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Citation
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Judgment date
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| December 2006 |
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Reported
Whether a close-range shot into an incapacitated person constituted murder or only attempted murder given causation uncertainty.
Criminal law – private defence – initial use of lethal force justified where deceased drew a firearm; subsequent close-range shot into incapacitated person unlawful; causation – State must prove beyond reasonable doubt that the contested shot caused or hastened death; where causation is not established, unlawful shot amounts to attempted murder; sentence adjusted to suspended term.
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15 December 2006 |
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Reported
A registered transferee remains owner until transfer set aside; an occupier must prove a lawful right to remain when owner pleads title and possession.
Eviction — registered transferee’s title not nullified merely by knowledge of prior personal right; occupier bears onus to prove lawful right to remain after owner pleads ownership and possession; doctrine of notice assumed but transfer remains effective until set aside; special costs order where related proceedings pending.
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1 December 2006 |
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Appellate court set aside unlawful therapeutic sentencing order and increased serious offender’s term to 20 years, upholding minor co‑accused’s sentence.
Criminal law — sentence — appellate interference — misdirection by imposing therapeutic orders without statutory power or expert evidence; custodial sentence increased to 20 years for serious murder and robbery; minor role and time served justify upholding house-arrest sentence.
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1 December 2006 |
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Reported
Court held tribal custom historically excluded female succession; Royal Family’s ad hoc election of a female was not consistent with customary law.
Customary law – succession to chieftainship – male primogeniture and gender exclusion; ascertainment and evolution of living customary law; limits of tribal organs to alter succession; constitutional equality v customary succession; administrative review – PAJA s 8 remedies, remittal v substitution.
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1 December 2006 |
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Reported
SCA Rule 8 does not govern criminal appeals; registrar must transmit record and non-compliance with s 112(2) did not cause failure of justice.
Criminal procedure — record on appeal — SCA Rule 8 inapplicable to criminal appeals; s 316(7) CPA imposes registrar’s duty to transmit record. Plea of guilty — s 112(1)(b) and s 112(2) — adequacy of plea explanation; sentencing evidence may supplement plea. Appeal powers — s 322(1) — "failure of justice" requires substantial prejudice/unfair trial; non-compliance with s 112(2) did not produce failure of justice; remittal under s 312 unnecessary.
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1 December 2006 |
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Appellate court reduced a disturbingly inappropriate 16-year cumulative sentence after misdirections on illness and remorse.
Sentencing – appellate interference – when a sentence is ‘disturbingly inappropriate’ and warrants substitution. Sentencing – mitigation – proper weight to be given to proven medical illness, depression and uncontradicted remorse. Sentencing – cumulative sentences and concurrency – balancing personal circumstances, offence seriousness and community interest.
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1 December 2006 |
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Reported
Majority set aside life sentence for multiple rape, holding mitigating factors could be substantial and compelling and imposed 16 years.
Criminal law – sentencing – minimum sentences for multiple rape under s 51(1) Criminal Law Amendment Act – application of S v Malgas test for substantial and compelling circumstances – balancing traditional mitigating and aggravating factors – appellate substitution of sentence.
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1 December 2006 |
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Whether an attorney’s conflict tainted a pointing-out and if independent circumstantial evidence sustained murder and robbery convictions.
Criminal law – admissibility of confessions and pointing-out – s 35(5) Constitution – attorney conflict of interest – withdrawal of counsel – circumstantial and forensic evidence (IMEI/cell records, fingerprint, handwriting, blood, firearm) – common purpose for robbery and murder.
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1 December 2006 |
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Reported
Alleged conspiratorial wrongdoing does not defer prescription; patrimonial claims prescribe when the creditor knew the facts, not when the conspiracy culminated.
Prescription — commencement of prescription under s 12(1) and s 12(3) Prescription Act — debt due when creditor has knowledge of debtor and facts — conspiracy alleged does not automatically postpone prescription to conspiracy’s culmination — malicious prosecution rule (termination in favour) applies to malicious prosecution but does not extend to postpone prescription for patrimonial claims where claimant had earlier knowledge.
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1 December 2006 |
| November 2006 |
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Reported
Applicant entitled to the requested record under s 50; interim‑interdict standard applies and punitive costs warranted.
Promotion of Access to Information Act 2 of 2000 – s 50(1) – right of access to records of private bodies – requester entitled to access to the record itself where reasonably required to protect or exercise a right. Standard of proof – prima facie/interim interdict standard appropriate in s 50 applications. Scope of compliance – summary information does not satisfy entitlement to requested recorded information. Costs – punitive costs may be awarded where a body unreasonably refuses to disclose records.
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30 November 2006 |
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Reported
The settlement expressly vested the policy's proceeds in the respondent, defeating the estate's claim for recession.
Cession of life policy in securitatem debiti; interpretation of settlement agreements recorded as court orders; effect of clause confirming respondent as cessionary of 'proceeds'; admissibility of extrinsic evidence where contract language is unambiguous; default and enforcement under settlement terms.
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30 November 2006 |
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Reported
The respondent may sue for GEIS benefit recovery; such debts become due only after final administrative disallowance, not at payment.
Administrative law – State benefits (GEIS) – Recovery of unduly paid benefits – Who may sue on behalf of the Department – Prescription – whether GEIS payment is an "advance or loan" under s 11(b) – when a debt becomes due for prescription – s 12(3) knowledge and reasonable care.
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30 November 2006 |
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Reported
Failure to include the s 2(2A) recital makes a deed voidable by the purchaser, not automatically void.
Alienation of Land Act 68 of 1981 – s 29A purchaser’s cooling-off right – s 2(2A) recital requirement – effect of non-compliance: voidability at purchaser’s instance, not automatic nullity. Statutory interpretation – legislative purpose and wording differences between s 2(1) and s 2(2A) justify voidability. Sayers v Khan overruled to the extent it held non-compliance rendered deeds void.
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30 November 2006 |
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Reported
High Court may grant interim relief pending review of disciplinary enquiry; Labour Relations Act does not oust that jurisdiction.
Jurisdiction – High Court power to grant interim relief preserving status quo pending review; Labour Relations Act ss 157 and 158 – do not oust High Court jurisdiction to grant interim relief; Promotion of Administrative Justice Act – determination whether disciplinary enquiry is administrative action relevant to High Court competence.
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30 November 2006 |
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Reported
Agent was not the effective cause of aircraft sale; lapse of efforts and intervening events broke causal chain.
Agency and commission — effective (efficient) cause/causa causans — onus on claimant to prove introduction operated until sale — lapse of time and weighty intervening causes (including independent advertisement and regulatory change) can break causal chain — unsigned non‑circumvention agreement adds nothing when agent not causa causans — alternative delictual/damages claims not available where contractual/causal entitlement lacking.
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30 November 2006 |
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The appellants, as landowners, failed to rebut s34 presumption of negligence for a veldfire that spread to the respondent’s plantation.
Veld and forest fire — National Veld and Forest Fire Act s 12(1) (firebreak duty) and s 34 (presumption of negligence where fire starts or spreads from owner’s land). Negligence — conduct involving use of fire in dry, windy conditions without adequate precautions. Vicarious liability — no employer/agent relationship established; tenancy/quid pro quo relationship insufficient. Evidentiary proof — limits of fire-simulation modelling (Behave Plus) and weight of contemporaneous lay evidence. Apportionment — assessment of joint and several liability vs separate judgments where one defendant may be unable to pay.
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30 November 2006 |
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Reported
An express maintenance agreement may bind payments beyond remarriage; courts will not imply automatic termination on remarriage.
Divorce law – maintenance – private deed of settlement under s 7(1) – interpretation of contractual maintenance clause; implied terms – whether termination on remarriage or death may be imputed; distinction between contractual settlements and statutory s 7(2) orders; contractual freedom to agree maintenance beyond remarriage or death.
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30 November 2006 |
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Reported
Restraint of trade clauses are enforceable unless shown to be unreasonable; enforcement upheld to protect confidential business information.
Restraint of trade – enforceability – balancing of contractually agreed restraints with constitutional right to choose trade or occupation – reasonableness – onus of proof – risk of disclosure of confidential information – proprietary interests of former employer – public policy.
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30 November 2006 |
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Court affirms differentiated sentences where co-accused had unequal roles; reduces a co-accused’s life term to twenty years.
Criminal law – Sentencing – murder and attempted murder – relevance of substantial and compelling circumstances under s 51(3)(a) – uniformity of sentences where participation and personal circumstances comparable – differentiation where roles and blameworthiness differ; appellate review of sentencing discretion.
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30 November 2006 |
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Reported
Administrative delay condemned; convictions set aside for misdirections, unfair trial and insufficient proof beyond reasonable doubt.
Criminal law — appeal — delay in transmission of record by registrar; trial fairness — improper refusal to permit cross‑examination on prior inconsistent statement; standard of proof — correct use of probabilities and inherent improbability; credibility — limits of deference to trial court demeanour findings; inference from wound locations — expert evidence ordinarily required.
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30 November 2006 |
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Reported
Youth, limited violence, recovery of goods and pre-trial custody cumulatively justified reducing the prescribed minimum sentence.
Criminal law – Sentencing – Robbery with aggravating circumstances – Statutory minimum sentence – Substantial and compelling circumstances – youth, limited violence, recovery of property, inept execution and pre-trial custody cumulatively justify departure from prescribed minimum (S v Malgas applied).
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30 November 2006 |
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Reported
Failure to consider s 276(1)(i) correctional supervision and a magistrate’s misdirection warranted appellate resentencing.
Sentencing — misdirection — erroneous finding of ‘preponderance of violence’; failure to consider probation report and s 276(1)(i) correctional supervision; appellate intervention required; S v Scheepers guidance on custodial sentences with placement under correctional supervision.
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30 November 2006 |
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Reported
An assailant who inflicts an intrinsically fatal wound remains liable for death despite negligent medical treatment unless the victim had recovered.
Criminal law – Causation – Two-stage test (conditio sine qua non and juridical causation) – Whether negligent or grossly negligent medical treatment breaks chain of causation – Intrinsically fatal wounds – Assailant’s liability persists while original wound remains an operating and substantial cause of death.
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30 November 2006 |
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An exception for lack of cause of action fails if the pleading is reasonably susceptible of an arguable construction disclosing a cause of action.
Civil procedure – exception to pleading – exception for failure to disclose cause of action succeeds only where no cause of action is disclosed on any reasonable construction; amendment of counterclaim; interpretation of later agreement purporting to cancel or waive claims under earlier agreements.
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30 November 2006 |
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Reported
A trustee of a property collective scheme has locus standi to seek eviction and may cancel a lease for rent arrears.
Collective investment schemes — trustee holds legal ownership (bare dominium) and has locus standi to vindicate property; manager administers scheme assets but does not oust trustee's common-law powers; Shifren non-variation clause bars oral amendments to lease; Plascon-Evans exceptions permit rejection of untenable denials in motion proceedings; valid cancellation for rent arrears and failure to provide required turnover statement.
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30 November 2006 |
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Reported
A mineral-rights holder may conduct open-cast mining if reasonably necessary and exercised least injuriously to the surface owner.
Mineral rights – implied rights – open cast mining permitted when reasonably necessary and exercised civiliter modo; Servitude principles govern conflicts between mineral-rights holders and surface owners rather than English subjacent support doctrine; Minerals Act regulates exercise but does not alter substantive common-law mineral rights; Procedural discretion – supplementation of founding affidavit should not be refused absent demonstrated prejudice; Stream diversion for mining permissible if mitigation protects surface-owner interests.
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29 November 2006 |
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Reported
Whether surrender under POCA includes handing over possession of the home and curator bonis may impose reasonable preservation conditions.
POCA (Ch 5) – meaning of "surrender" under s 28(1)(b) – immovable property; curator bonis powers and duties – discretion to release property subject to conditions to retain control and preserve value; voluntary surrender precludes characterisation as eviction; PIE and s 26(3) (no arbitrary evictions) not engaged where possession voluntarily passed to curator bonis.
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29 November 2006 |
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Reported
The average clause reduced the respondent’s business-interruption indemnity because the sum insured was less than the adjusted annual turnover.
Insurance — Business interruption — Gross profit (difference basis) — Standard turnover and annual turnover — Adjustments for trend/other circumstances — Where indemnity period is 12 months annual turnover equals standard turnover — Average (proportionate) clause reduces indemnity where sum insured < adjusted annual turnover — Premium-adjustment clause does not increase sum insured.
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29 November 2006 |
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Reported
Personal service on a defendant while temporarily in a foreign forum can confer international jurisdiction for enforcement of a foreign judgment.
Private international law – recognition and enforcement of foreign money judgments – international jurisdiction: personal service on a defendant physically present in foreign forum suffices; Protection of Businesses Act inapplicable to claims for professional services; public policy not offended where services lawfully rendered and recoverable in foreign forum.
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29 November 2006 |
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Whether a contractual claim prescribed where pleadings did not show breach occurred more than three years before summons.
Prescription – special plea – whether claim fell due more than three years before service of summons – prescription must be established on the pleadings where special plea determined without evidence. Contract – interpretation of pleaded obligations – general marketing obligation during contract period does not show earlier accrual of claim. Civil procedure – determination of special plea on pleadings agreed between parties.
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29 November 2006 |
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Reported
An ex gratia payment compensating employees for a lost employment-linked share option is taxable as gross income.
Income tax – definition of 'gross income' paragraph (c) – ex gratia payments – whether amounts received 'in respect of' or 'by virtue of' services rendered or employment – employment-linked share options – causal connection between employment and discretionary employer payment – gratuitous payments taxable where motivated by employment-related loss; distinction from payments by independent bodies.
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28 November 2006 |
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Reported
A gambling "licence-holder" must have a written licence physically issued to incur levy and penalty liability.
Gambling law – meaning of "holder of a licence" – requires a written licence document physically issued by the Board; s 36 distinguishes grant, temporary licence and issuance; levy/penalty liability depends on being a licence-holder; validity of penalty regulation not determined.
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24 November 2006 |
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Reported
Executor may compel insured owner to claim insurer indemnity for authorised driver under an implied tacit term.
Insurance – motor vehicle – extension to cover authorised drivers – tacit term implied into owner/driver arrangement that owner will claim indemnity from insurer for authorised driver’s third‑party liability – executor entitled to compel owner to submit claim; policy exclusion of third‑party rights not decisive.
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24 November 2006 |
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Reported
"Land Bank valuation" in a will denotes valuation by Land Bank criteria, not necessarily valuation performed by the Land Bank.
Will interpretation – testamentary condition giving right of pre-emption at "Land Bank valuation" – meaning is valuation according to Land Bank criteria, not necessarily by the Land Bank – condition capable of fulfillment by a valuer conversant with those criteria; distinction between Land Bank/farming (surface) value and open market value considered.
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24 November 2006 |
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Reported
Convictions for murder on common purpose upheld; appellate court reduced excessive sentences and noted a s 315(2)(a) procedural oversight.
Criminal law – murder – common purpose doctrine; identification evidence and fingerprints; evaluation of credibility; appellate restraint on factual findings; appellate interference on sentence where definite view formed; s 315(2)(a) procedural direction to full court.
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23 November 2006 |
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Reported
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22 November 2006 |
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Reported
The applicant’s appeal succeeds; arbitral award reinstated—judicial review limited to gross irregularity or excess of powers.
Arbitration — consensual international commercial arbitration — limited judicial review: section 33(1)(b) confines review to gross procedural irregularity or excess of powers; errors of law or contractual interpretation are not per se reviewable. Arbitration — party autonomy and finality of awards — ICC rules and s 28 importance. Arbitration — s 20 discretion — arbitrator not obliged to delay award to enable court to decide hypothetical or alternative legal questions. Contract — Feature Specification Descriptions as contractual deliverables; repudiation upheld where respondent refused accepted-release software.
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22 November 2006 |
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Withdrawal of condonation application leaves the demolition order intact; delay and carelessness do not justify attorney-and-client costs.
Civil procedure — Condonation for late lodging of appeal record — withdrawal of condonation application and concession of merits — effect on appeal. Costs — party-and-party versus attorney-and-client — inordinate delay and careless prosecution do not automatically justify punitive costs. Appeal procedure — late lodgement of record; explanation for delay required.
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21 November 2006 |
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Reported
A fraudulently induced public contract was rescinded and the defrauding contractor ordered to repay monies, postponement refused.
Contract and restitution – Fraudulent procurement – contract voidable – rescission by innocent party – election to rescind not lost absent affirmation with full knowledge. Arbitration – arbitration clause embedded in fraud-tainted contract cannot survive rescission; arbitration agreement unenforceable if signatories unaware of fraud. Civil procedure – postponement – refusal where respondent negligently fails to prosecute appeal and ignores notifications. Restitution – burden on wrongdoer to show restitution would be unjust; absence of such evidence entitles rescissioning party to repayment.
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21 November 2006 |
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The applicant’s deliberate acceptance of an adverse judgment and prolonged inaction precluded reinstatement of a lapsed appeal.
Civil procedure – Appeal – Condonation for late lodging of record – Lapse of appeal where record not lodged within prescribed period – Prolonged inaction and deliberate election to abide judgment justify refusal to reinstate. Applicant’s conduct – Acceptance of adverse judgment and failure to prosecute appeal – mere arguable incorrectness of decision insufficient to reopen dispute.
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21 November 2006 |
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Reported
A motor vehicle used while the driver is intoxicated can be an "instrumentality" under chapter 6, subject to proportionality review.
Prevention of Organised Crime Act — chapter 6 forfeiture — whether motor vehicle is an "instrumentality" for drunken-driving offences (ss 65(1),(2) National Road Traffic Act); Cook Properties functional/proximity test applied; Schedule 1 item 33 applicability; proportionality review required for forfeiture and preservation orders; NDPP's duty in ex parte preservation applications.
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9 November 2006 |
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Reported
Indirect corporate benefits are recoverable as gross 'proceeds' under POCA; a small mechanistic buy-out was not tainted and was not forfeitable.
Prevention of Organised Crime Act s18(1) — confiscation of indirect benefits via company shareholding; 'proceeds of unlawful activities' means gross proceeds; multiplicity of confiscation orders permissible; dividends and capital value may both be forfeitable absent disproportion; mechanistic connection to crime may be insufficient to taint a transaction.
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6 November 2006 |
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Reported
Payments and accounting manipulations to influence a public official constituted corruption, fraud and POCA offences; hearsay fax admissible; convictions and sentences upheld.
Corruption Act s 1(1)(a)(i)/(ii) – 'duty' includes constitutional and other duties, not confined to 'function'. Admissibility of hearsay – encrypted corporate fax admissible under s 3 of Law of Evidence Amendment Act where probative value high and prejudice limited. Fraud – irregular accounting write‑offs can constitute fraud where misrepresentations are knowingly made and communicated to accounting staff. POCA – service agreements and transfers can constitute dealing with proceeds of unlawful activity. Sentencing – prescribed minimum sentences apply; absence of substantial and compelling reasons justifies minimums.
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6 November 2006 |
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Appellant’s murder conviction and life sentence set aside following prior appellate findings and the State’s concession.
Criminal law – murder and robbery with aggravating circumstances – appeal – prior appellate findings in respect of a co‑accused – leave to appeal obtained by justice centre – State’s concession – conviction and life sentence set aside.
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3 November 2006 |
| October 2006 |
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Reported
Bail for Schedule 6 offences requires a proper statutory inquiry with the prosecution heard; failure renders the bail order void.
Criminal procedure – Bail – Schedule 6 offences – s 60(11)(a) requires accused to adduce evidence of exceptional circumstances; prosecution must be heard; proper judicial enquiry obligatory; mental‑state (s 77/78) inquiries require expert foundation; failure to conduct statutory enquiry renders bail order nullity.
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17 October 2006 |
| September 2006 |
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Reported
An indemnity did not exclude liability for ordinary negligent driving by the applicant's employee.
Contract law – interpretation of exemption/indemnity clauses; contra proferentem; vicarious liability – whether indemnity excludes employer’s liability for employee negligence; statutory and public-policy context (Cross-Border Road Transportation Act; passenger liability insurance) relevant to construing exclusion clauses.
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29 September 2006 |
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Reported
Minister may grant indefinite exemptions; regulations cannot retrospectively terminate them absent express statutory power.
Private Security Industry Regulation Act – exemptions under ss 1(2) and 20(5) – Minister may grant indefinite exemptions – limits on subordinate legislation – s 35 cannot be read to imply power to revoke pre‑existing exemptions – regulation 10(3) invalid as beyond power; administrative vs regulatory powers; retrospectivity and procedural fairness.
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29 September 2006 |
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Reported
Whether dismissal by a state organ is administratively reviewable under PAJA or falls within specialised LRA dispute resolution.
Labour law v administrative law — jurisdiction: s 157 LRA and concurrent jurisdiction for constitutional employment claims PAJA definition of "administrative action" — whether dismissal by organ of state is exercise of public power Relationship between PAJA, s 33 Constitution and the LRA; appropriate forum and remedy for procedurally unfair dismissals
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29 September 2006 |
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Reported
An employer cannot enforce a restraint of trade to prevent ex-employees from applying general skills and knowledge post-employment.
Restraint of trade – Employment contracts – Proprietary interests – Skill and know-how acquired during employment distinguished from confidential information or trade secrets – No proprietary right to general skills and knowledge – Restraint unenforceable – Public policy.
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28 September 2006 |
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Reported
Shooting a hostage in a fleeing vehicle was unreasonable and negligent; employer vicariously liable; labour-broker client not employer under COIDA.
Delict — positive act causing bodily harm — necessity/justification and proportionality — objective standard of reasonableness; Vicarious liability for employee’s negligent act; Compensation for Occupational Injuries and Diseases Act s 35(1) — definition of 'employer' — labour broker arrangements do not render the client the employee’s employer for s 35 purposes.
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28 September 2006 |
