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Citation
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Judgment date
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| December 2008 |
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Reported
SCA reinstated summary judgment for rent and ejectment, granted judgment for occupation/rates, but refused purchase-price and sale-cost claims.
Civil procedure – summary judgment – requirements for defence on affidavit – oral lease: absence of ancillary clauses irrelevant to claim for rent – deed of sale: need for pleaded particulars to allege invalidity under Alienation of Land Act – ejectment: summary judgment appropriate where no defence disclosed.
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2 December 2008 |
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Reported
Sustained assault and deliberate withholding of medical aid established dolus eventualis; murder conviction and sentence affirmed.
Criminal law – murder – sustained and vicious assault followed by deliberate refusal to obtain medical assistance – dolus eventualis established from cumulative evidence; exact fatal blow or weapon need not be proved.* State proof – intent may be inferred from nature, duration and severity of assault and post-assault conduct.* Sentence – 12 years’ imprisonment upheld as within permissible range.
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2 December 2008 |
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Reported
A pension fund may withhold payment pending finalisation of an employer’s claim for loss from a member’s alleged dishonesty.
Pension funds – section 37D – deduction/withholding of benefits pending employer’s claim for theft/dishonesty; purposive interpretation of s 37D; interplay with s 37A and fund rules; appealability of refusal to intervene.
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1 December 2008 |
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Reported
Whether a former employee who remains with consent after dismissal qualifies as an "occupier" under ESTA.
Extension of Security of Tenure Act — meaning and timing of "occupier" status; s8(2)–(3) (employee occupants); prescribed income exclusion (R5,000); assessment at date consent to occupy ceases or when eviction proceedings commence; Hallé v Downs disapproved insofar as it extends relevant date.
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1 December 2008 |
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Reported
The applicant may seek declaratory relief; SMS-paid charity competitions are unlawful lotteries, not promotional competitions.
Lotteries Act – s 10(d) implied power to institute proceedings to police and enforce Act; meaning of 'subscription' includes premium-rate SMS and postcard entry; promotional competition requires dominant purpose to promote sale/use of goods or services – fundraising competitions are not promotional competitions; unauthorised lotteries prohibited by ss 56–57.
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1 December 2008 |
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Reported
Unlawful expulsions do not deprive councillors of party membership or their Schedule 6B floor-crossing rights.
Constitutional law – Floor crossing (Schedule 6B) – Effect of party expulsions on municipal councillors’ entitlement to cross the floor. Administrative law – Validity of expulsions – Direct attack on substantive validity versus Oudekraal principle. Interim consent orders – Construction and effect on party membership and Schedule 6B rights. Remedies – Declaratory relief and costs, including costs of two counsel where employed.
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1 December 2008 |
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Reported
Whether an unchallenged police identification and delayed statement defeat conviction, and whether the maximum statutory sentence was justified.
Criminal law — Identification evidence — Reliability of unchallenged police identification at close range at night; delay in police statement not necessarily fabrication if corroborated — Accused’s silence may strengthen otherwise strong identification evidence — Sentencing — Minimum-sentence regime under Act 105 of 1997; maximum sentence disproportionate where minimum adequately reflects seriousness.
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1 December 2008 |
| November 2008 |
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Reported
Mandament van spolie does not protect mere contractual rights; only possession, quasi-possession or use/occupation rights are protected.
Spoliation – mandament van spolie – limited to protection of possession, quasi-possession or rights to use/occupy property (gebruiksregte) and incidents of possession; not available to enforce mere contractual/personal rights; distinction between restoration of possession and specific performance; requirements for possession/control; co-spoliation claim fails if primary spoliation claim fails.
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27 November 2008 |
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Reported
Prescription does not run against a rectification claim; undertaking to procure transfer supports specific performance.
Contract — Rectification of written agreement to record parties’ true intention; Prescription Act — claim for rectification not a ‘debt’ and does not prescribe; Prescription — express or tacit acknowledgement under s 14 interrupts prescription; Specific performance — undertaking to procure transfer enforceable, not reducible to damages; Interpretation — surrounding circumstances and related agreements relevant to rectification.
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27 November 2008 |
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Reported
Whether circumstantial evidence and false explanations establish the applicant’s guilt for murder rather than mere accessory liability.
Criminal law – Murder – Circumstantial evidence – Blom test: whether proved facts exclude other reasonable inferences – credibility of accused’s false explanations – common purpose and participation versus accessory after the fact.
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27 November 2008 |
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Reported
Dependant’s claim for loss of support cannot be extended to compensation for breadwinner’s lawful incarceration.
Delict – Dependants’ action for loss of support – whether actionable where breadwinner’s capacity extinguished by lawful incarceration rather than death or injury – wrongfulness and policy considerations – refusal to extend sui generis dependant’s remedy to loss caused by incarceration.
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27 November 2008 |
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Reported
A municipality may withhold a s 118 clearance certificate until two-year municipal debts are paid, even if sale proceeds are insufficient.
Property law; Municipal Systems Act s 118 clearance certificates; interaction with Insolvency Act s 89; transfers by executor under Administration of Estates Act s 34(2) not subject to s 89; statutory veto to withhold registration until two-year municipal debts paid; no judicially-read proviso compelling acceptance of insufficient sale proceeds; municipalities may compromise claims (s 109(2)).
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27 November 2008 |
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Reported
Driver blinded by oncoming lights who failed to slow was negligent for not stopping within his range of vision, causing the collision.
Delict — Motor vehicle collision at night with unlit obstruction — Duty to slow/stop when dazzled by oncoming headlights — Foreseeability of unlit obstructions and relationship between speed and range of vision — Causation and onus of proof.
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27 November 2008 |
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Reported
A contractor's written letter describing unforeseen adverse conditions and extra work can constitute a clause 50(1) notice; engineer must so construe it.
Contract — Civil engineering — GCC clause 50(1) — What constitutes written notice of unforeseen adverse physical conditions — Formality, timing and subsequent conduct irrelevant to whether notice given — Engineer's duty to construe communication as notice and consider suspension/alternatives — Clause 50(4) limits recoverability of prior work costs.
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27 November 2008 |
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Reported
Liquidators may pursue s 26 and s 29 claims despite prior s 30 reliance; res judicata and lis pendens rejected on fairness grounds.
Insolvency Act — Remedies under ss 26, 29 and 30 — Distinct causes of action; res judicata and issue estoppel limited where earlier judgment did not decide same statutory remedy; ‘once and for all’ rule and lis alibi pendens require factual foundation and are discretionary; practical and fairness considerations may justify fresh recovery actions.
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27 November 2008 |
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Reported
A chaotic, over-inclusive appeal record justified striking the matter from the roll and ordering the attorney to pay wasted costs de bonis propriis.
Court procedure – appeal record – inclusion of irrelevant documents and failure to prepare core bundle; Practice note certifying entire record – breach of rules; Attorney’s conduct – personal liability for wasted costs de bonis propriis; Public interest considerations – balancing defective record against importance of issues (dissent).
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27 November 2008 |
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Reported
Work created because of and for the employer in the course of employment vests copyright in the employer; appeal dismissed.
Copyright – computer programs – author defined as person exercising control over making of program – ownership where work made in course of employment (s 21(1)(d)) – factual enquiry whether work made in course of employment – programs integrated into employer system and developed to perform employer functions.
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27 November 2008 |
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Reported
Time and effort are relevant but not decisive for increased trustee remuneration; Master’s refusal was lawfully upheld.
Insolvency Act s 63(1) – trustee remuneration – Master to tax remuneration according to tariff but may increase or reduce for good cause. "Good cause" – factors include complexity, difficulty, work done and time spent; time is relevant but not decisive. Review – Master’s discretionary refusal to increase fee upheld; no reviewable irregularity. Tariff inadequacy – matter for executive amendment, not for cure via Master’s discretion or judicial review.
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27 November 2008 |
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Reported
Ambiguous servitude construed as right of way, extinguished by 30 years' non‑use; adjoining area acquired by prescription.
Real rights – Servitude – Interpretation of ambiguous servitude wording 'for the common use' – Servitudes construed restrictively in favour of servient tenement. Prescription – Extinctive prescription of servitude under s 7(1) for uninterrupted non‑exercise of 30 years. Prescription – Acquisitive prescription under s 1 – open, as‑if‑owner possession for 30 years. Evidence – Limited value of subsequent use evidence by non‑parties to the grant; admissibility of contemporaneous conditions when proving meaning of servitude.
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27 November 2008 |
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Reported
Abstract theory of transfer applies to land; a conditional acceptance was a counter-offer and restitution was barred where parties fully performed.
Administration of Estates Act s71/s72 – curator bonis selling prior to letters; conditional acceptance vs counter-offer; Alienation of Land Act formalities; abstract theory of transfer applied to immovables; Wilken v Kohler rule bars restitution where parties fully performed and lawful purpose achieved.
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27 November 2008 |
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Reported
Whether a shareholder invited to ratify company agreements has locus standi to challenge their validity and disclosure accuracy.
Company law – shareholder locus standi – whether a shareholder invited to ratify agreements can challenge their validity; duty of full and accurate disclosure in circulars (JSE Listing Requirements) – limits of third‑party challenges to contracts; exceptions (ultra vires, administrative/tender review, accessory suretyship rights) distinguished.
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27 November 2008 |
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Reported
Payments received under successive, genuine restraint of trade agreements were held to be capital amounts and not taxable income.
Income tax – capital or revenue – payments in terms of restraint of trade agreements – whether successive restraint of trade payments are of capital nature – whether genuine restraint of trade covenants or disguised remuneration – whether taxpayer surrendered additional commercial rights in exchange for successive payments – gross income – pre-amendment law interpretation.
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27 November 2008 |
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Reported
Section 99 appointment does not allow a bank to unilaterally reverse a completed credit without the payee’s authority.
Income Tax Act s99 – appointment of bank as agent by SARS – does not freeze or cede debtor’s funds; banking law – bank’s right to reverse credit entries limited to specific grounds (forgery, provisional/conditional credits, fraud, mistaken/erroneous crediting); corporate notice – notice to head office not automatically notice to unaware branch; completed juristic act – unconditional debit and credit create vested right of payee.
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27 November 2008 |
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Reported
Quasi-mutual assent can render unsigned standard-form sale agreements binding where seller conduct reasonably conveys acceptance by conduct.
Contract law – formalities and acceptance – quasi-mutual assent/reliance – acceptance by conduct where prescribed mode not followed; sale of close corporation member's interest not necessarily governed by Alienation of Land Act writing requirement; agency and authority of attorneys to receive deposits and effect acceptance.
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27 November 2008 |
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Reported
A company's directors are bound by its articles and shareholders agreement, not by a joint venture's internal voting regime.
Company law – directors' powers – board decisions governed by company articles and shareholders agreement, not by a joint venture's GTC; Contract interpretation – percentage thresholds (66.6%) construed as two‑thirds and requirement of 'more than' two‑thirds; Assignment/conflict clause – shareholders agreement prevails over GTC where inconsistent.
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27 November 2008 |
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Reported
The appellant's imprisonment was set aside for correctional supervision due to sentencing misdirections on premeditation and character.
Sentence — Assault with intent to grievous bodily harm and malicious damage; sentencing misdirections (unsupported finding of premeditation; adverse character finding contrary to probation report) — appropriateness of correctional supervision under s 276(1)(h) versus direct imprisonment — post-conviction aggravation evidence and s 112(2) statement.
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27 November 2008 |
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Reported
Trap evidence admissible where conduct provided opportunity only and did not unfairly induce the accused.
Criminal procedure – s 252A – admissibility of trap and undercover evidence – whether conduct went beyond providing an opportunity (inducement/enticement) – discretion to order trial-within-a-trial – relevance of compliance with DPP guidelines and prior suspicion.
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27 November 2008 |
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Reported
Eyewitness identifications, corroborated despite gang rivalry and contradictions, were reliable; conspiracy allegation rejected and conviction upheld.
Criminal law – murder and attempted murder – eyewitness identification – evidence by rival gang members to be approached with caution but may be reliable if independently corroborated – alleged collusion/conspiracy among witnesses rejected on probabilities – conviction upheld.
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27 November 2008 |
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Reported
Appellant's conviction set aside because the State failed to prove guilt beyond reasonable doubt due to unreliable police identification.
Criminal law – burden of proof – whether guilt proved beyond reasonable doubt – inconsistencies in identification evidence. Evidence – credibility and contradiction among police witnesses – effect on prosecution case. Evidence – documentary evidence of accused's whereabouts – not necessarily hearsay and capable of corroboration. Procedure – application to remit for further evidence unnecessary where State case insufficient.
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27 November 2008 |
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Reported
Single-witness identification unsafe due to poor ID procedures, leading questioning and undue reliance on demeanour.
Criminal procedure – identification evidence by a single witness – reliability affected by lighting, opportunity, delay, improper identity parade, leading questioning and police misconduct; caution in assessing demeanour.
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27 November 2008 |
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Reported
Shareholders can seek declaratory relief/interdicts to stop meetings if convening circulars contain materially inaccurate information.
Companies law – shareholders’ rights to information – directors’ duty to disclose material facts in circulars convening meetings; locus standi – when individual shareholders may seek declaratory relief or an interdict to prevent a meeting; declaratory relief – prerequisites and discretion; Foss v Harbottle principle limited where shareholders require accurate information to vote.
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27 November 2008 |
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Reported
Whether an employer is bound to increased pension contributions under amended fund rules despite a 5% participation agreement.
Pension Funds — Interpretation of fund rules — Employer contributions — Effect of Agreement of Participation vis-à-vis rule amendments — Automatic annual increases to a 6% minimum — Trustees’ power to amend rules.
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27 November 2008 |
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Reported
The appellant's negligent driving caused recoverable pure economic loss to the respondent; appeal dismissed.
Delict – Pure economic loss – meaning and approach to wrongfulness – legal duty determined by public and legal policy – pleading requirements for wrongfulness – remoteness/legal causation – flexible/supple test – foreseeability and directness – liability for lost toll revenue caused by negligent spillage.
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26 November 2008 |
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Reported
Once the National Director validly authorises prosecution under s 2(4) POCA, continuation of prosecution is lawful if the accused has not pleaded.
POCA s 2(4) – written authorisation to prosecute racketeering; meaning of "charged"; effect of authorisation given after earlier charging steps; validity of prosecution once authorisation granted.
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26 November 2008 |
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Reported
Set-off requires mutual, liquidated and payable debts existing before liquidation; post-liquidation set-off cannot extinguish claims.
Set-off – requirements – mutuality – both debts must be liquidated and payable for compensation to operate; insolvency/concursus creditorum prevents post-liquidation set-off; election to set off cannot have retrospective effect to defeat concursus.
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26 November 2008 |
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Reported
Appeal against five-year sentences for extensive, premeditated windscreen fraud dismissed; compensation order under s300 not mitigating punishment.
Sentencing appeal – fraud – 91 counts; s 300 compensation order civil not punitive; consideration of correctional supervision (s 276(1)(h)); aggravating factors: prolonged, premeditated fraud and endangering road users; appellate review limited to material misdirection or sentence inducing shock.
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26 November 2008 |
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Reported
Conviction for accessory after the fact set aside for lack of evidence; substituted with common assault and an appropriate suspended sentence.
Criminal law – murder charge – mutually destructive versions – accessory after the fact – requirement of knowledge and concealment – insufficiency of evidence to prove concealment or collusion – competent verdict of common assault – sentencing of first offender.
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26 November 2008 |
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Reported
Whether the conveyancer’s mandate required payment of estate sale proceeds to a trust company acting for the curators.
Insolvency — conveyancer’s mandate — payment of sale proceeds to trust company acting for curators; onus to prove absence of contractual term; assessment of witness credibility and probabilities.
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26 November 2008 |
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Reported
Seller's signature within the seven‑day option period constituted acceptance, creating a binding sale without separate communication.
Auction sales – 'Agreement and Conditions of Sale' – purchaser bound to keep bid open for specified period – seller's later signature on printed form held to be prescribed mode of acceptance – signature within option period constitutes acceptance and creates binding sale; not necessary that acceptance be separately communicated.
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21 November 2008 |
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Reported
Section 62 of the Systems Act does not grant objecting neighbours an internal appeal against municipal building-plan approvals.
Administrative law – PAJA s 7(2) – exhaustion of internal remedies – Systems Act s 62 – scope of internal appeal – whether objecting neighbours (non‑parties to planning application) have a right of appeal against municipal approval of building plans; building plan approvals – whether approval itself affects neighbours’ rights (Walele precedent).
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14 November 2008 |
| October 2008 |
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Reported
Appellant’s denial was rejected; conviction for child rape and 18‑year sentence affirmed.
Criminal law – Rape of a girl under 16 – assessment of credibility where complainant delays reporting – weight of extra‑judicial admissions vs formal confessions – medical evidence inconclusive – sentencing: substantial and compelling circumstances; appellate interference only for material misdirection or disturbingly inappropriate sentence.
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1 October 2008 |
| September 2008 |
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Reported
Whether the applicant could rely on an alleged oral variation of an integrated contract and whether overpayments were recoverable.
Contract — Parol evidence/integration rule — Written agreement fixing prices — Non-variation clause precluding oral or tacit variation; Estoppel — Representation by regional official insufficient where tender process and Tender Board approval required; Restitution — Condictio indebiti — Mistake must be excusable; repeated failure to check rates constituted inexcusable negligence; Defence of non-enrichment where payments passed to employees/authorities.
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30 September 2008 |
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Reported
A purported sale in execution without a lawful attachment is invalid and does not transfer ownership; section 70 protection does not apply.
Sale in execution – requirement of existing judgment and valid attachment; section 70 protection limited to genuine sales in execution. Attachment – warrant and notice must be served/published to effect attachment; lack of service/publication negates attachment. Validity of sales by sheriff – sale without lawful attachment is void and purchaser not protected even if in good faith. Judgment against minor unassisted – voidness and consequences for execution procedures.
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30 September 2008 |
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Reported
Amnesty expunges convictions but does not retroactively reverse prior employment dismissals; reinstatement is not automatic.
Amnesty Act s 20(10) – expungement of convictions does not retrospectively undo prior statutory consequences; SAPS Act s 36(1) deemed discharge upheld; s 36(2) limited to convictions set aside on appeal or review and does not permit reinstatement following administrative amnesty; administrative statements do not necessarily constitute binding contracts.
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30 September 2008 |
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Reported
A cession in securitatem debiti transfers rights immediately; proviso suspends enforcement, not the cession.
Cession in securitatem debiti — mortgage bond cession of rentals — present-tense language effects immediate transfer; proviso that cession ‘shall not be acted upon’ suspends enforcement not transfer — cedent divested of locus standi to sue — inconsistent authority overruled.
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30 September 2008 |
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Reported
Restraint orders against third parties require proof on the balance of probabilities that an affected gift was received; s16(1) not engaged here.
Prevention of Organised Crime Act – Chapter 5 – restraint orders against third parties – requirement to prove on balance of probabilities that an 'affected gift' was received; s 16(1) deeming provision – requires proved transfer plus inadequate consideration; affidavits not to be rejected lightly – order for cross-examination under Rule 6(5)(g).
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29 September 2008 |
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Reported
Actual notice to a close corporation is required for attachment of a member’s interest to found jurisdiction.
Civil procedure – jurisdictional attachment of incorporeal rights – attachment of a member’s interest in a close corporation requires actual notice to the corporation; s 25 Close Corporations Act not applicable to cure lack of notice; registrar notification or affixation at registered office insufficient; invalid attachment cannot found jurisdiction.
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29 September 2008 |
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Reported
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26 September 2008 |
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Reported
Whether properties registered in one partner’s name are partnership assets and entitlement to post-dissolution profits.
Partnership law – existence and terms of partnership; estate agency commission entitlement; effect of lack of fidelity fund certificate on retention of commission; status of partnership assets where registered in one partner’s name; rights on dissolution and entitlement to share proceeds; appointment of liquidator to divide proceeds.
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26 September 2008 |
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Reported
Long unexplained delay and missing record do not justify condonation without satisfactory explanation and prospects of success.
Condonation — requirements: satisfactory explanation for delay and reasonable prospects of success; long unexplained delay fatal. Lost trial record — does not automatically establish prospects of success; applicant must still set out evidence. Appellate review — will only interfere where lower court misdirected itself or exercised discretion unjudicially. Importance of sworn explanations and corroborating affidavits from counsel when claiming reliance on legal aid or appointed attorneys.
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26 September 2008 |
