|
Citation
|
Judgment date
|
| March 2008 |
|
|
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)
|
27 March 2008 |
|
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.
|
27 March 2008 |
|
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.
|
27 March 2008 |
|
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.
|
25 March 2008 |
|
|
20 March 2008 |
|
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.
|
20 March 2008 |
|
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.
|
20 March 2008 |
|
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.
|
20 March 2008 |
|
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.
|
20 March 2008 |
|
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.
|
20 March 2008 |
|
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.
|
18 March 2008 |
|
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.
|
18 March 2008 |
|
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.
|
10 March 2008 |
|
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.
|
7 March 2008 |
|
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.
|
7 March 2008 |
|
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.
|
6 March 2008 |
| February 2008 |
|
|
Buyer’s repudiation and common‑mistake defences failed; R60,000 contractual cancellation sum enforceable and appeal dismissed with costs.
Sale of immovable property; alleged repudiation by removal of fixtures — no deliberate, unequivocal intention not to be bound; stipulated cancellation sum (liquidated/delayed damages) enforceable as genuine pre‑estimate not a penalty; common mistake — contract not void where immediate parties did not treat it as void; plaintiff bound by pleaded case — cannot raise novel defence on appeal.
|
29 February 2008 |
| January 2008 |
|
|
Reported
A servient owner may require relocation of a defined right of way if inconvenience, no prejudice, on servient land, and costs paid.
Servitudes – defined registered right of way – relocation proposed by servient owner – development of common law under s 173 – relocation permissible when servient owner materially inconvenienced, relocation on servient tenement, no prejudice to dominant owner, and costs paid by servient owner; Constitutional law – s 25 property claim rejected; comparative and historical law supports flexible, judicially controlled relocation.
|
28 January 2008 |
