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Citation
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Judgment date
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| December 2005 |
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Reported
Execution against mortgaged residential property need not be justified constitutionally unless the defendant alleges s26(1) infringement.
Mortgage bonds – execution against mortgaged residential property – constitutional right of access to adequate housing (s 26(1)) – Jaftha v Schoeman distinguished – no automatic requirement for plaintiff to justify execution unless defendant alleges infringement; Constitutional analysis – two-stage approach: first establish infringement, then justify limitation under s 36(1); Civil procedure – registrar’s power under Rule 31(5) to grant default orders declaring immovable property specially executable; Practice direction – summons must inform defendant of s 26(1) and obligation to place supporting material if alleging infringement.
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15 December 2005 |
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Reported
Deeming dismissal for unexplained absence operates by law, is not administrative action, and is constitutionally permissible.
Employment law – educators – s 14(1)(a) deeming dismissal for absence over 14 consecutive days; not administrative action; audi not required pre‑deeming; s 14(2) reinstatement provides post‑deeming hearing; limitation justified by learners’ educational interests; no conflict with LRA.
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14 December 2005 |
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A South African court cannot order the return of a child from the USA; linked interim custody order must be set aside.
Private international law – Hague Convention on the Civil Aspects of International Child Abduction – competence of authorities of the State where the child is present to order return; Family law – wrongful removal/retention under Hague Convention and Guardianship Act s 1(2)(c); Jurisdiction – South African court’s inability to enforce a return order against a child under foreign judicial guardianship; Appealability – interim orders linked to ineffective return orders are appealable and set aside.
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8 December 2005 |
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Reported
A notice of a potential claim is not a 'claim first made' and a later 'claims-made' policy can cover an actual claim first made in its period.
Insurance law – professional indemnity ('claims-made' policies) – meaning of 'claim first made' – notification of possible claim is not a claim; deeming provision in condition 2(b) applies only within same policy period; consecutive policies construed separately; insurer's payment of defence costs does not necessarily discharge separate capital indemnity.
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5 December 2005 |
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Reported
Whether postponement with correctional supervision was an appropriate sentence for a 14‑year‑old convicted of brutal murder.
Sentencing — child offender — interaction of traditional sentencing triad and s 28(1)(g) of the Constitution — detention of children as last resort but permissible for serious violent offences — appellate interference where sentence is misdirected or disturbingly inappropriate — weight and admissibility of expert opinion in sentencing — efficacy concerns about correctional supervision/house arrest.
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1 December 2005 |
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Relocation refused: child’s best interests and strong attachments to both parents outweighed custodian parent’s proposed move.
Family law – relocation of child – best interests of the child paramount (s 28(2) Constitution) – weight to be given to bona fide custodial parent’s decision; expert evidence on attachment to both parents; proper procedure for ascertaining child’s views; costs where parties act bona fide.
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1 December 2005 |
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Reported
Jurisdiction under s19 depends on where proceedings originated and true principal place of business, not branch presence or non-opposition.
Civil procedure – jurisdiction – s 19(1)(a) & (b) Supreme Court Act – ‘causes arising’ means legal proceedings originating within the court’s area of jurisdiction. Civil procedure – jurisdiction – principal place of business – means place of central control and management; branch office not automatically the principal place. Civil procedure – submission to jurisdiction – onus on party alleging submission; mere failure to oppose does not constitute submission. Costs – overburdened appeal record – reduction of costs for preparing record; attorney gross neglect – de bonis propriis costs for postponement.
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1 December 2005 |
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Reported
Whether a private dwelling regularly used for drug sales constituted an "instrumentality of an offence" under POCA.
Criminal law – Prevention of Organised Crime Act 121 of 1998 – "instrumentality of an offence" – immovable property used as drug outlet; substantive and functional link required. Forfeiture procedure – Chapter 6 two-stage inquiry – first stage: property instrumentality; second stage: innocent-owner defence under s 52(2A). Evidentiary approach – totality of circumstances; property must be substantially instrumental, not merely an incidental venue. Procedure – remittal for oral evidence where factual dispute exists on owner’s knowledge; leave to subpoena and call witnesses; costs awarded.
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1 December 2005 |
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Reported
Whether allegedly defamatory union-meeting statements were privileged and whether the union was liable for republication.
Defamation — defamatory meaning assessed objectively; Qualified privilege — communications at trade-union meetings protected where reciprocal right/duty exists; Labour relations — freedom of expression and association support disclosure to members; Republication — plaintiff must prove authorisation, vicarious liability, or pleaded negligence to hold publisher liable for third-party republication.
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1 December 2005 |
| November 2005 |
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Reported
A signed instruction to an attorney was not intended as the deceased's will and s 2(3) relief was refused.
Wills Act s 2(3) – intention to make a will – requirement that intention exist at drafting/execution – document drafted as instructions to attorney not necessarily a will – signature and witnessing do not automatically convert instructions into a will – surrounding circumstances decisive.
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30 November 2005 |
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Reported
The SCA has no jurisdiction to hear the DPP’s appeal against a high court’s substituted sentence; condonation refused.
• Criminal procedure – State appeals against sentence – scope of ss 310A and 316B CPA – appeals permitted only where superior court imposed sentence as court of first instance. • Limits on State’s right of appeal – constitutional and common-law protection against repeated jeopardy – ss 20(1) and 21(1) Supreme Court Act cannot be read to confer jurisdiction contrary to established principles. • Procedural – condonation refused and appeal struck from roll.
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30 November 2005 |
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Reported
An established burial practice under s 6(2)(dA) creates a real right; 'land' means registered cadastral land and consent cannot be unilaterally withdrawn.
Extension of Security of Tenure Act s 6(2)(dA) – meaning of 'land' – cadastral/registered land; 'established practice' for burials – linked to people residing on land, not particular families; burial right is an incidence of occupier’s real right of residence and binds successors in title; owner may not unilaterally withdraw established burial permission.
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30 November 2005 |
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Reported
Whether habitable structures below the flood control line required the respondent’s written consent; appeal dismissed with costs.
Physical Planning Act – Guide Plan declared a Regional Structure Plan (s 37) – Annexure C prohibits habitable buildings below flood control line without Rand Water Board’s written consent; Sectional Titles Act s 48 does not override statutory planning consent; conditional approval stamp not equivalent to consent; demolition/removal remedies; costs of two counsel not warranted.
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30 November 2005 |
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Reported
A contractual time‑bar in an insurance policy does not automatically violate the constitutional right of access to courts.
Constitutional law – Contract law – Horizontal application of Bill of Rights; Access to courts (s 34) – distinguishes statutory time‑bars on pre‑existing rights from contractually created time‑limits; Time‑bar clauses in short‑term insurance enforceable absent evidence of unfairness or unequal bargaining power.
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30 November 2005 |
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Reported
An exclusion clause forfeits cover where the insured used fraudulent means to obtain benefit, even if the attempt occurred before a claim.
Insurance — interpretation of exclusion clause — clause covers fraudulent claim, fraudulent means to obtain benefit (including pre-claim attempts), and events occasioned by wilful act or connivance — attempted fraud intended to procure undue benefit forfeits cover — contra Strydom where fraud was immaterial.
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30 November 2005 |
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Reported
Whether former employees who resigned to withdraw full pension values were retirees entitled to medical subsidies and concessionary TV licences.
Employment/benefits – post‑retirement medical subsidy and concessionary TV licences – retirees who resigned to withdraw full pension values – absence of express Exco/Board authority – ostensible authority/estoppel established by senior management representations, pension‑advisor confirmations, longstanding practice and financial statements – employer estopped from denying retiree status; entitlement to reinstatement and reimbursement.
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30 November 2005 |
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Reported
A tender board does not owe delictual liability for pure economic loss arising from a negligent award of a public tender.
Administrative law; public procurement – whether statutory duties of fair, impartial and competitive tendering create delictual duty to compensate for pure economic loss – policy considerations (double payment, chilling effect, alternative remedies) preclude recognition of such claims; pre‑incorporation tenders and lack of legal capacity.
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30 November 2005 |
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Reported
A Fund’s failure to object under s 24(5) cannot cure non‑compliance with substantive regulation 2(1)(c).
Road Accident Fund Act — s 17(1)(b) claims — regulation 2(1)(c) affidavit to police a substantive condition precedent — s 24(5) is procedural (60‑day objection period) and cannot validate a substantively defective claim.
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30 November 2005 |
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Reported
Trust assets may be included in s7(3) redistribution where a spouse exercises de facto control; award increased to R1,250,000.
Family law – Divorce Act s 7(3) redistribution – Inter vivos discretionary trusts – Whether trust assets can be taken into account where a spouse exercises de facto control – test: terms of trust deed and factual conduct during the marriage – assets brought into marriage relevant to just and equitable redistribution.
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29 November 2005 |
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Reported
Interim contract formed by conduct required reasonable notice for cancellation; termination without notice was unlawful.
Contract – interim agreement formed by conduct prior to execution of written agreement; cancellation in absence of agreed procedure requires reasonable notice; termination of service without notice unlawful.
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29 November 2005 |
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Reported
Appeal against striking a practitioner from the register for sexual misconduct dismissed; sanction not startlingly inappropriate.
Health Professions – Disciplinary sanction – sexual misconduct by practitioner – removal from register – s20 appeal is an ordinary appeal limited to evidence before the disciplinary body – appellate interference only for material misdirection or startlingly inappropriate sentence – refusal of oral submissions under regulations – protection of vulnerable patients and profession’s integrity.
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29 November 2005 |
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Reported
Court dispensed with s 57 time limits and held police failed to prove self‑defence; state held liable.
Police Civil Liability; s 57 SAPS Act – dispensing with time/notice requirements under s 57(5); prescription and interests of justice; self‑defence/private defence – onus on state; excessive force; assessment on probabilities.
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29 November 2005 |
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Reported
'Could reasonably be expected' in s36(1)(c) requires probable harm; courts may not refuse access under s82 once statutory grounds fail.
Promotion of Access to Information Act – s 36(1)(c) ('could reasonably be expected') requires probable harm; s 37 confidentiality cannot oust statutory access post-award; s 78 applications are full civil proceedings; s 82 contains no power to refuse access once Chapter 4 grounds are not established; onus on public body to justify refusal.
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29 November 2005 |
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Reported
Section 21(1) does not bar an ex‑spouse receiving her vested half‑share of a pension benefit accrued before divorce.
Pension law – Interpretation of s 21(1) Government Employees Pension Law 1996 – anti‑assignment and anti‑attachment provisions do not prevent payment to an ex‑spouse of a vested, divisible pension benefit. Family law – ss 7(7) and 7(8) Divorce Act 70 of 1979 apply to unaccrued pension interests; once benefits accrue they form part of the joint estate and must be divided on divorce.
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28 November 2005 |
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Section 29(1) permitting impeachment of dispositions based on effect (without proof of intent) is constitutional.
Insolvency – Voidable preferences – s 29(1) Insolvency Act 24 of 1936 – Allowing impeachment of dispositions made within six months before sequestration by reason of their effect without proof of debtor's intention – Onus on person in whose favour – Constitutionality upheld; equitable distribution of creditors; Bill of Rights challenges (dignity, equality) unsuccessful.
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25 November 2005 |
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Reported
Reg 24(6) requires retention and salary adjustment of a satisfactorily performing incumbent when its conditions are met.
Employment law – Police Service regulations – regrading/upgrading of posts – interpretation of reg 24(6): 'may' construed as mandatory where incumbent performs duties, has satisfactory rating and starts at minimum notch; protection against dismissal and salary adjustment; reviewability and fairness considerations.
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25 November 2005 |
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Reported
Municipalities may lawfully include property‑value–based charges for sewerage and refuse; the Systems Act does not prohibit such rates.
Local government finance – Municipal rates and service charges – Whether the Municipal Systems Act permits property-value‑based charges for services such as sewerage and refuse – Tariff policy requirements do not preclude use of rates to fund services; municipalities may include rate-based elements in service charges.
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25 November 2005 |
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Reported
No delictual liability for negligent pre-contract design causing pure economic loss where contractual protection was available.
Delict — Pure economic loss from negligent design; wrongfulness requires a judicially imposed legal duty based on policy; cautious approach to extending Aquilian liability; contractual availability (stipulatio alteri, warranties) negates need for delictual remedy; Lillicrap authority applied.
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25 November 2005 |
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Reported
A restraint order does not exclude concurrent creditors; a defendant’s legal-expenses claim has no automatic preference over proven concurrent claims.
Criminal law – Prevention of Organised Crime Act – restraint and confiscation – interpretation of s 33(1) – concurrent unsecured creditors’ rights preserved; s 26(6) legal-expenses orders subject to court’s discretion and not automatically preferred over proven concurrent claims; curator bonis and s 31(1) payments.
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24 November 2005 |
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Ships owned by state-owned enterprises at different Chinese government levels were not 'associated ships' under s 3(6).
Admiralty law – associated ships (s 3(6), s 3(7)) – meaning of "power to control" as power to determine direction and fate; proof of foreign law – content of Chinese constitutional and budget law relevant to control of state-owned enterprises; onus in arrest/setting-aside proceedings – balance of probabilities.
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23 November 2005 |
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Reported
The applicant lacked entitlement to appeal; leave was refused and the Labour Appeal Court’s retrenchment findings stand.
Labour law – appellate procedure – requirement of leave to appeal to Supreme Court of Appeal where appeal noted before Fry’s Metals – Chevron did not vest an absolute right to appeal. Labour law – retrenchment – s 187(1)(c) applies to conditional dismissals, not irreversible dismissals. Labour law – operational-requirements dismissals – determination of fair reason and fair procedure is generally fact-bound and does not usually warrant SCA intervention.
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23 November 2005 |
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Reported
Deed of suretyship may be rectified where the written instrument can be construed to meet s 6 formalities and mutual mistake is proven.
• Suretyship – statutory formality (s 6, General Law Amendment Act 50 of 1956) – written document must, on its face, identify creditor, principal debtor and surety.
• Rectification – two-stage enquiry: (1) formal compliance with s 6; (2) merits – proof of common intention and mutual mistake.
• Interpretation – where instrument admits of two constructions prefer the construction that saves validity.
• Relief – deed of suretyship rectified to substitute intended principal debtor; judgment for indebtedness with interest and costs.
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18 November 2005 |
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Reported
Amnesty did not entitle the applicant to repayment of funds forfeited under the Exchange Control Regulations.
Condictio sine causa; forfeiture under Exchange Control Regulations may be effected on reasonable suspicion without criminal conviction; amnesty under Promotion of National Unity and Reconciliation Act does not automatically entitle recovery of funds forfeited under Exchange Control Regulations; temporal and substantive scope of amnesty critical.
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16 November 2005 |
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Reported
A pneumatic tyre roller regularly used on public roads qualifies as a "motor vehicle" under the Road Accident Fund Act.
Road Accident Fund Act s 1 – meaning of "motor vehicle" – "designed…for propulsion…on a road" to be determined objectively; general, regular use on public roads is relevant; construction equipment (Hamm GRW 18 PTR) with road‑fitting features qualifies as a motor vehicle; inherent characteristics (low speed, tyre type, centre of gravity) do not necessarily exclude vehicle from definition.
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16 November 2005 |
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Joint representation did not constitute a prejudicial irregularity; appellate court must decide if an irregularity caused a failure of justice.
Criminal procedure – section 317 special entry – role of trial court to record facts, appellate court to decide irregularity; joint representation and conflict of interest; section 322 proviso — miscarriage of justice.
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15 November 2005 |
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Reported
Court reduced defamation award to R12,000, stressing compensatory quantum, freedom of expression and effect of apology/tender on costs.
Defamation — assessment of general damages (solatium) — quantum requires value judgment; appellate interference limited to palpable/manifest discrepancy or material misdirection. Balancing dignity/reputation and freedom of expression — context and nature of publication (gossip versus hard news) relevant to seriousness and quantum. Effect of provocation, plaintiff's public exposure, defendant's motives and conduct (including tendered apology/unconditional offer) on quantum and costs. Civil damages are compensatory/vindicatory, not punitive.
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14 November 2005 |
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Reported
Court substituted concurrent s 276(1)(i) sentences for disproportionate consecutive prison terms for minor thefts.
Criminal law – sentence – theft – proportionality of imprisonment – consideration of s 276(1)(i) (imprisonment with possible placement under correctional supervision) as mid‑way option – effect of previous suspended sentence – concurrency of sentences.
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10 November 2005 |
| September 2005 |
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Reported
In duplum applies only to arrear interest; contractual restitution interest payable on cancellation falls outside the rule.
Property sale — rescission and restitution clause — contractual interest stipulated as measure of restitution; in duplum rule — confined to arrear interest and inapplicable to non‑arrear, contractual restitution interest; rule’s application depends on nature of interest not debtor identity; renegotiated agreement construed as single contract.
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29 September 2005 |
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Reported
SCA lacks jurisdiction to declare an Act invalid for non‑compliance with Parliament’s section 59 public‑involvement duty except in extreme cases reserved for the Constitutional Court.
Constitutional law — parliamentary procedure — public participation — section 59 duty to facilitate public involvement; jurisdictional limits — section 172(2) v section 167(4)(e); categories of statutory invalidity — substantive inconsistency, form-and-manner defects, and extreme failures of parliamentary obligation reserved for Constitutional Court.
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29 September 2005 |
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Reported
Court held plaintiff need not plead extra facts to relax in pari delicto where defendant retained both business and payment.
Contract — Legality of agreement under Liquor Act — Failure to obtain Chairperson's consent (s 38(1)) — Agreement void (s 148) — In pari delicto rule — Relaxation where public policy or prevention of unjust enrichment requires — Pleadings need not be overly technical; no blanket requirement to plead 'further facts' to relax maxim.
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29 September 2005 |
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Reported
Exemption from PAJA’s exhaustion requirement requires exceptional circumstances; routine bad‑faith or review allegations are insufficient.
Administrative law – PAJA s 7(2) – mandatory exhaustion of internal remedies – s 7(2)(c) exemption requires ‘exceptional circumstances’ and interest of justice – meaning of exceptional circumstances – FSB Board of Appeal is specialist tribunal with full rehearing and interim powers – allegations of bad faith/procedural unfairness do not per se qualify – appealability of interlocutory/postponement order.
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29 September 2005 |
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Reported
Failure to pay the premium by its due date did not prevent the policy attaching where cover was effective from the inception date.
Insurance law – interpretation of policy wording – whether payment of premium is a condition precedent or suspensive condition; "Subject to" and "warranties" – distinction between promissory warranties/material terms and suspensive conditions; Premium payment timing – effect of non-payment after inception where policy provides cover from inception; Applicability of standard-form clauses (continuation of cover/premium payment) to bespoke financing arrangements; Claim for unpaid premium – when particulars disclose a cause of action.
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29 September 2005 |
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Reported
Court confirms two-stage POCA forfeiture test; property used as clandestine drug lab was forfeitable absent significant disproportionality.
Forfeiture — Prevention of Organised Crime Act (Chapter 6) — two-stage inquiry: instrumentality first, proportionality/interests second; owner culpability irrelevant to instrumentality stage. Property as instrumentality — requirement of a reasonably direct, functional link; premises adapted or equipped to facilitate drug manufacture will likely be instrumentalities. Proportionality — constitutional challenge to forfeiture assessed at second stage; majority adopts "significant disproportionality" standard, but concurrence warns against rigid thresholds. Evidence — chemical precursors, apparatus, recipes and adapted rooms can establish use as clandestine laboratory and justify forfeiture.
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29 September 2005 |
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Reported
The respondent as surety is liable only for debts owing at the date of cession unless the deed provides otherwise.
Cession – sale of business – cession of creditor’s rights to debtors transfers only existing rights as at cession date; Suretyship – liability ancillary to principal debt – surety liable only for debts accrued at time of cession unless deed provides otherwise; Huur gaat voor koop – inapplicable to cession of monetary claims; Substitution of creditor by operation of law – not effected for future debts by mere cession.
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29 September 2005 |
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Reported
Allowing a non‑lawyer sole member to appear was misdirected, but postponement correctly refused for unexplained default.
Civil procedure – Representation of juristic persons – residual discretion to allow a non‑practitioner (alter ego/sole member) to represent a one‑person corporate entity in exceptional circumstances; postponement and condonation – requirements to show non‑wilful default and a prima facie bona fide defence; duties of litigants to act with reasonable urgency and to place sufficient facts before the court.
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28 September 2005 |
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Reported
In a s 417 enquiry relevance to the company’s affairs generally outweighs claims of confidentiality; appeal dismissed.
Companies Act s 417 enquiry – production of documents ‘relating to the company’ – relevance test; Constitutional right to privacy – limitation in s 417/418 enquiries; Commissioner’s discretion – reasonable grounds to believe relevance; Ulterior motive of requester not fatal; Review of commissioner’s ruling – inherent jurisdiction.
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27 September 2005 |
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Reported
Underpriced tenders that omit required work are unacceptable, but invalid awards may be left standing for practical reasons.
Procurement law – Preferential Procurement Policy Framework Act and s 217 Constitution – "acceptable tender" – nominal pricing omitting work – unbalanced tenders – PAJA procedural fairness – post-closing corrections – judicial discretion to refuse relief where impractical to set aside invalid awards.
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26 September 2005 |
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Reported
Respondent failed to prove transfer of ownership: oral variation to written sale unsupported, agent lacked authority, real agreement absent.
Property law – rei vindicatio – ownership of movables following an auction sale – requirements for transfer: delivery and real agreement (intention to transfer and accept ownership). Contract law – parol evidence/rectification – written conditions of sale conditional on liquidators' confirmation; oral agreement alleged to vary written terms ineffective where approval was given to written terms only. Agency – authority of administrator to sell assets outside the written deed of sale – absence of authority defeats real agreement. Civil procedure – evaluation of conflicting factual versions – proper approach to credibility and probabilities in civil trials.
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26 September 2005 |
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Appeal succeeds: prima facie evidence showed restraint rights passed with the business, respondents breached them, absolution wrongly granted.
Company law – s 228 Companies Act – disposal of whole or substantially whole of undertaking – sole shareholder/unanimous consent sufficient where holding company is sole shareholder. Contract law – restraint of trade – whether benefit attaches to goodwill of business and passes to purchaser. Civil procedure – absolution at end of plaintiff’s case – prima facie sufficiency of evidence on locus standi, breach and causation. Evidence – prima facie burden to defeat absolution.
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26 September 2005 |
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Reported
Threatened breach of lease by operating grounded aircraft constitutes apprehended injury warranting a final interdict.
Civil procedure – final interdict – requirements – ‘injury actually committed or reasonably apprehended’ includes invasion of contractual rights; collateral challenge to administrative grounding order not available in these proceedings; lessee assumed lease obligations; interdict appropriate remedy to prevent breach of lease.
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26 September 2005 |
