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Citation
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Judgment date
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| 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 |
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Reported
Section 63 LTIA protects certain long-term policy benefits but does not divert insureds' policy proceeds from nominated beneficiaries to trustees.
Long-term insurance — s63 LTIA — protection of policy benefits; three-year in-force requirement; five-year protection for assets acquired with benefits; R50,000 aggregate cap; does not regulate payment of proceeds to nominated beneficiaries; trustee of insolvent estate not vested with interest in beneficiary’s insurance proceeds.
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23 September 2004 |
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Reported
Whether appellants were liable for murder by an expanded common purpose and failed to effectively disassociate.
Criminal law – admissibility of extra‑curial statements and pointings‑out; reverse onus pre‑Zuma; circumstantial evidence and inferential reasoning; common purpose and expansion to murder; withdrawal/disassociation requirements; sentencing after abolition of death penalty.
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23 September 2004 |
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Reported
Respondent insured entitled to indemnity for cyclone damage; defective-design exclusion not established; interest awarded from date of demand.
Insurance — Contract works damaged by storm — Insurable interest in works to extent of contractor’s liability to repair; policy exclusion for defective design requires proof of defective standard — insurer cannot demand higher design standard than employer specified; interest on unliquidated debt under Prescribed Rate of Interest Act runs from date of written demand.
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21 September 2004 |
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Reported
Conditions of a judicial sale that merely confer statutory benefits on a municipality do not create a councillor’s pecuniary interest under s40.
Local government — Councillor’s pecuniary interest — Sale in execution where municipality is judgment creditor — Conditions of sale conferring statutory or sheriff’s rights do not create s 40 pecuniary interest; public auction and sheriff’s duties reduce risk of impropriety — Contract not void.
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20 September 2004 |
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Reported
Actuary may use actuarial assumptions to determine funding percentage; long, unexplained delay in review barred relief.
Pension funds; statutory transfer regulations; construction of "funding percentage"; scope of actuarial function—actuary may use actuarial methodology (assumptions/projections) for assets and liabilities; review—rationality standard; undue delay in review applications; duty to investigate and prejudice from delay.
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17 September 2004 |
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Reported
Settlement by one partner did not release the other from joint and several liability; appeal dismissed with attorney-and-client costs.
Partnership law – joint and several (solidary) liability for partnership debts – settlement by one partner does not release co-partner unless expressly intended to affect creditor’s rights. Civil procedure – effect of settlement incorporated as court order – parties’ intention and operation of settlement in favour of settling partner. Contract – enforceability of contractual clause for attorney-and-client costs (clause 27.8) and exercise of judicial discretion regarding costs.
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17 September 2004 |
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Reported
A delictual claim for negligent misstatement causing pure economic loss is maintainable; Lillicrap is narrowly confined.
Delict – negligent misstatement – pure economic loss – maintainability of delictual claim despite concurrent contractual remedy; Lillicrap limited to negligence consisting in breach of contractual term; absolution from instance improperly granted where reasonable inferences of representation, reliance, unlawfulness and negligence arise.
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17 September 2004 |
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Reported
Commercial parody on T-shirts that tarnishes a well-known mark may be interdicted despite freedom of expression.
Trade marks – s 34(1)(c) Trade Marks Act – anti-dilution (tarnishment) – use in the course of trade and in relation to goods – well‑known mark – "detrimental to repute"; Freedom of expression – balancing constitutional rights against trademark property and commercial interests; Parody/satire – relevant but not per se defence to dilution claims; Commercial parody that tarnishes a mark may be restrained.
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16 September 2004 |
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Reported
Bulk-drug value must be proved to attract minimum sentences; false post-arrest claims can undermine accused’s credibility.
Criminal law – conviction on credibility findings; pre-trial silence – inference permissible from untruthful post-arrest claim of having waived silence (not from silence itself); sentencing – minimum-sentence legislation requires proof of market value to the dealer at relevant time/place; bulk drug consignments cannot be valued automatically at street per-gram rates; quality and seasonality relevant to valuation.
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16 September 2004 |
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Reported
A party exercising control over a salving vessel and bearing its risk may claim a salvage reward.
• Admiralty law – Salvage – No closed list of claimants; entitlement depends on provision/control of salving vessel and bearing of risk.
• Salvage – A person other than owner or demise charterer may claim if they control disposition of vessel and will bear loss or financial exposure.
• Procedure – Absolution from instance – appellant established prima facie case so absolution wrongly granted.
• Applicable law – English law as at 1 November 1983 applies to salvage claims subject to applicable South African statute.
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16 September 2004 |
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Reported
A commission recommendation does not automatically bar a s 38B application for leave to approach the Land Claims Court.
Restitution of Land Rights Act 22 of 1994 – s 38B – direct access to Land Claims Court – effect of notice published under s 12(4). Administrative law – commission's recommendation or finding – whether it precludes relief under s 38B – court's discretion to entertain proceedings notwithstanding commission action. Procedural law – scope of Land Claims Court's discretion when considering leave under s 38B; misdirection and substitution of orders by appellate court.
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14 September 2004 |
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Reported
Regulation 232 gives a normative passenger/luggage mass; actual vehicle/axle mass exceedance is determined factually by measurement.
Road traffic — Mass and load — Regulation 232 prescribes normative mass for persons and luggage, not actual vehicle/axle mass; exceeding permissible axle or vehicle mass is a factual question established by measurement; operator’s knowledge and displayed permissible masses relevant to mens rea for contraventions of regs 234 and 236.
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10 September 2004 |
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Reported
Successor to State cannot rely on self‑created impossibility; deliberate obstruction of contractual mechanisms justified cancellation.
Contract law – long‑term supply agreements – price‑revision mechanism – role of Minister and arbitration. Supervening impossibility – self‑created impossibility by the State and effect on successor contracting party. Implied terms – limits on importing a free‑standing duty of good faith; corollary duty not to frustrate contractual rights. Breach and repudiation – persistent obstruction of contractual mechanisms may constitute both malperformance and anticipatory breach. Remedies – cancellation for repudiation without prior remedial notice.
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9 September 2004 |
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Reported
A proximate complaint may bolster a complainant’s credibility but cannot itself prove absence of consent.
Evidence — sexual offences — proximate complaint admissible exceptionally to show consistency with complainant’s testimony and buttress credibility, not as direct proof negativing consent; Complainant’s emotional state/conduct — may, in context and with caution, support absence of consent or that contact occurred; Credibility — intoxication and untruths affect assessment; Trial misdirection — treating complaint as proof of non-consent is impermissible.
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3 September 2004 |
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Reported
An appeal dismissed under s21A as moot; no exceptional circumstances under s21A(3) justified hearing it, costs awarded against the applicant.
Constitutional/administrative law – appellate procedure – section 21A of the Supreme Court Act – dismissal where judgment would have no practical effect – s 21A(3) exceptional circumstances and consideration of costs. Mootness – appellate courts to avoid advisory opinions; live controversy required. Costs – persistence in destined-to-be-academic appeals may attract adverse costs orders.
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2 September 2004 |
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Reported
Convictions overturned where courts failed to apply caution and assess the totality and probabilities of single-witness evidence.
Criminal law – single-witness evidence – cautionary rule; evaluation of contradictions between trial testimony and prior statements; compartmentalised assessment of State and defence evidence; consideration of inherent probabilities and totality of evidence.
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2 September 2004 |
