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Citation
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Judgment date
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| December 2010 |
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Reported
A public body must substantiate PAIA secrecy claims; conclusory diplomatic/confidentiality assertions do not justify refusal.
Promotion of Access to Information Act – s 41(1)(b) (information supplied in confidence by another state) – s 44(1)(a) (reports obtained/prepared to assist policy-making) – s 78(2) enforcement proceedings – burden on public body to justify refusal – admissibility and sufficiency of affidavits – severability (s 28) – court’s inspection power (s 80) – unsupported diplomatic/confidentiality assertions insufficient.
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14 December 2010 |
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Reported
Section 13(2) permits condonation only where irregular service is rendered under a valid articles contract; fairness alone cannot override the Act.
Attorneys Act s 13(2) – interpretation – "regular/irregular service as a candidate attorney" requires existence of valid articles of clerkship; pre‑articles service not condonable. Constitutional law – fairness and justice are not freestanding grounds to reinterpret statutes; s 22 right to choose profession does not justify departing from clear statutory prerequisites absent direct limitation challenge. Pre‑constitutional SCA authority on statutory construction remains binding absent proper constitutional challenge.
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2 December 2010 |
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Reported
Secretary may not refuse a fidelity fund certificate based on a vague council resolution unrelated to financial compliance.
Attorneys Act s 42(3)(a) – fidelity fund certificate – scope of "other lawful requirement" – requirement must relate to financial/trust-account risk, be clear and communicable, and be capable of compliance; council resolution barring certificates where suspension/strike-off proceedings are pending is vague, unrelated to statutory purpose, not a lawful requirement and invalid; secretary’s refusal based on that resolution unlawful; costs awarded.
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2 December 2010 |
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A settlement confirming sureties' obligations was a credit guarantee, not a new credit agreement, and thus fell outside the NCA.
National Credit Act – distinction between credit agreement and credit guarantee (s 8 and s 8(5)) – accessory obligations and novation – where underlying mortgage/large loans to a juristic person fall outside the NCA (s 4(1)(b), s 9(4), s 7 thresholds), a consequent guarantee likewise falls outside the NCA – a settlement expressly not amounting to novation does not become a credit transaction later when principal debtor performs.
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2 December 2010 |
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Negligent solicitor’s failure to correct lease caused recoverable rental loss, but recoverable damages were limited by foreseeability to March 2002.
Damages for breach of contract – factual causation (but-for test) – intervening dishonesty and insolvency – remoteness and foreseeability limiting loss – mitigation – recoverability of attorney-and-client costs as foreseeable damages – interest as damages from service of summons.
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2 December 2010 |
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Reported
Whether ticket‑sale proceeds deposited into the director’s personal account belonged to the company or to the director for bank set‑off.
Banking law – banker–customer relationship as debtor–creditor; set‑off rights of bank; requirements for quasi‑vindicatory claim to funds in an account held by another; disclosed agency and agreement with bank to hold funds for third party; Varvarinskoye distinguished.
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1 December 2010 |
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Reported
Life sentence for rape of ten‑year‑old upheld; no substantial and compelling circumstances to justify departure.
Criminal law – Minimum sentences – s 51(1) Criminal Law Amendment Act – rape of child under 16 – whether substantial and compelling circumstances justify departure – aggravating factors: position of trust, victim vulnerability, severe physical injury, HIV risk – personal mitigation insufficient; Malgas and Matyityi applied.
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1 December 2010 |
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Reported
The respondent’s claimed interest deductions failed because the purported R96.4m loan was a simulated, tax‑driven transaction.
Tax — Simulated transactions — substance over form; burden on taxpayer to prove genuine intention; round‑tripping, discounting of promissory notes, absence of security and reciprocal cessions indicative of simulation; s103(1) available as alternative anti‑avoidance measure; imposition and remission of additional tax under s76.
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1 December 2010 |
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Reported
Adequacy of SARS’ reasons; appealability of tax-court orders; invalid tax-court composition under s83(4).
Tax — Income Tax and VAT — Adequacy of reasons for assessments — Rule 3 and rule 26(1) of tax court rules; Administrative law — PAJA standard explained but not required at reasons stage for formulating objection; Procedure — Appealability of tax court orders under s 86A(1) and s 83(13)(d); Tax court composition — s 83(4) requires full court where issues involve fact and law; Judgment — requirement that courts furnish reasoned judgments.
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1 December 2010 |
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Appeal dismissed as moot under s 21A since the challenged contract expired and decision would have no practical effect.
Administrative law — review of award of remainder of subsidised service contract — mootness — s 21A Supreme Court Act — appellate discretion to dismiss appeals having no practical effect — speculative collateral consequences do not keep appeal live — repeal of statute reduces likelihood of recurrence.
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1 December 2010 |
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Reported
A specified-sized sale is enforceable despite leaving shape and location to the seller; sale and option are separable.
Property law – Alienation of Land Act 68 of 1981 – s 2(1) – description of res vendita – sufficiency where size fixed and precise shape/location left to seller. Contract law – divisibility – sale and option in single document may constitute separate, independent agreements. Civil procedure – exception – when plea of invalidity for vagueness may be struck out.
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1 December 2010 |
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Reported
The respondent’s three-year renewal of a departmental services agreement was enforceable; no fresh competitive tender required; specific performance ordered.
Administrative law and procurement – validity of service contract and renewal – applicability of s217 Constitution, PFMA and Treasury regulations – when extension is not a new procurement – enforceability of renewal clause and remedy of specific performance.
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1 December 2010 |
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Reported
Site-permit holder entitled to cancellation of erroneous transfer and to s2 Conversion Act inquiry to determine ownership.
Deeds Registries Act s 6 – court may order cancellation of erroneously registered deed; Conversion of Certain Rights into Leasehold or Ownership Act 81 of 1988 – s 2 inquiry by Director-General required before declaration and transfer; Locus standi – executor’s representative authorised by power of attorney may litigate for estate; Administrative law – PAJA review inapplicable where only clerical acts occurred and no substantive s 2 decision is shown; Relief – cancellation of transfer and direction for statutory inquiry rather than immediate transfer.
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1 December 2010 |
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Reported
Consent in motion papers can be a binding judicial admission; material disputes of fact under s 252 require oral evidence.
Companies Act s 252 – relief from unfairly prejudicial, unjust or inequitable conduct – judicial admission in motion proceedings – disputes of fact requiring viva voce evidence – improper consolidation/valuation across non‑party entities – role of liquidator in investigating pre‑liquidation transactions.
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1 December 2010 |
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Reported
Applicant failed to prove race-based exclusion in municipal procurement; litigation conduct justified adverse costs orders.
Equality law – Equality Court procedure – burden of proof under s 13 of the Promotion of Equality and Prevention of Unfair Discrimination Act – complainant must make out prima facie differentiation and race nexus before respondent must rebut; Procurement and discrimination – municipal procurement, affirmative action and BEE targets do not automatically indicate practices aimed at maintaining racial exclusivity; Misjoinder – Equality Court correctly upheld plea of misjoinder where defendant had no connection to project; Costs – constitutional litigation not immune from adverse costs where litigation is frivolous, vexatious or pursued for private commercial gain; Abuse of Equality Court – need for succinct prescribed pleadings and avoidance of irrelevant material.
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1 December 2010 |
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Reported
A personal servitude granting exclusive stadium naming rights is a registrable real right enforceable against tenant and manager.
Property law — Servitude — Personal servitude granting stadium naming rights — Naming right can be a limited real right registrable against land — Registrability under s 63(1) Deeds Registries Act — Effect of demolition/reconstruction on personal servitude — Business efficacy/vagueness challenge rejected — Management/lease clauses purporting to grant conflicting naming rights ineffective.
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1 December 2010 |
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Reported
An acting judge’s undisclosed commercial relationship with the respondent gave rise to reasonable apprehension of bias, voiding the trial.
Recusal — reasonable apprehension of bias — acting judge in private practice having commercial relationship with litigant — duty to disclose relationship — failure to disclose renders subsequent proceedings a nullity — remedy: trial de novo before another judge.
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1 December 2010 |
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Reported
Owner who knew of fraudulent transfer but failed to act was estopped from vindicating registered property.
Property law; transfer of immovable property — authority to transfer; abstract system applies to immovables; deeds registry reliance; estoppel — representation, negligence, reliance and detriment; vindication barred by estoppel.
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1 December 2010 |
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Reported
Whether the respondent is a beneficiary entitled to seek trustees' removal and whether the court may order the Master to investigate.
Trust law – beneficiary status – only a beneficiary may seek removal of trustees; Court cannot direct Master to conduct s 16 investigation – discretion vests in Master; New factual points not raised below should not be advanced on appeal; Matter remitted for oral evidence on beneficiary status.
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1 December 2010 |
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Reported
Death before due date does not absolve estate from contractual mora interest; executor liable for interest at prescribed rate.
Contract — sale — fixed date for payment (mora ex re) — death of purchaser prior to due date — estate liable for mora interest; Contractual damages — mora interest compensatory, not requiring debtor's fault; Supervening impossibility — death does not discharge monetary obligations; Executors — obliged to pay debts (including interest) of deceased's estate when contract so provides.
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1 December 2010 |
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Appellant failed to satisfy s 60(11)(b); bail refused due to strong prima facie case and risk of further offending.
Bail – s 60(11)(b) onus on accused in Schedule 5 offences – strength of State’s prima facie case and documentary evidence – failure to produce supporting documents – risk of further offending – limited appellate interference under s 65(4).
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1 December 2010 |
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Whether the complainant understood 'rape' and whether medical and factual evidence proved penetration beyond reasonable doubt.
Criminal law – Rape – Elements – Whether complainant’s understanding of the word 'rape' must be independently established; medical evidence corroboration of penetration; evaluation of accused’s alternative explanation. Evidence – Totality of evidence approach; single‑witness sexual offence complaints and corroboration by medical evidence. Appeal – Standard for interfering with trial court’s factual findings; rejection of accused’s version as not reasonably possibly true.
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1 December 2010 |
| November 2010 |
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High court improperly declared respondents VAT amnesty; criminal proceedings should not be suspended for such declaratory relief.
Tax law – Small Business Tax Amnesty Act – whether amnesty extended to VAT – interpretation of approval forms and prior SARS correspondence. Statutory exclusion – s 5(2) (no approval where investigation notice preceded application) and s 10(a) (exclusion where tax already paid) precluding VAT amnesty. Criminal procedure – improper suspension of magistrates’ criminal proceedings for civil declaratory relief – declaratory order cannot amount to acquittal. Civil practice – vexatious litigant conduct and punitive costs (attorney-and-client, including two counsel).
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30 November 2010 |
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Reported
Edited publication and editorial deliberately reproduced interdicted article’s substance, constituting contempt; publisher vicariously liable.
Contempt of court – scope and construction of publication interdict (substance v form); jurisdiction of one High Court to enforce another division’s order; requirement of deliberate and mala fide conduct for civil contempt; corporate liability for contempt via editor's actions; interpretation of editorial and cover in determining identification.
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30 November 2010 |
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Reported
The applicant’s trustees were authorised to apply capital for beneficiaries; the awards were exempt from donations tax under s 56(1)(l).
Donations tax – s 54 definition of donation; exemption s 56(1)(l) – disposals made under and in pursuance of a trust; trust construction – trustees’ power to apply capital (cl 12.1) for beneficiaries; tax assessment set aside where awards authorised and exempt.
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29 November 2010 |
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Reported
Winding‑up refused where indebtedness was bona fide and reasonably disputed under NCA challenges; suretyship not void ab initio.
Winding‑up — locus standi as creditor — debt disputed on bona fide and reasonable grounds — winding‑up refused; Suretyship — accessory to principal obligation — unenforceable principal debt defeats surety; National Credit Act — registration requirement and reckless credit — potential defences to enforcement of credit agreements; Interim relief — pending substantive NCA challenges precludes liquidation to enforce disputed claims.
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29 November 2010 |
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Reported
Whether a director traded recklessly under s 424 — court found no reckless trading; appeal dismissed.
Companies Act s 424(1) – Reckless trading – test involves objective and subjective elements – 'clarity and commitment' (Philotex) relevant where company depends on group support – directors entitled to rely on reasonable professional, banking and management assessments – accountant's retrospective view insufficient to establish recklessness where credible funding/turnaround prospects existed.
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29 November 2010 |
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Reported
A s5(4)(a) confirmation application need not be a notice-of-motion served on the respondent within ten court days.
Counterfeit Goods Act s 5(4)(a) – application for confirmation of warrantless seizure – procedure in chambers, not notice-of-motion – lodging with registrar within 10 court days sufficient; relationship with s 6; notice to respondent not required within 10 days.
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29 November 2010 |
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An unexplained seven‑year delay and inadequate explanation justified refusal of condonation despite a lost trial record.
Condonation — delay of notice of appeal — requirements for "good (sufficient) cause" (satisfactory explanation and prospects of success) — loss of trial record does not alone establish prospects — appellate interference with discretionary refusal limited.
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29 November 2010 |
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Reported
A ministerial 24‑month rehabilitation rule before hunting captive‑bred lions is irrational and invalid as applied to lions.
Environmental law — Biodiversity Act s 97 regulations — legality and rationality review — regulation permitting hunting only after 24‑month ‘self‑sustainment’ period — irrational where no scientific basis or proper factual justification exists; composition of Scientific Authority — ministerial discretion to appoint members and consult stakeholders.
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29 November 2010 |
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Reported
Appellate court reduced sentence where trial judge materially misdirected by ignoring psychiatric and personal mitigation.
Sentencing — material misdirection — failure to consider psychiatric and social mitigation — appellate interference and substitution of sentence (S v Malgas) — concurrent sentencing for related offences — inappropriate grant of leave to SCA where full court was suitable.
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29 November 2010 |
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Reported
Whether a rule 34 secret tender constitutes full settlement including accrued interest for costs purposes.
Civil procedure – Uniform Rules 34(1), (5) and (12) – secret tender (offer to settle) – effect on costs allocation; Tender expressed as "full and final settlement" includes accrued interest to date unless limited; Costs discretion limited to whether tender beat the award; Failure to treat interest as part of award is misdirection warranting interference.
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29 November 2010 |
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Appeal re-evaluated life expectancy, corrected actuarial/medical-inflation errors, refused 'lost years' claim, and recalculated damages and costs.
Medical negligence – quantum – assessment of life expectancy for severely disabled child – expert actuarial evidence (Strauss California dataset) preferred; amendment and further evidence on appeal – generally refused; lost years claim – Lockhat’s Estate bars recovery; s 28(2) – does not alter evidential/onusal rules in damages assessment; medical inflation – apply medical inflation ~3.5% above CPI, not a 2.5% capitalisation rate; caregivers – allowance for relief caregivers under BCEA; Rule 34 offer – valid and relevant to costs; allegations of judicial bias – dismissed.
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26 November 2010 |
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Reported
A municipal council’s duly adopted resolution is binding and must be implemented until rescinded or set aside.
Local government – municipal council resolutions – binding on municipality and officials until rescinded or set aside on review; Municipal Systems Act s 55(1) – municipal manager’s appointment powers are delegatory and do not divest council of executive authority; High Court jurisdiction – contractual employment claims enforceable notwithstanding alternative LRA remedies; Administrative law – officials may not refuse to implement duly adopted council resolutions based on belief of invalidity.
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25 November 2010 |
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Reported
Section 26(6) POCA permits release of restrained assets only for the person restrained; third-party restrained assets cannot fund another’s legal costs.
POCA s26(6) – restraint orders – scope of court’s discretion to provide for reasonable legal and living expenses – confined to the person against whom the restraint order is made; realisable property includes gifts to third parties but does not alter ownership; assets restrained against third parties cannot be released for another person’s legal expenses. Judicial duty – delay in furnishing reserved reasons – persistent unexplained delay and failure to decide leave application may amount to constructive refusal of leave to appeal.
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25 November 2010 |
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Reported
Acting chief remained temporary; successor’s appointment procedurally defective but review barred by non‑joinder of the Premier.
Customary law and statutory procedure — recognition and appointment of traditional leader — s19 KwaZulu‑Natal Traditional Leadership and Governance Act — identification by Umndeni wenkosi and recognition by Premier mandatory; acting (regent) appointment under Black Administration Act s2(8) remains temporary; non‑joinder of the Premier fatal to review of appointment.
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23 November 2010 |
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Reported
Whether courts may read a ‘fifth’ jurisdictional requirement into s 40(1) and who bears the onus to challenge the arrest.
Criminal procedure — Arrest without warrant (s 40(1)) — jurisdictional facts for lawful arrest — no implied ‘fifth’ requirement to prefer less invasive measures — officer’s discretion must be bona fide and rational — onus on plaintiff to prove improper exercise of discretion.
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19 November 2010 |
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Reported
Unmarried father’s s21 parental rights upheld; child’s best interests required residence with father; Northern Cape orders set aside.
Children — Children’s Act s21 — unmarried biological father acquiring full parental responsibilities where living in permanent life-partnership at birth; best interests paramount; grandparents’ remedies (ss23–24) and common-law position; concurrent jurisdiction of high courts as upper guardian; interim stays and forum-shopping; requirements for contempt (deliberate, mala fide disobedience).
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19 November 2010 |
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Reported
An accused’s silence in the face of credible incriminating evidence will usually strengthen the prosecution’s case.
Criminal evidence – evaluation of the totality of evidence; credibility findings; s 204 witnesses; single-witness caution; accused’s failure to testify strengthens prosecution case; sentencing — lesser role and intoxication not established as mitigating.
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16 November 2010 |
| October 2010 |
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Reported
Whether the applicant’s acceptance of a reduced purchase price reflecting assumed contingent liabilities constituted "expenditure" under s 11(a).
Income tax – s 11(a) – meaning of "expenditure" or "expenditure actually incurred" – requires undertaking an obligation to pay or actual incurring of a liability; mere reduction in purchase price or accounting entries do not suffice where no liability arises. Sale of business – purchaser assuming liabilities – set-off requires mutual, liquidated and due debts; absence thereof precludes treating assumed liabilities as seller’s expenditure. Tax consequence – contingent liabilities deductible by purchaser when become unconditional.
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1 October 2010 |
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Reported
An amended explanatory comment was not a tariff determination; rebates for screens without tuners do not extend to fully assembled television sets.
Customs and excise – Tariff determinations – Distinction between operative determination and explanatory commentary – Effect of change in imported goods' nature (screens without tuners v assembled TV sets) – Post Clearance Inspection assessments – s 47(9)(a) and s 47(11) retrospective operation – Reviewability of administrative action.
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1 October 2010 |
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Reported
Court deleted racially exclusive bursary conditions as contrary to public policy but set aside geographic substitution.
Trusts – Trust Property Control Act s 13 – power to delete or vary trust provisions that hamper objects, prejudice beneficiaries or conflict with public interest. Charitable trusts – educational bursary – racially restrictive testamentary conditions – conflict with public policy and constitutional equality. Constitutional law – equality (s 9) and Promotion of Equality and Prevention of Unfair Discrimination Act – impact on testamentary freedom. Freedom of testation – not absolute where testamentary provisions offend constitutional values or public policy. Geographical amendments – substitution requires evidence that original description hampers trust objects.
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1 October 2010 |
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Reported
Rectification of a JBCC guarantee is permissible, its stated calendar expiry is inclusive, but enforcement was refused as arbitration made it academic.
Construction guarantee (JBCC) – expiry date – stated calendar date is inclusive; civil method of computation inapplicable where no period requires calculation. Rectification – possible without antecedent written agreement where clear common intention proved. Independence of guarantee – guarantor ordinarily obliged to pay on compliant demand; exception for fraud. Effect of subsequent arbitration – award may be admitted on appeal; where arbitration disposes rights between employer and contractor, it may render enforcement of guarantee academic. Judicial discretion – refusal to grant academic relief under s 21A Supreme Court Act.
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1 October 2010 |
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Reported
Statutory right to inspect a company’s register generally prevails; disclosure may only be refused for unlawful or exceptional reasons.
Company law – s 113 Companies Act 61 of 1973 – inspection of register of members; statutory right of access; requester need not state reasons; court’s discretion to refuse is narrow and limited to unlawful purpose; share block companies not entitled to special insulation from disclosure; constitutional right to privacy does not ordinarily protect company register information; costs and delay in judgment.
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1 October 2010 |
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Reported
Accident’s cumulative effects caused delayed death; insurer cannot rely on unpleaded pre-existing infirmity to avoid cover.
Insurance – Personal accident policy – Occurrence clause requiring bodily injury to be sole and independent cause of death – Causation: delayed death and proximate cause – Expert medical evidence: evaluation and logical basis – Exception clause excluding pre-existing infirmity cannot be relied upon if not pleaded – Onus and shift once causation established.
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1 October 2010 |
| September 2010 |
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Reported
Prescription began when the creditor knew the purchaser could not pay; respondent's claim had therefore prescribed.
Prescription — Prescription Act 68 of 1969 — s 12(1) and s 12(3) — commencement of prescription — debt deemed due when creditor has knowledge of debtor’s identity and facts giving rise to debt — creditor deemed to have such knowledge if it could have been acquired by reasonable care — three-year prescription period (s 11(d)) — professional negligence/contractual claim — nulla bona return not prerequisite for accrual of cause of action.
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30 September 2010 |
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Reported
Respondent’s failure to comply with s79(18) rendered the purported lease void ab initio.
Local government – Alienation/letting of immovable property – s 79(18) Local Government Ordinance 17 of 1939 – publication and objection requirements are jurisdictional; failure renders purported lease void ab initio; characterization of agreements by objective contractual essentialia; discretion to validate defective agreements (assumed) but not established or exercised where public interest would be frustrated.
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30 September 2010 |
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Whether evidence established large‑scale mandrax manufacture and statutory 'dealing', and whether imposed sentences were excessive.
Criminal law – Drugs and Drug Trafficking Act 140 of 1992 – wide definition of 'dealing' includes acts connected with manufacture; circumstantial evidence (equipment, chemicals, precursor substances, contamination and presses) sufficient to prove large-scale manufacture and knowledge; sentencing – appellate reduction where original sentence excessive; statutory minimum sentence applicable for first offender involved in manufacture.
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30 September 2010 |
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Reported
Fingerprint and similar-modus evidence on two robbery vehicles established identity beyond reasonable doubt; appeal dismissed.
Criminal law – identification – forensic fingerprint evidence – probative value where prints lifted from vehicles involved in offences and matched to accused. Criminal law – similar fact/modus operandi evidence – admissibility to establish identity and cogency, not mere propensity. Evidence – absence of proof as to age of prints does not automatically negate probative value where authenticity and matching not challenged. Application of Blom tests – inference must be consistent with proved facts and exclude reasonable innocent explanations.
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30 September 2010 |
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Reported
Court upheld municipal rate resolutions: notices showing "general purport" and lack of timely objections precluded setting rates aside.
Local government — Property rates — Compliance with s 10G(7) LGTA — "General purport" of notice — inspection of council resolution sufficient; Objections — must be lodged in writing within 14 days of notice and be substantive objections; Procedural defects and newspaper omissions not fatal absent prejudice; Delay and prejudice — courts may refuse retrospective relief; Judicial deference to municipal budgeting and revenue protection.
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30 September 2010 |
