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Citation
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Judgment date
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| December 2011 |
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Reported
Appeal dismissed: State proved appellant accepted gratification and provided quid pro quo in contravention of s 4(1)(a) PCCA.
Criminal law – Corruption – Prevention and Combating of Corrupt Activities Act 12 of 2004 s 4(1)(a): elements – acceptance of gratification, gratification defined (money/gifts), inducement/purpose, unlawfulness and intention; corroboration of single witness evidence; forensic bank analysis and cheque counterfoils as corroboration; s 24 rebuttable presumption of corrupt purpose; section 4 does not require an express agreement between giver and recipient; misuse/selling of confidential information and attendance at meetings as quid pro quo.
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2 December 2011 |
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Reported
Whether a developer’s reserved extension right under s 25(4) includes a usufruct entitling it to exclusive use and lease income.
Sectional Titles Act s 25(4) – developer’s right of extension – limited real right to develop, not a usufruct – no entitlement to lease or commercially exploit common property prior to unit registration – body corporate retains control of common property – amendment permitting temporary exclusive use rights confirms limited prior ambit.
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1 December 2011 |
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Reported
The President must objectively assess 'fit and proper' qualities for NDPP appointments; flawed assessment rendered the appointment invalid.
Constitutional and statutory requirements for appointment of NDPP — s 179 Constitution and s 9(1)(b) NPA Act; prosecutorial independence; 'fit and proper' — objective jurisdictional facts; President’s executive appointment power subject to legality and judicial review; necessity to consider Ginwala Enquiry and PSC findings; rationality and failure to take into account relevant considerations as grounds for review.
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1 December 2011 |
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Reported
An agreement of sale under a suspensive condition is not a sale until conditions are fulfilled; statutory compliance assessed then.
* Property law – sale of municipal land subject to suspensive conditions – application of Corondimas principle; * Local government – s 79(18)(b) Transvaal Local Government Ordinance – timing of notice and objection procedure; * Municipal Finance Management Act ss 14 and 33 – disposal of capital assets and future budgetary obligations; * Contract law – suspensive condition means no sale exists until condition fulfilled; * Administrative law – fettering of council discretion.
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1 December 2011 |
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Expropriation for estate security was lawful and procedurally fair despite withheld security‑sensitive materials.
* Expropriation Act — requisites for valid expropriation: public purpose, bona fide discretion, procedural compliance. * Administrative law (PAJA) — procedural fairness, adequacy of notice and information to enable representations. * State security — permissible withholding of sensitive materials does not necessarily render procedure unfair. * Rationality review — decision upheld where it serves legitimate governmental purpose; existence of alternatives not decisive. * Review — factual inaccuracies peripheral to core purpose do not vitiate administrative action.
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1 December 2011 |
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Reported
High court properly ordered execution pending appeal and found company in contempt; directors not personally liable without evidence.
* Civil procedure – Rule 49(11) – application for execution of order pending appeal – discretionary enquiry per South Cape; balance of convenience, prospects and irreparable harm. * Mandament van spolie – restoration of status quo ante; appealability. * Contempt of court – requisites: order, service, non-compliance; respondent must raise reasonable doubt on wilfulness and mala fides. * Directors’ liability – joinder and personal contempt requires evidence linking director to deliberate breach of court order.
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1 December 2011 |
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Reported
An unqualified concession of liability precludes a defendant from later pleading contributory negligence to reduce damages.
Road Accident Fund — concession of liability — construction of agreement — contextual approach to interpretation — unqualified acceptance of liability precludes later pleading contributory negligence or apportionment; evasive denials in plea deprecated.
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1 December 2011 |
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Reported
s 7(1) PAIA excludes post‑commencement litigation requests where Rules of Court (Rule 38) provide for production of records.
Promotion of Access to Information Act s 7(1) – exclusion where record requested for litigation after commencement and production/access provided for in "any other law"; Uniform Rule 38(1) subpoena duces tecum constitutes "any other law"; PAIA not intended to displace Rules of Court on discovery/compulsion; records held by non-parties obtainable via subpoena.
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1 December 2011 |
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Reported
An order appointing judicial managers contrary to statutory allocation of appointment power to the Master is a nullity and cannot found contempt.
Companies Act (s 429) – appointment of provisional judicial managers – exclusive statutory power of the Master – judicial appointment void; contempt – contempt requires disobedience of valid order; void orders have no legal force.
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1 December 2011 |
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Reported
A municipality may lawfully disconnect electricity for unpaid rates without a court order by consolidating accounts under statutory powers.
Local government – Municipal Systems Act ss 96, 97, 102 – credit control and debt collection – consolidation of accounts – by-law power to restrict/disconnect services – no requirement for court order before disconnection for non-payment.
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1 December 2011 |
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Medical payments by a contribution-funded foreign statutory insurer are non-deductible collateral benefits from respondent's damages award.
Collateral benefits – deductibility from delictual damages; distinction between state-funded social security benefits and contribution-funded statutory insurers; foreign statutory health insurance payments as quid pro quo for contributions; repayment obligation preventing double compensation; public policy and equitable considerations in deduction of collateral benefits.
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1 December 2011 |
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Reported
A material change and arbitrary exercise of discretion by officials justified amendment of bail travel conditions to permit supervised business trips.
Criminal procedure – Bail variation (s 63) – change of circumstances – officials’ arbitrary refusal of travel permission – abuse of power – passport custody and procedure for business travel – preservation of State oversight.
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1 December 2011 |
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Reported
Lease concluded without required tender process was invalid; deviation required recorded rational reasons and cannot be saved by Turquand or estoppel.
Public procurement law — s217 Constitution, PFMA and provincial Tender Board Act — Treasury Regulations 13.2 and 16A6.4 — requirement to record rational reasons for deviation from competitive bidding — limits on accounting officer’s powers — Turquand rule and estoppel cannot validate ultra vires procurement.
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1 December 2011 |
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Reported
An appellate court may not substitute an arbitrator’s reinstatement remedy by considering post-award facts without statutory justification.
* Labour law – LRA ss 145 and 193 – limited review grounds under s145 (Sidumo) – correctness of arbitration award and reasonableness standard. * Labour law – remedy for unfair dismissal – reinstatement under s193(1) and grounds for refusal under s193(2). * Appellate procedure – limits on mero motu inquiry into post-award facts and prohibition on substituting arbitrator’s remedy absent basis. * Evidence – late introduction of further evidence on appeal prejudicial and procedurally improper.
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1 December 2011 |
| November 2011 |
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Reported
Whether a POCA restraint order made after presentation of a winding‑up application binds the company’s assets.
POCA s 36 – interpretation of 'presentation to the court' and 'relevant time'; effect of restraint orders on company assets where winding‑up application precedes restraint; interplay between s 36(1) and s 36(2); curator bonis powers versus liquidator control upon winding‑up; distinction from sequestration provisions (s 35).
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30 November 2011 |
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Both driver and motorcyclist were negligent; equal apportionment of liability upheld.
Road traffic collision – apportionment of liability – conflict between eyewitness evidence and expert reconstruction – weight of physical/skid-mark evidence – duty to keep proper lookout and stopping-distance considerations.
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30 November 2011 |
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Removal of roof coverings while occupants remained inside constituted unlawful dispossession requiring restoration and compliance with eviction procedures.
• Constitutional law – s 26(3) – evictions and demolitions require a court order after consideration of relevant circumstances.
• Property law – mandament van spolie – unlawful deprivation of peaceful and undisturbed possession remedied irrespective of competing title.
• PIE – summary evictions/demolitions unlawful; eviction proceedings required.
• Housing Act – duty to consult meaningfully with affected communities before housing development or relocation.
• Evidence – consent to eviction must be proved on the papers; alternative accommodation irrelevant in spoliation proceedings.
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30 November 2011 |
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Reported
Whether a revised assessment was issued; construction costs non-deductible under s22(2A)/s11(a); interest deductible under s11(bA).
Income tax — s 79A finality of assessment — whether Commissioner’s letter of 4 May 2007 constituted a revised assessment; s 22(2A) trading stock — whether contractor/subcontractor relationship resulted in respondent holding materials/improvements as trading stock; s 11(a) capital v revenue — construction costs not deductible where respondent never owned materials; s 11(bA) — interest and related finance charges on loans for construction deductible; remittal for quantification.
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30 November 2011 |
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Reported
Municipal street-renaming decisions are not administrative action under PAJA but remain reviewable for legality and rationality.
* Local government – municipal council powers – naming and renaming of streets as council function; not "administrative action" under PAJA but reviewable under the principle of legality and rationality. * Constitutional duty and statutes – requirement to facilitate public participation – reasonableness standard; compliance with council’s own policy. * Judicial review – irrationality standard low threshold; decisions aimed at legitimate objective with rational connection to means. * South African Geographical Names Council – guidelines informative but not shown to be absolutely binding on local authorities.
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30 November 2011 |
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Court affirmed robbery conviction based on reliable eyewitness identification and upheld the prescribed minimum 15-year sentence.
* Criminal law – robbery with aggravating circumstances – identification evidence – eyewitness identification at parade and dock – reliability and caution required.
* Criminal procedure – arrest and corroboration by arresting officers – relevance of recovered property.
* Sentencing – minimum sentence for robbery with aggravating circumstances – assessment of substantial and compelling circumstances.
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30 November 2011 |
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Reported
Non-union employees must give separate s64(1)(b) strike notice for lawful participation; dismissals were not automatically unfair.
* Labour law – Strike procedure – s 64(1)(b) LRA – 48 hours’ notice – Whether non-union employees joining a union-organised strike must give separate notice to render their participation lawful.
* Interpretation – s 3 and s 1 LRA – procedural nature of notice requirement to promote orderly collective bargaining, employer preparation, employee protection and health and safety.
* Labour law – Automatic unfair dismissal – participation in an unlawful strike does not attract automatic unfairness where notice requirement unmet.
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30 November 2011 |
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Reported
Whether disputes over minimum services terms fall to CCMA arbitration or to the Essential Services Committee to decide.
Labour law — Essential services; minimum services agreements; CCMA jurisdiction under s 74; Essential Services Committee jurisdiction under ss 70–73; distinction between collective agreements and arbitration awards; interpretation of LRA in light of right to strike.
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30 November 2011 |
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Reported
An internal departmental letter purporting to amend an environmental authorisation was invalid; PAJA exhaustion rules did not apply.
Environmental authorisation — Amendment of authorisation — NEMA regs 40, 41, 44, 45 — procedural prerequisites for amendment — jurisdictional facts — internal departmental communication not administrative action — PAJA s7 inapplicable — declaratory relief appropriate where no administrative decision to review.
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30 November 2011 |
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Reported
Hearsay may be admitted under s 3(1)(c) in civil trials; main claim of police-assisted robbery failed, alternative misappropriation claim remitted.
Civil procedure — admissibility of hearsay — s 3(1)(c) of Law of Evidence Amendment Act — hearsay as independent avenue in interests of justice; timing of hearsay rulings at end of plaintiff’s case; vicarious liability of employer for police officers who recover and misappropriate stolen property.
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30 November 2011 |
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Reported
A claimant’s failure to exercise reasonable care to discover non‑lodgement causes an MVA claim to prescribe after three years.
* Prescription — MVA Act art 55 and Prescription Act ss 11, 12(1), (3) — three‑year prescription; prescription runs when creditor has or ought to have knowledge of debtor and facts; 'deemed knowledge' if creditor could have acquired it by exercising reasonable care; creditor's inaction can cause claim to prescribe.
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30 November 2011 |
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A witness’s late recantation was found not credible; trial court credibility findings upheld and appeal dismissed.
Criminal law – further evidence – recantation of witness testimony – application of Ladd v Marshall/Van Heerden principles; deference to trial court credibility findings; accomplice evidence – cautionary rule and corroboration; sufficiency of evidence to sustain conviction.
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30 November 2011 |
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Reported
An applicant charged under an invalid municipal by-law may bring a collateral declaratory challenge to bar prosecution.
Administrative law – municipal by-laws – requirement to publish proposed by-laws in manner allowing public representations (s 160(4)(b) Constitution; s 12(3)(b) Municipal Systems Act) – failure to republish materially amended draft renders by-law invalid; Direct vs collateral challenge – persons charged may bring declaratory (defensive) challenge to invalidate legislation for purposes of prosecution; Relief – declaratory relief appropriate where review relief would produce injustice; invalid statutory instrument treated as void for enforcement.
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30 November 2011 |
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Reported
Section 63(14) confirmation vests a transferred scheme's assets in the transferee, excluding them from the liquidator's estate.
* Medical Schemes Act s 63 – transfer of members – effect of Council confirmation – s 63(14) vests relevant assets and liabilities in transferee.
* Insolvency – winding-up – bank-customer relationship – contributions paid into scheme's account give rise to asset (personal right) of scheme.
* Distinction from mistaken payment principles – payments not undue or mistaken where debt and payee identified.
* s 8(h) exemption – procedural relief does not negate substantive consequences of s 63 confirmation.
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30 November 2011 |
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Reported
A natural guardian is a "creditor" under the 2002 Act and may obtain condonation for late notice if statutory criteria are met.
* Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 – definition of "creditor" includes natural guardian acting for a minor; notice obligation under s 3 applies to such guardians.
* Prescription Act 68 of 1969 – extinctive prescription assessment distinct from 2002 Act's notice requirement; protection of minors against prescription remains applicable.
* Condonation under s 3(4)(b) – court must be satisfied that debt has not prescribed, good cause exists for late notice, and organ of state was not unreasonably prejudiced; standard is overall impression on a fair mind.
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30 November 2011 |
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Appellate court reduced loss-of-support award after finding career-change to corporate sector was not a certainty and applying a 40% contingency.
* Damages – loss of support – assessment of future earning capacity where deceased was eminent academic; expert evidence on career prospects admissible but cannot substitute court's probabilistic assessment.
* Evidence – role of expert witnesses – experts may advise on availability of positions but cannot assert as fact that a specific individual would certainly have changed career.
* Civil procedure – interference on appeal with damages – appellate court may interfere where trial court failed to account for relevant contingencies or misdirected itself.
* Contingency allowance – appropriate deduction where future events (career change) are possible but not certain; 40% contingency applied for remaining in academia.
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30 November 2011 |
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Whether appellant has reasonable prospects on a s309C petition appeal; SCA grants leave to appeal to the High Court.
Criminal procedure – s 309C petition – appealability of refusal of petition – test is reasonable prospects of success, not merits; procedural error in granting leave to SCA instead of leave against refusal; single-witness cautionary approach; admissibility/weight of expert social-worker evidence; timing of statutory offence affecting rape conviction; sentencing triad and proportionality.
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29 November 2011 |
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Reported
Alleged misapplication of Sidumo alone does not justify SCA leave; Fry's Metals special-leave test must be applied.
* Labour law — review of CCMA awards — Sidumo standard: whether the commissioner’s decision is one a reasonable decision-maker could not reach; * Leave to appeal — Fry's Metals test for special leave applied even after LAC refusal; * Appellate restraint — prevent flood of appeals to protect expeditious resolution of labour disputes; * Procedural and substantive fairness — dismissal after serious safety breach; * Reviewable award — internally contradictory reasoning can justify setting aside.
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29 November 2011 |
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Reported
Whether the arbitration clause barred court proceedings and whether the prior judgment estopped the contractor’s cancellation claim.
* Contract law – building contract – interpretation of clause 40 and Annexure K – only contractor may trigger dispute resolution leading to arbitration; employer free to approach court.
* Res judicata / issue estoppel – prior urgent judgment finally decided arbitration point; estops relitigation of that issue but does not bar unrelated contractual entitlement claims.
* Counterclaim – declaration of lawful cancellation (paras 41–49/prayer 2) is barred by prior judgment; remaining contractual claims may proceed.
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29 November 2011 |
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Unchallenged adverse credibility findings defeat rectification and uphold respondent’s claim under a bridging-finance agreement.
Contract – rectification – claim based on alleged common intention and common error; Conveyancing/bridging finance – attorney warranties and undertakings; Credibility findings – appellate deference to trial court’s adverse credibility findings when unchallenged and supported by record; Attorneys’ joint and several liability in bridging-finance disputes.
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29 November 2011 |
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Reported
Appellate court reduced and antedated sentences after finding cumulative term disproportionate and pre-trial detention uncredited.
* Sentencing — cumulative effect of multiple sentences — appellate interference where sentence disproportionately harsh.
* Sentencing — credit for pre-trial detention — antedating sentences as appropriate remedy.
* Sentencing — discretion of trial court; appeal available where material misdirection or shockingly inappropriate sentence (S v Malgas; S v Pillay).
* Sentencing — concurrency and consideration of previous convictions and personal circumstances.
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29 November 2011 |
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Failure to plead ESTA or particularise a lifelong lease meant no bona fide defence; eviction ordered as just and equitable.
* Property law – eviction – application proceedings – necessity to plead statutory defences (ESTA) and particularise factual allegations.
* Civil procedure – answering affidavits – Plascon‑Evans/Wightman principles – when referral to oral evidence is required.
* Evidence – bald, unparticularised allegations within deponent's knowledge are insufficient to establish a bona fide defence.
* PIE – section 4(7) factors considered; eviction can be just and equitable despite occupants' age and long residence.
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29 November 2011 |
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A purchaser-only suspensive bond condition not fulfilled (without prior waiver) causes the sale to lapse.
* Contract law – sale of immovable property – suspensive condition to obtain a bond – construction of clause making sale 'subject to' bond – condition solely for purchaser's benefit. * Waiver – purchaser may waive condition but only before the condition date; waiver after lapse cannot revive contract. * Remedies – seller’s reserved right to cancel on non-grant of bond is protective and does not prevent lapse where condition not fulfilled.
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29 November 2011 |
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Reported
Absolution wrongly granted; plaintiff’s misrepresentation/non‑disclosure evidence raised triable issues and late amendment of particulars was refused.
Contract – misrepresentation (positive and by omission) – tendering for revenue‑sharing mining contract – duty to disclose where respondent has peculiar knowledge; Practice – absolution from instance at close of plaintiff’s case – prima facie case required; Practice – Uniform Rule 21 further particulars are not pleadings and late amendments are generally unnecessary but surprises may be cured by postponement and costs.
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29 November 2011 |
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Reported
A non-parole period under s 276B may be imposed only in exceptional circumstances, with reasons and opportunity to be heard.
* Criminal procedure – sentence – non-parole orders – s 276B Criminal Procedure Act – to be imposed only in exceptional circumstances with proper reasons and evidential basis; * Sentencing procedure – duty to give reasons and to afford parties opportunity to address non-parole orders; * Separation of powers – parole determinations generally for Correctional Services and Parole Board, not sentencing courts.
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29 November 2011 |
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Delay by Legal Aid, inadmissible expert credibility opinion and refusal to recall witnesses rendered the conviction unsafe.
Criminal procedure — excessive delay in prosecuting appeals and filing records; defective charge particulars under s 84; inadmissibility of expert opinion on witness credibility; duty to recall witnesses whose evidence may be essential; unsafe conviction — conviction and sentence set aside.
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29 November 2011 |
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An appeal is dismissible under s21A when the challenged municipal tariff policy has expired and the relief would be moot.
* Civil procedure – s 21A Supreme Court Act – appeal may be dismissed where judgment sought will have no practical effect or result (mootness). * Administrative/municipal law – challenge to municipal tariff policy – declaratory relief constrained by financial-year-specific relief may render appeal academic. * Costs – appellate court will not interfere with a discretionary costs order absent misdirection.
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29 November 2011 |
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Reported
If a person indicates intent to seek asylum they are entitled to statutory protections and a 14‑day permit under the Refugees Act.
* Refugees Act 130 of 1998 – structure and purpose – gives effect to international obligations and provides procedures for reception and determination of asylum claims. * Regulation 2(2) – meaning of "encountered" – ordinary meaning (meet or come across); triggers entitlement to 14‑day permit to approach Refugee Reception Office. * Refugee Reception Officer – duty to accept asylum application, assist applicant and issue asylum seeker permit (s 21, s 22). * Refugee Status Determination Officer – sole authority to determine merits and to reject as unfounded; courts may not pre‑empt RSDO determination. * Principle of legality – officials must act in accordance with statutory prescripts; procedural protections (including written notification under Immigration Act regulations) are peremptory. * Judicial conduct – courts must not make unsworn findings, decide unpleaded issues or display preconceived bias.
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29 November 2011 |
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Regulatory report noting unresolved governance concerns did not, in context, amount to defamatory statements against scheme or chairperson.
* Defamation — meaning and reference — objective reasonable-reader test; context and specialised audience considerations.
* Defamation — corporate entity vs individuals — when statements reflect on officers but not the entity itself.
* Regulatory publications — statements of inquiry or unresolved concerns may lack defamatory tendency.
* Qualified privilege/statutory reporting — protection of regulator’s communications in statutory reports (discouraging unnecessary findings of unlawfulness).
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25 November 2011 |
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Reported
An attorney who employed touts, shared fees and office, and was dishonest in proceedings was struck off the roll.
* Attorneys — disciplinary removal or suspension — fitness to practise — established misconduct: touting, referral of reserved work to non‑lawyers, fee‑sharing, purchase of claims; dishonesty in disciplinary proceedings.
* Exercise of judicial discretion — striking off vs suspension — comparison with other cases and ‘exceptional circumstances’.
* Costs — prosecuting Law Society normally entitled to costs.
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25 November 2011 |
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Seller who delivered original registration documents was estopped from enforcing reserved ownership after purchaser transferred vehicles to financier.
Actio ad exhibendum; reserved ownership; tacit conferment of ius disponendi by delivery of original registration documents; estoppel against seller; transfer under Natis and floor-plan financing; reliance by financier.
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25 November 2011 |
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Applicant entitled to costs of appeal after successfully setting aside lower court order and referral to trial.
Civil procedure – Appeal – Costs of appeal – Appellant entitled to costs where he was required to approach higher court to set aside lower court order; referral to trial; conversion of notice of motion to simple summons; procedural timetable for declaration and plea; costs to date costs in the cause.
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25 November 2011 |
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Whether an agent had authority to execute a limited surety and whether the managing partner could validly conclude an instalment sale to finance the partnership.
Partnerships en commandite – scope of managing partner’s authority to finance partnership business; Power of attorney – extent of agent’s authority to execute security/suretyships for partnership obligations; Instalment sale – validity and construction where purchaser described as managing partner 'acting as agent' for partnership; Disclosure of undisclosed partners – does not automatically create personal contractual liability; Formalities for suretyship (s 6 General Law Amendment Act) – signature by agent may be construed as on principal’s behalf if document permits.
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25 November 2011 |
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Reported
A statutory blacklisting decision was reviewable under PAJA and was set aside for material factual error and irrationality.
Administrative law – PAJA – definition of administrative action – decisions with direct, external legal effect; Ripeness – impact of decision, not mere formal notification; Review grounds – material error of fact and irrationality (closed mind, failure to verify evidence); State Tender Board – blacklisting powers under regulations – procedural fairness and notification obligations; Composite decisions – communication to a principal may suffice to inform affected persons.
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24 November 2011 |
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Reported
An option exercised by delivery of a signed deed of sale created a binding contract; VAT and movable-equipment disputes did not defeat specific performance.
* Contract – option to purchase – whether an option clause sufficiently describes property and can create binding sale when exercised by delivery of signed deed.
* Property law – immovable vs movable – whether dairy equipment forms part of immovable property or remains movable unless it accedes.
* Statutory compliance – Alienation of Land Act s 2(1) – requirement of writing and signature satisfied by exercise of option and deed of sale.
* VAT – whether purchase price should be treated as VAT inclusive/exclusive; limits on implying or imputing terms to alter agreed price.
* Evidence – inadmissibility of parol evidence to contradict or add to written contract; rectification where written documents contain clerical errors.
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24 November 2011 |
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Reported
Prescription runs from knowledge of material facts, not from appreciation of the legal consequences of those facts.
* Prescription – s 12(3) Prescription Act 68 of 1969 – knowledge required of material facts from which debt arises, not legal conclusions. * Prescription – running of prescription begins when minimum facts to institute action are known. * Prescription – s 14 (interruption) – acknowledgement requires acknowledgement of indebtedness; negotiation or registration attempts do not suffice. * Contract law – sale of land – absence of determinable price for buy-back renders clause unenforceable under statutory/formal requirements.
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23 November 2011 |
