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Citation
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Judgment date
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| December 2012 |
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Reported
A bank’s conveyancer was negligent in failing to cancel both bonds and ensure reg 68 compliance, causing recoverable transfer delays.
Conveyancing — duty of care — conveyancer liable in delict for negligent preparation/lodgement of deeds office documents causing delay; Deeds Registries Act reg 68(1) — certified copy applications must comply with current registrar practice; Exceptio non adimpleti contractus — cannot be relied upon where not pleaded and no withholding of performance; Standard of care — conveyancer must examine title deeds and ensure documents meet contemporaneous deeds office requirements.
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3 December 2012 |
| November 2012 |
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Appellate court corrected concurrent/consecutive sentencing structure and ordered partial concurrency with earlier sentences to avoid excessive cumulative imprisonment.
Criminal procedure – sentencing – multiple convictions – proper structuring of concurrent and consecutive sentences; cumulative effect of sentences from separate proceedings – partial concurrency ordered to avoid disproportionate overall punishment; appellate construction and correction of sentencing orders; backdating of altered sentences.
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30 November 2012 |
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Respondents’ recourse claims prescribed because they knew the material facts by early 2006.
Prescription — Prescription Act 68 of 1969 s 12(1),(2),(3) — knowledge of identity and facts — when debt becomes due; wilful prevention under s 12(2); evidence (arbitration award, appeal dismissal, directors’ meeting, payments) establishing knowledge; effect of incorporation on partnership continuity and timing of claim.
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30 November 2012 |
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Reported
Appellant’s review of disciplinary convictions dismissed; presiding officer’s credibility findings and decision were reasonable and not reviewable.
Administrative law – review under PAJA – material error of fact as limited ground of review (Pepcor) – confined to established, objectively verifiable facts that were material to decision. Administrative law – standard of review: decision unreasonable only if no reasonable person could have reached it; review must not usurp fact-finding role of tribunal. Disciplinary enquiries – assessment of witness credibility; cumulative effect of evidence may sustain convictions despite minor contradictions. Conspiracy allegations require cogent evidence and cannot be inferred from workplace dissatisfaction alone.
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30 November 2012 |
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Reported
Unjust enrichment established and R50 million disgorged; theft and fiduciary-breach claims failed; sale agreement held invalid.
Company law – directors’ liability – misappropriation and fiduciary duty; Unjust enrichment – multi-party transfers – enrichment sine causa at expense of company; Contract law – agreement signed by agent for unnamed/non-existent principal invalid; Insolvency Act s 26 – disposition without value – onus and proof that assets exceeded liabilities; Procedural fairness – court may not found decision on unpleaded ground (s 38 finding).
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30 November 2012 |
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Reported
A school governing body determines admission capacity; provincial authorities may not unilaterally override that policy.
Education law – South African Schools Act – s 5(5) and s 5A – Admission policy and school capacity determined by governing body; provincial authorities' role limited to statutory oversight and ensuring compliance with national norms and standards – HoD may not unilaterally override admission policy – ss 3(3) and 3(4) relate to infrastructure/compulsory attendance, not individual school admission decisions.
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30 November 2012 |
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Reported
Ministerial guidelines excluding compensation for surrendered firearms destroyed by the State are not ultra vires the Firearms Control Act.
Firearms Control Act – statutory interpretation – ss 136, 137, 149 – compensation payable only where State retains firearm; no compensation if firearm destroyed. Administrative law – subordinate legislation – whether Ministerial guidelines under s 137(5) are ultra vires the Act. Compensation – distinction (or lack thereof) between voluntary and compulsory surrender of firearms.
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30 November 2012 |
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Reported
A water‑licensing tribunal’s appellate decision is administrative action and may be reviewed and substituted in exceptional circumstances.
Administrative law – Water Tribunal appeal – whether Tribunal’s rehearing constitutes administrative action reviewable under PAJA – held to be administrative action. Statutory interpretation – s 27(1) National Water Act – redress factor (s 27(1)(b)) not to be treated as prerequisite; all factors must be weighed. Remedies – PAJA substitution – court may substitute administrative decision in exceptional circumstances (Tribunal disbanded, undue delay, prejudice). Costs – public officer in official capacity – costs not appropriate absent mala fides or grossly unreasonable conduct.
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30 November 2012 |
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Reported
A reception court’s routine remand without judicial inquiry does not validate continued unlawful detention.
Unlawful arrest and detention; reception court remand; need for judicial enquiry at first appearance; burden on State to justify deprivation of liberty; evidentiary shortcomings; damages for unlawful detention.
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30 November 2012 |
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A tariff incorporated as a s 42 LUPO condition is binding and cannot be unilaterally revoked by later council policy changes.
Local government – Land Use Planning Ordinance s 42 – conditions (capital contributions) imposed with approvals – tariff incorporated into approval enforceable despite later council policy changes; statutory s 42(3) amendment procedure required. Municipal law – no private-law fiduciary duty requiring accounting to developers for alleged overpayments.
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30 November 2012 |
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Whether a creditor could sue for damages under a sale agreement despite an escape clause and alleged conflict with ss 83–84 of the Insolvency Act.
Contract — Interpretation of deed of sale — Clauses offering alternative remedies (clause 6.1 versus clause 9) — Whether seller may claim damages despite clause permitting election to treat agreement as never concluded — Insolvency Act ss 83, 84 — Whether listed movable assets were merx or means of payment — Validity of sale of claim against insolvent estate.
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30 November 2012 |
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Reported
Whether a spouse’s lack of written consent invalidates a suretyship and who bears the burden to prove s 15(6)’s exception.
Matrimonial Property Act s 15(2)(h) — suretyship by spouse married in community of property; s 15(6) proviso — exception where act is in ordinary course of spouse’s business; onus to invoke statutory protection; evidential facts showing business involvement; joinder — whether non‑consenting spouse is a necessary party.
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30 November 2012 |
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Appellate court reduced a disproportionate 36-year cumulative sentence to an effective 20 years, differentiating firearms roles and ordering concurrency.
• Criminal law – Sentence – cumulative sentences – appellate intervention where cumulative effect produces disproportionate, excessive imprisonment.
• Robbery with aggravating circumstances – maximum sentence appropriate; overlap between use/possession of firearms and robbery aggravation must be considered.
• Differentiation between firearms taken to scene to perpetrate offence and firearms taken as loot – sentencing implications.
• Escape from custody – bribery as aggravating factor but not necessarily warranting maximum prescribed sentence.
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30 November 2012 |
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The appellants’ cumulative sentences were found shockingly inappropriate and reduced to an effective 30-year term, antedated to 7 September 2001.
Criminal law – sentence – misdirection by magistrate by reliance on minimum sentencing legislation without warning accused – error in computation of substituted sentence by high court – cumulative sentences found shockingly inappropriate – appellate court substitutes sentences and antedates them to date of original sentencing.
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30 November 2012 |
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Reported
A misdescribed statutory subsection in the charge sheet does not bar life imprisonment unless the accused was prejudiced.
Criminal Procedure – Minimum sentencing (Criminal Law Amendment Act 105 of 1997) – mistaken reference to s 51(2) rather than s 51(1) – charge-sheet defect does not vitiate sentence absent prejudice – s 86(4) and s 35(3)(a) fairness inquiry – requirement to record substantial and compelling circumstances (s 51(3)).
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30 November 2012 |
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Appellate court set aside an excessive 49-year sentence for brutal attempted murders, substituting an effective 18-year term.
Criminal law – sentence – misdirection by over-emphasising retribution – failure to consider mitigating factors – unexplained disparity between sentences – appellate substitution of sentence.
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30 November 2012 |
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Reported
Belated spousal evidence corroborated an alibi; prosecution failed to exclude reasonable possibility of innocence, so conviction was set aside.
Criminal law – Identification – sufficiency where accused raises alibi – two mutually destructive versions. Criminal procedure – Alibi evidence – accused's alibi supported by belated s 309B spousal evidence; rejection requires proof beyond reasonable doubt. Criminal procedure – Section 309B: admission and assessment of further evidence after conviction. Trial fairness – Judicial conduct: duty to guide inexperienced counsel; improper interruptions and misdirection may undermine trial. Burden of proof – State must exclude reasonable possibility of innocence before convicting.
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30 November 2012 |
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Reported
Failure to properly determine a child witness’s competency under s164 rendered the evidence unreliable; conviction set aside.
Criminal procedure — child witnesses — ss 162–164 Criminal Procedure Act — proper admonishment and competency enquiry required before admitting unsworn evidence; use of intermediaries and skilful questioning essential. Evidence — single young complainant — cautionary rule — contradictions, vague charge particulars and neutral medical findings may render conviction unsafe. Trial misdirection and unfair evaluation of defence may justify appellate interference.
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30 November 2012 |
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Reported
Unrepresented (and possibly juvenile) accused’s rape conviction set aside where court failed to assist and medico-legal evidence raised reasonable doubt.
Criminal law – rape – assessment of evidence – duty to consider whole body of evidence not isolated parts. Fair trial – unrepresented accused (possibly a child) – duty of court to inform and assist; right to state-funded representation if substantial injustice would result. Medico-legal evidence – J88 report may contradict prosecution and necessitate calling the examining doctor. Admissions in argument require investigation before being treated as conclusive. Procedural delays in appeal processes unacceptable; administrative and professional oversight warranted.
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30 November 2012 |
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Reported
Conviction and life sentence set aside due to cumulative procedural irregularities, inadequate proof of age, and improper swearing of a minor.
Criminal procedure – referral under s 52 Criminal Law Amendment Act – requirement to inform accused of life sentence exposure; proof of complainant’s age – inadequacy of J88 without doctor’s evidence; s 162 CPA – swearing of child witness – necessity to assess ability to distinguish truth and understand oath; inaudible trial record and cumulative irregularities vitiating conviction and sentence.
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30 November 2012 |
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A tender declaration omitting a provincial employee’s connection constituted fraud and warrants a custodial sentence.
Criminal law – Fraud – Tender process – Failure to disclose connection with provincial employee in Declaration of Interest – Misrepresentation and intention to deceive established; prejudice to tender process and other tenderers. Criminal procedure – Sentence – Trial court misdirections on loss and performance; appellate reconsideration of sentence; custodial sentence appropriate for procurement fraud.
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30 November 2012 |
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Owner failed to prove communication of rescission notice, so occupiers retained lawful occupation; appeal dismissed.
PIE – eviction from homes – requirement that occupiers be unlawful occupiers before eviction under s 4; Contract law – cancellation for non‑performance where no lex commissoria: necessity of a notice of rescission (placing debtor in mora); Evidence – receipt of rescission/demand must be proved; dispatch alone insufficient; Application of Plascon‑Evans factual dispute rule in eviction proceedings.
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30 November 2012 |
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Reported
The Minister unlawfully and unreasonably delayed visa decisions, though no evidence showed a formal refusal.
Immigration law – s10A Immigration Act – Minister’s discretion to grant or refuse visas; ss29–30 prohibited/undesirable persons; administrative law – unreasonable delay/procrastination in visa decision-making; justiciability of declarations where declaration will have practical effect.
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29 November 2012 |
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Reported
A member's right to vote at a general meeting is a personal right; excluding retiring directors invalidated the elections.
Company law – members’ rights – right to vote at a general meeting is a personal right enforceable against the company; Foss v Harbottle inapplicable where individual membership rights are affected – interpretation of articles of association (rotation of directors) to avoid unbusinesslike hiatus – retiring directors entitled to vote in election of successors.
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29 November 2012 |
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Reported
Council must comply with LGO s79(18), MFMA s14 and ss67–68 before alienating or closing public open space.
Local government — Alienation of municipal land — s 79(18) LGO — statutory notice and objection requirements triggered by settled intention to alienate — failure to comply renders alienation/transfer unlawful. Municipal Finance Management Act s 14 — decision in meeting open to public and consideration of economic and community value required before transfer. Local Government Ordinance ss 67–68 — detailed notice, service and public-participation requirements before permanent closure of public open space. PAJA — composite transaction and commencement of review period; locus standi.
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29 November 2012 |
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Use of school grounds for a commercial five-a-side soccer centre and craft market unlawfully contravened municipal zoning consent requirements.
Zoning law — LUPO and municipal zoning scheme — general residential zone — place of instruction in sport a consent use — commercial five-a-side soccer centre and craft market on school grounds unlawfully contravened scheme — accrued rights preserved only school use — suspension of interdict unjustified — costs to successful respondents.
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29 November 2012 |
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Reported
CPI is an appropriate measure to update restitution awards; compound interest and solatium unsupported without evidential basis.
Restitution of Land Rights Act — s33(eC) ‘changes over time in the value of money’ — CPI is an appropriate measure for adjusting historic under‑compensation; compound interest and commercial indices inappropriate for restitutionary awards; solatium requires proof of hardship; limited appellate interference in Land Claims Court discretion.
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29 November 2012 |
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Reported
Appeal dismissed: Full Court’s disciplinary exercise was not misdirected; repayment orders against those struck off set aside.
Admission of Advocates Act s 7(1)(d) – three-stage enquiry (proof; fitness; suspension vs striking off) – double-briefing and overreaching – dishonest charging of full trial fees – appellate interference with discretionary sanction limited to misdirection, caprice or wrong principle – inherent jurisdiction and limits on ordering restitution – recusal/ reasonable apprehension of bias – failure to register for VAT may constitute professional dishonesty.
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29 November 2012 |
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A taxpayer cannot raise on appeal assessment components not specified in its written notice of objection.
VAT — objections and appeals — taxpayer confined to grounds specified in written notice of objection — globular objections insufficient to contest individual assessed amounts — s 32(5) finality and s 31A three-year bar — application of Matla Coal principle to VAT objections.
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29 November 2012 |
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Reported
Whether the applicant may review the respondent’s municipal approval of building plans and scheme relaxations under PAJA.
Administrative law — approval of building plans — PAJA administrative action — standing of neighbouring landowner and lessee to enforce town planning scheme — internal remedies: s 62 Municipal Systems Act and s 9 Building Regulations — town planning scheme relaxation procedures and requirement for special consent — procedural ultra vires delegation and review.
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29 November 2012 |
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Reported
An 'opt‑in' class action by distributors for lost profits from price‑fixing is not legally tenable and is unnecessary.
Class actions – certification of 'opt‑in' representative actions – necessity and appropriateness; Constitution s 22 – scope as to protection of trade and profits; Competition Act – does not transfer producers’ unlawful profits to distributors; Delict – recognition of pure economic loss claims for lost profits from price‑fixing – policy considerations; Civil procedure – joinder under Rule 10 and cession as alternatives to class actions.
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29 November 2012 |
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Reported
Dismissal for unauthorized media communication declared substantively unfair; retrospective reinstatement with final warning ordered.
Labour law – Misconduct – Dismissal for unauthorized media communication – Reasonableness of dismissal as a sanction – Application of Sidumo test – Proper consideration of mitigating factors – Substantive fairness of dismissal.
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29 November 2012 |
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Reported
Transitional provisions preserved the Usury Act cap on administration fees for existing home loans under the National Credit Act.
National Credit Act – transitional provisions (Schedule 3) – paragraph 7(2) preserving rights, entitlements and obligations under repealed Usury Act; Usury Act schedule cap on administration fees for housing loans preserved for existing agreements; statutory prohibition as creating borrower entitlement; service fees under NCA and ministerial power to amend under s 105(1).
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29 November 2012 |
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Reported
A seller’s rei vindicatio does not require tender of repayment; a claimed improvement lien fails without proof of expenditure or increased value.
Property law – rei vindicatio – ejectment permissible despite seller’s receipt of payment under void contract; tender of repayment not essential; Enrichment/lien – necessary/useful expenses – claimant must prove actual expenditure or increase in value; valuation evidence must have proper factual foundation; procedural – leave to file further affidavits refused where no explanation for omission.
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29 November 2012 |
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Reported
Claimant cannot recover mora interest from her attorney for delayed prosecution absent contractual breach and proof of loss.
Attorney — mandate and standard of care; contractual versus delictual claims against attorneys; proof required to establish negligent breach of mandate (expert evidence); quantification of damages — interest as component of damages versus prescribed mora interest; prescribed-rate interest only applies where defendant is debtor to principal obligation.
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29 November 2012 |
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Reported
Court sets out certification criteria for class actions, rejects overbroad national class, remits Western Cape claim for fuller proof and refined relief.
Class actions – certification requirement; prerequisites: identifiable class, cause of action raising triable issue, common issues, representative suitability, appropriateness of procedure; over-broad class and lack of commonality warrant refusal; cy-près aggregate relief improper absent direct or suitably tailored indirect compensation; s 65 Competition Act not held to preclude delictual follow-on claims on present papers.
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29 November 2012 |
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Reported
Stock‑rolling and unauthorised credit sales did not satisfy furtum usus or legal causation for condictio furtiva recovery.
Delict — condictio furtiva — furtum usus — stock rolling and fraudulent accounting entries do not necessarily constitute use of goods; sale on unauthorised credit may amount to use but causation and remedial entitlement under condictio furtiva require close legal nexus between conduct and loss.
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28 November 2012 |
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An inchoate sale to companies to be formed does not create a personal right in land for restitution purposes.
Restitution of Land Rights Act s 2(1)(a) – requirement of a right in land – inchoate contract – sale to companies to be formed – trustee for company in formation – no personal proprietary right or right to specific performance absent fulfillment of conditions precedent; dispossession for restitution purposes not established.
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28 November 2012 |
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Reported
The SCA confirmed a provisional POCA restraint order, holding the NDPP acted in good faith and reasonable grounds for confiscation existed.
Criminal procedure – Prevention of Organized Crime Act (POCA) – s 26 provisional restraint orders – test: reasonable grounds that a confiscation order may be made – court need not determine veracity but must be apprised of nature and tenor of evidence. Ex parte applications – uberrima fides – duty to disclose material facts in ex parte proceedings, but rule does not automatically bar relief in opposed confirmation proceedings; non-disclosure typically attracts adverse costs not substantive denial. Disclosure – witness statements provided to accused electronically as part of prosecution docket – permissible where access available and protective concerns exist; accused may seek discovery in appropriate form. Appealability – discharge of provisional restraint order is appealable; appellate court may confirm provisional orders where requirements met.
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28 November 2012 |
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Reported
Claimants cannot obtain general damages unless the RAF 4 assessment and the Fund’s prescribed/regulatory process are complied with.
Road Accident Fund – 'serious injury' threshold – RAF 4 serious-injury assessment procedure prescribed by Regulations – Fund’s decision constitutes administrative action under PAJA – requirement of medical practitioner’s physical examination – AMA/WPI assessment and role of narrative test – internal appeal and review remedies.
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27 November 2012 |
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Reported
Whether the applicant’s personal circumstances justified departing from the mandatory life sentence for raping a 12‑year‑old.
Criminal law – Sentence – Minimum prescribed sentence – s 51(3)(a) Criminal Law Amendment Act – whether substantial and compelling circumstances exist to depart from mandatory life imprisonment for rape of a child; sentencing approach in S v Malgas and subsequent authorities; weight of mitigating factors (first offender, age, HIV status, primary caregiver) versus aggravating features (abduction, multiple rapes, victim vulnerability and severe psychological impact); procedural delay and registrar’s duty to transmit record affecting right to appeal (s 35(3)(o) Constitution).
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26 November 2012 |
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Reported
A s86(10) termination notice suffices; no separate s129(1)(a) notice is required before enforcement.
National Credit Act — debt review termination (s86(10)) — pre-litigation notice requirements (ss129 and 130) — interpretation of statutory cross-references; summary judgment after s86(10) termination; s130(1)(a) drafting error (s86(9) read as s86(10)).
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23 November 2012 |
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Cross‑default clause accelerated all loans; applicant's conduct did not prejudice or release the respondents as sureties.
Suretyship – prejudice of surety – onus on surety to prove creditor's conduct caused prejudice sufficient to release surety. Contract interpretation – cross‑default clause – clause accelerating cumulative indebtedness across multiple loan agreements overrides single‑agreement notice/remedy clause. Procedure – claim not premature where cross‑default clause triggered by arrears under one agreement. Costs – attorney-and-client costs including two counsel awarded to creditor.
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21 November 2012 |
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Reported
Unreserved compliance with a disclosure order perempts appeal; PAIA s46 mandates public-interest disclosure despite s44 grounds.
Promotion of Access to Information Act (PAIA) — s46 mandatory public-interest disclosure override; interaction with s44 refusal grounds. Local Government: Municipal Systems Act s106 reports — no automatic withholding pending an MEC’s decision. Peremption — unequivocal compliance with a court order abandons right of appeal. Mootness — disclosure may render appeal non-justiciable; court has discretion.
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21 November 2012 |
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Applicant failed to prove respondents’ negligence; absolution from the instance was correctly ordered.
Negligence – onus of proof – causation – variance between pleadings and evidence – credibility and probabilities – absolution from the instance; post-accident assistance not an admission of liability.
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19 November 2012 |
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Reported
A tender acceptance "subject to" BEE and finalisation did not create a binding contract; appeal dismissed.
Contract formation — tender and acceptance; conditional acceptance or counter-offer where letter states "subject to" further requirements; BEE requirement and successful finalisation of formal contract as indicia of no binding contract; agreement to negotiate and collateral/month-to-month performance.
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16 November 2012 |
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Reported
A lawful s 40(1)(a) arrest is not rendered unlawful by refusal of bail; interdictum de homine libero exhibendo applies only to ab initio unlawful detention.
Criminal procedure — Arrest without warrant (s 40(1)(a) CPA) — Lawful arrest not rendered unlawful by refusal of bail; interdictum de homine libero exhibendo applies only where detention ab initio unlawful; statutory bail and bringing‑before‑court provisions (ss 50, 59 CPA) exhaust remedies for release; courts must not impose duties on police beyond CPA; costs de bonis propriis unjustified absent unlawful detention.
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16 November 2012 |
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Reported
Whether the appellant is vicariously liable for its employee’s theft of weapons used in an armed robbery.
Employment law – Vicarious liability – Defence Force – Theft of weapons by employee entrusted with safekeeping – Close-connection test and constitutional norms – Foreseeability and causation.
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15 November 2012 |
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Non-compliance with regulation 3 bars a court from awarding general damages until the prescribed serious-injury assessment is completed.
Road Accident Fund – s 17(1A) – non-pecuniary damages limited to 'serious injury' assessed by prescribed method; regulation 3 procedure mandatory. Administrative/medical procedure – RAF4 assessments must be by a registered medical practitioner; occupational therapist reports are not compliant. Civil procedure – special plea for non-compliance with regulatory assessment upheld; trial court may not award general damages before completion of regulation 3 process. Appeal tribunal – determination of seriousness is primarily for the Health Professions Council appeal tribunal, subject to judicial review.
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15 November 2012 |
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Reported
A municipality must follow statutory budget‑tabling and public‑participation procedures before materially amending tabled property rates.
Constitutional and administrative law; municipal finance and rates – levying of property rates as part of annual budget process; statutory participation obligations under Local Government: Systems Act and Municipal Finance Management Act; Municipal Property Rates Act – differential rates and permissible residential/non‑residential ratio; legality and rationality of targeted rate increases; appropriate relief where municipality amends tabled budget without meaningful public participation.
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8 November 2012 |
