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Citation
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Judgment date
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| December 2009 |
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Reported
Magistrates' courts may use a single court‑authorised PIE notice if it gives effective notice and causes no prejudice.
Prevention of Illegal Eviction (PIE) s 4(2) — magistrates' courts procedure under rule 55; requirement for notices; single court‑authorised notice may suffice if s 4(5) information is included and notice is effective; substantial compliance; prejudice and effectiveness determine validity of notice.
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4 December 2009 |
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Reported
Magistrates' court PIE notices need not be two separate documents; one court‑authorised, effective notice suffices if no prejudice results.
* Statute — PIE s 4(2) and s 4(5) — requirement of written and effective notice in eviction proceedings — application in magistrates' courts governed by rule 55.
* Procedure — magistrates’ courts — single court‑authorised notice may suffice; ex parte authorisation of content and service; substance over form.
* Relief — defective s 4(2) notice not fatal where statutory purpose achieved and no prejudice to occupier.
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3 December 2009 |
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Reported
Appeal under s 65 is a wide re‑hearing; disputed finance charges require cross‑examination before inclusion in transaction value.
Customs duty — transaction value — whether amounts described as finance charges are part of price actually paid or payable and/or commission within s 67; Appeal under s 65 — construed as a wide appeal permitting fresh determination and reception of further evidence; Procedural fairness — courts’ discretion to order oral evidence/cross‑examination (rule 35/ rule 6(5)(g)) where credibility and documentary inconsistencies require testing.
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2 December 2009 |
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Reported
The applicant appealed that the respondent's five-year s 276(1)(i) sentence for murder was disturbingly inappropriate.
* Criminal law – Sentencing – Murder – Section 276(1)(i) imprisonment subject to correctional supervision – Minimum sentence regime – Substantial and compelling circumstances – Appellate interference where sentence is shockingly inappropriate – Domestic violence and need for deterrence.
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1 December 2009 |
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Reported
Claim of substantive legitimate expectation to a fishing licence failed; procedural expectation and PAJA challenges also dismissed.
Administrative law – Legitimate expectation (substantive v procedural) – requirements for legitimacy: clear, induced by decision‑maker, reasonable, competent and lawful – procedural fair hearing satisfied where representations considered and appeal afforded – PAJA s 6(2) review grounds (irrationality, ulterior purpose, unreasonableness) not made out in conservation‑driven vessel‑type policy.
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1 December 2009 |
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Reported
A single credible complainant’s evidence, reinforced by indicia and an improbable accused version, can sustain a rape conviction.
Criminal law – Sexual offences – Single-witness testimony; cautionary approach but no rigid corroboration rule; holistic evaluation of probabilities and improbabilities; indicators corroborating complainant’s version; appeal dismissed where accused’s version is improbable.
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1 December 2009 |
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Reported
Prominently displayed owner’s risk notice incorporated into contract; agent had authority; appeal dismissed with costs.
* Contract – exclusion and disclaimer clauses – owner’s risk notice – incorporation by notice displayed on premises.
* Agency – actual authority of agent to bind principal by signing order form and handing over vehicle.
* Notice – requirement of reasonably sufficient steps to bring disclaimer to customers’ attention; prominent display at multiple locations sufficient.
* Liability – service provider protected by owner’s risk notice for loss by theft where notice effectively incorporated.
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1 December 2009 |
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Reported
1998 National Water Act applies despite transitional irrigation-board status; fraud and statutory water offences upheld, theft not sustained.
Water law — National Water Act 36 of 1998 — s 98 transitional preservation of irrigation boards does not exclude application of 1998 Act; s 151 statutory offences competent. Common law — fraud and theft — 1998 Act does not, by implication, bar prosecution for overlapping common-law offences; water in a stream remains res communes and is prima facie not capable of theft. Evidence — tampering with flow meter and unlawful abstraction proven.
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1 December 2009 |
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Reported
Owner and main contractor not liable; negligent installer held liable because statutory non-compliance lacked causal link to collapse.
* Property/building law – negligence – collapse of cantilevered balcony – causation and statutory non-compliance (s 4(1) read with s 7 National Building Regulations).
* Delict – liability of employer/principal who commissions work to an independent contractor – Langley Fox test (foreseeability, steps to guard against danger, adequacy of steps).
* Vicarious liability – employer of independent contractor not ordinarily liable for contractor’s negligence; separate inquiry into personal fault.
* Causation – statutory breach does not automatically give rise to delictual liability absent causal link to harm.
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1 December 2009 |
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Reported
Applicant's late review of registrar’s security decision dismissed; PAJA s9(2) extension not warranted as not in interests of justice.
Administrative law — PAJA s 7(1) time limit for review of administrative action; PAJA s 9(2) extension where "interests of justice" require; condonation principles and Van Wyk factors; reviewability of registrar/taxing master determinations; requirement to give full, reasonable explanation covering entire delay; prejudice to respondent as factor against extension.
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1 December 2009 |
| November 2009 |
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Reported
A municipality must issue an s118(1) clearance certificate once two-year debts are paid; policy cannot force payment of older debts.
Municipal Systems Act s 118(1) – clearance certificates – statutory two-year limitation on debts qualifying to block transfer; municipal credit-control policy and payment-allocation practices cannot override s 118(1); obligation to provide itemised two-year accounts (s 95(e)); strict construction where statute affects property rights.
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30 November 2009 |
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Reported
Whether a bank may recover reversed credits where the customer alleges estoppel and negligent misrepresentation.
* Bank law – recovery after reversed credits – condictio indebiti may be available to a bank; * Estoppel – requirements for representation and reasonable reliance where bank clerk checked a cheque; * Negligent misrepresentation – evidentiary burden and failure to prove representation; * Civil procedure – sufficiency of magistrates' court notice of appeal and availability of issues on appeal; * Adverse inference – not warranted absent proof witness was available and relevant.
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30 November 2009 |
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Reported
A plaintiff may not rely on an unpleaded claim that continued detention became unlawful after a third party's request.
Delict — arrest and detention; pleadings — issue must be pleaded or be fully canvassed at trial before court may decide it; police onus to justify detention arises only once unlawfulness is specifically relied upon; detention of intoxicated persons — police practice to detain for a period (four hours) may be reasonable absent evidence to the contrary.
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30 November 2009 |
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Reported
Lower owners must accept only the pre‑development ‘natural flow’ of rainwater; upper owners must prove that flow.
Neighbour law — drainage of rainwater — urban erven — lower owner obliged only to accept 'natural flow' (pre-development pattern and quantity) — upper owner must prove natural flow when seeking enforcement — concentrated or artificial discharge requires servitude — s 13(2) town planning scheme favours drainage to street where practicable — National Building Regulations remedies for enforcement by local authority.
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30 November 2009 |
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Reported
Appellate court upholds fraud convictions where credible testimony and objective corroboration support trial court findings.
Fraud – prosecutor alleged to have accepted money from accused and appropriated it – credibility and evaluation of single-witness evidence – corroboration by documentary endorsement and circumstantial facts – appellate court’s deference to trial court’s factual findings.
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30 November 2009 |
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Reported
A court has no inherent or statutory power to extend a developer’s time‑limited reserved right to extend a sectional title scheme.
Sectional title — reservation of right to extend scheme under s 25(1) — time‑limited real right recorded in certificate — expiry by effluxion of time — s 25(13) construed as enforcement mechanism, not power to extend or vary real rights — no inherent or statutory power in court to extend reserved period — lapse vests right in body corporate (s 25(6)).
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30 November 2009 |
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Reported
Respondent's refusal to operate the contracted filling station amounted to repudiation, entitling the applicant to cancel and retake the property.
Property sale and branded-supply arrangements; interpretation of restrictive covenant obliging operation of filling station; commercial efficacy in contract construction; suspension of supply agreement during third‑party operator lease; repudiation by purchaser refusing to operate; seller’s right to cancel, evict and retransfer; servitudes remain binding until proper lapse on termination of supply ties.
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27 November 2009 |
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Reported
Word-only 'Century City' marks removed where name had become geographical; word‑use infringed some registrations but passing off and corporate-name relief failed.
Trade marks – infringement – use as brand versus descriptive use; word marks v device marks; geographic names – s 10(2)(b) removal where sign may designate geographical origin; bona fide descriptive defence (s 34(2)(b)); corporate-name undesirability (Close Corporations Act s 20); passing off.
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27 November 2009 |
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Reported
A manager’s professional warning about unsafe underqualified appointments was a protected disclosure under the PDA.
Protected disclosures – whistleblowing – whether a manager’s professional opinion about underqualified appointees constitutes 'information' and an 'impropriety' under the Protected Disclosures Act; scope of High Court jurisdiction vis-à-vis Labour Court under PDA; requirements of section 9(1) and section 9(2)(c)/(d).
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27 November 2009 |
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Reported
Whether the competition authority validly referred telecoms abuse‑of‑dominance complaints despite alleged bias, procedural breaches, and concurrent ICASA jurisdiction.
* Competition law – concurrent jurisdiction with sector regulator (s 3(1A)(a)) – Competition Act applies to telecoms conduct; sector licences may raise defences but do not oust competition jurisdiction.
* Administrative law – PAJA inapplicable to Commission’s investigative referral; principle of legality (ultra vires) remains available for review.
* Bias – reliance on external expert does not automatically create reasonable apprehension of bias; no illegality shown.
* Procedure – s 50(4)(a) extension: consent by relevant complainants (not necessarily unanimous) suffices; referral held within extended period.
* Memorandum of agreement with ICASA – consultation provisions not mandatory conditions that divest the Commission of jurisdiction.
* Forum – specialist Competition Tribunal is the appropriate forum for complex competition disputes.
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27 November 2009 |
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Reported
"Interest actually earned" in the pension rule includes unrealised market gains and losses, obliging employer to top up shortfalls.
Pension fund rule interpretation — contextual and commercial construction; "interest actually earned" includes realised and unrealised investment returns (market-value changes); employer top-up obligation to meet guaranteed minimum annual return; hybrid defined-benefit/defined-contribution fund considerations; relevance of fund purpose, reserve accounts and industry practice.
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27 November 2009 |
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Reported
Whether teachers’ negligent omission to secure an upper bunk rendered the Minister vicariously liable for the pupil’s brain injury.
Delict – liability for negligent omissions – wrongfulness of omissions dependent on legal duty and public policy; foreseeability and Kruger v Coetzee test for negligence; vicarious liability of employer for teachers' omissions; evidentiary assessment of circumstantial and expert evidence on causation (bunk fall v epilepsy); bunk-bed safety and preventive obligations of persons in loco parentis.
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27 November 2009 |
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Reported
Whether a purchaser’s bank-guarantee clause was a suspensive condition delaying perfection of a mineral-rights sale.
Sale of mineral rights; suspensive condition versus contractual term; when sale becomes perfecta; passing of risk on perfection; effect of repeal of Deeds Registries Act provision on transfer by cession; supervening impossibility.
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27 November 2009 |
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Reported
Appellant lawfully used deadly force in self‑defence against an imminent knife attack; conviction set aside.
Criminal law – Private defence (self‑defence) – use of deadly force to repel imminent knife attack – credibility of sole eyewitness – weight of forensic bloodstain opinion – obligation to flee and proportionality in self‑defence assessments.
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27 November 2009 |
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Reported
Appellate court set aside punitive wasted-costs order, holding costs should be reserved pending full trial and undertaking was misapplied.
Costs — wasted costs of postponement — judicial discretion — reserving costs for later determination; Undertaking to pay costs if trial exceeds estimated time — scope and enforceability; Civil Proceedings Evidence Act s30 v ECTA s15(4) — admissibility of electronic bank records; Practice — requirement of punitive cost undertakings undesirable.
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27 November 2009 |
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Reported
Whether the respondent had prior common-law rights in 'KG' sufficient to revoke the appellant's registered marks.
Trade marks — revocation under s 10(16) — proof of prior reputation in an unregistered mark; Passing-off — registered mark not absolute defence; claimant must prove grounds for rectification; Trade mark infringement — cross-class confusion; Amendment of application under s 46(1) and s 10(15); Delay/acquiescence — not a substantive defence but relevant to discretion.
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27 November 2009 |
| September 2009 |
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Reported
Minor charge-sheet inaccuracies do not defeat convictions; copies admissible absent challenge; multiple convictions must not be collapsed.
* Criminal procedure – charge sheet – minor inaccuracies in schedules do not necessarily render trial unfair; accused entitled to know case to meet. * Evidence – documentary evidence – copies and computer-generated documents admissible as best available evidence absent challenge to authenticity. * Appeal – appellate court may not substitute multiple convictions with a single conviction where separate charges were laid. * Fraud – orchestration of false VAT invoices and returns supported by witnesses and documents.
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30 September 2009 |
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Reported
Appeal court reduced an excessive custodial sentence for multiple indecent assaults by a pastor, substituting four years under s 276(1)(i).
Criminal law – Sentencing – Indecent assault and crimen iniuria – Abuse of position of trust by pastor – Appellate interference where sentence disturbingly inappropriate – Treatment of multiple counts together for sentencing – s 276(1)(i) Criminal Procedure Act 51 of 1977.
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30 September 2009 |
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Reported
An applicant’s adoption of an established company’s name is undesirable if it is likely to cause public confusion.
Companies Act s44(1), s45(2) and s48 — undesirable company name — likelihood of confusion — vested rights in a name through prior marketing and use in South Africa — de novo review under s48; Plascon-Evans application.
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30 September 2009 |
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Reported
Accused failed to prove exceptional circumstances under s60(11)(a); bail refused due to violence risk and undermining of justice.
Bail — section 60(11)(a) CPA — accused bears onus to prove exceptional circumstances on balance of probabilities; medical illness and community ties insufficient alone. Bail — Schedule 5/6 offences — unchallenged violent conduct, breach of interdict and prior bail establish risks under s 60(4) (danger to persons; undermining criminal justice system). Bail conditions (house arrest) impractical — refusal of bail upheld.
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30 September 2009 |
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Reported
Qualified privilege in judicial affidavits is defeated where a baseless defamatory allegation permits an inference of malice.
* Defamation – statements made in judicial affidavits – qualified privilege – relevance to litigation required for protection; privilege forfeited if malice shown.
* Malice may be inferred from intrinsic facts where allegation is baseless or implausible.
* Joinder/party liability – mere joinder as trustee/shareholder does not establish common cause or liability.
* Quantum – appellate court may assess damages where parties close case without adducing evidence on quantum.
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30 September 2009 |
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Reported
Whether respondents could invoke Insolvency Act s33(1) indemnity; court upheld it for one respondent but not the other.
Insolvency Act s 33(1) – indemnity against restoration – elements: good faith; parting with property or losing a right; reciprocity/"in return for" – meaning and causal requirement; "good faith" entails absence of contemplation of insolvency; attribution of corporate state of mind – the directing mind and will; admissibility and sufficiency of evidence to prove corporate intention.
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29 September 2009 |
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Reported
The respondent distributor may join infringement proceedings and delivery-up of unlawfully imported DVDs can be ordered.
* Copyright – infringement – imported foreign-zone DVDs offered for hire locally – whether such imported articles are "infringing copies" under s 1 and s 24(1) of the Copyright Act.
* Locus standi – sole local distributor entitled to join and seek interdicts against infringing conduct notwithstanding dispute about licence scope.
* Relief – delivery-up of infringing articles – discretionary remedy properly exercised where articles acquired for unlawful purpose and no lawful local use exists.
* Costs – special/attorney-and-client costs warranted to mark disapproval of flagrant, evasive or belated conduct by respondents.
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29 September 2009 |
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Reported
Whether long-standing occupation and municipal services establish tacit consent, making ESTA applicable and requiring oral evidence.
Eviction — PIE v ESTA — jurisdictional conflict; tacit and express consent to occupation; presumption of consent after continuous occupation; burden of proof on applicant; real and genuine dispute of fact requiring referral to oral evidence; municipal conduct and services as indicia of tacit consent.
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29 September 2009 |
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Reported
Section 20(1) discretion to state or decide questions of law in arbitration must be sparingly exercised; s20 not a vehicle to overturn binding precedent.
Arbitration – Section 20(1) Arbitration Act 42 of 1965 – power to state question of law – nature and scope of arbitrator’s and court’s discretion – discretion to be sparingly exercised – courts should not use s 20(1) to overturn binding precedent or decide academic/hypothetical questions; Collateral benefits – deductibility – normative, policy-driven inquiry; finality of arbitration awards and public policy.
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29 September 2009 |
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Clause 2(8) allows the employer to revoke or amend engineer's interim certificates; revoked certificates are not automatically payable.
Construction contracts – interpretation of clause permitting employer to reverse or amend engineer's certificates (clause 2(8)) – interim payment certificates – effect of employer's reversal – interaction with engineer's rulings under clause 51(5) – cancellation by contractor (clause 59) and enforceability of post‑cancellation certificates.
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29 September 2009 |
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Reported
A s 21 association whose main object is a commercial hotel business falls outside s 21 and may be wound up as unlawful.
Companies Act s 21 — associations not for gain — 'main object' construed ejusdem generis with charitable, cultural and social purposes — 'communal or group interests' excludes ordinary commercial enterprises; s 21 associations cannot lawfully pursue inherently conflicting commercial interests; unlawful objects justify winding-up on just and equitable ground (s 344(h)); appellate courts may decide apparent points of law mero motu.
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28 September 2009 |
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Reported
Retirement Housing Act applies to sectional title scheme; rule amendment merely recorded existing legal position; appeal dismissed.
* Sectional Titles Act – s 1(3A) and s 35(2)(a) – factual inability to obtain unanimous resolution suffices to approach court. * Sectional Titles/Retirement Housing Act – applicability where sectional title units were alienated for occupation by retired persons; ownership of units may constitute 'housing interests'. * s 1(3)(c) consent requirement – no written consent required where amendment simply records existing statutory position and does not adversely affect proprietary rights.
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28 September 2009 |
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Reported
State may review its representative’s irrational disciplinary sanction under s158(1)(h) LRA and substitute dismissal.
* Administrative law – disciplinary hearings under PSCBC Resolution 2 – chairperson acting qua State – administrative action. * Labour Relations Act s158(1)(h) – State as employer may review decisions taken in its capacity as employer. * Review grounds – rationality/gross unreasonableness. * Remedy – substitution of sanction by court where dismissal is the only appropriate outcome and remittal would be futile.
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28 September 2009 |
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Reported
Conviction set aside where uncorroborated single-witness evidence was insufficient and accused’s version was reasonably possibly true.
Criminal law – robbery with aggravating circumstances – conviction based on single uncorroborated witness – necessity for caution; accused’s version reasonably possibly true; improper adverse inferences; reliance on demeanour without corroboration.
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28 September 2009 |
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Reported
The respondent failed to prove labour‑tenant status because his mother did not provide labour to the farm owner/lessee.
Labour‑tenants — statutory definition — elements (a), (b), (c) cumulative; onus on claimant to prove all elements before s 2(5) presumption operates; requirement that parent provided labour to owner or lessee; distinction between labour‑tenant and farmworker.
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28 September 2009 |
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Reported
Whether the occupier had abandoned residence and whether eviction under the Extension of Security of Tenure Act was equitable.
Land reform – Extension of Security of Tenure Act – meaning of "reside" as "permanent home"; abandonment and termination of right of residence; s 8(1) just and equitable enquiry; s 9(2)/s 9(3) procedural and alternative accommodation report; s 11(3) factors for eviction; appellate review of factual credibility findings.
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25 September 2009 |
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Reported
A s 22(3) NPA direction issued after proceedings commence cannot confer jurisdiction; pre-plea rulings on it are unauthorised.
Criminal procedure — Jurisdiction — Timing of commencement of proceedings (s 76 CPA) — Direction under s 22(3) NPAA must be effective before proceedings commence to confer jurisdiction — Trial court has no power to determine validity of such direction pre-plea — Ruling assuming jurisdiction under those circumstances is made without competence and is appealable.
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25 September 2009 |
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Reported
A bank may be liable for negligent payment where knowledge acquired while collecting cheques should have prompted enquiry.
Banking law – cheque payment – duty of care in bank–customer mandate – negligent payment by paying bank – relevance of knowledge acquired in collecting cheques where same bank is collector and payer – absolution at end of plaintiff’s case.
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25 September 2009 |
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Reported
Undue appellate delay and resulting mental anguish may be considered in reducing an excessive sentence for planned insurance fraud.
Criminal procedure – sentencing – appellate interference where trial court misdirected or sentence startlingly inappropriate; consideration of undue delay and resulting mental anguish as exceptional post‑sentence factor; white‑collar fraud seriousness weighed against actual loss and remorse.
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25 September 2009 |
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Reported
Sale and transfer were invalid; deed cancelled, property restored to applicant and eviction dismissed.
Property law – validity of sale and transfer – corporate authority and authentication of resolutions; evidence and forgery allegations; par delictum; appealability of execution/eviction orders.
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25 September 2009 |
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Reported
An appellate court may admit post-sentence evidence and substitute an appropriate sentence in exceptional circumstances.
* Criminal law – Sentencing – DUI (third conviction) – aggravating factors: high blood-alcohol level, passengers, proximity to prior offence.
* Criminal procedure – Appeals – Admission of post-sentence evidence in exceptional circumstances – appellate court may vary sentence.
* Criminal procedure – Delay and miscommunication – prolonged delay may justify revisiting sentence.
* Sentencing powers – Appellate court may itself impose substituted sentence where referral unnecessary and facts accepted by State.
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25 September 2009 |
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Reported
Insured failed to prove sabotage; contamination exclusion applied and indemnity claim was dismissed.
Insurance — property damage — contamination exclusion — allegation of sabotage as exception to exclusion — onus on insured to prove sabotage on balance of probabilities — expert metallurgical and welding evidence not determinative where alternative reasonable inferences (poor workmanship/botched repair) exist — logistical and circumstantial improbability of sabotage — claim dismissed.
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23 September 2009 |
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Reported
Superior courts may rarely permit directors to represent companies; here the applicant failed to show a prima facie right to halt the procurement register.
Company litigation – right of audience – general rule that companies must be represented by qualified practitioners; inherent jurisdiction (s 173) permits exceptional discretionary leave for non‑professional representation if timeously and properly motivated; interim interdict – requirement of prima facie right – applicant failed to establish that replacing roster with procurement register breached s 9 or s 217 of the Constitution or Equality Act; procurement law – compliance with PFMA, PPPFA and Treasury regulations and evidence of stakeholder consultations.
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23 September 2009 |
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Reported
Whether circumstantial evidence, particularly cell‑phone records and false denials, can sustain the appellant’s hijacking and kidnapping convictions.
* Evidence — Circumstantial evidence — sufficiency to sustain conviction — application of test for drawing inferences from facts.
* Evidence — Use of cell‑phone records to link accused to scene and to other implicated numbers.
* Evidence — Adverse inference from false denials by accused.
* Criminal law — Where absence of proof of presence, State must prove pre‑existing conspiracy or common purpose.
* Sentence — Totality principle; setting aside some convictions does not necessarily warrant interference with composite sentence.
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23 September 2009 |
