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Citation
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Judgment date
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| March 2008 |
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An application for a final interdict failed where no injury was proven and material disputes of fact could not be resolved on papers.
Interdict – requirements for final interdict – injury committed or reasonably apprehended – material dispute of fact – application dismissed on papers – Plascon Evans rule applied.
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31 March 2008 |
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Reported
A HoD's discretion to appoint educators must reasonably balance employment equity and candidate suitability, respecting fair administrative process.
Education law – Public school appointments – Administrative action under s 6(3) of the Employment of Educators Act – Scope of discretion of Head of Department – Review of decision for reasonableness under PAJA – Employment equity considerations – Weighing equity against candidate suitability and Governing Body recommendations – When court may substitute its own order for that of the administration.
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31 March 2008 |
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Reported
A prosecutor’s reckless decision to charge a magistrate without adequate inquiry amounted to malicious prosecution; ministers not liable.
Malicious prosecution; reasonable and probable cause; animus injuriandi; prosecution of judicial officers; limits of judicial immunity; prosecutors’ duty to investigate before charging a magistrate; s 60(11)(a) (Schedule 6 offences) considered.
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31 March 2008 |
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Reported
Employer’s failure to consult and explain an alternative post breached duty of fair dealing, constituting constructive dismissal.
Employment law; constitutional right to fair labour practices develops common law contract; constructive dismissal available to SANDF members; employer duty of fair dealing includes meaningful consultation and explanation of alternative posts; intolerable conditions must be employer‑made and lack reasonable and proper cause.
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31 March 2008 |
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Patent for seeding assembly revoked: projecting the seed tube into the slot is obvious, not inventive.
Patents — validity — novelty and inventive step — prior art (Dreyer, Anderson) — whether seeding tube projecting into tine-formed slot is inventive — obviousness to skilled person — provisional revocation to permit amendment under s 68.
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31 March 2008 |
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Conditions of suspension under s43(1)(b) are competent; s42(1) penalties are alternative and not cumulative.
Health Professions Act 56 of 1974 – interpretation of ss 42(1) and 43(1)(b) – 'or' construed disjunctively – listed penalties are alternative, not cumulative. Disciplinary power – suspension of penalty on conditions – conditions may include ancillary measures (repayment, community service) and do not multiply penalties. Sentencing – conditions of suspension offer a voluntary alternative to strict execution of the penalty; courts should not lightly read 'or' as 'and'.
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31 March 2008 |
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Reported
Distinction setting age of consent 19 for same-sex and 16 for opposite-sex acts is unconstitutional; age of consent read as 16.
Constitutional law – equality – discrimination on grounds of sexual orientation – statutory age-of-consent differential for same-sex (19) and opposite-sex (16) acts held unconstitutional. Sexual offences – s 14(1)(b) and 14(3)(b) Sexual Offences Act 23 of 1957 – severance and reading-in to create uniform age of consent (16). Remedy – limited retrospective declaration of invalidity; referral to Constitutional Court for confirmation; suspension of affected sentences pending confirmation. Criminal procedure – s 322(1)(b) application to amend convictions to indecent assault refused where State failed to prove lack of consent.
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31 March 2008 |
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Applicant’s late medical evidence not new; sentencing court properly considered mitigation and did not misdirect.
Sentence appeal – admission of new evidence – S v Immelman rule – post‑sentence medical evidence not shown to be new or materially changed; mitigation (guilty plea, remorse, cooperation, attempts to remedy loss) considered; no misdirection by sentencing court; appellate interference refused.
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31 March 2008 |
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Claim against bus owner for pupil's fall dismissed — plaintiff failed to prove negligent window or door defects.
delict – negligence – owner/operator liability for passenger injury – whether insecure window or jammed door caused fall evidence – credibility and inference – evaluation of pupil witnesses and inferences of prank or deliberate interference procedure – absolution from the instance for failure to prove negligence
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28 March 2008 |
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Claims for preformed chloramine treatment of high-chlorine-demand waters lacked inventive step and the patent was revoked.
• Patent law – inventive step (s 25) and revocation (s 61(1)(c)) • Obviousness – preformed chloramine formed by mixing chlorine precursor and ammonium salt • Prior art – literature and earlier patents disclosing chloramine production and use in high chlorine demand waters • Immediate dosing of unstable oxidising biocide held to be obvious to skilled person • Provisional revocation with right to apply to amend patent
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28 March 2008 |
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An excipient must accept the plaintiff’s factual averments; provincial advertising ban targets gambling occurring within the province.
Pleadings and procedure – exception – excipient must accept plaintiff’s averments and may not rely on contradictory factual allegations; Declaratory relief – competent to determine whether online gambling occurs within province; Statutory interpretation – s71(1) Gauteng Gambling Act prohibits unlicensed gambling in the province, not advertising of gambling occurring wholly outside the province; Online gambling – locus of gambling for licensing and advertising control; Practical case management – use of joint expert reports or a stated case to determine mixed factual-legal disputes.
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28 March 2008 |
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Reported
An attorney who pays out trust funds without ascertaining the depositor’s instructions is liable for resulting loss.
Trust funds – attorney’s duty – attorney who receives money into trust account owes depositor a duty to deal with funds so as not to negligently cause loss even if depositor is not client. Professional negligence – failure to enquire – attorney negligent for paying out trust monies on third-party instructions without contacting depositor or depositor’s attorney. Delict – unlawfulness and fault – cancellation of prior correspondence does not relieve attorney of duty to ascertain depositor’s mandate. Remedies – depositor entitled to recover full deposit with interest and costs.
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28 March 2008 |
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Reported
Lapsed sale due to unmet suspensive condition cannot be revived with material amendments without complying with s 2(1) of the Alienation of Land Act.
Alienation of land – suspensive condition unfulfilled causing lapse of sale – revival with material amendments constitutes a new alienation requiring compliance with s 2(1) of the Alienation of Land Act 68 of 1981 – waiver cannot resurrect a lapsed contract where the suspensive condition benefited the purchaser – pleadings must disclose cause of action and statutory formalities must be observed.
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28 March 2008 |
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Reported
A repayable bank deposit that grants chances to win prizes constitutes a prohibited lottery under the Lotteries Act.
Lotteries Act 57 of 1997 — definition of 'lottery' and 'subscription' — whether a bank deposit conferring chance to win prizes constitutes a subscription/stake; payment includes deposit; transfer of possession as consideration; promotional competitions and Board’s regulatory standing.
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28 March 2008 |
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Reported
A short-term insurer's sale of health gap cover policies did not constitute the regulated business of a medical scheme under the MS Act.
Medical Law – Insurance – Statutory interpretation – 'Business of a medical scheme' under the Medical Schemes Act 131 of 1998 – 'Accident and health policy' under the Short Term Insurance Act 53 of 1998 – Interpretation of conjunctions 'and'/'or' in statutory definitions – Requirements for insurance policies to be regulated as medical schemes.
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28 March 2008 |
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Reported
Bank unlawfully appropriated earmarked project funds held in a client account; third party entitled to repayment.
Banking law – set‑off/appropriation – earmarked/‘warehoused’ funds deposited into account held in name of third party – where bank aware and party to arrangements, third party may assert proprietary/quasi‑vindicatory claim against bank; relevance of bank’s knowledge; refusal to admit further evidence on appeal.
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28 March 2008 |
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Reported
Prospects of success are relevant to 'good cause' for condoning late statutory notice against an organ of state.
Prescription; Institution of Legal Proceedings against certain Organs of State Act 40 of 2002 s 3(1)-(4) — condonation for failure to give statutory notice — meaning of 'good cause' and relevance of prospects on the merits — distinction between delay causing failure and subsequent delay — 'unreasonable prejudice' as separate requirement.
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28 March 2008 |
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Reported
Reciprocity applied: creditor’s failure to release pledged shares suspended purchaser’s payment obligation; appeal dismissed with costs.
Contract – exceptio non adimpleti contractus and reciprocity – when obligations in separate written agreements constitute reciprocal performance – appropriation of undifferentiated payments between related debts – Plascon‑Evans on bona fide factual disputes – cancellation of agreements where creditor in mora.
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28 March 2008 |
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Reported
Respondent may challenge title in spoliation proceedings when applicant seeks broad interdiction; adoption agreement unlawfully subcontracted obligations.
Civil procedure – spoliation – qualification where applicant seeks relief beyond restoration – respondent entitled to challenge title by counter-application. Contract law – interpretation of prohibition on cession, assignment or subcontracting (clause 23.5) – distinction between cession and subcontracting. Subcontracting – where a party delegates its contractual obligations wholesale without prior written consent, the delegation breaches a prohibition on subcontracting. Estoppel/waiver – ineffective where contract requires prior written consent and an only-in-writing waiver clause applies.
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28 March 2008 |
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Reported
A court must be satisfied of permanent reformation before re-admitting an attorney previously struck off for dishonesty.
Attorneys – application for re-admission under section 15(3) of the Attorneys Act 53 of 1979 – striking-off for dishonesty – onus on applicant to prove genuine and permanent reformation – discretionary power of court – weight of evidence, remorse, and rehabilitation – residual discretion after proof of fitness – factors relevant to rehabilitation and readmission.
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28 March 2008 |
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Reported
An estate agent acting without a fidelity fund certificate cannot claim commission, but a client who paid it cannot reclaim the payment.
Estate Agency Affairs Act s 34A – effect of entitlement prohibition – does not invalidate mandate contract; disentitles agent from claiming remuneration but does not confer client right to recover paid commission; purpose is penal/remedial against agent; Noragent and legislative response.
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28 March 2008 |
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Reported
A 17-year-old convicted of rape was sentenced to five years' imprisonment under section 276(1)(i), balancing youth, rehabilitation, and deterrence.
Criminal law – Sentencing – Child offender – Rape – Whether court erred in rejecting correctional supervision – Constitution and international guidelines on sentencing of children – Appropriateness of custodial sentence versus correctional supervision for a 17-year-old convicted of a serious crime.
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28 March 2008 |
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Reported
A mortgagee must account for fruits only if in possession; mortgagors failed to prove possession, appeals dismissed.
Property law – Mortgage and pledge – Obligation to account for fruits of immovable property – Mortgagee bound to account only where in possession; mortgagor bears onus to prove possession. Civil procedure – Consent to judgment under settlement agreement – Notice by letter to stipulated PO Box sufficient where agreement prescribes deemed receipt. Deeds/description – Incorrect reference to township extension does not vitiate execution where erf number uniquely identifies property. Covering bond – Bonds securing future and contingent debts permit bank to refuse cancellation against tender when related liabilities unresolved. Costs – Appeals found vexatious; attorney-and-client costs awarded.
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27 March 2008 |
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Reported
Customs officers may lawfully seize goods absent proper documentation where reasonable suspicion of unlawful importation exists.
Customs and excise – seizure of goods – reasonableness of suspicion – absence of documentation – duty of customs officers – statutory obligation on possessors of imported goods to maintain records and documentation – no duty on official to undertake additional investigations where documentation is lacking.
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27 March 2008 |
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Reported
An 'entire agreement' clause prevents a separate prior undertaking from vitiating or relieving respondents of their contractual obligations.
Contract – ‘‘entire agreement’’ clause – prior or separate undertaking inadmissible to alter written contract; reciprocity of obligations – separate instruments not legally reciprocal absent express intention; rectification – onus to prove common continuing intention; parol-evidence/ Du Plessis v Nel; Wynns precedent applied.
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27 March 2008 |
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Reported
A land sale signed in blank and completed by the purchaser is void for non‑compliance with s 2(1) of the Alienation of Land Act.
Alienation of Land Act s 2(1) – sale of immovable property – inchoate deed signed by seller lacking names/description – delivery versus time of signature – party to contract cannot validly authorise the other contracting party to complete material terms after signature – purpose of statutory certainty.
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27 March 2008 |
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Creditor properly sought winding‑up to protect its security; no improper inducement or breach of banking code.
Close corporation — winding‑up for inability to pay (s 68(c), s 69(1)(c) CC Act); discretion under s 347(1) Companies Act read with s 66 CC Act; creditor's entitlement to call up overdraft; Code of Banking Practice does not preclude winding‑up; protection and perfection of security; urgency to prevent dissipation of secured assets.
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27 March 2008 |
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Reported
Service depot held liable for stolen vehicle where exemption clause was not incorporated and keys were negligently unsecured.
Deposit contract – exemption clauses – incorporation and notice – conspicuousness of terms; Interpretation – prominent caption vs small-print clause; Delict/negligence – duty to safeguard vehicle and keys; Onus – depositor to prove clause not part of contract; Depository liable where keys negligently unsecured and exemption not effectively incorporated.
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27 March 2008 |
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Reported
A dry‑dock booking under harbour regulations created a binding contract; delay put the port authority in mora and damages were recoverable.
Admiralty/contract law – dry‑dock booking under Reg 61 constitutes a binding commercial contract; Time of performance – time was of the essence and mora ex re applied; Supervening impossibility – defence fails where performance could reasonably have been secured and statutory powers were not exercised; Damages – cleaning, painting and loss of hire recoverable as general/foreseeable damages, not remote special damages.
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27 March 2008 |
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Reported
Police liable for defamation and unlawful invasive search; adverse inference unjustified; R25,000 awarded.
Defamation — meaning and publication of 'tsotsi' as defamatory; Search and seizure — limits of s 22(b) Criminal Procedure Act; Iniuria/indecent assault — unlawful invasive search and touching of private parts; Evidence — adverse inference where witness equally available and when not justified; Vicarious liability of State.
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27 March 2008 |
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Reported
Section 19(d) of the Road Accident Fund Act does not apply to agreements between suppliers and non-attorney claim processors.
Road Accident Fund—statutory interpretation—Section 17(5) and 19(d) of the Road Accident Fund Act 56 of 1996—applicability of s 19(d) to supplier claims—'mutatis mutandis' application—third party versus supplier agreements—public policy—protection intended for third parties, not suppliers.
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27 March 2008 |
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Reported
A collateral post-award contract that contradicts public tender documents is unenforceable; agreements to agree and fictional fulfilment fail.
Administrative/Tender law – procurement and tender procedures – exclusive power of Tender Board to procure – public, competitive tendering and presumption of legality Contract law – interpretation of tender acceptance and collateral agreements – parol evidence rule Contract law – agreements to agree/conditions vesting discretion not enforceable – fictional fulfilment inapplicable Delegation – signing authority and power to bind the Province Civil procedure – condonation, defective record and costs (limits on counsel’s fees, no recovery for preparation of record)
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27 March 2008 |
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Appellate court reversed trial finding, preferring security officer’s contemporaneous account and dismissing passenger’s delict claim.
Delict — carrier’s liability for passenger safety — duty and foreseeability of criminal harm; evaluation of mutually destructive versions — role of contemporaneous report and probabilities in credibility assessments; appellate review of trial court’s rejection of witness evidence.
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27 March 2008 |
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Reported
Foreign arrest revoked as absolution does not bar new arrest; countersecurity requires genuine, reasonable need.
Admiralty — ex parte arrest for security; res judicata — foreign revocation as absolution not merits decision; s 6(3) — admissibility of hearsay in admiralty; prima facie threshold low; countersecurity requires genuine and reasonable need.
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27 March 2008 |
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Reported
Whether property used and acquired solely to operate a brothel is an instrumentality warranting forfeiture under POCA.
Immovable property as instrumentality of offence – brothel‑keeping under Sexual Offences Act – Schedule 1 offences and POCA forfeiture competence – proportionality and remedial purpose of forfeiture – business of crime warranting full forfeiture.
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25 March 2008 |
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20 March 2008 |
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Reported
Implied or tacit terms will not be imported to override valid express contractual provisions; appellant acted within its contractual rights.
Contract – Implied and tacit terms – cannot be implied where they conflict with valid, express contractual provisions – Tacit terms inferred from express terms and circumstances – Exercise of contractual discretion limited by duty not to act in bad faith – Auction sale – confirmation period – seller entitled to accept bid within confirmation period – Reasonableness of auctioneer’s commission.
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20 March 2008 |
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Reported
Conviction for child indecent assault upheld on reliable identification despite flawed ID parade and investigative delays.
Criminal law – indecent assault (child) – identity evidence – single child witness – credibility and corroboration of description and scene. Identification procedure – post‑arrest in‑cell identification irregular; proper identity parade required. Investigative shortcomings – lack of crime kits/DNA opportunity and undue prosecutorial delays criticised. Alibi – insufficiently corroborated and not reasonably possibly true. Sentence – eight years’ imprisonment appropriate given seriousness and aggravating factors.
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20 March 2008 |
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Reported
Missing police statements and objective inconsistencies led to murder convictions being replaced by culpable homicide and a five-year term.
Criminal law – homicide – whether evidence proved dolus or only negligence – convictions of murder and attempted murder set aside and murder conviction substituted with culpable homicide. Disclosure – police/prosecution duty to disclose police docket contents and witness statements; missing statements undermine credibility and may affect fairness of trial. Evidence – role of objective scene evidence and probabilities in assessing eyewitness testimony. Sentence – culpable homicide sentencing principles, custodial sentence justified where high degree of negligence and supervisory responsibility.
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20 March 2008 |
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The appellant's private-defence claim was rejected; murder conviction and 12-year sentence upheld.
Criminal law – Private defence (self-defence) – Credibility and consistency of accused’s version versus eyewitness and forensic evidence – Ballistics and cartridge dispersion corroborating prosecution narrative – Murder established where lethal force was unnecessary and excessive; sentence of 12 years upheld.
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20 March 2008 |
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Reported
Mandatory 15-year minimum applies to unlawful possession of semi-automatic firearms absent substantial and compelling circumstances.
Criminal law – Minimum sentencing – s 51(2)(a) Criminal Law Amendment Act 105 of 1997 – Part II of Schedule 2 – application to possession of automatic or semi-automatic firearms.; Statutory interpretation – ordinary grammatical meaning; peremptory wording (‘shall’) triggers enhanced sentencing when specified form of existing offence is proved.; Nature of offence – Act does not create new offences but identifies specific forms of existing offences for enhanced penalty jurisdiction.; Requirement of knowledge – not decided generally, but prosecution must prove the form in which the offence was committed; on the facts accused knew the firearm’s nature.; Sentencing – departure from prescribed minimum only if substantial and compelling circumstances present.
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20 March 2008 |
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Reported
Judge’s conduct and ballistics expert’s incomplete qualification did not render trial unfair; appeal dismissed.
Criminal law – fair trial and judicial conduct; expert evidence – admissibility of ballistics opinion despite incomplete formal qualification where extensive practical experience exists; ballistic identification linking firearm to bullet; admissibility of accused’s statements given after warning; sentencing – concurrency query under s 39(2)(a)(i) Correctional Services Act.
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18 March 2008 |
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Reported
State failed to prove assault and crimen injuria; hearsay medical report improperly admitted; convictions set aside.
Criminal law — admissibility of medical reports — hearsay and testimonial value; corroboration of single witness evidence; onus of proof in criminal trial; improper judicial intervention in cross-examination; section 170 Criminal Procedure Act — failure to appear and requisite fault; appellate reassessment where magistrate misdirects.
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18 March 2008 |
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Reported
Whether giving duplicate keys for inspection amounts to abandonment of possession and defeats the applicant’s spoliation remedy.
Civil procedure – motion proceedings – real, genuine or bona fide dispute of fact – answering affidavit must seriously and unambiguously address disputed facts. Property/spoliation – builder’s possession – handing duplicate keys for limited inspection does not ipso facto amount to abandonment; illicit use of duplicates to admit contractors and refuse builder entry constitutes spoliation. Possession – builder’s lien contingent on possession; agreement between attorneys cannot revest possession that does not exist.
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10 March 2008 |
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Whether a plea denying seller repudiation disclosed a defence where demands for guarantees and signature were disputed and cancellation followed.
Civil procedure – Magistrates’ Court exceptions – whether plea discloses no defence – demands for bank guarantees and signature of transfer documents – Hammer v Klein rule on timing of guarantee demands – seller’s election to cancel under contractual breach clause.
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7 March 2008 |
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Reported
Section 17(2) of the Patents Act may compel an incola plaintiff to give security; agreement in correspondence binds on quantum determination.
Patents Act s 17(2) – "any party" includes plaintiff incola; security for costs – agreement to furnish security by correspondence; discretion under s 17(2) requires assessment of prospects of success and bona fides; access-to-court considerations and reasonableness of security; costs for two counsel not automatically warranted in interlocutory applications.
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7 March 2008 |
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Reported
An injury discovered after an initial s24 claim is an additional item of damages, not a new cause of action, so no new claim form required.
Road Accident Fund Act (s24, s23) – Procedure for lodging claims – effect of subsequently discovered injuries – single indivisible cause of action – amendment adding new item of damages does not constitute a new cause of action for prescription purposes.
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6 March 2008 |
