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Citation
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Judgment date
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| March 2004 |
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Reported
Set‑off of assessed losses permitted only against income derived from carrying on a trade; interest income does not qualify.
Income tax – s 20(1) set‑off of assessed losses – set‑off only against income "derived by carrying on any trade" – taxpayer must show trade carried on and income derived from that trade – interest and investment income ordinarily not income from trade – investment of sale proceeds does not automatically make taxpayer an investment company.
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31 March 2004 |
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Reported
Parate executie and business‑operation clauses in a notarial covering bond are valid absent a clear public‑policy breach.
Notarial bond – parate executie – validity of clauses permitting possession, conduct and sale of secured movables – public policy; constitutional right of access to courts (s 34) – requirement of judicial sanction where creditor not in possession; contractual freedom and limits; duties of reasonableness and agency law when creditor operates business.
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31 March 2004 |
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Reported
An unliquidated counterclaim may defeat part of a summary judgment claim, but full disclosure and merit are required.
Summary judgment – unliquidated counterclaim – counterclaim for less than plaintiff's claim can in principle constitute bona fide defence to that part – payment into court not required – rule 32(3)(b) disclosure obligations – court's overriding discretion under rule 32(5) to refuse summary judgment – inadequate particulars and lack of merit justify summary judgment.
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31 March 2004 |
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Reported
A clearing agent and its surety remain liable under s 18A and an independent special bond despite s 99(5) time‑bar.
Customs and Excise Act — s 18A liability — "person who exports" construed as equivalent to defined "exporter", including agents; special removal bond creates independent principal obligation; s 99(5) time‑bar limited to s 99 liabilities and does not extinguish s 18A or bond liabilities; cumulative liabilities and purposive statutory construction.
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31 March 2004 |
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Reported
The appellants’ culpable homicide convictions for a fatal assault in police custody were upheld; appeal dismissed.
Culpable homicide – police custody – fatal blunt-force injuries – evaluation of unreliable witness evidence against the mosaic of proof – liability as participant, common purpose or omission to prevent – foreseeability (culpa) established – sentence upheld.
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31 March 2004 |
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Reported
A State’s disposal of vested land rights can be administrative action; the applicant had standing and a right to be heard before non-renewal.
Administrative law – Disposal of state-owned land rights – Whether grant of servitude by organ of State constitutes administrative action under s 33 (item 23, schedule 6) – Standing to review under transitional provisions – Legitimate expectation to be heard before non-renewal of long-held lease – Review where decision based on incorrect legal advice.
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30 March 2004 |
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Reported
An amendment changing creditor and the basis of the claim prevents earlier summons from interrupting prescription.
Prescription – interruption by service of process (s 15(1) Prescription Act) – 'debt' as correlative of right of action – distinction between right of action and cause of action – amendment of particulars changing creditor and basis (impoverishment) – amended claim not same or substantially same right of action – special plea of prescription upheld.
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30 March 2004 |
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Reported
Magistrates’ courts may grant provisional sentence under Rule 14A; the rule is not ultra vires the Act.
Magistrates' Courts Act – Rule 14A – validity – provisional sentence – actions on or arising out of a liquid document – interlocutory relief – ancillary powers – execution of interlocutory judgments (s62, s66) – Rules Board powers to regulate practice and procedure.
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30 March 2004 |
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Reported
An attorney owes no general duty to verify a client's identity for the Fund; no negligence found.
Road Accident Fund; attorney liability – whether an attorney owes a duty to a third-party statutory fund to verify a claimant’s identity when submitting claims or disbursing settlements. Warranty of authority – discharge form warrants authority to act for the person presenting as claimant, not correctness of claimant’s identity. Tacit warranty – no tacit undertaking by attorney to vouch for client’s locus standi absent special agreement or circumstances. Delict – agent not liable for principal’s lack of entitlement absent fraud or special duty; negligence requires a legally recognised duty. Statutory scheme – Fund’s statutory function includes investigation and verification of claims, informing policy against imposing verification duties on attorneys.
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30 March 2004 |
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Reported
Circular clause was an administrative instruction; pension payment and interest governed by Proclamation 21, not employer contract.
Pension law; Proclamation 21 of 1996 – creation of Government Employees Pension Fund; article 26 – timing of payment and interest; contractual interpretation of departmental circulars; distinction between benefit descriptions (may form contract) and administrative instructions (not contractual).
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29 March 2004 |
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Reported
Whether an alleged undisclosed principal is bound to a land sale and whether specific performance is appropriate.
Sale of immovable property – sale by seller’s agent of land owned by another – undisclosed principal – absence of evidence of authority to bind owner. Alienation of Land Act s 2(1) – post-signature insertion constituting counter-offer – requirement of written acceptance not met – no enforceable contract. Specific performance – inappropriate where owner disavows sale or performance is impossible or futile.
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29 March 2004 |
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Reported
An insurer’s extension clause can create an obligation to indemnify an authorised user, enabling an s156 direct claim.
Insurance law – extension clause – indemnity to authorised user – stipulatio alteri – reservation that only insured may enforce – construction of policy as evidencing insurer's obligation – s156 Insolvency Act – direct claim against insurer on sequestration/winding-up.
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29 March 2004 |
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Reported
A marginal shortfall between historical sale proceeds and later market valuation does not justify restitution under the Restitution Act.
Restitution of Land Rights Act – meaning of 'dispossessed' – requires deprivation induced by compulsion, not a wholly voluntary sale. Dispossession "as a result of past racially discriminatory laws or practices" – Community Development Act and Group Areas proclamations can form part of a racially discriminatory scheme. Just and equitable compensation – ordinarily assessed by market value; retrospective valuation is imprecise and minor differences do not necessarily show under-compensation. Remedy – where payment approximates market value, restitution (restoration) is not warranted under s 2(2).
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26 March 2004 |
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Reported
An employer may deduct debts only from its own pension fund’s benefits, not from benefits transferred to subsequent funds.
Pension Funds Act s37A protection; s37D(1)(b) exception; meaning of "member"; deduction limited to employer’s fund; strict construction of exceptions to pension protection; default judgment suffices for s37D(1)(b)(ii).
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26 March 2004 |
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Reported
The appellant must prove unpaid water charges are legally due before lawfully restricting the respondent's registered water rights.
National Water Act 36 of 1998 – s 59(3) – restriction of supply – can only be exercised where water charge is legally payable. Mandament van spolie – water rights registered under former Water Act and subsumed into association membership capable of protection (quasi‑possession). Onus – person restricting supply must prove statutory power properly invoked; George Municipality v Vena applied. Distinction from purely contractual disconnections (Telkom/ Xsinet) where services are not incident of possession.
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26 March 2004 |
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Reported
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26 March 2004 |
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Reported
A correction notice does not replace a proclamation; the original proclamation effected dissolution on its publication date.
Corporations Act s13 – dissolution must be by proclamation; correction notice is not a new proclamation; printing omissions may be cured by correction notice where core requirements met; mutatis mutandis incorporation of Companies/insolvency provisions supplies necessary liquidation powers; omission of discretionary provisions not necessarily fatal.
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26 March 2004 |
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Reported
Loss of original export documents does not automatically forfeit paid export incentives absent false or misleading information.
Export incentive scheme – interpretation of GEIS Revision 2 – documentary evidence and five-year retention requirement; Whether initial determinations/payments are 'provisional' – implication into scheme; Paragraph 3.11 – disallowance and recovery contingent on fraud or misleading information; Discretion of Director-General – no automatic forfeiture for loss of originals.
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25 March 2004 |
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Reported
Whether a maintenance obligation was reciprocal to a guaranteed payment and if referral to oral evidence is appealable.
Contract interpretation – whether clause imposing maintenance obligation was binding or a recital; reciprocity of obligations and exceptio non adimpleti contractus; appealability of a court’s referral of motion proceedings to oral evidence (not appealable).
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25 March 2004 |
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Reported
A policy time‑bar is valid; a "claim" requires a demand for a specific monetary amount, mere notification insufficient.
Insurance — interpretation of policy — time‑bar clause — Operating Condition 12.2 not void for vagueness; dates in Operating Condition 8 determine when consideration starts — "claim" means a demand for indemnity in a specific amount — late lodging of claim absolves insurer of liability.
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25 March 2004 |
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Nominee-held assets may form part of a joint estate; s 23 Venda Act does not bar mere ownership absent prohibited outside remunerative work.
Family law – division of joint estate – nominee arrangements – whether assets held in third party’s name formed part of spouses’ joint estate. Public service statute – Venda Public Service Act s 23 – construction: prohibits remunerative outside work without permission; does not bar mere ownership of business interests that do not consume officers’ time. Illegality – court may consider illegality mero motu on appeal if it appears ex facie the transaction or evidence and necessary facts are before the court. Evidence – appellate courts deferential to trial court credibility findings absent misdirection.
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24 March 2004 |
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Reported
Whether land formerly held by a racially based statutory trust remains 'held in trust' and exempt from municipal rates.
Rating of State Property Act s 3(3)(a) – meaning of 'held in trust' – abolition of racially based statutory trust (SADT) – effect of Proclamation transferring land to State – General Power of Attorney does not create trust – Interpretation Act and constitutional provisions cannot revive extinct statutory trusteeship – executive ministerial notice is proper exemption mechanism.
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23 March 2004 |
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Reported
Appellate court found insurer proved insured arranged arson; trial court wrongly rejected corroborated confession.
Insurance fraud; arson; credibility and corroboration; appellate interference where trial court’s credibility findings are plainly wrong; limited weight of demeanour and minor inconsistencies, especially with interpreter evidence.
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23 March 2004 |
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Reported
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18 March 2004 |
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Reported
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18 March 2004 |
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Reported
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18 March 2004 |
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Reported
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17 March 2004 |
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Reported
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15 March 2004 |
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Appellant's denial of knowledge of counterfeit notes rejected; conviction and sentence upheld.
Criminal law – Offering counterfeit banknotes – s 34(1)(b) Reserve Bank Act 90 of 1989; credibility findings; evaluation of accused's version; whether version is reasonably possibly true; appellate restraint on factual findings; sentence proportionality.
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11 March 2004 |
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Reported
A mobile aircraft ground power unit is not a "motor vehicle" under s1 of the Road Accident Fund Act.
Road Accident Fund Act s1 – "motor vehicle" – meaning of "designed or adapted for propulsion or haulage on a road" – combined subjective and objective test – airport ground power units supplying electricity to stationary aircraft are not motor vehicles for general public-road use – owner adaptations or occasional highway use insufficient to qualify an item as a motor vehicle.
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11 March 2004 |
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Reported
A trade mark licence, being a non‑proprietary right of use, does not qualify as "property similar in nature" for s 11(gA) tax allowance.
Income tax — s 11(gA)(iii) — trade mark licence is a limited right of use, not proprietary intellectual property — "property similar in nature" requires proprietary interest — acquisition for s 11(gA) must be of proprietary intellectual property — customer connection/goodwill not transferred by non‑assignable licence.
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5 March 2004 |
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Reported
Failure to follow a disciplinary code incorporated in the employment contract renders summary dismissal a breach of contract.
Employment law – disciplinary code incorporated into contract – clause requiring disciplinary committee recommendation and separate assistant general manager approval in consultation with HR – failure to follow prescribed two-stage process renders dismissal a contractual breach; tacit term not to be implied to alter clear contractual procedure; constitutional fair labour practice does not displace unambiguous contractual disciplinary provisions; quantum of damages to be determined on what would have happened had procedure been followed.
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5 March 2004 |
