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Citation
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Judgment date
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| December 2007 |
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Reported
"Unintended damage" in an exclusion clause means not planned or intended, so delamination was covered.
Short-term insurance – interpretation of exemption clause – "unintended damage" in exclusion for defects – ordinary contractual interpretation; exemption clauses construed restrictively; "unintended" means not planned/intended (not synonymous with merely unforeseeable).
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3 December 2007 |
| November 2007 |
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Reported
A prosecutor’s prior statutory interrogation of an accused does not automatically render a subsequent trial unfair.
Criminal procedure — statutory compelled inquiry — right to silence and against self‑incrimination; prosecution possession of inquiry record; prosecutor acting as prior interrogator and later as prosecutor; direct and derivative use of compelled pre‑trial evidence; assessment of trial fairness is fact‑specific; absence of timely objection relevant.
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30 November 2007 |
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Reported
Section 69(3) authorises seizure of electronic books and documents of an insolvent estate held by third parties; warrant upheld.
Insolvency Act s69(3) – search and seizure – ‘books and documents’ include electronic records – documents stored on third‑party computer media may be seized where they belong to the insolvent estate – lawfulness of warrant is the determinative issue.
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30 November 2007 |
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Reported
A warrant issued without required judicial oversight renders the sale in execution void; s70 cannot save such void sales.
Execution law – Magistrates’ Courts Act s66(1)(a) – judicial oversight required by Jaftha when execution may affect residential homes; warrant issued without oversight invalid. Sale in execution – sale founded on void warrant is null and void and cannot pass title. Magistrates’ Courts Act s70 – protects bona fide purchasers against non‑essential defects but does not save sales that are void ab initio. Retrospectivity – Jaftha’s remedial reading‑in applies retrospectively unless limited. Remedies – rei vindicatio/restitutio and separate proceedings for unjust enrichment/restitution may be appropriate.
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30 November 2007 |
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Reported
A provincial heritage authority may validly impose conservation‑focused conditions on demolition permits for generally protected structures under the NHRA.
National Heritage Resources Act – s 34 general protection of structures older than 60 years – s 48(2) permits may be issued subject to terms, conditions and restrictions – provincial heritage resources authority empowered to impose conservation‑focused conditions even where structure has no formal protection – stop works order valid to enforce permit conditions – principle of legality.
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30 November 2007 |
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Reported
Whether culpable homicide arising from a concerted attack duplicated a public violence conviction — appeal dismissed.
Criminal law — culpable homicide — application of common purpose in group attack; public violence — distinct offence; duplication/multiplicity of convictions; sentencing appropriateness.
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30 November 2007 |
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Reported
Excessive errant golf balls from a golf course can constitute an unreasonable nuisance requiring barriers and an interdict.
Neighbour law — Nuisance — Unreasonable interference from a golf course — Excessive ingress of errant golf balls — Duty to take reasonable measures (barriers/netting) — Interdict as remedy.
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29 November 2007 |
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Reported
Deposit and appropriation of a cheque marked "full and final settlement" can constitute acceptance of a compromise offer.
Contract/settlement – Offer of compromise – Cheque inscribed "full and final settlement" read with accompanying correspondence may constitute an offer of compromise. Acceptance – Deposit and retention/appropriation of cheque proceeds (even via attorneys' trust account) can constitute acceptance of an offer of compromise. Objective construction – Intention is assessed objectively from documents and conduct. Creditor's conduct – Creditor cannot retain funds and pursue full claim; doing so binds it to the terms of the accepted offer.
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29 November 2007 |
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Reported
Appellant’s convictions upheld but sentences set aside for resentencing due to trial judge’s procedural and sentencing irregularities.
Criminal procedure – special entries (s 317) – duty of trial judge to consider, hear evidence where necessary, settle terms and furnish s 320 report; Criminal procedure – further evidence (s 316(5)) – trial court’s duty to receive and assess evidence and record findings before appeal; Evidence – voluntariness of accused’s statement – requirements for admissibility, access to rights and legal assistance; Evidence – combined weight of eyewitness identification, medico-legal causation and admissions and recovery of weapon; Sentencing – refusal to postpone to obtain mitigation expert vitiates sentence and warrants remit for re-sentencing.
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29 November 2007 |
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Reported
The court upheld sale of a deteriorating foreign-parked aircraft under a preservation order, rejecting the appellant's constitutional property challenge.
Civil procedure – preservation/anti-dissipation orders – Mareva-type relief – authorisation to sell deteriorating asset abroad and hold proceeds in trust pending litigation. Constitutional law – property rights (s 25(1)) – what constitutes arbitrary deprivation; procedural fairness and justificatory reasonableness. Partnership law – effect of simulated/fraudulent transfer; dissolution by liquidation and liquidation of indivisible partnership assets. Execution and remedies – sheriff’s power to sell un-attached perishable/deteriorating assets; doctrine of effectiveness and responsibility of parties.
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29 November 2007 |
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Reported
Whether liabilities of an abolished SIU devolved on a newly established SIU — court held they did not.
Special Investigating Units – statutory and proclamation-based establishment – separate juristic persons – succession of liabilities between successive SIUs – Proclamation R118 of 2001 does not transfer rights or liabilities of dissolved SIU to newly established SIU – remedy via State Liability Act.
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29 November 2007 |
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Reported
An appeal tribunal exceeded its powers by deciding an unpleaded unanimous-assent defence; dispute remitted to a new appeal tribunal.
Arbitration law – scope of arbitrator/appeal tribunal’s powers – tribunal may not decide issues beyond the parties’ submission or pleadings. Arbitration Act s 33 – setting aside awards – excess of power by tribunals warrants setting aside. Companies Act s 228 – unanimous assent defence – cannot be decided if unpleaded and not properly canvassed in evidence. Procedure – remittal under s 33(4) – mandatory referral to a new tribunal at the request of either party; court may not substitute its own order in lieu of remit.
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29 November 2007 |
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Reported
Whether disqualification for an unsigned declaration violated procedural fairness under PAJA and constitutional procurement requirements.
Administrative law – procurement – award of tenders constitutes administrative action subject to PAJA and s217 of the Constitution (fair, equitable, transparent, competitive, cost‑effective). Tender law – delegation and discretion – reg 5(c) permits acceptance despite non‑compliance; tender adjudicator may condone non‑compliance where appropriate. Procedural fairness – mechanical disqualification for an inadvertent unsigned declaration was unreasonable and reviewable. Remedies – courts must fashion just and equitable relief balancing applicant’s rights, awardee’s reliance and public interest (including cost and uninterrupted public service).
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29 November 2007 |
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Security-for-costs order upheld; trial court's discretion properly exercised and appeal dismissed.
Companies Act s 13 – security for costs – discretion in the strict sense – balancing plaintiff's access to court against defendant's right to recover costs; timing/delay of application; relevance of third‑party funding; relevance of defendant's insurance cover; review limited to misdirection on law or fact.
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29 November 2007 |
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Reported
A defective citation to the Customs Act does not invalidate SARS' statutory recovery of VAT; substance prevails over form.
Tax law – VAT recovery – appointment of agent for payment – notices citing s 114A Customs Act – relationship with s 47 VAT Act and s 13(6) incorporation – citation error does not invalidate recovery; manager's liability under s 103 Customs Act.
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29 November 2007 |
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Reported
Whether police undercover conduct constituted impermissible entrapment under s 252A and whether sentence was excessive.
Criminal procedure – s 252A Criminal Procedure Act – undercover operations and traps – admissibility of evidence obtained by trap – whether conduct went beyond providing an opportunity to commit an offence – balancing public interest and accused’s fair-trial rights; police misconduct and failure to disclose informant/police agent; entrapment and sentencing mitigation.
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29 November 2007 |
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Reported
Whether negligence of a hit-and-run driver can be inferred from a single eyewitness account and the applicant’s position at the scene.
Road accident – pedestrian hit-and-run; single eyewitness evidence and credibility; drawing inferences of negligence from circumstantial facts (position of injured person, police sketch); limits of expert reconstruction on injury causation; appellate review of factual credibility and probabilities.
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29 November 2007 |
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No reasonable possibility the accused’s single‑blow version was true; murder conviction affirmed on evidence and expert opinion.
Criminal law – Murder – Dolus eventualis – Whether evidence established that accused foreseen death when delivering blows – assessment of eyewitness testimony and medical evidence on wound trajectory. Evidence – Single witness credibility – relationship to deceased, inconsistencies and caution in assessment. Criminal procedure – Reasonable possibility test (S v Van der Meyden) applied to resolve conflict between accused’s version and State evidence.
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28 November 2007 |
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Reported
Whether management rule 71(1) compels arbitration and which court-only remedies are excluded.
Sectional Titles — Management rule 71(1) — Arbitration of disputes between body corporate and owners; construction of saving clause excluding only relief an arbitrator cannot grant; interplay with s 37(2) (recovery of levies); examples of non-arbitrable matters (s 46, s 48, interim preservation/inspection orders).
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28 November 2007 |
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Reported
A signed suretyship binds the respondent; a contractual written-consent clause precludes alleged oral or unauthorized amendments.
Suretyship — signed deed returned to creditor binds signatory; contractual clause requiring written consent to alterations enforceable; alleged oral amendments ineffective without creditor’s written agreement; agency and authority of creditor’s employee; onus on party alleging amendment to prove written consent.
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28 November 2007 |
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Reported
Work permits for corporate permit employees are not s19 permits; repatriation deposits require lawful, individual discretion.
Immigration law; corporate permits (s 21) v s 19 work permits; reg 18(6) work permits are not s19 general work permits; prescribed fees; discretionary power to require repatriation security; delegation and lawful exercise of discretion; unlawful blanket imposition of repatriation deposits.
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28 November 2007 |
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Reported
Where COIDA bars employer liability, the State cannot be held liable under section 60 of the Schools Act.
South African Schools Act s 60 – transfer of school liability to State only where school would have been liable; COIDA s 35(1) – statutory substitution of compensation bars employee suing employer for occupational injury; interaction between SASA s 60 and COIDA s 35; interlocutory determination under Rule 33(4); costs of separation and postponement.
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28 November 2007 |
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Reported
Respondent seeking referral to oral evidence must show what evidence would be led, why not in affidavits, and reasonable prospects of success.
Motion proceedings — referral to oral evidence or trial (Rule 33(8)/Uniform Rule 6(5)(g)) — respondent unable to file affidavits must explain evidence sought, why not in affidavit form, and show reasonable grounds that defence will be established; exceptional remedy to prevent fishing expeditions. Restitution/contract — alleged cancellation for fraud — hearsay and unsupported valuation challenges insufficient to vitiate contracts on papers. Condonation — unexplained delay and weak prospects require strong merits to succeed; costs consequences for improper or prolix applications.
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28 November 2007 |
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Reported
POCA may reach DUI conduct and vehicles can be instrumentalities, but forfeiture here was disproportionate and refused.
Prevention of Organised Crime Act – scope extends to individual wrongdoing; motor vehicle may be an instrumentality; forfeiture requires proportionality and is primarily remedial; ordinary DUI offences seldom justify forfeiture.
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28 November 2007 |
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Reported
"Date of release" under s 276A(3)(a)(ii) means parole-eligibility date or sentence expiry; parolees are ineligible for reconsideration.
Criminal procedure — s 276A(3)(a)(ii) — meaning of "date of release" — where subject to Correctional Services Act 1959, deemed to be earliest of parole-eligibility date or sentence expiry — parolees not eligible for reconsideration under s 276A(3)(a)(ii).
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28 November 2007 |
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Reported
Section 3(1)(a) allows a court lacking merits jurisdiction to transfer proceedings to the court with proper jurisdiction.
Civil procedure – Interim Rationalisation of Jurisdiction of High Courts Act 41 of 2001 – s 3(1)(a) – transfer of proceedings – transferring court may lack original jurisdiction but may order removal to court with proper jurisdiction; does not confer merits jurisdiction. Interpretation – s 3(1)(a) distinct from s 3(1)(b) – converse situations: lack of jurisdiction v convenience. Territorial jurisdiction – s 19 Supreme Court Act preserved; s 3(1)(a) not limited to matters affected by s 2 alterations. Discretion – exercise of transfer power; prescription and conduct of defendant relevant.
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28 November 2007 |
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Reported
The applicant failed to prove the respondent negligent; no obligation to station a security guard in every carriage absent special risk.
• Delict — negligent omission — foreseeability alone insufficient; reasonableness determines wrongfulness and delictual liability.
• Railway/commercial enterprise — duty to take reasonable security measures for commuters; not an obligation to guarantee absolute safety.
• Evidentiary onus — plaintiff must prove systemic inadequacy or particular risk to infer negligence; absent such proof, defendant need not rebut.
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28 November 2007 |
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Reported
Whether a discretionary trust’s named but unvested beneficiary makes the trust a "recipient" for STC deeming provisions.
Tax — Secondary Tax on Companies (STC) — s 64C deeming provisions — meaning of 'recipient' and 'beneficiary' — whether discretionary (potential) trust beneficiaries are 'beneficiaries' for deeming loans to trusts as dividends — purposive construction versus restricted (vested) interpretation.
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26 November 2007 |
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Reported
Keeping blue wildebeest adjacent to cattle not unlawful absent objective, substantial risk or inability to mitigate; injunction refused.
Neighbour law – nuisance – whether introduction of blue wildebeest amounts to unlawful interference given risk of bovine malignant catarrhal fever; interdictory relief requires objective unreasonableness/substantial interference, not mere apprehension of harm; mitigation, low disease incidence and proportionality of remedy relevant.
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26 November 2007 |
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Reported
An importer who unlawfully imported an agricultural remedy may still use s 16(6)(a) to export it; forfeiture requires conviction.
Statutory interpretation – Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act – s 16(6)(a) option available where importation contravened s 16(1) despite other contraventions. Forfeiture – s 18(2) requires prosecution, conviction and court order; registrar has no automatic forfeiture power under s 7. Possession – importer may lawfully possess goods to effect export in terms of s 16(6)(a). Delay – undue prosecutorial delay undermines retention strategy.
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26 November 2007 |
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Reported
Arrest to found or confirm civil jurisdiction is unconstitutional; common law amended to allow jurisdiction without arrest.
Constitutional law – right to freedom and security – arrest to found or confirm civil jurisdiction unconstitutional; Common law developed – abolition of requirement of arrest to found/confirm jurisdiction; Jurisdiction – where attachment impossible, service while physically present plus sufficient connection renders forum appropriate and competent; Interpretation – s 19(1)(c) read down; Costs – appellant ordered to pay costs including two counsel.
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23 November 2007 |
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Reported
A judgment against the principal debtor extends the prescription period for the surety’s liability to thirty years.
Prescription — suretyship — accessory nature of surety’s obligation — effect of judgment against principal debtor on prescription period — s 11(a)(ii), s 11(d) and s 15(4) Prescription Act — cession of judgment debt and security.
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22 November 2007 |
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Reported
Review of private arbitration dismissed: errors insufficient, alleged meetings not proof of bias, condonation refused.
Arbitration — private agreement making award final and binding — scope of judicial review limited to s 33(1) Arbitration Act — error of law or fact not per se ground for setting aside — misconduct/bias threshold high — Rule 53 limits amplification; condonation under s 38 properly refused where supplementary affidavits introduce new case.
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22 November 2007 |
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Reported
Whether a bank remained a creditor—and thus had locus standi—where judgment awarded interest a tempore morae from proof of claim.
Locus standi – creditor status of bank seeking removal of liquidators; Proof of claim and expungement by Master; Judgment interest a tempore morae – runs from date debtor in mora where amount was known/proved; Insolvency law – effect of judgment reinstating expunged claim; Costs – consideration of de bonis propriis against liquidators.
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20 November 2007 |
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Alibi and belated consent claim rejected; rape conviction and mandatory ten‑year minimum sentence upheld.
Criminal law – Rape and indecent assault – alibi evidence – documentary security log susceptible to manipulation and alibi rejected. Criminal law – Consent – defence raised for first time on appeal must have an evidential basis; mere speculation insufficient. Sentencing – Minimum Sentences Act (Act 105 of 1997) – no substantial and compelling circumstances to warrant deviation from ten‑year minimum for rape.
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9 November 2007 |
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Reported
Whether s29 NPA Act search warrants were valid; majority upheld warrants and dismissed the appeal with costs.
Search and seizure – validity of warrants issued under s 29(4) National Prosecuting Authority Act – whether descriptions of suspected offences and annexures sufficiently particularised. Remedies – setting aside warrants, declaration of unlawfulness of searches and seizures, return of seized originals and preservation of copies/images. Costs – scale and number of counsel.
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8 November 2007 |
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Reported
Court allows narrow preservation under seal of unlawfully seized material to resolve future privilege disputes, but rejects broad retention for prosecutions.
Search and seizure – invalid warrants – whether court may order preservation/retention under seal of unlawfully seized material – limits of court’s remedial power under ss 34 and 36 – preservation permissible narrowly to enable later identification of seized items and resolution of privilege disputes, but not to provide State with unlawfully obtained evidence for prosecution.
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8 November 2007 |
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Reported
Court upheld s29 search warrants as sufficiently particular and lawful; appeal allowed and application dismissed with costs.
Search and seizure – National Prosecuting Authority Act s 29 – validity and required particularity of warrants – warrant intelligible if it confines seizure to material that "has or might have a bearing on the investigation". s 29(5)(c) – need for search and seizure requires showing material not expected to be produced voluntarily, not proof that it cannot be obtained under s 28. Overbroad ‘catch‑all’ clauses permissible if confined by statute to material bearing on investigation. Section 29(11) (privilege procedure) need not be expressly referenced in warrant; privilege protection addressed on execution. Remedies – courts have constitutional remedial powers including preservation orders, but not always appropriate.
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8 November 2007 |
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A judge may issue a s 2(2) request for overseas documentary evidence during investigation; mere risk of prosecution does not confer standing.
International co-operation in criminal matters – s 2(2) letter of request – scope of "investigation" and "information" – includes gathering documentary evidence and known facts for prosecution; distinction between s 2(1) (assistance during trial) and s 2(2) (assistance during investigation); locus standi – risk of prosecution alone does not confer standing to challenge a letter of request.
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8 November 2007 |
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Reported
Seizure of privileged documents during a valid warrant execution does not automatically render the execution unlawful or invalidate other seized items.
Search and seizure – section 21 Criminal Procedure Act – validity of warrants and their execution. Attorney-client privilege – seizure of privileged documents during searches; sealing and independent identification processes. Whether seizure of privileged documents invalidates other lawfully seized material. Remedies and sanctions for improper seizure – return, civil/disciplinary remedies, trial-court rulings on admissibility.
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8 November 2007 |
| September 2007 |
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Court set aside an award of unproven damages in motion proceedings for a sale in execution due to lack of evidence and procedural irregularity.
• Civil procedure — motion proceedings — damages generally not claimable without admissible evidence of liability and quantum.
• Execution law — attachment and sale in execution of immovable property; service and procedural compliance under s 66(1) Magistrates’ Court Act.
• Evidence — court may not obtain evidence ex parte after reserving judgment; reliance on unauthenticated or without-prejudice correspondence improper.
• Liability — attorneys not held liable absent pleaded and proved basis for their personal liability.
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28 September 2007 |
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Reported
Signing blank pages later completed by another does not comply with s 2(1) of the Alienation of Land Act; agreement void.
Alienation of Land Act 68 of 1981 s 2(1) – deed of alienation must be in writing and signed by the parties in its completed form; Signing blank or incomplete pages – subsequently filling them in by another does not satisfy s 2(1); Negotiation vs counter-offer – request to amend a term is not a counter-offer; Evidence – absence of agent's testimony and contemporaneous delivery relevant to findings of fact; Result – agreement void for non-compliance with statute.
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28 September 2007 |
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Whether a provincial gambling board or the provincial executive had authority to contract for the Province's central electronic monitoring system.
Gambling law – Interpretation of regulation 156(8) PN 1087/2003 – Central electronic monitoring system (CEMS) – Whether procurement authority lies with provincial executive or independent provincial gambling board – Statutory scheme and regulatory history inform purposive construction.
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28 September 2007 |
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Reported
An MEC cannot confer subpoena powers without a Premier's proclamation under the provincial Commissions Act.
Municipal Systems Act s106(1)(b) and (2) – provincial Commissions Act applicable – Premier must appoint commissions by proclamation in Provincial Gazette – subpoenas require secretary's signature and authorised service – principle of legality; MEC cannot delegate subpoena powers absent proper provincial appointment.
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28 September 2007 |
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Reported
Ex parte interception directions are provisional and may be challenged only for a legitimate, non-speculative purpose.
Interception law – ex parte court directions – s 3(5) does not bar later challenge – ex parte directions provisional; Reconsideration of ex parte directions requires a legitimate purpose (enforcement of rights) and is not available for speculative or purely pre-emptive declaratory relief affecting pending criminal proceedings; Disclosure – withheld identities of third-party suspects not automatically disclosable where not required for fair trial preparation; Pre-trial declaratory orders affecting criminal trials generally inappropriate; Admissibility and exclusion of intercepted evidence to be determined by trial court (constitutional exclusion powers).
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28 September 2007 |
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Reported
A suspensive subdivision condition may be implied into a written sale, and post‑restructuring municipal status can preclude "agricultural land" classification.
Property law; contract — tacit term — suspensive condition implied into written deed; Alienation of Land Act s 2(1) compliance; Agricultural Land Act — meaning of "agricultural land" and effect of transitional council proviso; municipal restructuring and operation of Subdivision of Agricultural Land Act; ministerial consent not required where land no longer classified as agricultural.
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28 September 2007 |
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The applicant’s murder conviction was upheld; the trial court’s reduced minimum sentence was reinstated due to substantial and compelling circumstances.
Criminal law – Murder – self-defence – assessment of credibility where accused alleges he exceeded bounds of self-defence – accused’s version rejected as fabricated; conviction upheld. Sentencing – minimum sentencing provisions (Criminal Law Amendment Act) – substantial and compelling circumstances – trial court’s sentencing discretion and appellate interference – High Court improperly increased sentence where no misdirection by trial court shown. Evidence – eyewitness credibility and objective post-mortem/forensic evidence supporting State’s version. Procedure – limits on State raising jurisdictional/sentencing point in limine without complying with ss 310/310A of Criminal Procedure Act.
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28 September 2007 |
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Reported
Police sergeant convicted of murder and obstructing justice; colleagues convicted as accessories after the fact; defences rejected.
Criminal law – Murder by on-duty police officer – private and putative private defence rejected – accessory after the fact – duty of police to report crimes – defeating the course of justice by tampering with occurrence book and swapping service weapons – sentencing and statutory minimums; non-parole period ordered.
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28 September 2007 |
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Reported
Accomplice contradictions and lack of corroboration rendered murder unproven; conviction substituted to accessory after the fact.
Criminal law – accomplice evidence and cautionary approach; corroboration and probative value of previous consistent or untested co-accused statements; inference from failure to put defence to witnesses; reassessment of credibility on appeal; substitution of conviction to accessory after the fact; sentencing considerations (aggravation of degrading disposal, mitigation, time served).
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28 September 2007 |
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Reported
An unsuccessful tenderer is entitled to timely access to procurement documents necessary to prosecute an effective appeal.
Procurement law – right of unsuccessful tenderer to access documents underlying award – s 20 appeal read with s 217 Constitution – procedural fairness and effective review; PAIA not a substitute for timely disclosure under procurement appeal timeframes; confidentiality may be protected by marking/redaction and limited disclosure to counsel/experts; costs awarded to successful applicant.
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28 September 2007 |
