in personam orders against incolae – court may order performance abroad and enforce by domestic remedies. Attachment – ad confirmandam/ad fundandam jurisdictionem – assets attached to found jurisdiction over foreign company. Mareva-type preservation relief – scope where assets are moved abroad and transaction suspected to be in fraudem legis.
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1 October 2004 |
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Reported
Mistaken bank transfer does not vest recipient with entitlement; transferor may recover identifiable funds; appropriation knowing mistake is theft.
Banking – mistaken electronic transfer – recipient acquires no entitlement where no meeting of minds; mistaken payment may be recovered; appropriation by recipient knowing the mistake constitutes theft; banks may act as stakeholders and are not automatically required to treat credited funds as indefeasible assets of the customer; Mareva-type relief may be inadequate in insolvency.
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1 October 2004 |
| September 2004 |
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Reported
Bail refused where strong prima facie treason case and realistic flight risk outweigh applicant’s personal circumstances.
Criminal procedure – bail – s 60(11)(a) v (b) – Schedule 6 offences require ‘extraordinary circumstances’, Schedule 5 a lighter ‘interests of justice’ test; prima facie strength and flight risk decisive. Bail – relevance of state docket and applicant testimony – bail inquiry not a full trial. Flight risk – long sentence prospect, military training and supportive infrastructure increase risk of absconding.
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30 September 2004 |
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Reported
Refusal of special leave is final; third party’s inopportune turn was the sole cause of the collision.
Civil procedure – special leave to appeal – refusal by Supreme Court final and functus officio; subsequent leave per incuriam. Delict/tort – causal negligence – turning across oncoming traffic; driver turning across carriageway held solely negligent. Evidence – expert speed calculations inadmissible where based on unproved assumptions. Galante principle inapplicable where explanations are not equally open on the evidence.
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29 September 2004 |
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Reported
The applicant's striking-off of the respondent was disproportionate; appellate court substituted a two-year suspension.
Professional misconduct – disgraceful conduct by a medical practitioner involving unlawful/unsafe abortion attempts outside proper clinical setting. Administrative law – adequacy of reasons and consideration of representations in disciplinary proceedings. Appeal under s 20 Health Professions Act – scope is a rehearing on the merits limited to the record; deference to statutory regulator but intervention warranted where penalty is disproportionate. Sentencing principle – appellate interference permitted where original sanction is startlingly inappropriate; appellate court may substitute an appropriate penalty.
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29 September 2004 |
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Reported
The court examined the justification for withholding a report under the Promotion of Access to Information Act.
Access to information - Promotion of Access to Information Act - Interpretation of 'obtain for policy formulation' - Justification of withholding information.
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29 September 2004 |
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Reported
The respondent's reservation of ownership in movable goods survived the employer's insolvency because the goods remained unpaid.
Contract law – Building contracts (locatio conductio operis) – Reservation of ownership in movable goods; Insolvency – s 84(1) Insolvency Act inapplicable to locatio conductio operis; Contract interpretation – incorporation of tender into JBCC Principal Building Agreement; Payment certification – JBCC clauses 31.4 and 31.7 as mechanism to determine transfer of ownership on payment; Security – competing claims between reserved ownership holder and perfected general notarial bond.
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29 September 2004 |
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Reported
A good‑faith negotiation clause linked to final arbitration is enforceable and not an unenforceable agreement to agree.
Contracts – lease – essentialia: ascertained thing and determinable rental; delegation to third party/arbitrator permissible; Agreement to negotiate in good faith – enforceability where linked to final and binding arbitration; Preliminary agreement vs. binding contract – deadlock‑breaking mechanism renders obligation certain and enforceable.
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29 September 2004 |
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Reported
A drawee bank may reinstate original debits for unrevoked cheque payments despite ineffective late dishonour and post-liquidation inter-bank agreement.
Banking law – cheques – cross-firing/kiting – fraudulently drawn cheques initially honoured by drawee bank. Clearing house rules – late dishonour ineffective where collecting bank insists on payment. Banker–customer relationship – absence of countermand means banker may revert to original debits. Liquidation – reinstated book entries pursuant to inter-bank agreement do not constitute post-liquidation debts when they reflect prior honouring. Procedural – condonation of late application for leave to appeal granted.
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29 September 2004 |
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Reported
Courts must balance the s 51 statutory benchmark against substantial and compelling circumstances when sentencing for serious sexual offences.
Criminal law – sentencing – minimum sentences under s 51 Criminal Law Amendment Act 105 of 1997 – departure where substantial and compelling circumstances exist – sentencing court must respect legislative benchmark (S v Malgas; S v Abrahams) – appellate interference where material misdirection or disturbingly inappropriate sentence. Sexual offences – multiple rapes in context of customary-law marriage – individualization of punishment and relevance of cultural background as mitigating factor.
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29 September 2004 |
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Reported
Whether correctional supervision can be imposed for a statutory offence whose penalty prescribes only a fine or imprisonment.
Sentence — Correctional supervision under s 276(1)(h) of the Criminal Procedure Act — Interpretation of ss 276(1), (2) and (3) — Whether correctional supervision may be imposed for statutory offences whose penalty clauses prescribe only fine or imprisonment; Sentencing evaluation — suitability of correctional supervision given prior convictions and offending circumstances.
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29 September 2004 |
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Reported
Whether provincial road-works powers under s17 create enforceable real rights without separate expropriation.
Roads Ordinance – s 17: power to enter, take possession and remove materials for road-building; such rights approximate expropriation and constitute enforceable real rights; no separate prior expropriation required; s 17 permits reservation for future road-building needs; Deeds Registry endorsement and s 54 criminal sanctions protect provincial rights.
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29 September 2004 |
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Reported
Refund of bookmakers' overpaid VAT governed by s44(2)(a) where payments reflected prevailing practice, limiting claims.
VAT — overpayment by bookmaker arising from inclusion of take‑back winnings as output tax — interpretation of s16(3) proviso and s16(5) — refund under s44(2)(a) not s44(1) — s44(3) six‑month limitation applies where payment made in accordance with practice generally prevailing (VAT Guide evidence).
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29 September 2004 |
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Reported
A fire in a 20m fenced railway reserve is not a ‘veldfire’ under s34 and the respondent was not negligent.
• Veldfire — meaning and scope — s 34 National Veld and Forest Fire Act 101/1998 — presumption of negligence applies only where fire on defendant’s land is a ‘veldfire’. • Interpretation — ‘veld’ requires uncultivated/open land; a narrow fenced railway reserve is not ‘veld’. • Delict — legal duty not to negligently cause fire damage; negligence assessed by foreseeability, utility and burden of precautions. • Firebreak obligations (s 12(1)) cannot be read to require converting narrow railway/road reserves into firebreaks.
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27 September 2004 |
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Reported
Prescription begins when the survivor appreciates another's responsibility; child-abuse trauma can delay that date.
Prescription – Prescription Act 18 of 1943 s 5(1)(c) – meaning of "brought to the knowledge of the creditor" – requires knowledge sufficient to appreciate that another person is responsible for the wrong – child sexual abuse – traumagenic dynamics (traumatic sexualization, betrayal, powerlessness, stigmatization) may delay acquisition of such knowledge – where defendant pleads prescription he bears onus of proving it ran – debts arising before 1969 Act governed by 1943 Act.
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27 September 2004 |
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Reported
Whether various interest receipts are "mining income" turns on a flexible direct-connection test to the mining source.
Income tax — mining income — interpretation of "income derived from the working of any producing mine" — direct connection test — when interest receipts form part of mining income — investment of surplus receipts severs direct connection — examples: cash-management schemes, overnight/ fixed deposits, escrow accounts, late-payment interest, export-incentive interest, tax and rental refunds.
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27 September 2004 |
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Reported
Equal‑division starting point rejected; s 7(3) redistribution must reflect spouses’ contributions and business viability; award reduced to R4.5m.
Divorce — s 7(3) Divorce Act 70 of 1979 — asset redistribution requires assessment of spouses’ contributions; English ‘equal division’ starting point (White v White) not part of our law; appellate intervention permissible where trial court misdirects; consideration of asset form/liquidity and business viability relevant to just redistribution.
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23 September 2004 |
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Reported
A sub‑minimum of trustees cannot bind a trust; majority powers must be properly exercised and family trusts need independent oversight.
Trusts – capacity‑defining minimum of trustees; sub‑minimum trustees cannot bind trust; trustees must act jointly unless deed authorises otherwise; majority power must be properly exercised; limited application of Turquand rule to trusts; supervisory role of Master and courts to prevent family‑trust abuse.
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23 September 2004 |
