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Citation
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Judgment date
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| 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 |
| April 2008 |
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Reported
Evidence and real items obtained through torture are inadmissible, even when an accomplice testifies later.
Constitutional law; s 35(5) – exclusion of evidence obtained in violation of rights; torture – absolute prohibition and international law (CAT) – evidence and real objects obtained by torture inadmissible; third-party/accomplice evidence – exclusion where discovered as result of torture; distinction between tainted and untainted evidence.
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10 April 2008 |
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Reported
Robberies of an office and nearby house during one planned attack constituted a single offence; duplicate conviction set aside.
Criminal law – Robbery – duplication of convictions – whether thefts from an office and nearby house during one planned attack constitute one continuous criminal transaction – applicable tests: single intent/continuous transaction and evidentiary overlap.
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1 April 2008 |
| 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 |
