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Citation
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Judgment date
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| May 2008 |
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Reported
Whether s 60(1) of the Schools Act makes the State liable for contractual damages claimed against a public school.
Schools Act s 60(1) — statutory interpretation — State liability limited to delictual ‘damage or loss’ arising from educational activities; contractual obligations lawfully undertaken by a school remain enforceable against the school; distinction between specific performance/return of goods and contractual damages; interaction with ss 15, 20, 21, 34, 36 and 58A; s 20(10) not decisive to expand s 60(1).
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30 May 2008 |
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Reported
Appeal against inadequate sentences succeeding where diminished responsibility and mitigation were insufficient to outweigh crime seriousness.
Criminal law – murder and attempted murder within family – diminished criminal responsibility (temporary non-pathological) — effect on sentence — distinction between criminal incapacity and diminished responsibility — application of minimum sentencing legislation (Malgas approach) — appellate interference where sentence is shockingly light.
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30 May 2008 |
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Reported
A landowner exercising control over grazing is negligent if inexpensive precautions would have prevented cattle straying onto a public road.
Delict — Liability of landowner/control of grazing — Foreseeability of cattle straying onto public road — Reasonable precautions (padlock/cattle grid) — Causal negligence; Civil procedure — Referral to full court nullity — Costs of incompetent appeal disallowed.
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30 May 2008 |
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Reported
Diverting public water to non‑riparian land contrary to a prior court order is unlawful and an interdict was granted.
Water law — public stream — riparian rights to normal and surplus flow; interference with course of stream gives rise to interdict. Court orders — compliance with a prior court order (1960) restricting diversion to Inverdoorn — diversion beyond permitted quantity unlawful. Pleading and evidence — supplemental evidence that other riparian dams were full did not create new cause of action; lower court misapplied rule against new causes. Remedies — declaratory interdict against diversion via specific sluice enforceable; costs including two counsel awarded.
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30 May 2008 |
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Reported
Exception upheld but dismissal was inappropriate; pleader granted leave to amend and separate costs orders required apportionment guidance.
Pleading — Exception upheld — Established practice requires pleader be afforded opportunity to amend — Separate costs orders for different aspects require guidance as to apportionment for taxing master — Oral alienation of land and stipulatio alteri issues raised but not finally decided due to concessions.
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30 May 2008 |
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Reported
Delay in prosecuting the principal action and lack of reasonable apprehension of repetition defeated interim interdict.}
Interim interdict – requisites – prima facie right, reasonable apprehension of irreparable harm, balance of convenience and no satisfactory remedy. Single past contravention v continuing conduct – where only a past act is established, applicant must show objective reasonable apprehension of repetition. Delay – undue delay in instituting principal action can forfeit right to pendente lite relief. Evidence – inferences from video footage; onus to allege facts in founding papers. Procedural – new factual grounds raised on appeal not permissible. (Dissent) Statutory welfare body’s role and refusal to give undertaking relevant to grant of interdict.
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30 May 2008 |
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Reported
A spanner‑caused vehicle start was a remote, unforeseeable ‘freak accident’; no negligence established, appeal dismissed.
Delict — negligence — foreseeability and reasonable precautions — remote or “freak” accidents — evidentiary credibility of single self‑serving account and expert plausibility evidence.
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30 May 2008 |
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Reported
Homeowner not liable for independent contractor security guard’s shooting where reasonable reliance on security company was established.
Delict – liability for acts of independent contractor security guards; application of Langley Fox test (foreseeability, steps to guard, whether taken); reliance on specialist expertise of security company; limits of homeowner’s duty re signage, lighting and ammunition handling.
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30 May 2008 |
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Reported
Ordinary meaning of 'strike' applies; ambiguity resolved against insurer so loss directly related to strike was covered.
Insurance — Policy interpretation — Meaning of 'strike' in SASRIA-type cover — Ordinary dictionary meaning preferred where insurer fails to specify a restricted meaning — Ejusdem generis/noscitur a sociis not applied to narrow 'strike' — Contra proferentem rule applies to ambiguities.
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30 May 2008 |
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Reported
Training as an escort does not imply consent to sexual acts; indecent assault and rape convictions upheld, kidnapping set aside.
Criminal law – sexual offences – consent: participation in employment 'training' does not constitute consent to sexual intercourse by the trainer/employer. Indecent assault – S v F remains authoritative; S v Kock adds objective indecency inquiry but does not displace S v F. Evidence in sexual offence trials – no automatic cautionary rule; standard is proof beyond reasonable doubt and appellate reassessment permitted where trial misdirections occurred. Kidnapping – voluntary presence and opportunities to leave negate deprivation of liberty.
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30 May 2008 |
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Reported
Only offences actually disclosed to the requested State in the extradition request may be prosecuted after surrender.
Extradition law — s 19 Extradition Act — "offence in respect of which extradition was sought" — interpreted as offences actually disclosed to the requested State (successfully sought). Treaty practice — provisional arrest application defines offences communicated to requested State where formal request not transmitted. Criminal procedure — theft by attorney (general deficiency under s 100 CPA) may cover unnamed complainants if provisional request alleges misappropriation generally. Specialty/doctrine — surrender limits prosecution to offences disclosed to and relied upon by requested State.
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30 May 2008 |
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Appellate court held applicant delivered per written 'hand cleaned farmer’s grade' specification and reversed absolution.
Contract interpretation – written specification 'hand cleaned farmer’s grade' vs 'hand-picked select' (choice); quality of goods and aflatoxin – whether parties agreed aflatoxin limits; weight of contemporaneous correspondence, payments and banking documents in assessing acceptance and quality disputes; appellate review of factual findings and absolution from the instance.
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29 May 2008 |
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Reported
Irretrievable breakdown of trust and literal deadlock between equal shareholders justified winding‑up as just and equitable.
Companies Act s 344(h) – winding‑up on just and equitable ground; quasi‑partnerships and disappearance of substratum; deadlock principle; obstruction of corporate governance; clean hands doctrine; adequacy of specific performance versus damages.
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29 May 2008 |
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Reported
Failure to furnish contractually‑due bank guarantees entitled seller to place purchaser in mora and validly cancel the agreement.
Contract – interpretation of written sale agreement; bank guarantees as security for unpaid purchase price; clause giving purchaser 12 months to sell property and providing that if first guarantee not furnished guarantees for full price become due; seller entitled to place purchaser in mora and cancel for failure to furnish guarantees; seller not obliged to define guarantee form before demand; unauthorised post‑signature amendment ineffective; bank letter imposing new conditions altered contract and was unacceptable.
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29 May 2008 |
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Appellate courts may not interfere with lower court costs orders absent misdirection, and State's unclear conduct justified a costs award.
Costs – Discretion of lower court – When appellate court may interfere – Criminal proceedings – Prosecutorial conduct – Clarity regarding expert witness evidence – Unnecessary litigation due to State's lack of clarity – Costs order against the State upheld.
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29 May 2008 |
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Reported
Whether s14 transfer rights vested before amendment of the Pension Funds Act — court held they did not.
Pension funds – section 14 transfer applications – accrual of right to have application considered pre-amendment; registration of rule amendments; legal fiction re dating of elections; distinction from Volkswagen (accrued entitlement versus new application).
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29 May 2008 |
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Reported
An impecunious association invoking constitutional rights may be ordered to provide security for costs if funded by wealthy members.
Companies Act s 13 – security for costs – body corporate or association – impecunious plaintiff – evidence of outside funding by members – constitutional litigation does not automatically preclude costs orders – appellate interference with a strict discretionary exercise requires material misdirection; Uniform Rule 47(3) procedure.
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29 May 2008 |
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Reported
Termination of a state educator's employment for alleged unfair labour practice must be dealt with by the Labour Court, not the High Court.
Labour law – public sector employment – jurisdiction – discrimination between High Court and Labour Court jurisdiction – unfair labour practice – whether termination of state educator's employment or benefits constitutes administrative action – Promotion of Administrative Justice Act (PAJA) – Chirwa v Transnet Ltd applied – High Court lacks jurisdiction in such matters.
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29 May 2008 |
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Reported
The court held provincial authorities negligent for failing to repair a dangerous pothole, but apportioned damages due to contributory negligence.
Delict – negligence – legal duty of public authorities to repair or warn of dangerous potholes – reasonableness of conduct of provincial authorities – contributory negligence – apportionment of liability.
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29 May 2008 |
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Reported
Whether "fair market value" for compensation of slaughtered animals means their disease-free productive value or infected (slaughter) value.
Animal Diseases Act; s19(2) and Regulation 30 – interpretation of "fair market value" for compensation of animals slaughtered as infected or suspected infected; PAJA review of Ministerial confirmation of Director's decision; valuation basis: disease-free (productive) value v. infected/slaughter value; remedial substitution under PAJA.
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29 May 2008 |
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Reported
Whether the plaintiff qualified as a labour tenant under the Act based on intergenerational cropping rights and labour.
Land Reform (Labour Tenants) Act — definition of 'labour tenant' (paras (a),(b),(c)) — s 2(5) presumption — remedial and contextual construction — evidentiary approach to informal/intergenerational labour tenancy — distinction from 'farmworker' — whether labour tenancy may be acquired derivatively.
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28 May 2008 |
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Reported
Whether leave to appeal to the high court should have been granted; SCA grants appellant leave to appeal.
Criminal procedure — Appeals from regional courts — s 309(1), s 309B, s 309C — Scope of SCA jurisdiction; leave to appeal — test is reasonable prospect of success; appellate hierarchy and policy considerations.
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28 May 2008 |
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Reported
PAJA requires clear notice and an opportunity to respond before disqualifying a tenderer for alleged fraud or bad faith.
Procurement law; administrative action under PAJA; procedural fairness—adequate notice and opportunity to make representations; distinction between "incorrect" tender information and fraud/bad faith under State Tender Board and Preferential Procurement regulations; tender-form disclaimers insufficient to substitute for PAJA notice; potential illegality in obtaining SARS records (s 4 Income Tax Act).
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27 May 2008 |
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Reported
Periodic payments for sand removals are revenue (royalties); no opening stock deduction under s 22 without evidence.
Income tax – classification of receipts from sand removals as revenue (royalties) not capital; s 22 trading stock/opening stock – in situ deposit v separated stock; mineral-lease analogy; inability to rely on undocumented SARS practice for deemed cost deductions.
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26 May 2008 |
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Reported
Prescription can create positive servitudes over a spring, but does not automatically bar servient owner’s groundwater abstraction.
Property law – praedial servitudes – acquisitive prescription of servitudes over spring water and water conduits; distinction between positive and negative servitudes; negative servitudes difficult to acquire by prescription; doctrine of notice inapplicable to real rights acquired by prescription; scope of servitude does not automatically prohibit servient owner’s abstraction of upstream subterranean water.
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22 May 2008 |
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Reported
A revocable bank undertaking payable on transfer satisfied an "acceptable" guarantee clause; seller's unreasonable rejection and cancellation was invalid.
Property — Agreement for sale — Clause requiring bank guarantee "acceptable to seller" — Whether clause requires irrevocable guarantee — Ordinary property guarantee is for payment on registration and may be revocable unless irrevocability expressly required; Trade usage and bank practice — standard withdrawal clause in letters of undertaking — scope limited to factually based threats to bank's security; Contractual repudiation — Seller's rejection of purchaser's guarantee must be honest and based on reasonable objective grounds — wrongful rejection and cancellation entitles purchaser to specific performance.
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14 May 2008 |
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Reported
A loan by one spouse is valid without spouse's consent; agreements to mortgage joint property require written spousal consent.
Matrimonial Property Act s 15 — Distinction between loan agreements (permitted under s 15(1)) and contracts to mortgage/alienate immovable joint property (prohibited without written spousal consent under s 15(2)(a)/(b)); motion proceedings and disputed signature; Conventional Penalties Act — reduction of excessive contractual penalties.
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8 May 2008 |
